This article examines the mechanisms by which referring authorities — represented by the Supreme Court and the Council of State — are connected to the exception of unconstitutionality. The topic is of great importance, as these authorities may receive the exception through judicial bodies under their jurisdiction or through its direct invocation before them. Their crucial role lies in verifying the procedural and substantive conditions required by law, ultimately having the final say in whether to refer the exception to the Constitutional Court or to reject it through a reasoned decision, of which a copy is transmitted to the latter.
In modern democratic states, the constitution represents the fundamental reference for all laws and regulations issued by state authorities. This implies that such laws must conform to constitutional provisions, giving rise to a key constitutional principle — the principle of the supremacy of the Constitution — which affirms its authority over all other laws.
However, this principle would have no legal value without a system of constitutional review designed to ensure the conformity of laws and regulations with the Constitution. Such review constitutes one of the main guarantees for protecting the rights and freedoms enshrined in the constitutional text, thereby consolidating the democratic order and achieving constitutional legitimacy.
Since the promulgation of its first Constitution after independence, the Algerian constitutional legislator has adopted the principle of constitutional review of laws, establishing the Constitutional Council as a supervisory body responsible for ensuring respect for the Constitution. This institution has undergone numerous transformations since its establishment in 1989, both in terms of structure and jurisdiction.
The 2020 constitutional amendment introduced the Constitutional Court, which inherited all the powers and prerogatives of the Constitutional Council, in addition to new competencies.
The focus of this study is on the jurisdiction of the Constitutional Court to rule on exceptions of unconstitutionality, which are referred to it under Article 195 of the 2020 constitutional amendment. The referral occurs through the Supreme Court or the Council of State when one of the parties in a judicial proceeding claims that a legislative or regulatory provision on which the outcome of the case depends violates the constitutional rights and freedoms guaranteed to them.
The exception of unconstitutionality cannot be raised directly before the Constitutional Court. Instead, the Supreme Court or the Council of State acts as an intermediary between the litigant and the Constitutional Court. Thus, three entities play a role in initiating this type of review:
The importance of this topic lies in the pivotal role played by the referring authorities — the Supreme Court and the Council of State — in verifying that the legal conditions for raising the exception of unconstitutionality are met. They have the authority either to reject the exception or to refer it to the Constitutional Court. Their importance also stems from being the link between the subordinate judicial bodies and the Constitutional Court, since the exception cannot be raised directly before the latter.
The objective of this study is to identify the ways in which the referring authorities receive the exception of unconstitutionality and to clarify their role in handling such exceptions by verifying the legal requirements. Accordingly, the research addresses the following central question:
How did the Algerian legislator organize the mechanisms through which the referring authorities are connected to the exception of unconstitutionality, and what are the prescribed procedures and time limits for adjudication and referral?
To answer this question, the study adopts the descriptive method, by presenting the relevant legal texts, complemented by the analytical method to examine the constitutional provisions governing the exception of unconstitutionality, as well as the articles of Organic Law No. 22-19 defining the procedures and methods of referral and notification before the Constitutional Court — the main focus of this study — and Law No. 08-09 on Civil and Administrative Procedures, as amended and supplemented.
To ensure comprehensive coverage, the study is divided into two sections:
Section I: The Means by Which Referral Authorities Are Seized with a Plea of Unconstitutionality
The first means through which the referral authorities are seized with a plea of unconstitutionality is by transmission from lower courts, which immediately proceed with the second stage of filtering the plea (Subsection 1). However, the Organic Law governing the procedures and modalities of referral to the Constitutional Court also allows the direct submission of such a plea before the referral authorities, either during a cassation appeal or in cases where the Supreme Court or the Council of State hears the case as a court of first and last instance (Subsection 2).
Subsection 1: Receipt by the Referral Authorities of the Decision to Transmit the Plea of Unconstitutionality
The Algerian legislator has adopted a system of double filtering of the plea of unconstitutionality.
This mechanism applies when the plea is raised before lower courts, which first examine its formal and substantive conditions. If these conditions are met, the plea—together with the parties’ petitions and written statements—is forwarded to either the Supreme Court or the Council of State, depending on the judicial system to which the concerned court belongs.
This stage plays a crucial role in the process, as it determines whether the plea will be referred to the Constitutional Court or rejected.
