Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.39 N° 69
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 39, Nº 69 (Julio - Diciembre) 2021, 833-850
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/04/2021 Aceptado el 09/06/2021
The role of the constitutional
complaint in the legislative process:
Comparative legal aspect
DOI: https://doi.org/10.46398/cuestpol.3969.51
Nataliia I. Brovko *
Liudmyla P. Medvid **
Ihor Y. Mahnovskyi ***
Vusal A. Ahmadov ****
Maksym I. Leonenko *****
Abstract
The article deals with the role of constitutional complaint
in the system of quality assurance of the state legislation, for
protection of the rights and freedoms. Constitutional complaints,
as well as their optimal models, require detailed research.
Comparative analysis and survey are the main methods. The
subject of a constitutional complaint in the model proposed by the authors
may be laws or their individual provisions, regulations of heads of state,
government, other statutes and regulations, individual administrative
acts, judgements in specic cases. Citizens, foreigners, stateless persons,
and legal entities are subjects who have the right to le a constitutional
complaint. The authors attribute the following conditions of admissibility
of a constitutional complaint: the presence and proof of violation of his/
its constitutional rights and freedoms, the use of all other remedies to
protect violated rights and freedoms, compliance with deadlines for ling a
constitutional complaint in some countries, and payment of state duty. The
model proposed by the authors is, however, universal, and further needs to
be detailed for countries of interest.
* Doctor of Law, Head of the Department, Department of Constitutional Law and Theoretical Legal
Disciplines, Faculty of Law and Linguistics, Bila Tserkva National Agrarian University. ORCID ID:
https://orcid.org/0000-0003-3525-2817. Email: 091019549nb@gmail.com
** PhD in Law, Associate Professor, Department of Legal Support, Humanitarian Institute, National
Defense University of Ukraine named after Ivan Cherniakhovskyi. ORCID ID: https://orcid.org/0000-
0002-0035-9748. Email: lpm176@ukr.net
*** Doctor of Law, Professor, Department of Theory and Philosophy of Law, Faculty of Training Specialists
for Pre-Trial Investigation, Odessa State University of Internal Aairs. ORCID ID: https://orcid.
org/0000-0001-7336-6212. Email: magn.igor75@ukr.net
**** PhD in Law, Head of the Department, Research and Forensic Case Department, Academy of Justice
at the Ministry of Justice Azerbaijan Republic. ORCID ID: https://orcid.org/0000-0002-5007-4302.
Email: Ahmadovvus@ukr.net
***** PhD in Law, Associate Professor, Department of Criminal, Civil and International Law, Law Faculty,
Law and Management Institute, Zaporizhzhia Polytechnic National University. ORCID ID: https://
orcid.org/0000-0001-8680-0612. Email: maksymzapp@gmail.com
834
Nataliia I. Brovko, Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov y Maksym I.
Leonenko
The role of the constitutional complaint in the legislative process: Comparative legal aspect
Keywords: constitutional complaint; constitutional justice; constitutional
proceedings; system of legislation; constitutional court.
El papel de la denuncia constitucional en el proceso
legislativo: aspecto jurídico comparado
Resumen
El artículo estudia el papel de la denuncia constitucional en el sistema de
aseguramiento de la calidad de la legislación estatal, para la protección de
los derechos y libertades. Las quejas constitucionales, así como sus modelos
óptimos, requieren una investigación detallada. El análisis comparativo
y la encuesta son los métodos principales de esta investigación. El objeto
de una denuncia constitucional en el modelo propuesto por los autores
pueden ser leyes o sus disposiciones individuales, reglamentos de jefes de
estado, de gobierno, otros estatutos y reglamentos, actos administrativos
individuales, sentencias en casos especícos. Los ciudadanos, los
extranjeros, los apátridas y las personas jurídicas son sujetos que tienen
derecho a presentar una denuncia constitucional. A modo de conclusión
los autores atribuyen las siguientes condiciones de admisibilidad de una
denuncia constitucional: la presencia y prueba de la violación de sus
derechos y libertades constitucionales, el uso de todos los demás recursos
para proteger los derechos y libertades violados, el cumplimiento de los
plazos para la presentación de una denuncia constitucional en algunos
países y pago de impuestos estatales. Sin embargo, el modelo propuesto
por los autores es universal y debe detallarse más para los países de interés.
Palabras clave: denuncia constitucional; justicia constitucional;
proceso constitucional; sistema legislativo; tribunal
constitucional.
