Legislatyvinė omisija Konstitucinio Teismo nutarimuose: kai kurie diskusiniai klausimai

Abstract

The constitutional doctrine of the legislative omission has developed gradually. At the beginning of its activity, the Constitutional Court considered that it did not have legal powers to examine legal gaps. Later, the doctrine was reinterpreted to the effect that the Constitutional Court has powers not only to state that an examined law (part thereof) contains a legislative omission, but also to declare such a legal regulation unconstitutional by its ruling passed in the corresponding constitutional justice case. In its decision of 8 August 2006, the Constitutional Court held that “a legal gap, inter alia, legislative omission, always means that the legal regulation of certain social relations is established neither explicitly nor implicitly, neither in a particular legal act (part thereof) nor in any other legal act at all, even though there exists a need for a legal regulation of these social relations, as well as that, in the case of legislative omission, the said legal regulation must, by focusing on the imperatives of the consistency and inner non-discrepancy of the legal system and by taking into account the content of social relations, be established precisely in the said particular legal act (in particular part thereof), because this is required by a certain higherranking legal act, inter alia, the Constitution itself”. The powers of the Constitutional Court to examine the constitutionality of legal gaps are not laid down expressis verbis in the Constitution, but they arise from the overall legal regulation entrenched in the Constitution, whereby there may not be any such a law or another legal act that could escape the possibility of examining its constitutionality, including the cases where such a law or another legal act fails to establish something that is required under the Constitution. Questions arise as to the doctrine of the Constitutional Court according to which, in cases where the powers of a public administration are not laid down in a law explicitly (expressis verbis), but are derived from the overall legal regulation (they are consolidated implicitly), despite the fact that they are not defined clearly, precisely, comprehensibly, and consistently, there is no legislative omission and such a legal regulation is not in conflict with the Constitution.