Up-373/14

Reference no.:
Up-373/14
Abstract:
A constitutional complaint is a special legal remedy. The Constitutional Court supervises thereby whether regular courts respect human rights and fundamental freedoms when carrying out their competences. The Supreme Court, which in conformity with Article 127 of the Constitution is the highest court of the regular judiciary, ensures correct and uniform application of law by deciding on extraordinary legal remedies. In conformity with the first paragraph of Article 15 and Article 125 of the Constitution, this also includes the correct application of the Constitution. If the Supreme Court does not remedy violations of human rights or fundamental freedoms in the judicial decisions of lower courts or if it violates them itself during its decision-making, its decisions are subject to review by the Constitutional Court in a constitutional complaint procedure.
 
A constitutional complaint is a subsidiary legal remedy, because it is only admissible, as a general rule, when all legal remedies allowed by law against the decisions of courts have been exhausted (the third paragraph of Article 160 of the Constitution). Such complaint is decided on by the Constitutional Court as the highest court in the state for the protection of human rights and fundamental freedoms. For such reason, when an extraordinary legal remedy before the Supreme Court is envisaged by law, the Constitutional Court cannot decide, as a general rule, on a constitutional complaint as a court parallel to the Supreme Court or before the Supreme Court adopts its decision.
 
In conformity with the third paragraph of Article 160 of the Constitution, the legislature gave the Constitutional Court, in the second paragraph of Article 51 of the Constitutional Court Act, the authorisation to be able to exceptionally decide on a constitutional complaint before [all] extraordinary legal remedies have been exhausted. Such decision-making is exceptionally admissible if the alleged violations of human rights are manifestly obvious and if irreparable consequences for the complainant would result from the implementation of the challenged judicial decision. The legislature thereby determined that the Constitutional Court decides at its own discretion whether the conditions for the exceptional review of a constitutional complaint are fulfilled. In its assessment, in addition to the requirement for exceptional admissibility, the Constitutional Court is limited by two other cumulative conditions formed as indefinite legal terms, i.e. that it is demonstrated that the violation is manifestly obvious and that the consequences are irreparable. In its discretionary decision-making and in the interpretation of the mentioned indefinite legal terms, the Constitutional Court must respect the principle of equality before the law.
 
In conformity with the Criminal Procedure Act, a request for the protection of legality, i.e. an extraordinary legal remedy on which the Supreme Court as the highest court of the regular judiciary decides, is admissible against a final criminal sentence of conviction. A request for the protection of legality is an effective legal remedy by which all violations of human rights or fundamental freedoms can also be claimed in a procedure before the Supreme Court. The latter also has jurisdiction to prevent the enforcement of the imposed sentence until it has adopted a final decision.
 
In the event the complainant proposes that the Constitutional Court assess the constitutional complaint before [all] extraordinary legal remedies have been exhausted, the Constitutional Court must establish whether the conditions for deciding on the constitutional complaint determined by the second paragraph of Article 51 of the Constitutional Court Act have been fulfilled.
 
In conformity with the established case law, the complainant demonstrates that the violation is manifestly obvious if it demonstrates that a violation of a human right or fundamental freedom must be established as such conclusion cannot be rejected or called into question even after thorough assessment, because all the circumstances, common sense, and experience do not allow for a different conclusion without there being room for proving [the opposite] or the possibility of substantiating the opposite.
 
If the complainant does not demonstrate the alleged violations of human rights with the degree of obviousness required for the Constitutional Court to be able to exceptionally decide on the constitutional complaint, one of the cumulatively required conditions is not fulfilled and thus the procedural requirement for the initiation of proceedings on the basis of a constitutional complaint determined by the second paragraph of Article 51 of the Constitutional Court Act is not fulfilled.
 
If, before the constitutional complaint is filed, all extraordinary legal remedies have not been exhausted and the complainant does not demonstrate the fulfilment of the conditions for the constitutional complaint to be accepted for consideration before the decision of the [Supreme] Court on the extraordinary legal remedy is adopted, the Constitutional Court rejects the constitutional complaint.
Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
individual act
Date of application:
09.05.2014
Date of decision:
11.06.2014
Type of decision adopted:
ruling
Outcome of proceedings:
rejection
Document:
AN03712