22 May 2017
The constitutional complaint
The rules on the constitutional complaints have changed significantly due to the entry into force of the Fundamental Law and of the Act CLI of 2011 on the Constitutional Court (hereinafter: ACC).
Constitutional complaints may be submitted at the Constitutional Court mainly when the right of the petitioner guaranteed by the Fundamental Law is violated by a judicial decision. Exceptionally, the constitutional complaint procedure may also be initiated when, due to the application of a law 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 and the Constitutional Court is not a forum for legal remedy in a concrete case.
Another important rule of the ACC 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 the Constitutional Court (1989). In this procedure a person or an organisation affected by the concrete case may submit a constitutional complaint according to 26 (1) of the ACC, in case their fundamental rights have been violated by the application of an unconstitutional law, and there is no other instrument for legal remedie.
The subject of the review is the law, the application of which led to the unconstitutionality. The legal consequences of the proceedings of the Court may be the annulment or exclusion of the application of the law found to be contrary to the Fundamental Law.
b) The second type of constitutional complaint is based on 26 (2) of the ACC. According to this, the Constitutional Court proceedings may also be initiated exceptionally if, due to the application of a law contrary to the Fundamental Law, or when such law 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 no judicial decision, 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 constitutional complaint the petitioner challenges a judicial decision. With the new Act on the Constitutional Court entering into force, the constitutional complaints may be submitted not only against the laws, 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 decisions 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 them. The subject of the examination is the judicial decision and not the law (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 shall annul the decision.