Guide on Proceedings on Constitutional Complaints
This guide is only for information purposes, and serves to give the public simplified information about proceedings on constitutional complaints. The information provided here may not be cited in official proceedings, and anyone who intends to file a constitutional complaint must proceed in accordance with Act no. 182/1993 Coll., on the Constitutional Court, as amended by later regulations, and according to the rules stated therein.
Under Art. 87 par. 1 let. d) of the Constitution, the Constitutional Court rules on a constitutional complaint against a decision that has gone into legal effect or other intervention by a public authority that interferes in constitutionally guaranteed rights and freedoms.
The Act on the Constitutional Court provides in § 72 par. 1 who is entitled to file a constitutional complaint. Under that provision, a constitutional complaint can be filed by an individual or legal entity who claims that a decision that has entered into legal effect in a proceeding in which he/it was a party, a measure or other intervention by a public authority (“intervention by a public authority”) violated his/its fundamental right or freedom guaranteed by the constitutional order. The catalog of fundamental rights and freedoms guaranteed by the constitutional order are contained primarily in the Charter of Fundamental Rights and Freedoms and in the Constitution.
The practical consequence of this provision is that the complainant must state in the constitutional complaint which fundamental right was violated in his case, by which public authority and by what decision or intervention it was violated, and specifically what that violation of a fundamental right or freedom consisted of. The Constitutional Court may not consider any other rights. In this regard it must be remembered that the Constitutional Court is not a court hierarchically above the general courts, it is not the court of final appeal, and it reviews “only” constitutionality, not the legality or correctness of judicial decisions. The Constitutional Court’s role is “only” the protection of constitutionally guaranteed fundamental rights and freedoms.
A constitutional complaint may also propose annulment of a provision of a legal regulation, but, under § 74 of the Act on the Constitutional Court, only if application of that provision led to a circumstance that is the subject matter of the constitutional complaint, and only if the complainant claims that the legal regulation or the provision is inconsistent with a constitutional act (or another law, in the case of a sub-statutory legal regulation). In other words, the contested legal regulation must have actually been applied in the complainant’s case, and the complainant must state which constitutional act, or law, and which provision thereof, the contested legal regulation is inconsistent with. A petition seeking the annulment of a legal regulation is of an accessory nature as regards a constitutional complainant, which means that it shares its fate. Therefore, if the constitutional complaint is denied for any reason, the petition seeking annulment of a legal regulation is thereby also automatically denied. Without a connection to a particular decision or intervention by a public authority, an individual or legal entity is not entitled to propose the annulment of a legal regulation. The Constitutional Court would have to deny a direct petition seeking the annulment of a legal regulation, because it is a petition filed by an obviously unauthorized party [§ 43 par. 1 let. c) of the Act on the Constitutional Court].
Under § 30 par. 1 of the Act on the Constitutional Court, a complainant cannot write a complaint, file it, or appear in a proceeding himself. Every individual or legal entity that is a party (i.e. including the complainant) or secondary party in proceedings before the Constitutional Court must be represented by an attorney. The power of attorney issued for representation must expressly state that it is given for representation before the Constitutional Court. The Constitutional Court does not assign attorneys to complainants. In case of difficulty finding an attorney, one must turn to the Czech Bar Association, Brno branch, at nám. Svobody 15 (Klein Palace), 602 00 Brno, which, under certain conditions, can assign an attorney [§ 18 par. 2 of Act no. 85/1996 Coll., on the Legal Profession, as amended by later regulations; see also www.cak.cz (there you can read the rules for assigning attorneys and download the form)].
Generally, a complaint is not permissible if it concerns a matter on which the Constitutional Court has already issued a judgment (§ 35 par. 1 of the Act on the Constitutional Court). Decisions of the Constitutional Court are final and cannot be overruled. Judgments and resolutions of the Constitutional Court cannot be appealed (§ 43 par. 3 a § 54 par. 2 of the Act on the Constitutional Court).
