2012. évi 2. szám - Jura - Pécsi Tudományegyetem

André Ramos Tavares: The case of the borderless use of Constitutional Courts decisions in human rights1854I will not enter into a discussion about the differentlevels of acceptance of the use of foreign case law based onthe distinction between civil law models and those of commonlaw, since that is not the focus of this proposal.5Understood, here, in the terms expressed below.6Supranationality is understood here according to theconcept of Francisco Rubio Llorente: “From the legal point ofview, the notion of supranationality entails the existence ofa structure composed of distinct States that keep title to theirsovereignty, but composed also of its own departments, thedecisions of which are imposed upon the member States; moreprecisely, it is a structure that has a direct effect on the territoryof the States and that, in the event of collision, the laws createdby such States prevail.” (Rubio Llorente, 1997: 719)7For precisely this reason, the expression “foreign caselaw” is preferred over “non-national case law”, thereby avoidingconfusion, since the latter can mean both the case law ofother states, excluding the „receiving” State (in this sense,non-national) and case law arising from supra-state or supranationalcourts (in this sense, non-national and, therefore,excluding case law formatted in traditional national terms).8Foreign elements alien to the spectrum mentionedpreviously will only be an indirect part of this work in theprecise measure in which they have been considered determiningfactors by the very foreign decision used by a nationalConstitutional Court. The non-direct use (via doctrine, forexample) of foreign constitutional case law also will not bethe object of concern.9In parallel with the previous footnote. This is evidentlya case of a note that allows for a reduction in the complexityof the theme, since it prevents domestic discussion necessarilylinked to a hierarchical model of judicial subordination or ofsubordination to the binding decisions of the ConstitutionalCourt in light of (and in spite of) free judicial conviction andthe (controversial) non-binding nature of the grounds for theconstitutional decisions.10Buys develops a line of reasoning that ends up admittingthat the use of foreign constitutional case law by theUnited States is also necessary (Buys, 2007: 48).11Parrish (2007: 662) notes the irony present here, for theAmerican case, especially considering that the United States i)insist on imposing their laws [and values] upon the rest of theworld; ii) routinely ignore the sovereignty of other nations.12Considered one of the most progressive constitutionsin the world.13In this sense: Bu y s, 2007: 50 e ss., although allowingforeign elements only when the the language of the Constitutionitself does not offer an answer to the question.14Already seen in post 9/11 legislation and decisions.JURA 2012/2.