How to file a constitutional complaint before the Constitutional Court: Slovak Republic

Guide to filing a constitutional complaint with the Constitutional Court of the Slovak Republic

in proceedings under Art. 127 par. 1 of the Constitution of the Slovak Republic  and according to Act no. 314/2018 Coll. on the Constitutional Court of the Slovak Republic and on Amendments to Certain Acts

The Constitutional Court of the Slovak Republic (hereinafter referred to as the “Constitutional Court”), as an independent judicial body for the protection of constitutionality, acts and decides pursuant to Art. 127 par. 1 of the Constitution of the Slovak Republic also on complaints of natural persons or legal entities if they object to the violation of their fundamental rights or freedoms, or human rights and fundamental freedoms arising from an international treaty ratified and declared by the Slovak Republic. , unless another court decides on the protection of these rights and freedoms. Proceedings on complaints of natural persons and legal entities within the meaning of the cited article of the Constitution (hereinafter referred to as the “complaint”) are regulated in § 32 to § 73 in conjunction with § 122 to § 135 of Act no. 314/2018 Coll. on the Constitutional Court of the Slovak Republic and on Amendments to Certain Acts (hereinafter referred to as the “Act on the Constitutional Court”).

Who is entitled to lodge a constitutional complaint?

A person entitled (actively legitimized) to file a constitutional complaint is a natural person or legal entity (hereinafter referred to as the “complainant”) who claims that his or her fundamental rights or freedoms guaranteed by the constitutional order of the Slovak Republic, including human rights and fundamental freedoms arising from an international treaty, have been violated. , which the Slovak Republic has ratified and declared in the manner prescribed by law, and their violation should have occurred by a valid decision, measure or other intervention of a public authority and their protection is not decided by another court (Article 127 para. 1 of the Constitution in conjunction with § 122 of the Constitutional Act). court).

In view of the above, a constitutional complaint may not be lodged by a natural or legal person who alleges a violation of the fundamental rights and freedoms of other persons and not his own (with the exception of a legal representative or procedural guardian who lodges a complaint on behalf of the represented party). In the case of a minor complainant (natural person), a constitutional complaint is lodged on his behalf by his legal representative. On behalf of the complainant of a legal entity, the constitutional complaint is filed by a person authorized to act on behalf of the legal entity (statutory body). In such cases, it is necessary to designate the person represented in the constitutional complaint as a complainant.

Is the applicant required to be legally represented in the proceedings before the Constitutional Court?

The provision of § 34 of the Act on the Constitutional Court requires that the complainant be obligatorily (compulsorily) represented by a lawyer in proceedings before the Constitutional Court. The complaint must therefore be accompanied by a power of attorney to represent the petitioner by a lawyer, and the power of attorney must explicitly state that the complainant grants the elected lawyer a power of attorney to represent before the Constitutional Court.

A constitutional court may appoint a legal representative to a complainant who requests the appointment of a legal representative in proceedings before the Constitutional Court, if this is justified by the applicant’s property relations and it is not a clear unsuccessful exercise of the right to protection of constitutionality (§ 37 para. 1 of the Constitutional Court Act). The costs of the appointed legal representative are borne by the state.

Is there a charge for proceedings before the Constitutional Court?

Pursuant to Section 71 of the Act on the Constitutional Court, proceedings before the Constitutional Court are generally not subject to court fees.

However, in the case of factually and legally similar cases on which the Constitutional Court has already ruled in the past and in which the petitioner was unsuccessful, the Constitutional Court shall order the petitioner to pay a court fee for eleven and any other constitutional complaint filed with the same petitioner. in one calendar year. If there are several matters contained in one filing, with which a natural person or legal entity appeals to the Constitutional Court pursuant to Art. 127 of the Constitution, for the purposes of levying a court fee, each of these cases is considered a separate constitutional complaint.

What are the requirements for a constitutional complaint?