A complaint is also impermissible if the Constitutional Court is already conducting proceedings in the same matter (§ 35 of the Act on the Constitutional Court).
Under § 75 par. 1 of the Act on the Constitutional Court, a constitutional complaint is also impermissible if the complainant has not exhausted all procedural remedies that the law provides him for protection of his rights. Such means includes all regular remedies (typically an appeal, complaint, complaint in the administrative courts, etc.), as well as extraordinary remedies (e.g. an appeal on a point of law or a cassation complaint). In addition to these most commonly used remedies for protection of rights, it is also necessary to exhaust other procedural remedies for protection of rights that are connected to the opening of a judicial, administrative, or other legal proceedings (§ 72 par. 3 of the Act on the Constitutional Court).
However, among extraordinary remedies, it is not necessary to exhaust a petition to renew proceedings or extraordinary remedies that the body ruling on them can deny as impermissible on grounds that are within its discretion (“non-entitlement” extraordinary remedies). If such a remedy was exercised nevertheless, one may wait until the appropriate body rules on it, because under § 72 par. 4 of the Act on the Constitutional Court a constitutional complaint can be filed against a foregoing decision on a procedural remedy for protection of rights, which was contested by the extraordinary remedy, by a deadline of 60 days from the delivery of that decision on the extraordinary remedy.
If the Constitutional Court finds that a constitutional complaint is impermissible, i.e. that it was filed in a matter on which the Constitutional Court has already ruled in a judgment, or on which proceedings are being conducted, or that the complainant did not exhaust all the prescribed procedural remedies, it has no choice but to deny the constitutional complaint due to impermissibility, under § 43 par. 1 let. e) of the Act on the Constitutional Court.
Under § 34 of the Act on the Constitutional Court, it must be clear from the petition to open proceedings (the constitutional complaint) who is making it, what matter it concerns and what it seeks; the petition must be signed and dated. The petition must also contain a truthful description of the decisive facts, a description of the evidence on which the petitioner relies, and it must state clearly what the petitioner seeks (the proposed judgment). Of course, it must state the specific fundamental rights and freedoms that the complainant seeks to have the Constitutional Court protect.
A sufficient number of originals (not photocopies) of a constitutional complaint must be submitted so that there is one for the Constitutional Court and one can be delivered to each party or secondary party named in the petition. Under § 76 of the Act on the Constitutional Court, parties to proceedings are the complainant and the state body or other public authority against whose intervention the complaint is directed. Secondary parties are other parties of the foregoing proceedings in which the decision contested by the complaint was made. If this was a criminal proceeding, the parties to that proceeding are secondary parties (see § 12 par. 6 of the Criminal Procedure Code).
Under § 72 par. 6 of the Act on the Constitutional Court, a copy of the decision on the last remedy that the law provides for protection of rights must be attached to the constitutional complaint (generally that is the remedy alleged to have violated the complainant’s fundamental rights and freedoms, and which he seeks to have annulled.) It is also appropriate to attach copies of other decisions that are connected to the contested decision (e.g., decisions of bodies at lower levels).
If a constitutional complaint lacks one of the requirements provided by the Act on the Constitutional Court, the Constitutional Court will call on the complainant to remove defects in the constitutional complaint, and will set a deadline for doing so. If the complainant does not remove defects in the complaint by the deadline, the Constitutional Court will deny the complaint under § 43 par. 1 let. a) of the Act on the Constitutional Court.
If the Constitutional Court finds the constitutional complaint to be justified, i.e. if it determines that a fundamental right or freedom guaranteed by the constitutional order was violated, it may, under § 82 par. 3 of the Act on the Constitutional Court, annul the contested decision, and, in the event of a complaint against a different kind of intervention by a public authority, it may forbid that public authority from continuing to violate the right or freedom, and order it to, insofar as possible, return matters to the condition that existed before the violation. Therefore, it is necessary to keep these options for the Constitutional Court’s action in mind when formulating the proposed judgment of the constitutional complaint, i.e. when formulating what the complainant seeks from the Constitutional Court, what he asks from it. The Constitutional Court cannot, for example, order a public authority to grant a particular request from the complainant, to provide some particular performance, and so on. The Constitutional Court cannot change the contested decision, nor can it decide instead of the relevant public authority or court. If it annuls the contested decision, the matter is returned to the public authority for a new decision.