Introduction
Respect for human rights is the foundation of a democratic society. The
institution of the constitutional complaint as one of the most important
means of protection of human rights and freedoms is becoming increasingly
important. Sinclair (2015: 215) rightly notes that “the existence of such
a procedure largely determines the purpose of the Constitutional Court,
while its absence signicantly devalues constitutional justice”. The idea
exists in one form or another in many states in which there is a specialized
judicial review of constitutionality. In analysing the types of constitutional
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complaint in the European Commission for Democracy through Law Report
of January 27, 2011, which summarizes the international experience of
direct access to constitutional justice, complaints of abstract and concrete
review were distinguished.
The rst group consists of models that determine the exercise of abstract
review by the constitutional justice. Abstract review is a form of control
not related to a specic case. Actio popularis provides for the possibility
of a person to le a constitutional complaint on the constitutionality of a
legislative act after its ocial promulgation in the absence of individual
interest in the case, quasi actio popularis and individual proposal.
According to Petriv (2020), the second group – models of direct access
to constitutional justice – are complaints, which determine the specic
constitutional review associated with the consideration of a particular
case – “individual complaints”. In contrast to other forms of judicial
protection of human rights, the specics of the institution of constitutional
complaint is manifested in the fact that the subject of appeal may be a
statute or regulation, including the law, not just an individual act of law
enforcement. Moreover, the constitutional review exercised in the litigation
under citizens’ complaints is to verify the compliance of the legal act with
the Basic Law of the state, which, as Kysela (2014) notes is characterized by
stability and forms the basis of national law, which allows the applicant of
a constitutional complaint to challenge, among other things, (and mainly)
statutes and regulations up to the level of law, relying more on the principles
of law and being less dependent on the literal interpretation of the legal
norm.
Concrete constitutional review involves a model of a partial constitutional
complaint, which can appeal only statutes and regulations, and a model
of a full complaint, which provides for the possibility of appealing statutes
and regulations, as well as law enforcement acts. Aydın Çakır and
Şekercioğlu (2016) distinguish two types of constitutional complaints:
individual constitutional complaint (for example, in Slovakia, Slovenia).
It is directly aimed at verifying the constitutionality of law enforcement
acts of public authorities and indirectly – to ensure the constitutionality
of law enforcement practice; mixed complaint. This type of constitutional
complaint combines the features of a “public complaint” aimed at the
exercise of abstract constitutional review, and “individual complaint” –
in order to protect the rights of a particular person (such an institution of
constitutional complaint exists in Poland, Russia, Czech Republic).
Let us consider the most popular models of individual constitutional
complaints. 1. Actio popularis. In Roman law, actio popularis was seen as
the person’s activity in the interests of society. For example, actio de positis
et suspensis could be brought by any citizen against the owner of a house
with any object that could cause harm to third parties; there are cases when
836
Nataliia I. Brovko, Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov y Maksym I.
Leonenko
The role of the constitutional complaint in the legislative process: Comparative legal aspect
actio popularis was used in the case of burial of the deceased in someone
else’s grave. In the legal literature, this action is called a civil lawsuit “in
defence of everyone” (Inshyn et al., 2018).
2. Quasi actio popularis (need to prove a legitimate interest). The
institution of quasi actio popularis occupies an intermediate place between
abstract actio popularis and normative constitutional complaint (Albert et
al., 2018). The procedure for ling quasi actio popularis requires proof of
the applicant’s specic legitimate interest in the application of the general
norm. The dierence from a normative constitutional complaint is the fact
that the applicant does not necessarily have to be harmed.
3. Normative constitutional complaint. Any person has the right to
le a complaint of violation of his basic subjective rights by an individual
act adopted on the basis of a normative act. Normative constitutional
complaint can be: a) full – in this case, each person can apply to the
constitutional court to determine the constitutionality of any legal act
adopted against him provided exhaustion of other possibilities to protect
his rights (Ukraine, Germany, France); b) partial – a characteristic feature
of this type of complaint is the limited range of objects of the constitutional
complaint. This institution operates in Poland, the Russian Federation,
Latvia, Armenia and some other countries (Aydın Çakır and Şekercioğlu,
2016).
Our research is based on three hypotheses:
Hypothesis 1. Full normative complaint provides a higher level of
protection of the rights and freedoms of citizens compared to a partial one.
To conrm the provisions of this hypothesis, we compared statistics on the
constitutional complaint procedure in post-Soviet countries (Ukraine), as
well as Poland, where the institution of constitutional complaint is only
developing, and countries with a high level of democratic constitutional
institutions (Germany), where the possibility of ling a constitutional
complaint has been provided at the legislative level since 1951.
Hypothesis 2. The level of satisfaction of constitutional complaints of
citizens is much higher in developed democracies with established traditions
of constitutionalism. To conrm the provisions of this hypothesis, we
conducted a comparative analysis of the legislation governing the procedure
for handling constitutional complaints.
Hypothesis 3. The high level of satisfaction of constitutional complaints
contributes to improving the quality of the state legislation system. To
conrm the hypothesis, we conducted a social online survey of citizens aged
25 to 65 – practicing lawyers, political scientists, and parliamentarians
from the studied countries.