The constitutional founder, while granting individuals the right to raise a plea of unconstitutionality, has limited the competence to refer such pleas to the Constitutional Court exclusively to the Supreme Court and the Council of State, as stipulated in Article 195 of the 2020 Constitutional Amendment.
Therefore, any plea of unconstitutionality raised before first-instance courts or courts of appeal within the ordinary judicial system must pass through a second stage of filtering before the Supreme Court. The same applies to courts under the administrative system, where the Council of State performs this second filtering.
Upon receiving the decision to transmit the plea from lower courts, the First President of the Supreme Court or the President of the Council of State must, in accordance with Article 23 of Organic Law No. 22-19 governing the procedures of referral to the Constitutional Court, seek the opinion of the Public Prosecutor General or the Government Commissioner. Each must submit their observations within a maximum period of five (5) days, and the other parties may also present their written comments[i].
The Organic Law establishes a time limit of two (2) months for the referral authority to decide whether to refer the plea to the Constitutional Court.
This period starts from the date the file containing the plea of unconstitutionality is received from the lower court[ii].
Subsection 2: Direct Raising of the Plea of Unconstitutionality Before the Referral Authorities
It is also possible to raise a plea of unconstitutionality directly before the referral authorities for the first time, either when filing a cassation appeal or in cases where the Supreme Court or the Council of State act as courts of first and last instance. For such a plea to be admissible in these cases, it must satisfy specific legal conditions (1), after which we will examine the cases of direct raising of the plea before the referral authorities (2).
When a plea of unconstitutionality is raised for the first time before the Supreme Court or the Council of State, these authorities act not as a second filter, but as the first level responsible for examining the admissibility of the plea.
Thus, the Organic Law requires the same conditions as for pleas raised before lower courts: it must be submitted in writing, in a separate, and well-reasoned memorandum.
The requirement for a written memorandum is self-evident before the Supreme Court[iii], since proceedings there are exclusively written. Therefore, the plea cannot be raised orally during hearings[iv].
The memorandum must be separate from the cassation petition or the statement of claim (in cases where the Supreme Court or the Council of State act as first and last instance courts). It must contain only the plea of unconstitutionality—any additional requests render it inadmissible.
The memorandum must also be sufficiently reasoned, identifying:
Although the Organic Law does not explicitly require that the memorandum be signed by a lawyer, this requirement is implicitly mandatory, since the Code of Civil and Administrative Procedure requires representation by counsel before both the Supreme Court[v] and the Council of State[vi].
All petitions, appeals, and memoranda must therefore be submitted by a lawyer accredited before these bodies, under penalty of inadmissibility. However, this requirement does not apply to the State, wilayas (provinces), communes, or public administrative institutions, which are exempted by law[vii].
This exception is justified by the fact that such entities possess qualified legal staff capable of managing litigation without external counsel—universities, ministries, and public bodies all employ legal experts able to handle disputes directly[viii].
Consequently, any memorandum raising a plea of unconstitutionality before the Supreme Court or the Council of State must be signed by an accredited lawyer, otherwise it will be declared inadmissible.
After submitting the initial memorandum, the claimant may reinforce it by filing a supplementary memorandum introducing new arguments or by submitting written observations before the Constitutional Court.
Although the legislator did not specify a strict time limit for filing the plea before the referral authorities, this can be inferred from the procedural context:
According to the amended Code of Civil and Administrative Procedure, the time limit for filing a cassation appeal before the Supreme Court is two (2) months from the date of personal notification of the judgment, extended to three (3) months if the notification is made at the real or elected domicile[ix].
Before the Council of State, the time limit is two (2) months from the official notification[x] of the contested decision, unless otherwise provided by law.
Two main cases can be distinguished:
These two scenarios illustrate the dual procedural pathways through which a litigant may bring a plea of unconstitutionality:
either by transmission from lower courts or by direct submission, provided all legal requirements and deadlines are observed.
The plea of unconstitutionality may be raised directly before the Supreme Court for the purpose of ruling on its referral to the Constitutional Court in one of the following cases:
First Case:
The plea of unconstitutionality is raised before the Supreme Court when a litigant challenges a decision issued by judicial bodies subordinate to the Supreme Court that refused to refer the plea of unconstitutionality.