If the complainant seeks from the Constitutional Court something that is not within its competence, the Constitutional Court must deny the complaint due to inappropriateness, under § 43 par. 1 let. d) of the Act on the Constitutional Court.
The law does not give the Constitutional Court a deadline for a decision. The usual time for a decision varies according to the complexity of the matter, approximately from two months to two years. Cases that take longer than three years from submission to decide are an exception, and almost always involve a public law dispute, for example between individual state authorities.
All important documents related to the Constitutional Court’s decision making in a particular matter are added to the file. Parties and secondary parties are entitled to view the file (with the exception of the voting protocol) and may make extracts and copies from it.
Resolution are all decisions by the Constitutional Court that are not decisions in the matter itself. Most frequently, the Constitutional Court rules by resolution to deny a constitutional complaint. The Constitutional Court denies approximately 95 % of constitutional complaints. The most frequent grounds for denying a constitutional complaint are:
- the petitioner is not authorized,
- the petition is clearly unjustified,
- the petition is defective due to lack of legal representation,
- the petitioner fails to meet the deadline set by the Constitutional Court to remove defects in the petition when the petition does not contain the requirements set by the Act on the Constitutional Court.
A resolution can also be used to decide, for example, on a preliminary injuction, impose a procedural fine, etc.
The Constitutional Court rules in the matter itself by judgment, and in other matters by resolution (§ 54 par. 1 of the Act on the Constitutional Court). Judgments issued in proceedings on constitutional complaints are enforceable upon delivery of the written judgment to the parties.
A judgment consists of:
- the introduction to the verdict, which identifies the constitutional Court body that ruled in the matter, its composition, the petitioner, parties and secondary parties to the proceedings and their attorneys and the decisions or interventions by a public authority or legal regulations against which the petition was directed,
- the verdict, in which the Constitutional Court states whether it granted or denied the complainant’s petition. A petition may be granted only in part. In that case, the verdict of the judgment states to what extend the petition was granted and to what extent the petition was denied or rejected.
- the reasoning, in which the Constitutional Court briefly summarizes the content of the petition, the facts, and the reasons that led to its decision.
- the instruction that decisions of the Constitutional Court cannot be appealed (§ 54 par. 2 of the Act on the Constitutional Court).
Under § 58 of the Act on the Constitutional Court, Constitutional Court judgments are enforceable either:
- upon publication in the Collection of Laws, or
- on a date expressly specified in the decision, or
- by announcement of the judgment (i.e. orally, in the Constitutional Court’s courtroom), or
- by delivery of the written judgment to the parties.
In proceedings on a constitutional complaint the judgment usually becomes enforceable by delivery of the written judgment to the parties.
Under Art. 89 par. 2 of the Constitution, enforceable decisions of the Constitutional Court are binding for all bodies and persons. Therefore, Constitutional Court judgments are considered one of the sources of law, and are treated as precedent. They are, of course, directly binding for the parties to the proceedings, who are required to conduct themselves accordingly. For other bodies and persons the judgments are binding as precedent to the extent of the so-called fundamental grounds of the decision (also the ratio decidendi), which are the legal arguments that are the direct justification for the verdict. Other parts of the reasoning (the obiter dictum, i.e. comments that the Constitutional Court makes peripherally, incidentally, to fill in the wider context, etc.) are not of a binding nature.
With a view to the fact that the Act on the Constitutional Court requires mandatory representation of the party by an attorney, the Constitutional Court delivers its decisions solely to legal counsels of the parties.
