Constitutionality

Unconstitutionality is the incompatibility of a state Hoheitsakts with the existing constitution. In particular, in violation of fundamental rights the unconstitutionality is given.

Where the term of unconstitutionality in the legal system of a country exists, it is usually determined by the courts. Here, the practice of this finding between different countries is different. In some political systems, the unconstitutionality only of special courts set up to can be found, while in others these powers enjoyed by all courts.

The Constitution of the United Kingdom is uncodified, but institutions are like the sovereignty of parliament or the Magna Carta to be stable construed.

In addition, spoken in German law by the unconstitutionality of parties, this term is related to content, but actually belongs to a different category.

Situation in Germany

Legal norms

In principle, Germany, the Federal Constitutional Court determines the constitutionality of laws. The decisions of the Federal Constitutional Court for their part have the force of law (§ 31 Federal Constitutional Court Act ). Only laws which existed before the entry into force of the Basic Law (GG) on 23 May 1949, may also be explained by the simple dishes unconstitutional. Against such a decision may be a constitutional complaint be lodged with the aim of allowing explain the legal norm by the Federal Constitutional Court for constitutional. Keep the courts, however, a significant decision law, which was adopted after the entry into force of the Basic Law to be unconstitutional, they must refer the matter to the Federal Constitutional Court for concrete judicial review (Article 100 of the Basic Law ). This also applies to laws, but acquired after the entry into force of the Basic Law before the establishment of the Federal Constitutional Court application. State laws must be submitted to the respective national constitutional court. If there is no national constitutional court ( so to end of April 2008 in Schleswig -Holstein ), a decision by the Federal Constitutional Court.

Other standards such as legal regulations or statutes, as well as individual acts of public authority ( administrative acts, actual movements ) can also be verified by the simple dishes on their unconstitutionality. However, since state actions are always under the primacy of law, that is, with the statutory provisions must match the simple legal position is usually crucial. Of a violation of individual acts or standards against simple ranking law, the measure is illegal, but not necessarily unconstitutional.

Parties

For a party closure case and in general for the declaration of unconstitutionality of a political party under Article 21, paragraph 2 of the Basic Law, the Federal Constitutional Court has jurisdiction and exclusively ( monopoly of decision of the Federal Constitutional Court, so-called party privilege). The unconstitutionality is the (possible ) outcome of the legal analysis. From such a result, the ban on the party would then follow.

Confuse could here is that a criterion for the determination of this results is named similarly in the literature. But it is here spoken of unconstitutional [n ] behavior (See party ban).

Situation in Austria

In Austria, in principle, the Constitutional Court the constitutionality of laws firmly - both at the federal, as well as at the country level. If it is found unconstitutional, the decisions of the Constitutional Court shall be in the Federal Law Gazette ( for federal laws ) or the respective charging Law Gazette ( for state laws ) to make known. The cancellation will be effective from the day of its promulgation, unless the Constitutional Court determined that no other date; until then, all linked to the original version.

The review duly made ​​known made ​​laws on their constitutionality is the other courts not to (see Art 89Vorlage. Kind / Maintenance / RIS search para 1 B- VG), but they can in the case in the Constitutional Court to review the applicable rate of Laws. apply Not duly made ​​known made ​​laws, however, are not applicable.

The review of ordinances on their unconstitutionality or even on their illegality by the simple dishes is also inadmissible. But even here there is the possibility of a request for review to the Constitutional Court.