This objection is not submitted independently, but rather accompanies the appeal in cassation against the decision that ruled on the dispute in which the plea was raised, or part of that decision[xi].
The objection must be submitted in a written and reasoned memorandum, separate from but attached to the appeal in cassation petition. It must be filed either with the Registry of the Supreme Court or the Registry of the Court of Appeal that rendered the contested judgment within its territorial jurisdiction.
Second Case:
The plea of unconstitutionality is raised directly before the Supreme Court at the stage of appeal in cassation, as provided for in Article 15(2) of Organic Law No. 22-19, which allows raising the plea of unconstitutionality for the first time either on appeal or in cassation.
Moreover, Article 31 of the same law stipulates that the competent judicial body must rule as a priority on the referral of the plea of unconstitutionality to the Constitutional Court within two months from the date it was raised before it.
Third Case:
The plea of unconstitutionality may also be raised in disputes before the Supreme Court in which it has original and final jurisdiction, meaning that the Court decides the case at first and last instance.
In such cases, when the Supreme Court rules on a plea of unconstitutionality, it performs the same function as courts ruling on the merits, examining both formal and substantive conditions of the plea, though its adjudication is single-level (non-appealable).
Examples of such cases include those mentioned in Article 137 bis and subsequent articles of the Code of Criminal Procedure, concerning claims for compensation for unjustified pretrial detention, as well as Article 531 bis of the same Code, concerning claims for compensation for judicial error
A Compensation Committee[xii] is established within the Supreme Court for this purpose, having the character of a civil judicial body[xiii] competent to assess compensation for either unjustified pretrial detention or judicial error.
In addition to these cases, there are other proceedings investigated at the Supreme Court level in which one of its members is appointed to conduct the investigation, particularly when the accused is a member of the government, a member of the Supreme Court, a governor (wali), a president of a court of appeal, or a public prosecutor accused of committing a felony or misdemeanor[xiv].
In such cases, the plea of unconstitutionality may also be raised, by analogy with its possibility during judicial investigation. The competent body to examine it would be a panel of the Supreme Court exercising the powers of the Indictment Chamber[xv].
The plea of unconstitutionality may also be raised directly before the Council of State, for the purpose of ruling on its referral to the Constitutional Court, in one of the following cases:
First Case:
The plea of unconstitutionality is raised before the Council of State when the person raising it challenges a decision refusing referral issued by one of the administrative judicial bodies.
This objection is not independent, but must accompany the appeal against the decision that ruled on the dispute or part of it — whether the appeal is:
Second Case:
The plea of unconstitutionality may be raised before the Council of State for the first time either on appeal or in cassation.
This includes cases where:
Third Case:
The plea of unconstitutionality may be raised directly before the Council of State in cases over which it has jurisdiction pursuant to special statutory provisions[xvi].
Section Two: Substantive Conditions for Referring the Plea of Unconstitutionality and the Time Limits for Its Adjudication
Subsection One: Substantive Conditions for Referring the Plea of Unconstitutionality
After the referral authorities (the Supreme Court or the Council of State) receive the decision to transmit the plea of unconstitutionality from the subordinate judicial bodies, they must verify anew only the substantive conditions provided for in Article 21 of the Organic Law No. 22-19, which defines the procedures and modalities for referral to the Constitutional Court.
However, when the plea of unconstitutionality is raised directly before these authorities for the first time, they must verify both:
While the power to determine which law applies to the dispute lies with the trial judge, verifying whether the contested provision is essential for resolving the substantive dispute is a matter for the court hearing the case[xvii].
However, the trial judge’s assessment of this condition is not final — it remains subject to review by the Supreme Court or the Council of State, depending on the judicial system governing the case.
The Constitutional Court itself does not assess whether this condition has been met. It is not within its jurisdiction to determine whether the legislative or regulatory provision is applicable to the dispute. This verification must first be conducted by the trial judges, and subsequently by the Supreme Court or the Council of State[xviii].
The importance of this condition was explicitly recognized by the Algerian Constituent Authority in Article 195 of the Constitution, even before the promulgation of the Organic Law governing referral procedures to the Constitutional Court.
The law reaffirmed the necessity of a direct link between the contested legislative or regulatory provision and the case before the judge, as a prerequisite for the admissibility of the plea of unconstitutionality.
