Do you believe that one of your fundamental rights or freedoms has been violated as a result of a decision or intervention by a public authority? You may be able to seek redress through a constitutional complaint. When can it be lodged and how to proceed?
A constitutional complaint provides one of the most important protections of citizens’ rights and freedoms. It is a relatively simple and immediate way of defending yourself against any violation of your rights or freedoms that has not yet been resolved in another way (i.e. by a decision of a court or administrative authority).
However, a constitutional complaint should never and cannot replace other ordinary means of protecting rights, such as appeals, appeals, etc. The Constitutional Court reviews “only” the constitutionality, not the legality or correctness of court decisions.
It is important to stress that a constitutional complaint cannot be directed against private law subjects. Therefore, if you believe that your fundamental rights are being violated by your neighbour, you can never turn to the Constitutional Court directly. Only if the alleged violation of your fundamental rights has been upheld by the general courts and you have exhausted all ordinary means of judicial protection, can a constitutional complaint be considered in that case.
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We will assess your chances of success and take care of the preparation of an appeal, appeal or constitutional complaint, depending on the proceedings and the stage they are at.
Tip: Do you know your basic rights and what to do if they are violated? We have provided an overview of your fundamental rights and how to protect them in a separate article.
As can be inferred from the above. you can use a constitutional complaint if you believe that a right guaranteed by the Constitution(the Charter of Fundamental Rights and Freedoms or an international convention) has been violated by a decision or intervention of the public authorities and you have not obtained justice through the standard judicial process. It can be brought by any natural or legal person.
For example, as a citizen, you can file a complaint if you believe that your right to freedom of assembly has been violated by a government regulation limiting the number of people who can attend public meetings. On the other hand, disagreement with any legislation or decision should not be dealt with by a constitutional complaint. This is a serious step that should only be used when it is really necessary and other tools have been exhausted.
In any event, a citizen should seek professional advice from a lawyer before filing a constitutional complaint. This is also necessary because the law provides for compulsory representation in proceedings before the Constitutional Court. The only exception to this is lawyers themselves, who do not have to be represented by another lawyer. The mandatory representation is intended to prevent the Constitutional Court from being overwhelmed by unqualified submissions, as it is naturally assumed that lawyers are not only familiar with the requirements of a constitutional complaint, but above all with the situations and grounds for which a complaint may be filed.
A constitutional complaint may be filed only after all other means of protection of the right offered by the legal system, including extraordinary remedies , have been exhausted. However, the law does not consider a motion for leave to reopen proceedings to be such a remedy.
A constitutional complaint may be lodged within two months of the delivery of the decision on the last procedural remedy available to the complainant under the law. Most often, this will be the Supreme Court’ s decision on the appeal. The two-month period starts to run on the day on which the decision on the last procedural remedy is notified to the complainant (or his lawyer).
In the constitutional complaint, the complainant must state what fundamental right has been violated in his or her case, which public authority and by what decision or interference it has done so, and what the violation of the fundamental right or freedom consisted of.
A constitutional complaint may even include a request for the annulment of a legal regulation, but only on condition that fundamental rights have been violated by its application. However, if the complaint is rejected on some (even formal) grounds, the possible annulment of the legal regulation in question will not be addressed.
The Constitutional Court is established directly by the Constitution and has the right to intervene in the activities of the legislative, executive and judicial branches. It is not bound by ordinary laws in its decision-making (apart from the laws governing proceedings before the Constitutional Court) and is guided only by constitutional laws and international treaties on human rights and freedoms.
The Constitutional Court may reject the application for a constitutional complaint (if it has been filed in a case that has already been decided by the Constitutional Court by a ruling or is already pending, or if the complainant has not exhausted all the prescribed procedural means, or if the complainant asks the court to do something other than what is within its jurisdiction) or accept it. Subsequently, the Constitutional Court shall decide on the constitutional complaint by a ruling, by which it either grants the complaint in full, dismisses it, or grants it in part and dismisses it in part. In the ruling, the court shall declaratively state which constitutionally guaranteed right or freedom has been violated and which provisions of the constitutional law have been violated and by what intervention of the public authority this violation has occurred. The Constitutional Court has the power to annul the contested decision and to order the public authority to restore, if possible, the situation before the infringement. However, the Constitutional Court cannot itself change the contested decision or decide on the case. If the contested decision is annulled, the case is referred back for a new decision with proper reasons.
The Constitutional Court can often bring a revolutionary perspective to previously understood issues. An example of this is a ruling which found in favour of the complainants seeking the right to walk and drive on the land on which their cottage stands. The complainants had been seeking redress across the court system for ten years.
Tip: Another recent groundbreaking ruling of the Constitutional Court concerns the timeliness of electronic filings. According to the Constitutional Court’s findings, it will now no longer be possible to rely on electronic submissions sent to the court at the last minute. The timeliness of an electronic filing made by e-mail is to be determined by the moment the filing reaches the court, not by the moment it is sent by the filer.
As mentioned above, a constitutional complaint is inadmissible in particular if the complainant has not exhausted all means of protection of rights. The only exceptions would be where the complaint significantly exceeds the complainant’s own interests, or where there is a significant delay in the proceedings on the appeal which may result in serious and irreparable harm.
Thesuccess rate for constitutional complaints is around 5 %, which is a relatively low figure. In practice, lawyers may prepare an appeal and a constitutional complaint almost identically and fail to properly justify the violation of fundamental rights. As a result, the complaint has no chance of success.Therefore, it is very important to find a lawyer who has been working in constitutional law for a long time and who can make relevant arguments in this area.
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