User:LegesFundamentales/Draft: Constitutional complaint
A constitutional complaint is a specialized legal procedure by which the violation of some provision of a constitution may be contested directly by a complainant before a constitutional court. It is a form of judicial review of state action; in some jurisdictions, it may be limited just to acts of one function of state (such as the executive ‒ sometimes without the gubernative ‒, judicial, or legislative function).
As a mode of judicial review
[edit]Main article: Judicial review. See also: Constitutional court.
Between such jurisdictions as permit judicial review of sovereign acts (of the legislature, of the executive branch, or of other courts), a contrast may be drawn between those which provide for "diffuse review" and those which provide for "concentrated review". The
--> Kelsen concentration constitutional review model
- No ability to vindicate constitutional rights directly
- Incidental vindication of constitutional rights by ordinary courts (U.S., CH, Norway)
History
[edit]Scope of review
[edit]In some jurisdictions, the constitutional complaint procedure lets the court review the challenged action only insofar as the action may violate specific individual rights. Others allow the court to determine the challenged action's conformity with all of constitutional law; for example, the constitutional court might overturn a court decision that rests on a law enacted in violation of a point of legislative procedure (legislative procedure being a matter of the structural constitution, and not, for example, one of rights guaranteed to the individual in a bill of rights or similar constitutional catalogue of fundamental rights). In this way, provisions of constitutional law that are only intended to objectively decide the organizational structure of the state may virtually give rise to a subjective, enforceable right to be governed only by a state meeting the constitutional mandates for this organizational structure.
Situation by country
[edit]For list of countries in Europe, see Table 1 in the Venice Commission report (p. 62). For other countries, refer to Gentili 2011.
References
[edit]- Pūraitė-Andrikienė, Dovilė (October 2022). "Individual Constitutional Complaints in Lithuania: An Effective Remedy to Be Exhausted before Applying to the European Court of Human Rights?". Baltic Journal of Law & Politics. 15 (1): 1–30. doi:10.2478/bjlp-2022-0001. Retrieved 13 Jan 2024.
- Sinani, Blerton (2021). "The Implementation of the ECHR and the Need to Extend the Scope of Constitutional Complaint Mechanism in North Macedonia" (PDF). Hungarian Journal of Legal Studies. 62 (2): 162–183. doi:10.1556/2052.2021.00331.
- Shcherbanyuk, Oksana (31 Mar 2020). "Problems of Implementation of the Constitutional Complaint in Ukraine and Ways to Resolve them" (PDF). Journal of Advanced Research in Law and Economics. 11 (2): 586–597. doi:10.14505/jarlevi1.2(48).29.
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- Gentili, Gianluca (2011). "A Comparative Perspective on Direct Access to Constitutional and Supreme Courts in Africa, Asia, Europe and Latin America: Assessing Advantages for the Italian Constitutional Court". Penn State International Law Review. 29 (4): 705–757.
- Harutyunyan, Gagik; Nußberger, Angelika; Paczolay, Peter (18 Dec 2010). Study on Individual Access to Constitutional Justice (Report). Strasbourg: European Commission on Democracy Through Law (Venice Commission) - Council of Europe. CDL-AD(2010)039rev.
- Szmulik, Bogumił (31 Dec 2005). "The Parties Empowered to Lodge a Constitutional Complaint in Poland and in Selected European Countries – Legal–comparative Study" (PDF). Polish Political Science Yearbook. 34: 31–43. doi:10.15804/ppsy2005003. ISSN 0208-7375.
- Dannemann, Gerhard (Jan 1994). "Constitutional Complaints: The European Perspective". The International and Comparative Law Quarterly. 86 (4): 142–153. JSTOR 760826.