Any interpretation to the contrary would render the constitutional text overly broad, allowing litigants to challenge any legislative or regulatory provision during the resolution of a dispute, even if no real connection exists between that provision and the dispute, merely on the grounds that it touches upon a constitutionally protected right or freedom[xix].
Thus, if the Supreme Court or the Council of State determines that the provision contested by one of the parties has no connection to the substantive dispute and does not affect its outcome, the plea will be rejected, and the case file will be returned to the original judicial body to resume proceedings on the main dispute.
The referral authorities must also verify that the legislative or regulatory provision being challenged has not previously been declared constitutional by the Constitutional Council or the Constitutional Court, regardless of the nature of the constitutional review.
Provisions that have already undergone constitutional review cannot be subject to a new plea of unconstitutionality, due to the absolute authority (res judicata) of the decisions of both the Constitutional Council and the Constitutional Court.
If there is uncertainty as to whether the constitutionality of the contested text has already been ruled upon, the Supreme Court or Council of State may refer the matter to the Constitutional Court to verify this point[xx].
If it is found that the provision has already been reviewed under prior mandatory or optional review, or under subsequent review through the plea of unconstitutionality, the Constitutional Court shall declare the plea inadmissible for res judicata[xxi].
However, if the plea transmitted to the Supreme Court or the Council of State challenges a provision previously declared constitutional, but new circumstances have arisen that warrant re-examining its constitutionality, the referral authorities must assess whether these changed circumstances indeed justify re-submitting the legislative or regulatory provision to the Constitutional Court for review.
The assessment of the seriousness of a plea of unconstitutionality by the trial judge alone is not sufficient.
The referral authorities (the Supreme Court or the Council of State) must also reassess the seriousness of the plea, by examining the grounds raised and analyzing their conflict with the Constitution.
This stage is decisive, as it determines whether the plea will be referred to the Constitutional Court.
Some scholars consider that the judge’s power to assess the seriousness of a plea of unconstitutionality constitutes, in itself, a form of constitutional review. This is because, in evaluating the seriousness of the plea, the Supreme Court or the Council of State must necessarily examine the compatibility of the contested provision with the Constitution.
Such an examination could, in theory, limit the centralized nature of constitutional review, which belongs exclusively to the Constitutional Court, by granting the referring judges a preliminary role in constitutional oversight[xxii].
This raises an important question regarding the boundary between the referral authorities’ competence to assess the seriousness of the plea and the Constitutional Court’s competence to adjudicate on constitutional matters.
Therefore, it can be said that the power of the referral judge to assess the seriousness of the plea of unconstitutionality merely involves including him in the preliminary stage of constitutional review, without making him a constitutional judge.
The primary purpose of this competence is to prevent the Constitutional Court from being flooded with frivolous or vexatious pleas.
In assessing the seriousness of the plea, the judge merely performs a preliminary evaluation to determine whether there exists a reasonable doubt about the constitutionality of the contested legislative or regulatory provision.
This assessment does not constitute a final judgment on the constitutionality of the provision.
The exclusive authority to decide on the constitutionality of laws rests with the Constitutional Court, as expressly provided by the Constitution.
No other judicial body may dispute or share this competence.
To avoid overlapping jurisdictions between the referral judges and the Constitutional Court, the legislator clarified in Article 37 of Organic Law No. 22-19 that when the referral authority refuses to transmit a plea of unconstitutionality to the Constitutional Court, the latter must receive a copy of the reasoned decision of refusal.
This ensures that the Constitutional Court exercises oversight over such refusals, confirming that the refusal decision remains subject to constitutional review.
Through this mechanism, the legislator clearly delineated the exclusive jurisdiction of the Constitutional Court in constitutional matters from the limited competence of the referral judges, who may only verify the procedural and substantive admissibility of the plea, without encroaching upon the constitutional evaluation of the contested provision.
Subsection Two: Time Limits for Deciding on the Referral to the Constitutional Court
The referral of the plea of unconstitutionality to the Constitutional Court must be decided within the legally prescribed deadlines.
The Organic Law No. 22-19 sets a specific time limit for the Supreme Court and the Council of State to rule on whether to refer the plea to the Constitutional Court.
If this time limit expires without a decision being issued, the law provides that the referral shall occur automatically.
The Supreme Court and the Council of State must rule on the referral of a plea of unconstitutionality to the Constitutional Court within two (2) months.
