STATE OF EXCEPTION AND JUDICIAL POWER

Abstract

The article deals with the concept of the state of exception in judicial reasoning. Two cases from the European Court of Human Rights together with some case law of the Lithuanian Constitutional Court are examined. The author presents three examples of a possible state of exception from particular case law: i) state of emergency, ii) the concept of transitional democracy and iii) economic crisis. The primary goal of the article is to try to define the boundaries of judicial competence in dealing with the phenomenon of state of exception, which traditionally falls within the competence of executive power. The article argues that the attitude towards this problem in case law has changed a lot during the past couple of decades. Although the court usually does not question the need of Government’s announcement of particular state of exception (e.g. state of emergency or economic crisis), the judiciary has attributed to itself rather large discretion to examine whether a particular “exceptional” measure is proportional. According to the examined case law, so-called “primary” human rights (e.g. one’s right to life, dignity etc.) as opposed to “secondary” rights (eligibility or economic rights) are usually treated as “absolute” rights and may not be infringed upon even during a state of exception. The Ždanoka judgment is here presented, because the vulnerability of the Latvian political system was treated as a certain exception, justifying some deviation from the common standard of safeguard of one’s eligibility rights. The paper also examines recent cases of the Lithuanian Constitutional Court concerning diminished social-economic rights during economic crisis.