Guide to filing a complaint at the Constitutional Court
Guide to filing a complaint at the Constitutional Court of the Slovak Republic
in proceedings pursuant to Art. 127.1 of the Constitution of the Slovak Republic and Sec. 49 to 56 of Law No. 38/1993 Coll. on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the Status of Its Judges as amended
The Constitutional Court of the Slovak Republic (“Constitutional Court“) is an independent judicial body charged with the protection of constitutionality and under Art. 127.1 of the Constitution of the Slovak Republic (“Constitution“) it decides on complaints from private persons and legal entities claiming violation of their fundamental rights and freedoms, or of their fundamental rights and freedoms ensuing from an international treaty ratified by the Slovak Republic and promulgated in the manner laid down by law, unless another court decides on the protection of such rights and freedoms.
The proceedings on complaints from private persons and legal entities pursuant to the quoted article of the Constitution (“complaint”) is regulated by Sec. 49 to 56 of Law No. 38/1993 Coll. on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the Status of Its Judges as amended (“Law on the Constitutional Court”)
Who is entitled to file a complaint?
A constitutional complaint may be filed (locus standi) by a private person or a legal entity (“complainant“) claiming violation of their fundamental rights guaranteed by the constitutional order of the Slovak Republic, including human rights and fundamental freedoms ensuing from an international treaty ratified by the Slovak Republic and promulgated in the manner laid down by law, and this infringement is alleged to have been caused by a valid decision, measure or other intervention made by a public authority, unless another court decides on their protection (Art. 127.1 of the Constitution in connection with Sec. 49 of the Law on the Constitutional Court).
Given the above, a complaint cannot be filed by a private person or a legal entity who claims the violation of fundamental rights and freedoms of others and not their own (except legal guardians and court-appointed representative who file a complaint on behalf of the represented person).
A person entitled to act for a legal entity (statutory representative) is entitled to file a complaint on behalf of the legal entity.
Is the complainant obliged to be represented in proceedings before the Constitutional Court?
Section 20.2 of Law on the Constitutional Court lays down the requirement of mandatory (compulsory) representation by an attorney in proceedings before the Constitutional Court. The complaint must be supported by a power of attorney and this power of attorney must expressly state that it was issued for the purpose of representation before the Constitutional Court.
The adoption of Law No. 327/2005 Coll. on providing legal aid for people in material need, amending Law No. 586/2003 Coll. on Advocacy and amending Law No. 455/1991 Coll. on Trades (Trade Act) as amended by Law No. 8/2005 Coll. (Law on Legal Aid) constituted an institutional system designed to create access to legal aid for people in material need through the Centre for Legal Aid (www.centrumpravnejpomoci.sk). The Constitutional Court instructs the complainant about this possibility. [Sec. 31a of the Law on the Constitutional Court in connection with Sec. 160.2 of the Law No.160/2015 Coll. Code of Civil Contentious Procedure (“Code of Civil Contentious Procedure”)].
The Centre for Legal Aid provides legal aid in civil, commercial, labour, family law matters, in court proceedings in administrative judiciary, as well as in matters of asylum, in proceedings on administrative deportation, in proceedings on arresting a national from a third country and in proceedings on arresting an applicant for asylum and in proceedings before the Constitutional Court in any of these matters.
Private persons can apply to Centre for Legal Aid for provision of legal aid or for preliminary consultations even before filing a complaint at the Constitutional Court. In other legal matters not included in the system of providing legal aid by the Centre for Legal Aid, the Constitutional Court may appoint a legal representative in case it is justified by the personal situation, income and assets of the complainant and if it is not a will-full or evidently ill-founded dispute or obstruction of rights.
Are proceedings on complaints before the Constitutional Court subject to court charges?
According to Sec. 35.1 of the Law on the Constitutional Court, proceedings pursuant to Art. 127.1 are generally not subject to court charges.