This period applies to pleas of unconstitutionality brought before the Supreme Court or the Council of State, whether the plea has been referred to them by lower courts or raised directly before them.
Article 30 of Organic Law No. 22-19, which defines the procedures and modalities for referral and notification before the Constitutional Court, stipulates that:
“The Supreme Court or the Council of State, as the case may be, shall rule on the referral of a plea of unconstitutionality to the Constitutional Court within two (2) months from the date of receipt of the referral decision concerning the plea of unconstitutionality, as provided for in Article 23 of this Organic Law.”
When the plea is raised directly before the Supreme Court or the Council of State, Article 31 of the same Organic Law stipulates that they must decide, as a matter of priority, whether to refer it to the Constitutional Court within the same period provided for in Article 30 above.
The Algerian legislator has thus departed from the French legislator, who established a period of three months for making the referral decision and set the start date of the period, in the case of transmission, from the date of receipt, and in the case of a first-time plea, from the date of submission[xxiii].
It should also be noted that the expression “decide as a matter of priority” appears only in cases where the plea is raised directly before the Supreme Court or the Council of State, and not when it is transmitted by subordinate courts.
The reason is that, in cases of transmission, the Supreme Court or the Council of State are seized only of the plea itself and not of the main case. However, in cases of direct submission, the plea is presented in the course of a case or appeal that may contain other claims or requests. Therefore, it is necessary for the plea to be ruled upon as a matter of priority, i.e., before examining the main case[xxiv].
Furthermore, the aforementioned Organic Law, in Articles 30 and 31, set a period of two months to rule on the referral of the plea to the Constitutional Court but did not explicitly require that the plea be returned to the referring court within a specific period if it is rejected.
However, this obligation is implied in the wording of Article 30, which suggests that the decision on the plea of unconstitutionality must be made within two months from the date of receipt, whether the decision is to refer the plea or to reject it, since the ruling in the original case (which has been suspended) depends on the content of the decision rendered by the Supreme Court or the Council of State.
This interpretation is further supported by Article 35 of the Organic Law, which requires the Supreme Court and the Council of State, after ruling on the plea of unconstitutionality, to inform the referring court of the content of their decision — regardless of its substance, whether it involves referral or rejection — and to notify the parties within ten (10) days from the date of issuance.
By comparing the procedure for raising a plea of unconstitutionality before lower courts and higher courts, it is evident that the legislator did not impose a specific deadline for lower courts to decide on whether to transmit the plea to the Supreme Court or the Council of State, but rather required an immediate decision. In contrast, a fixed time limit was imposed on the Supreme Court and the Council of State to decide on the referral to the Constitutional Court.
Additionally, the verification of whether the conditions of admissibility of a plea of unconstitutionality are met is subject to double filtering when raised before lower courts, and to single filtering when raised directly before higher courts.
The legislator has established a time limit for the Supreme Court and the Council of State to rule on a plea of unconstitutionality. They are required to refer the plea to the Constitutional Court if it is admissible or return it to the referring court if it is rejected, within two months of its transmission or submission[xxv].
If they fail to rule within the statutory period, the plea of unconstitutionality is automatically referred to the Constitutional Court.
In such cases, the Organic Law presumes that the Supreme Court or the Council of State did not rule on the plea within the time limits prescribed by law, and consequently provides for automatic referral of the plea to the Constitutional Court.
The same rules governing ordinary referral under Organic Law No. 22-19 apply to automatic referral, meaning that once the two-month period expires without a decision from the Supreme Court or the Council of State, the plea must be automatically transmitted by the clerk’s office of the Supreme Court or the Council of State, as appropriate, to the clerk’s office of the Constitutional Court for adjudication.
This mechanism is commendable, as the legislator’s decision to establish automatic referral after the expiry of the time limit constitutes an important guarantee for the effectiveness of the plea of unconstitutionality. It prevents litigants from losing their constitutional rights due to procedural delays and ensures that the plea is brought before the Constitutional Court, which will ultimately decide on the constitutionality of the contested legislative or regulatory provision.
From the foregoing, it is clear that the Supreme Court and the Council of State play a decisive role in filtering pleas of unconstitutionality and determining whether to reject them or refer them to the Constitutional Court.
This study has led to the following findings:
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