22 May 2017
The Constitutional Complaint
The rules about the constitutional complaint have significantly changed due to the entry into force of the Fundamental Law and of the Act CLI. of 2011 on Constitutional Court (hereinafter: ACC).
Constitutional complaints may be submitted at the Constitutional Court mainly when a right guaranteed by the Fundamental Law of the petitioner is violated by a judicial decision. Exceptionally, the constitutional complaint procedure may be initiated also when due to the application of a legal provision contrary to the Fundamental Law, or when such legal provision becomes effective, rights are violated directly, without a judicial decision. The constitutional complaint therefore is not a claim for judicial review, the Constitutional Court is not a forum for legal remedy in the concrete case.
Another important rule of the Act on Constitutional Court is that the Constitutional Court admits the complaint only if a conflict with the Fundamental Law significantly affects the judicial decision, or the case raises constitutional law issues of fundamental importance.
According to the new rules, there are three types of proceedings based on constitutional complaint.
a) The first type of the constitutional complaint proceedings is the one that was available also based on the precedent Act on Constitutional Court (1989). In this procedure a person or organisation affected by a concrete case, – if their fundamental rights have been injured by the application of an unconstitutional law and there are not any other instruments of legal remedy, –may submit a constitutional complaint according to para (1) Section 26 of the ACC.
The subject of the review is the legal regulation, whose application led to the unconstitutionality. The legal consequences of the proceedings of the Court can be the annulment or the exclusion of the application of the legal regulation contrary to the Fundamental Law.
b) The second type of the constitutional complaints is based on para (2) of Section 26 of the ACC. According to this, exceptionally the Constitutional Court proceedings may also be initiated if due to the application of a legal provision contrary to the Fundamental Law, or when such legal provision becomes effective, rights were violated directly, without a judicial decision, and there is no procedure for legal remedy designed to repair the violation of rights, or the petitioner has already exhausted the possibilities for remedy. This means that in case of the second type of complaint proceedings there is not any judicial decision, but the violation of rights guaranteed in the Fundamental Law occurs directly. The subject of the examination is the legal norm itself.
c) With the third type of the constitutional complaints, the petitioner challenges a judicial decision. With the entering into force of the new Act on the Constitutional Court, the constitutional complaints may be submitted not only against the legal regulations, but also against concrete judicial decisions. The person or organisation affected in concrete cases may turn to the Constitutional Court against the judicial decision that was contrary to the Fundamental Law, if the decision made regarding the merits of the case or other decision terminating the judicial proceedings violates their rights laid down in the Fundamental Law, and the possibilities for legal remedy have already been exhausted by the petitioner or no possibility for legal remedy is available for him or her. The subject of the examination is the judicial decision and not legal regulations (similarly to the ”Urteilsverfassungsbeschwerde” in the German constitutional system). When the Court establishes that the judicial decision is contrary to the Fundamental Law, the Court annuls the decision.