However, in legally and factually similar cases previously decided by the Constitutional Court in which the complainant was not successful, the Constitutional Court orders the complainant to pay court charges for the eleventh and each subsequent complaint filed by the same complainant in the same year. If one complaint with the Constitutional Court under Art. 127 of the Constitution relates to several matters, for the purposes of court charges each case is considered as a separate complaint.
Formal requirements of a complaint.
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Formal requirements of a complaint:
I.
Identification of the complainant;
II.
Identification of the authority concerned (public authority);
III.
Identification of the matter concerned i.e. which final decision, measure or other intervention by a public authority allegedly violated a fundamental right or freedom, whereby the complaint must be supported by a copy of this decision, measure or evidence of the intervention;
IV.
Justification i.e. the complainant must truthfully describe all essential facts and state where exactly the violation of the indicated right or freedom lies in their opinion;
V.
Which fundamental right or freedom has been violated;
- the catalogue of fundamental rights and freedoms, or human rights and fundamental freedoms, is primarily derived from the Constitution of the Slovak Republic and international treaties ratified by the Slovak Republic and promulgated in the manner laid down by law (i.e. Convention on Human Rights and Fundamental Freedoms, Convention on the Rights of the Child).
- in this regard, it is necessary to emphasize that the Constitutional Court is not in the position of a superior court in relation to general courts, i.e. the Constitutional Court is not a court of last resort and therefore its function is not to examine the actual accuracy or legality of the challenged decision. Its purpose is only to protect the constitutionally guaranteed rights and freedoms;
VI.
What Constitutional Court decision the complainant seeks (petit of the complaint), whereby the petit must include a specific right or freedom which is allegedly violated and the identification of the valid decision, measure or intervention by a public authority which had violated the specified right or freedom;
- the petit must also include the kind of redress the complainant seeks due to the found violation of a specified right or freedom (Sec. 56 of the Law on the Constitutional Court), i.e. if they require the Constitutional Court to repeal the decision and return it for further proceedings or to prohibit the infringer from further violation of the right or freedom, or to order the infringer to restore the state prior to the violation of the right or freedom, or to order the authority who violated the right or freedom through their inaction to act in the case, or if the complainant requires appropriate financial compensation for the violation of their right or freedom;
- in case the complainant seeks appropriate financial compensation, they must indicate the extent and reasons to justify the request (Sec. 50.3 of the Law on the Constitutional Court). It follows that the complainant´s request for awarding financial compensation for the found violation of the fundamental right or freedom has to be well-founded.
- according to Sec. 20.3 of the Law on the Constitutional Court, the Constitutional Court is bound by the complaint, especially by its petit, which means that the Constitutional Court decides on the violation of rights and freedoms to the extent set by the complainant in the filed complaint;
VII.
A list of the evidence submitted by the complainant justifying their statements.
The complaint must be in written form. It may be filed in paper or electronic form (Sec. 125.1 of the Code of Civil Contentious Procedure). A complaint in paper form has to be signed by the complainant (complainants) and their attorney (Sec. 20.1 of the Law on the Constitutional Court).
Complaints filed in electronic form without authorisation under Sec. 23.1 of the Law No. 305/2013 Coll. on the Electronic Form of Carrying Out the Competences of Public Authorities (Law on e-Government) must be additionally delivered in paper or electronic form authorised under a separate regulation; if it subsequently fails to be deliver to the Constitutional Court within ten days, the complaint is disregarded. The Constitutional Court does not call for additional delivery of the complaint. A complaint in electronic form authorised under a separate regulation does not need to be supplemented by a complaint in paper form (Sec. 31a.1 of the Law on the Constitutional Court in connection with Sec. 125.2 of the Code of Civil Contentious Procedure)
The complaint should be submitted in a sufficient number of copies in order to keep one copy at the Constitutional Court while one copy is delivered to each complainant identified in the complaint (Sec. 29 par. 4 of the Law on the Constitutional Court).
Who are parties to proceedings before the Constitutional Court?
