V. CONSTITUTIONAL COMPLAINT


Article 50

(1) Due to a violation of human rights or fundamental freedoms, a constitutional complaint may, under the conditions determined by this Act, be lodged against individual acts by which state authorities, local community authorities, or bearers of public authority decided the rights, obligations, or legal entitlements of individuals or legal entities.

(2) The ombudsman for human rights may, under the conditions determined by this Act, lodge a constitutional complaint in connection with an individual case that he is dealing with.

(3) If a complainant in a constitutional complaint procedure is represented by an authorised representative, he must submit an authorisation which is given especially for the constitutional complaint procedure. The authorisation must be given after the individual act against which the constitutional complaint is lodged has been served. The second paragraph of Article 24a of this Act applies regarding the transfer of such authorisation.

Article 51
  
(1) A constitutional complaint may be lodged only after all legal remedies have been exhausted.

(2) Before all extraordinary legal remedies have been exhausted, the Constitutional Court may exceptionally decide on a constitutional complaint if the alleged violation is manifestly obvious and if irreparable consequences for the complainant would result from the implementation of the individual act.

Article 52
  
(1) A constitutional complaint is lodged within 60 days of the day the individual act against which a constitutional complaint is admissible is served.

(2) The ombudsman for human rights lodges a constitutional complaint with the consent of the person whose human rights or fundamental freedoms he is protecting in the individual case.

(3) In especially well founded cases the Constitutional Court may exceptionally decide on a constitutional complaint which has been lodged after the expiry of the time limit referred to in the first paragraph of this article.

Article 53
  
(1) A constitutional complaint must state the following:
- the individual act which is challenged, the authority which issued it, its reference number, and the date it was issued;
- the human rights or fundamental freedoms allegedly violated;
- the reasons that support the violations;
- the date on which the complainant was served the individual act which he challenges;
- if the complainant is a natural person, the full name of the complainant and the address of his permanent or temporary residence, or, if the complainant is a legal entity, state authority, bearer of public authority, or other legal subject, its name and where it is based, as well as the name and title or position of its representative;
- other information determined by the Rules of Procedure of the Constitutional Court.

(2) The constitutional complaint must be submitted in writing. A copy of the challenged individual act and all other individual acts that were issued in connection with the challenged individual act in proceedings before the competent authorities in the case, as well as the relevant documents on which the constitutional complaint is based, must be enclosed with the complaint.

1. Procedure for Examining a Constitutional Complaint

Article 54
  
(1) The Constitutional Court decides in a panel of three Constitutional Court judges (hereinafter referred to as a panel) at a closed session whether to initiate proceedings on the basis of a constitutional complaint.

(2) A panel decides in cases of constitutional complaints on the motion referred to in the second paragraph of Article 38a and on the punishment referred to in Article 34a of this Act.

(3) A Constitutional Court judge determined by the work schedule decides on the discontinuation of proceedings due to the withdrawal of a constitutional complaint.

Article 55
  
(1) If a constitutional complaint is incomplete and the Constitutional Court cannot examine it because it does not contain all the required information or documents referred to in Article 53 of this Act, the Constitutional Court judge determined by the work schedule calls upon the complainant to supplement the constitutional complaint within a determined period of time.

(2) If before lodging a constitutional complaint, the complainant had already received the explanation from the Secretary General of the Constitutional Court referred to in the second paragraph of Article 21a of this Act regarding under which conditions it is possible to lodge a constitutional complaint and what it must contain, the Constitutional Court decides on the constitutional complaint without calling upon the complainant to supplement such.

Article 55a

(1) A constitutional complaint is not admissible if the violation of human rights or fundamental freedoms did not have serious consequences for the complainant.

(2) It is deemed that there has been no violation of human rights or fundamental freedoms which had serious consequences for the complainant with regard to individual acts:
- issued in small-claims disputes in accordance with the act which regulates civil procedure, or in other disputes if the value in dispute for the complainant does not exceed the amount which is determined by the definition of small claims disputes in the act which regulates civil procedure;
- if only a decision on the costs of proceedings is challenged by the constitutional complaint;
- issued in
trespass to property disputes;
- issued in minor offence cases.

(3) Irrespective of the preceding paragraph, in especially well founded cases the Constitutional Court may exceptionally decide on a constitutional complaint against the individual acts referred to in the preceding paragraph. An instance of an especially well founded case is a decision that concerns an important constitutional question which exceeds the importance of the concrete case.

