Harm can happen to everyone. A special and one of the most serious forms of this is when our human rights are violated. This may be due to the lawmaker enacting a regulation which directly causes us harm without the action of an administrative body or court. The other possibility is when the authorities or courts deprive us from our human rights.
What can we do when we feel that in our case the courts delivered a decision which was not simply disadvantageous, but it infringed fundamental rights or we find that the lawmaker overstepped its boundaries? Well, we should not give up the fight, since in 2012 the legal tool of the constitutional complaint has been introduced with which we can challenge legal acts and judicial decisions before the Constitutional Court. It is worth examining what we can achieve by using this procedure.
How many types of constitutional complaint exist?
First of all it should be noted that the Act on the Constitutional Court in fact recognises not one, but three constitutional complaints.
The first type of constitutional complaints can be used against legal provisions. As we described above, it can be used when the injustice we suffered stems directly from a legal act. The Constitutional Court has the right to quash the impugned regulation even with retroactive effect. However, the Constitutional Court cannot offer any additional redress for the losses we endured, for example it cannot adjudicate pecuniary compensation. In fact the point of this procedure is to avoid similar violations in the future. Therefore, serious doubts can be raised whether this procedure can be classified as an effective remedy – of course it goes without saying that eliminating an unlawful legal situation in itself is a result not to be underestimated.
The issue of effectiveness is also important, because if we wish to redress the injustice at all costs, we must also consider turning to Strasbourg. However, the Strasbourg Court expects us to exhaust all the effective domestic remedies before turning to them. Regarding constitutional complaints aimed at attacking legal provisions, the Court recently stated that it was a remedy to be used prior to a Strasbourg application. Numerous critical comments can be raised against this decision, however, right now we must accept that if the violation of our right is the direct result of a legal act, first we must lodge a complaint with the Constitutional Court and the European Court of Human Rights can only be the next step.
The second type of a constitutional complaint can be used against judicial decisions. This option is available when in our case the court based its decision on a legal act which is contrary to the Fundamental Law. A judicial decision based on an unconstitutional act cannot be anything but unconstitutional. In this case, we will have a double claim: we initiate the annulment of the illegal judicial decision and that of the legal act serving as the legal basis for the decision.
The third type is very similar to the second one. We can use this kind of constitutional complaint against judicial decisions. The difference is that in this case there is no problem with the legal provisions serving as the basis for the decision – it is the judicial interpretation that results in the violation of our human rights. When we lodge such a constitutional complaint we need to request the annulment of the judicial decision only.
Alternative claims in the constitutional complaint
What shall we do when we cannot decide for sure whether the applied legal norm or its judicial interpretation is unconstitutional? Well, the good news is that the practice of the Constitutional Court allows the submission of alternative complaints, therefore, we should simply put forward arguments for both cases. This might seem somewhat time-consuming, but it is worth the effort. Nevertheless, we should not worry too much even if we did not “choose” the right type of the constitutional complaint. The Constitutional Court may switch between the two types ex officio, if it is of the view that our claim is well-founded but for reasons other than we have put forward. (Of course, we should do our best to prepare the best possible application.)
The result of the succesfull complaint
Let’s examine what we can achieve with successful constitutional complaints. As it was discussed earlier, with the first type we can only have the regulation quashed. The another two types give us a much more powerful tool: we can achieve the annulment of unconstitutional judicial decisions. What is more, if an administrative procedure preceded the judicial phase, the ruling can affect these decisions as well.
What happens to our case after this? The annulment of the judicial decision does not always solve our problem. Well, in this case the procedure must be repeated both in criminal and civil law cases, now taking into consideration the findings of the Constitutional Court’s decision. In other words, we go back to the starting-line, but we have much a bigger chance of winning.
Formal requirements of a succesfull constitutional complaint
In order to our constitutional complaint to be successful we have to observe some formalities. The first and foremost is that we have to lodge our complaint within the deadline. With the first type of a constitutional complaint – where we can attack legal norms only – we can turn to the Constitutional Court within 180 days of the act coming into force. It is very important to interpret this rule correctly. “Coming into force” is by no means the same as the regulation being applied to our case. If the 180 days have already passed, according to the practice of the Constitutional Court we have a problem. If a provision which has been in effect for years is applied to our case at present, we cannot turn to the Constitutional Court even if the injustice occurred just now – our only remaining option is Strasbourg.
In case of attacking judicial decisions the deadline is 60 days from the delivery of the judgement. “Delivery” is when the decision is served to our lawyer. We must be careful when using a legal representative, since the deadline starts when the decision is delivered to them, even if we are notified about it weeks or months later. We have to pay particular attention to the deadline, because actions taken after the deadline shall be time-barred; if we miss the deadline our case will be lost for good.
When challenging judicial decisions the question might arise as to which judgement can we contest at the Constitutional Court. This can be the final judgement or the decision of the Curia delivered in the petition for a review proceeding. We must however bear it mind that after the final judgement we cannot turn to the Constitutional Court and the Curia simultaneously. In this case the Constitutional Court will dismiss our complaint as premature.
Constitutional complaints must be submitted in writing. In case we intend to attack a legal act we have to lodge our complaint directly with the Constitutional Court, however, if we challenge a judicial decision we must lodge our complaint with the court that delivered the first instance judgement. It is very important not to confuse where we lodge our complaint. It is enough to post our complaint on the last day of the deadline, we do not have to take it in person, although that is also an option. In case of posting we must send our complaint with registered post.
Substantive requirements of the succesfull complaint
Our complaint must meet strict requirements regarding its content as well. Although the Constitutional Court does not expect us to use the same kind of reasoning as a legal expert would use, the constitutional law problem must be clearly stated in the complaint. If it is not satisfactory for the Constitutional Court it will order us to amend our complaint. If we are unable to put forward arguments of the required quality, the Constitutional Court will dismiss our complaint without examining the merits of the case.
It is also very important to put forward an argument on why our case raises a “question of fundamental constitutional importance” or which “unconstitutionality affects the judicial decision substantially” leading to us losing the case before the ordinary courts. It is so because the Constitutional Court does not intend to deal with “small” cases. If we cannot convince it that our case is not only important for us but it bears a general significance, we cannot expect a favourable outcome.
Legal representation is not obligatory before the Constitutional Court, therefore, we can prepare our complaint ourselves – if we are confident enough. Another good news is that the procedure of the Constitutional Court is free of charge, so we do not have to pay the court fees and in case of an eventual loss, the costs. The procedure of the Constitutional Court is public, but we can request our data to be kept confidential. In this case there will be no information either in our complaint published on the website of the Constitutional Court or in the decision, based on which our identity could be revealed.