Parties to proceedings under Art. 127.1 of the Constitution are the complainant and the public authority against whose final decision, measure or other intervention the complaint has been filed (Sec. 51.1 of the Law on the Constitutional Court). All the Court’s decisions adopted in the pending case must be served on the parties to proceedings or their legal representatives (Sec. 34 of the Law on the Constitutional Court).
When should you file a complaint with the Constitutional Court?
The Court has repeatedly expressed the opinion in its decisions that complaints under Art. 127.1 of the Constitution cannot be regarded as an infinite means of protection of fundamental rights and freedoms. Under Sec. 53.3 of the Law on the Constitutional Court, a complaint may be filed within two months from the date on which the challenged decision became final, or on which the complainant was notified of the measure or other intervention. In the case of a measure or other intervention, this time period is calculated from the date on which the complainant could have learned about the measure or other intervention.
A time period defined in calendar months elapses at the end of the day in the final month which corresponds to the day on which the event from which the period commences took place. If there is no such day in the final month, the end of the period falls on the last day of that month. If the last day of the period falls on a Saturday, Sunday or bank holiday, the last day of the period is then the nearest following working day. The time limit is met if on the last day a submission is filed with a court or is submitted to a body obliged to deliver it; this applies even if the submission is filed electronically and delivered to the court outside working hours (Sec. 121.3 to 121.5 of Code of Civil Contentious Procedure). Failure to meet the two-month time limit for filing a complaint under Sec. 53.3 of the Law on the Constitutional Court may not be ignored. In fact, it constitutes statutory grounds for rejecting the complaint for having been filed late (Sec. 25.2 of the Law on the Constitutional Court).
May complainants withdraw their complaint?
Complainants may withdraw their complaints in the course of the proceedings. Under Sec. 54 of the Law on the Constitutional Court, if a complainant withdraws his/her complaint, the Court stays proceedings on that complaint unless it decides that withdrawal may not be admitted, mainly if the complaint has been filed against a final decision, measure or other intervention which constitutes particularly serious violation of the complainant’s fundamental rights and freedoms.
How can the Court decide a complaint?
The Constitutional Court first conducts a non-public preliminary hearing in the absence of the complainant (Sec. 25.1 of the Law on the Constitutional Court) and examines whether the constitutional and statutory conditions for proceedings under Art. 127.1 of the Constitution are met. During the preliminary hearing, the Court rejects the complaint if even one of the reasons listed in Sec. 25.3 of the Law on the Constitutional Court is not met; otherwise the Court will admit the complaint for further proceedings in accordance with Sec. 25.3 of the Law on the Constitutional Court. The Court rejects a complaint:
- if it does not meet all the formal requirements prescribed by law. The Court first orders the complainant to remedy those deficiencies or to supplement the complaint within a time limit set by the Court. If the complainant fails to do so, the Court may reject the complaint for this reason. The Court is not obliged to remedy deficiencies in a complaint ex officio if the complainant is represented by a qualified legal representative (lawyer);
- if it has been filed late (see the time limit for filing a complaint);
- if it has been filed by an unauthorised person (see above);
- if it is inadmissible. General resons for a complaint’s inadmissibility are listed in Sec. 24 of the Law on the Constitutional Court, under which a complaint is inadmissible in the following cases:
- if it concerns a legal matter already decided by the Court, with the exception of cases in which there was only a procedural decision, provided that in the later submission the procedural requirements are met;
- if the case is already pending at the Court;
- if the complainant seeks a review of a decision by the Court.
Furthermore, under Sec. 53.1 of the Law on the Constitutional Court, another reason for rejecting a complaint due to inadmissibility is when the complainant has not exhausted all the legal remedies and other legal means of protection of their fundamental rights or freedoms which are provided by the law and which other legal regulations allow them to use.