Article 55b
  
(1) A constitutional complaint is rejected:
- if it is not an individual act by which a state authority, local community authority, or bearer of public authority decided on the rights, obligations, or legal entitlements of the complainant;
- if the complainant does not have a legal interest for a decision on the constitutional complaint;
- if it is not admissible, except in the instance referred to in the third paragraph of the preceding article;
- if it was not lodged in time, except in the instance referred to in the third paragraph of Article 52 of this Act;
- if all legal remedies have not been exhausted, except in the instance referred to in the second paragraph of Article 51 of this Act;
- if it was lodged by a person not entitled to do so;
- if in the instance referred to in the first paragraph of Article 55 of this Act the complainant does not supplement the application in accordance with a call to do so by the Constitutional Court;
- if in the instance referred to in the second paragraph of Article 55 of this Act it is so incomplete that the Constitutional Court cannot examine it.

(2) The constitutional complaint is accepted for consideration:
- if there is a violation of human rights or fundamental freedoms which had serious consequences for the complainant; or
- if it concerns an important constitutional question which exceeds the importance of the concrete case.

(3) If the complainant withdraws the constitutional complaint, the procedure for examining the constitutional complaint or the proceedings for deciding the constitutional complaint are discontinued.

Article 55c
 
(1) The panel decides on the rejection or acceptance of the constitutional complaint unanimously by an order.

(2) If the panel is not unanimous with regard to whether the conditions referred to in the first paragraph of Article 55b are fulfilled, the constitutional complaint is rejected if any five Constitutional Court judges decide in favour of rejection in writing within 15 days.

(3) If the panel is not unanimous with regard to whether the conditions referred to in the second paragraph of Article 55b are fulfilled, the constitutional complaint is accepted for consideration if any three Constitutional Court judges decide in favour of acceptance within 15 days.

(4) If the panel does not decide otherwise, the statement of reasons of the order on the rejection or non-acceptance of the constitutional complaint includes only a reason referred to in the first or second paragraphs of the preceding article of this Act and the composition of the Constitutional Court.

2. Consideration and Deciding

Article 56
 
(1) If the Constitutional Court accepts the constitutional complaint for consideration, it notifies the authority which issued the challenged individual act thereof. The Constitutional Court judge determined by the work schedule may require information and clarifications necessary for the Constitutional Court to decide from the authority which issued the challenged individual act.

(2) In the instances referred to in the preceding paragraph, the constitutional complaint is sent to the persons who participated in the proceedings in which the challenged individual act was issued by which their rights, obligations, or legal entitlements were decided, in order for them to make statements within a determined period of time.

Article 57
  
If a constitutional complaint is accepted, as a general rule it is considered by the Constitutional Court at a closed session, or a public hearing may be held.

Article 58
 
If a constitutional complaint is accepted, the panel or the Constitutional Court may suspend the implementation of the individual act which is challenged by the constitutional complaint at a closed session if difficult to remedy harmful consequences could result from the implementation thereof.

Article 59
  
(1) By a decision the Constitutional Court either dismisses a constitutional complaint as unfounded or grants such and in whole or in part annuls or abrogates the individual act, and remands the case to the authority competent to decide thereon.

(2) If the Constitutional Court deems that the challenged individual act is based on a potentially unconstitutional or unlawful regulation or general act issued for the exercise of public authority, it initiates proceedings for the review of the constitutionality or legality of such regulation or general act issued for the exercise of public authority and decides by applying the provisions of Chapter IV of this Act.

(3) If the Constitutional Court has already decided on the same constitutional matter and granted the complaint, a decision by which it grants the constitutional complaint, in whole or in part abrogates or annuls the individual act, and remands the case to the authority competent to decide thereon, is issued by the panel, which may in such instances also decide in accordance with Article 60 of this Act.

Article 60
 
(1) If the Constitutional Court abrogates or annuls an individual act, it may also decide on a disputed right or freedom if such is necessary in order to remedy the consequences that have already occurred on the basis of the annulled individual act, or if such is required by the nature of the constitutional right or freedom, and if such decision can be reached on the basis of information contained in the case file.
  
(2) The decision referred to in the preceding paragraph is implemented by the authority which is competent for the implementation of the individual act which the Constitutional Court abrogated or annulled and replaced by its decision. If there is no competent authority according to the regulations in force, the Constitutional Court determines one.