It must be clear from the constitutional complaint (§ 39, § 43 and § 123 of the Act on the Constitutional Court):

I. who serves it;
II. who, according to the complainant, violated his fundamental rights and freedoms (designation of a public authority);
III. the complainant concerned, ie what final decision, measure or other intervention of a public authority allegedly infringed his fundamental rights and freedoms, accompanied by a copy of the final decision, measure or evidence of other interference which should have taken place. violation of his fundamental rights and freedoms;
IV. which fundamental rights or freedoms were allegedly violated by the complainant.
The catalog of fundamental rights or freedoms, or human rights and fundamental freedoms, results primarily from the Constitution of the Slovak Republic, as well as from international treaties ratified by the Slovak Republic and promulgated in a manner prescribed by law (eg Convention for the Protection of Human Rights and Fundamental Freedoms, child). In this context, it is necessary to emphasize that the Constitutional Court does not have the status of a superior court in relation to general courts, ie the Constitutional Court is not a court of last instance and therefore its task is not to review the correctness or legality of contested decisions. Its mission is exclusively to protect the constitutionally guaranteed rights and freedoms;
IN. justification, ie the complainant must truthfully describe in the constitutional complaint all the decisive facts and state the specific factual and legal reasons why, according to the complainant, his fundamental rights and freedoms should have been violated;
VI. what decision the complainant seeks (petit of the complaint), while in the petition of the constitutional complaint the complainant must indicate the specific right or freedom, the violation of which he seeks violation, and must also indicate a valid decision, measure or other intervention of a public authority. or freedom to occur.

It must also be clear from the petition of the constitutional complaint what remedy the complainant is seeking as a result of the alleged violation of the designated right or freedom (Section 133 of the Constitutional Court Act), ie whether he requests the Constitutional Court to order the person who violated his right or freedom to act. the Constitutional Court to annul the contested final decision and remand the case for further proceedings, or to prohibit the offender from continuing the violation of a right or freedom, or to order the offender to restore the situation before the violation of a right or freedom, or to complain freedom, adequate financial satisfaction.
If the complainant seeks adequate financial satisfaction, he / she shall state in the constitutional complaint the extent he / she seeks and for what reasons he / she seeks it (Section 123 para. 2 of the Act on the Constitutional Court). It follows from the foregoing that the applicant’s claim for financial compensation for a breach of a fundamental right or freedom of freedom must be duly substantiated.
Pursuant to Section 45 of the Act on the Constitutional Court, the Constitutional Court is bound by the scope and reasons for the motion to initiate proceedings. Binding to the petition applies separately to the petition of the complaint, which means that the Constitutional Court decides on the violation of rights and freedoms only to the extent defined by the complainant in the petition for a decision of the Constitutional Court;

VII. what evidence the complainant proposes to substantiate his allegations.

The constitutional complaint must be in writing. It can be filed in paper form or in electronic form (Section 40 para. 1 of the Act on the Constitutional Court). The constitutional complaint must be dated and signed by the applicant or his representative (Section 43 (2) of the Act on the Constitutional Court).

A constitutional complaint filed electronically without authorization pursuant to § 23 par. 1 of Act no. 305/2013 Coll. on the electronic form of the exercise of powers of public authorities (the e-Government Act) must be additionally delivered in paper form or in electronic form authorized in accordance with a special regulation; if it is not subsequently delivered to the Constitutional Court within ten days, the complaint shall not be taken into account. The Constitutional Court does not call for additional service of the application. A constitutional complaint filed in electronic form authorized pursuant to a special regulation does not need to be supplemented in paper form (Section 62 of the Act on the Constitutional Court in conjunction with Section 125 (2) of the Civil Procedure Code).

A constitutional complaint filed in paper form must be submitted in the required number of copies with annexes so that one copy with annexes can be placed in the court file of the Constitutional Court and each copy and annex can be delivered to each other participant and participant by one copy with annexes. If the required number of copies and annexes is not submitted, the Constitutional Court shall make copies of the application for the costs of the person who made the application (Section 40 para. 3 of the Act on the Constitutional Court).