Legal remedies are ordinary legal remedies (e.g. appeal, complaint or protest) and extraordinary legal remedies (appeal on points of law), which are granted to the complainant under special regulations (e.g. Law no. 160/2015 Coll. Code of Civil Contentious Procedure, Law no. 161/2015 Coll. Code of Civil Non-Contentious Procedure, Law no. 301/2005 Coll. Code of Criminal Procedure as amended). Other legal means are e.g. complaint against the procedure followed by a court under Sec. 62 et seq. of Law no. 757/2004 Coll. on Courts, complaint against failure to act under Sec. 55.3 of the Code of Criminal Procedure, proceedings against inactivity of a public authority under Sec. 242 et seq. of Law no. 162/2015 Coll. Code of Administrative Court Proceedings, and initiative under Sec. 31 and repeated initiative under Sec. 36 of Law no. 153/2001 Coll. on Public Prosecutors.
A complain will also be rejected:
- if the Court lacks jurisdiction because under Art. 127.1 “a different court” has jurisdiction to decide on the protection of fundamental rights and freedom, the violation of which is claimed;
- if the complaint is manifestly unfounded because the Court has not found any possibility of violation of the fundamental right or freedom claimed by the complainant.
If the Court does not reject the complaint at this point, it admits it for further proceedings to the extent which is defined in the ruling on admitting the complaint (Sec. 25.3 of the Law on the Constitutional Court). If the Court grants the complaint, it decides with a finding and pronounces in its operative part which fundamental right or freedom and which provision of the Constitution, or provisions of which constitutional law or international treaty have been violated, and by which final decision, measure or other intervention they were violated (Art. 127.2 of the Constitution, Sec. 56.1 of the Law on the Constitutional Court). If the Court finds violation of the complainant’s fundamental rights and freedom through a decision, measure or other intervention by a public authority, it repeals that decision or measure, and if the nature of the intervention allows it, the Court also annuls that (Art. 127.2 of the Constitution, Sec. 56.2 of the Law on the Constitutional Court). Pursuant to Art. 127.2 of the Constitution and Sec. 56.3 of the Law on the Constitutional Court, if the Court grants the complaint, it may:
- order the authority who violated the fundamental right or freedom by their inactivity to act in accordance with special regulations,
- remit the case for further proceedings,
- prohibit continuation of violation of the fundamental rights and freedoms,
- order the authority who violated the fundamental rights and freedoms to restore the conditions before the violation.
The Court may finally award the complainant whose fundamental rights and freedoms have been violated adequate financial satisfaction (Art. 127.3 of the Constitution, Sec. 56.4 of the Law on the Constitutional Court). The complainant does not have the right to claim adequate financial satisfaction.
Do complainants have a right to claim the reimbursement of costs of proceedings before the Court?
Pursuant to Sec. 36 of the Law on the Constitutional Court, the costs of proceeding before the Constitutional Court incurred by each party to proceedings are borne by the party concerned.
Depending on the result of the proceedings, in substantiated cases the Court may order a party to fully or partly reimburse another party’s court costs.
May a complainant challenge the Court’s decision through a legal remedy?
Pursuant to Art. 133 of the Constitution, there are no remedies against the decisions of the Constitutional Court.
However, this does not apply should there be a decision by a body of an international organization established for the purposes of the implementation of a treaty that is binding on the Slovak Republic, which gives rise to an obligation to the Slovak Republic to re-examine in proceedings before the Constitutional Court an already-issued decision by the Constitutional Court.
Pursuant to Sec. 75 et seq. of the Law on the Constitutional Court, the time limit for filing this legal remedy (application for reopening a case before the Constitutional Court) is six months from the day on which the decision of the body of an international organization became final or from the time when the application for reopening the case before the Constitutional Court could have been filed.
If the Court finds that no obligation to review the challenged Constitutional Court decision follows from the decision of the body of an international organization, it rejects the application to reopen the case as manifestly unfounded. However, if the Court finds that the obligation to review the challenged decision does follow from the decision of the international body, it must allow the reopening of the case and repeal the challenged decision.