Pursuant to Act No. 300/2008 Coll., on Electronic Acts and Authorized Document Conversion, as amended, such delivery is effected through data mailboxes which all attorneys are obliged to possess. The decision of the Constitutional Court is thus delivered to the legal counsel in an electronic version with a recognized digital signature of the person acting ex officio, and the data mailbox system attaches a “qualified time stamp” thereto. Such information constitutes adequate proof of originality of the electronic version of the decision.
The electronic version of the decision does not contain an imprint of the official seal because the provision of law does not provide for its authenticated electronic form, and such an imprint would be a mere picture in the decision. However, in accordance with the Office and Filing Rules of the Constitutional Court, an imprint of the official seal is appended to the original of the decision which is placed on the relevant file kept by the Constitutional Court.
If the legal counsel prints out the electronic version of the decision for the purposes of the party to the proceeding, such printout is a mere copy of the decision. For such printed decision to be treated as an authenticated decision, the legal counsel must carry out an “authorized conversion of the decision” for the party to the proceeding; in practical terms, this means that the decision is printed out, and a “conversion clause” attached thereto. When such document is presented to the Constitutional Court, the Constitutional Court shall attach an enforceability clause thereto in accordance with Section 10 of the Office and Filing Rules of the Constitutional Court, if the legal counsel or the party deems it necessary.
Costs of proceedings before the Constitutional Court (e.g. cash expenses, foregone income, attorney’s fees), that a party or secondary party incurs are generally paid by the party or secondary party. However, the Constitutional Court may, in exceptional cases, and based on the results of the proceeding (i.e. based on success in the matter) require a party or secondary party to a proceeding to fully or partly compensate another party or secondary party for its costs.
Costs incurred by presentation of evidence to the Constitutional Court and interpreting costs are paid by the Constitutional Court.
The Constitutional Court may grant the complainant compensation of attorney’s frees, under the following conditions:
- the complainant’s personal and property situation justifies it (in particular, if the complainant does not have sufficient funds to pay an attorney),
- the constitutional complaint was not rejected, and
- the complainant expressly requests this before the first hearing.
If a complainant asks for compensation of attorney’s fees, he must of course prove that his personal and property situation justifies it. If the Constitutional Court grants the request, the complainant’s attorney’s fees are borne fully or partly by the state, i.e. the Constitutional Court. However, if it is later determined that the complainant’s personal and property situation did not justify this, the Constitutional Court may review its decision and reverse it, including retroactively.
A file can be viewed only on the premises of the Constitutional Court and under the supervision of a court office employee. Files of cases that have not yet been settled may be viewed by the parties, secondary parties, and their representatives, who may only be attorneys with a special power of attorney. Files of matters that have been settled with legal effect may be viewed by the parties, secondary parties, and persons (not only attorneys) who have received a power of attorney to view the files from the parties or secondary parties to the proceedings.
The court office employee will record in the file that it has been viewed. The employee will record who viewed the file and how long, and will sign and date the record. The person viewing the file also signs this record. If it is not possible to view the file, the employee will record that, and state the reason why it was not possible.
Extracts and copies from files can also be made by photocopy. The court office employee will assess a court fee for copies, which is paid by payment stamps (in Czech, “kolek”).
The files of other courts, state prosecutor’s offices, the police, administrative bodies, etc., which the Constitutional Court requested, are made available for viewing only with the written consent of the judge rapporteur.
All judgments of the Constitutional Court, and resolutions selected by the plenum of the Constitutional Court, are published in book form in the Collection of Decisions of the Constitutional Court, which is available in public libraries. All decisions of the Constitutional Court are also made available for information purposes on the internet, in the NALUS electronic database of Constitutional Court decisions, at: http://nalus.usoud.cz.
In addition, some Constitutional Court decisions are published in the Collection of Laws of the Czech Republic. In certain kinds of proceedings publication in the Collection is provided directly by law (e.g. decisions to annul statutes and other legal regulations). The Constitutional Court itself may also decide to publish other important decisions in the Collection of Laws.