FORMATION OF THE INSTITUTE OF SPECIAL OPINION IN THE PRACTICE OF THE CONSTITUTIONAL COURT OF THE AZERBAIJAN REPUBLIC

Abstract

The institute of special opinion in the constitutional control system is regarded in two contrasting ways. Supporters of the “positive approach” assert that special opinions maintain the independence of a Constitutional Court judge, as well as the versatile, comprehensive consideration of a particular case. The “negative approach” in regards to the issuance of special opinions is based on the notion that special opinions as a whole undermine the authority of constitutional court decisions and negatively affect the efficiency of constitutional control.

The role of special opinions in the legal system directly depends on the effect of constitutional court decisions on the legal system as a whole. The Constitutional Court’s decisions have a depersonalised, imperative character, and, to a certain degree, influence legal relationships. The Constitutional Court’s decisions do not reflect results of voting, since voting is made on behalf of all of the court’s members. Unlike a court decision, the special opinion of an individual judge has no legal power. However, special opinion allows a particular case to be approached from a different perspective. Although special opinion is not used in the decisions of general courts and in law enforcement practice, it indirectly influences the legal system as a whole.