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Content updated: 02-09-2021 16:19

An individual constitutional complaint is a real opportunity for people to defend their rights or freedoms

01-09-2021

As from 1 September 2019, every person who seeks to defend his or her constitutional rights or freedoms violated as a result of an unconstitutional law or other act of the Seimas, the President of the Republic, or the Government may file a constitutional complaint with the Constitutional Court.

The experience gained during the first two years of the operation of this institution of the defence of human rights shows that the possibility for persons to apply directly to the Constitutional Court has been very much needed and is being used very actively. The cases already resolved on the basis of individual constitutional complaints also show that the possibility of defending the rights of individuals in the Constitutional Court is real – in half of the cases resolved on the basis of individual constitutional complaints, it has been found that the impugned legal act conflicts or conflicted with the Constitution.

In total, 428 individual constitutional complaints were received in the Constitutional Court within two years of the implementation of the institution of individual constitutional complaints. The absolute majority of all petitions received by the Constitutional Court are submitted by those persons who have filed individual constitutional complaints. It is noteworthy that the solution of constitutional problems raised in the petitions of persons requesting an investigation into the constitutionality of legal acts that, in the opinion of the petitioners, violate their constitutional rights or freedoms is important not only for a particular person, but also for other persons and society as a whole. According to the President of the Constitutional Court, Danutė Jočienė, the possibility for those persons to apply to the Constitutional Court allows them not only to defend their constitutional rights or freedoms, but also to contribute to the improvement of the legal system in removing provisions of unconstitutional legal acts.

“Once the Constitutional Court has ruled on a case on the basis of a request made by one or more petitioners, a legal act declared unconstitutional may no longer be applied to any person in the same situation. Thus, a person who applies to the Constitutional Court regarding the violation of his or her rights or freedoms also protects other people. For example, on 19 March 2021, the Constitutional Court passed a ruling in a case brought on the basis of an individual constitutional complaint concerning the non-reimbursement of lawyers’ expenses incurred by some persons under the then applicable provisions of the Code of Administrative Offences. In this case, the Constitutional Court established the fundamental principle that an innocent person must not suffer the negative consequences of recourse to a court either in administrative or in criminal proceedings,” Danutė Jočienė emphasised.

This case is one of the six cases already resolved in the Constitutional Court on the basis of individual constitutional complaints. In three of them, the conflict of the impugned legal act with the Constitution has been established. In total, eleven petitions from individuals are currently pending examination, accounting for almost half of the accepted petitions before the Constitutional Court.

According to Danutė Jočienė, it must be acknowledged that the issue of the quality of individual constitutional complaints still remains relevant. When the Constitutional Court decided on the admissibility of individual constitutional complaints, i.e. whether they could lead to a case before the Constitutional Court, it was often necessary to admit that a certain complaint did not meet one or more of the admissibility requirements imposed on it.

“The Constitutional Court considers it necessary that as many people as possible who consider that their rights or freedoms have been violated should bring such a matter before the Constitutional Court. However, it is even more important that the petitions comply with the requirements established for them in the Constitution and the Law on the Constitutional Court, as only properly prepared petitions are admissible and lead to constitutional justice cases. An analysis of the reasons why the Constitutional Court could not accept particular individual constitutional complaints shows that the shortcomings regarding the admissibility of individual complaints remain the same,” Danutė Jočienė says.

The most common shortcoming of the petitions is that they request not an assessment of the constitutionality of acts adopted by the Seimas, the President of the Republic, or the Government, but rather an assessment, review (amendment, annulment) of court decisions, or a review or the reopening of resolved court cases, despite the fact that the Constitutional Court is not allowed to do so (167 individual constitutional complaints or parts thereof were rejected as inadmissible on the stated grounds). Other frequent mistakes were that, on the basis of the impugned legal regulation, no decision was made, by which the constitutional rights or freedoms of the petitioner could have been violated (96 individual constitutional complaints or parts thereof), or that the petitions raised not the issues of the constitutionality of laws (or other legal acts), but rather the issues of the applicability of their provisions (69 individual constitutional complaints or parts thereof). In addition, the set deadlines were often missed and referrals to the Constitutional Court were late (26 individual constitutional complaints or parts thereof).

The practice of most European countries where the institution of individual constitutional complaints is established shows that, on average, constitutional courts accept 3–10 per cent of all referrals made by individuals. In this respect, Lithuania does not differ from other countries – the proportion of complaints admissible for consideration in the Constitutional Court is around 6 per cent.

Please note that, according to the Constitution and the Law on the Constitutional Court, a person may apply to the Constitutional Court only when:

– he or she believes that his or her constitutional rights or freedoms are violated;

– the violation is caused by the provisions of a legal act adopted by the Seimas, the Government, or the President of the Republic;

– the person has already applied to a court regarding the defence of his or her violated rights and has appealed against the decision of the court of first instance and, where applicable, has lodged a cassation appeal;

– no more than four months have elapsed since the final and unappealable court decision.

In addition, the petition of an individual requesting an investigation into the constitutionality of a law, a government resolution, or a decree of the President of the Republic must be based on legal arguments, i.e. it must indicate why the impugned legal act conflicts with the Constitution and with which particular articles (or parts and items thereof) of the Constitution it conflicts.

A person may file a petition with the Constitutional Court not against a relevant court decision or decisions of other state or municipal institutions, but against the law or other legal act adopted by the highest state authorities that was applied to the applicant when taking the decision.

According to the requirements consolidated in the Constitution and the Law on the Constitutional Court, it is not necessary to apply to an advocate in order to submit an individual constitutional complaint. The submission of such complaints to the Constitutional Court costs nothing, as no stamp duty is established.

Detailed information on how to submit an individual constitutional complaint can be found in the section “Information for persons” of the website of the Constitutional Court at www.lrkt.lt.