Who is a party to proceedings before the Constitutional Court?

Participants in proceedings pursuant to Art. 127 par. 1 of the Constitution is a complainant and a public authority against whose valid decision, measure or other intervention a constitutional complaint is directed (Section 125 of the Act on the Constitutional Court). All decisions of the Constitutional Court in the relevant matter shall be delivered to the participants in the proceedings, the person concerned or their representatives. If the Constitutional Court has rejected the motion to initiate proceedings and has not informed the party against whom the motion is directed about the filed constitutional complaint, the Constitutional Court may deliver the decision on refusal only to the complainant (Section 68 para. 1 of the Constitutional Court Act).

When to file a constitutional complaint with the Constitutional Court?

As part of its decision-making activity, the Constitutional Court has repeatedly expressed the legal opinion that a constitutional complaint pursuant to Art. 127 par. 1 of the Constitution cannot be considered as an indefinite legal remedy for the protection of fundamental rights or freedoms.

Pursuant to Section 124 of the Act on the Constitutional Court, a constitutional complaint may be filed within two months of the entry into force of a decision, notification of a measure or notification of another intervention. This period shall be calculated in the case of a measure or other intervention from the day on which the complainant was able to become aware of the measure or other intervention.

According to the rules for calculating time limits, a period determined by months ends on the day which, by its designation, coincides with the day on which the event determining the beginning of the period occurred and, if not in the month, on the last day of the month. If the end of the period falls on a Saturday, Sunday or public holiday, the last day of the period is the next working day. The time limit shall be maintained if an action is taken in court on the last day of the time limit or the application is handed over to the authority which is required to serve it; this also applies if the submission made by electronic means is delivered to the court outside working hours (Section 121 (3) to (5) of the Civil Procedure Code). Missing the two-month period for filing a constitutional complaint does not allow the Act on the Constitutional Court to forgive, while it is a statutory reason for rejecting a complaint as submitted late [§ 56 para. 2 letter

Can the complainant withdraw his constitutional complaint?

The complainant may withdraw his constitutional complaint during the proceedings, and according to § 127 of the Act on the Constitutional Court, if the complainant withdraws his constitutional complaint, the Constitutional Court shall suspend the proceedings by resolution.

How can the Constitutional Court decide on a constitutional complaint?

The Constitutional Court first preliminarily discusses the constitutional complaint at a closed session without the presence of the complainant (§ 56 para. 1 of the Act on the Constitutional Court) and examines whether the conditions for proceedings under Article 56 (1) are met. 127 par. 1 of the Constitution. In the preliminary hearing of a constitutional complaint, the Constitutional Court shall reject the complainant’s complaint by a resolution if any of the reasons specified in § 56 para. 2 of the Act on the Constitutional Court, or according to § 56 par. 5 of the Act on the Constitutional Court shall be adopted by resolution for further proceedings.

The Constitutional Court rejects the complainant’s constitutional complaint:

• for lack of jurisdiction of the Constitutional Court – in the event that it decides on the protection of the right or freedom, the violation of which is alleged, according to Art. 127 par. 1 of the Constitution another public authority;
• if the constitutional complaint is filed by the applicant without being represented by a lawyer and the Constitutional Court has not complied with the petitioner’s request for the appointment of a lawyer;
• for non-compliance with the requirements prescribed by law – if the constitutional complaint does not have all the requirements required by law (see above), the Constitutional Court may invite the complainant to eliminate these deficiencies or to supplement the constitutional complaint within the time limit specified by it. If the complainant does not eliminate the deficiencies of the complaint within the set time limit, the Constitutional Court may reject the complaint for the stated reason.
• as inadmissible – the general reasons for the inadmissibility of a complaint are regulated in Section 55 of the Act on the Constitutional Court, according to which a complaint is not admissible if:

a) concerns a case which has already been decided by the Constitutional Court, except in cases in which only the conditions of the proceedings have been decided, if in the next motion the conditions of the proceedings have already been met,

b) the Constitutional Court acts in the same matter,

(c) the applicant is seeking a review of the decision of the Constitutional Court; or

d) the complainant has not exhausted the legal remedies granted to him by the Act for the Protection of His Fundamental Rights and Freedoms (Section 132 para. 2 of the Act on the Constitutional Court).

Ordinary remedies (appeal, complaint, opposition, etc.) are considered legal remedies, as well as extraordinary remedies (appeal), for which the complainant is entitled under special regulations (eg Act No. 160/2015 Coll. Civil Dispute Rules, Act No. 161/2015 Coll., Civil Non-Dispute Rules, Act No. 301/2005 Coll., Criminal Procedure Code, as amended).

• as being lodged by a manifestly unauthorized person (see above);
• as submitted late (see the deadline for lodging a constitutional complaint);
• as manifestly unfounded – if the Constitutional Court did not find any possibility of violation of the right or freedom designated by the applicant.

If the Constitutional Court has not rejected the constitutional complaint, it shall accept it for further proceedings to the extent specified in the statement of the resolution on the acceptance of the proposal (Section 56 para. 5 of the Act on the Constitutional Court). If the Constitutional Court upholds the constitutional complaint, it shall state in the judgment which fundamental rights and freedoms have been violated, which provisions of the Constitution, constitutional law or international treaty have been violated and by which valid decision, measure or other intervention the fundamental rights and freedoms have been violated. 1 of the Act on the Constitutional Court). If the Constitutional Court finds that there has been a violation of a fundamental right or freedom identified by the applicant by a decision, measure or other intervention of a public authority, the Constitutional Court shall annul such decision or measure and cancel any other intervention violating it. fundamental rights and freedoms of the complainant, if the nature of the interference allows (Art. 127 par. 2 of the Constitution, § 133 par. 2 of the Act on the Constitutional Court).
According to § 133 par. 3 of the Act on the Constitutional Court, if the Constitutional Court upholds the constitutional complaint, it may:

a) order the person who violated a fundamental right or freedom by his inaction to act in the matter,

b) return the case for further proceedings,

c) prohibit the continuation of the violation of the complainant’s fundamental rights and freedoms,

d) order that the person who violated the fundamental rights and freedoms of the complainant to restore the situation before their violation,

(e) to grant the complainant adequate financial compensation if he has so requested.

Is the applicant entitled to reimbursement of costs incurred in the proceedings before the Constitutional Court?

Pursuant to Section 73 of the Act on the Constitutional Court, the costs of proceedings before the Constitutional Court incurred by a party to the proceedings shall be reimbursed by the party to the proceedings. In justified cases, the Constitutional Court may, depending on the outcome of the proceedings, by order order one of the parties to the proceedings to reimburse, in whole or in part, the costs of the proceedings to another party or the state.

Can the applicant challenge the decision of the Constitutional Court by an appeal?

According to Art. 133 of the Constitution, no appeal may be lodged against a decision of the Constitutional Court.

However, this does not apply if the decision of a body of an international organization established for the application of an international treaty by which the Slovak Republic is bound (for example the European Court of Human Rights or the Court of Justice) will oblige the Slovak Republic to re-examine the decision Constitutional Court.

The time limit for filing this appeal, a motion to reopen the proceedings before the Constitutional Court pursuant to Section 214 et seq. of the Act on the Constitutional Court, is six months from the day when the decision of the body of the international organization became final, or from the time when the motion to reopen the proceedings before the Constitutional Court could be applied.

If the Constitutional Court finds that the decision of a body of an international organization does not imply an obligation to re-examine the contested decision of the Constitutional Court, it shall reject the motion to reopen the proceedings as manifestly unfounded by a resolution.

Date of update: 6. 2. 2020


Source: Ústavný súd Slovenskej republiky

Constitutional Court of the Slovak Republic
Hlavná 110
042 65 Košice