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The purpose of the research is a comparative analysis of the legal
regulation of constitutional complaints in Poland, Germany, and Ukraine,
aimed at identifying problems related to the choice of constitutional
complaint model, and justifying possible solutions, taking into account the
experience of forming and developing the constitutional complaint as the
most important element of the human rights mechanism of these states.
The purpose of the study provided for the following objectives:
- dening the concept and structure of an eective model of
constitutional complaint, which will help improve the quality of
national legislation.
- identication of specic features of judicial proceedings on
constitutional complaints in comparison with other forms of judicial
protection of human rights.
- comparative legal analysis of the model of the constitutional
complaint in accordance with the legislation of the studied states.
- analysis of dierent options for determining the range of entities
authorized to le a constitutional complaint, and consideration of
related issues of law enforcement activities.
1. Literature Review
We base our research on the belief that it is impossible to build a
democratic society without a proper constitutional protection mechanism.
In the substantive sense, a constitutional complaint is considered by
scholars (Kosař and Vyhnánek, 2020) as a direct appeal of a private law
entity to a constitutional review body with a requirement to verify the
constitutionality of a legal act. According to Halmai (2018), a private law
entity can be an individual and a legal entity. In some cases, local self-
governments can also act as the subject of a constitutional complaint, but
such cases are quite rare. Most scientic research, however, study appeals
of individuals.
As a rule, the subject of a constitutional complaint is statutes and
regulations of higher legal force after the Basic Law of the state. As Zupančič
(2020) rightly noted, the process of development of constitutional review
poses a number of common problems to the constitutional review bodies of
young democracies, which requires mutual exchange of experience in this
eld. Garoupa (2020) emphasizes that all states to some extent follow a
unique, self-determined way of building constitutional justice in general and
the institution of constitutional complaint in particular. This is manifested
primarily in the various models of organization of constitutional review in
838
Nataliia I. Brovko, Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov y Maksym I.
Leonenko
The role of the constitutional complaint in the legislative process: Comparative legal aspect
the states and the various models of constitutional complaint incorporated
into national law (Navarrete and Castillo-Ortiz, 2020).
In these conditions, the comparative legal study of the institution of
constitutional complaint becomes relevant, which allows exchanging
experience in solving general problems of constitutional development
(Bentsen et al., 2019). Given the growing importance of human rights
protection, the tendency to exercise constitutional review of individual
administrative acts and court judgments on the basis of individual
complaints becomes apparent, because human rights violations are often
the result of unconstitutional individual acts, as Bielen et al. (2018) note.
Thus, the European Commission for Democracy through Law, in its
opinion on constitutional justice, concludes that human rights violations
often arise through individual acts based on constitutional regulations, and
the extension of the subject of a constitutional appeal to any statutes and
regulations.
2. Methods and Materials
2.1. Materials for Empirical Research
We selected three countries, Ukraine, Germany, and Poland, to conduct
comparative research. Let us briey dwell on the peculiarities of the
legislation on the constitutional complaint of these countries.
In June 2016, the Verkhovna Rada of Ukraine adopted the Law of
Ukraine “On Amendments to the Constitution of Ukraine (Regarding
Justice)”, which provides for a new constitutional mechanism for protecting
the rights and freedoms of citizens through the introduction of the
constitutional complaint institution. Amendments to the Constitution came
into force on September 30, 2016. Developing the relevant constitutional
provisions, the Verkhovna Rada of Ukraine adopted a new Law of Ukraine
“On the Constitutional Court of Ukraine”, which establishes the procedure
for ling and handling constitutional complaints, requirements for the
form and content of constitutional complaints, powers of boards, senate
and Grand Chamber to handle constitutional complaints, requirements for
disclosure of reporting information on constitutional complaints, subjects
of constitutional complaints, procedure of preliminary examination of
constitutional complaint by the Secretariat of the Constitutional Court of
Ukraine, list of grounds for refusal to initiate constitutional proceedings
under the constitutional complaint. Certain provisions of the Law “On the
Constitutional Court of Ukraine” introduced a special adviser institution
(for a period up to January 1, 2020) in order to provide expert legal
assistance in constitutional proceedings under a constitutional complaint.
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At the constitutional level, the procedure for the establishment and
operation of the Constitutional Court of the Federal Republic of Germany
is regulated in detail in the Basic Law (Article 93) and in Articles 90 and
94 the Law “On the Federal Constitutional Court of Germany” (Gesetz
über das Bundesverfassungsgericht Deutschland). In Germany, there
are two types of constitutional complaints that correspond to the federal
system: 1) a constitutional complaint (Verfassungsbeschwerde) to the Land
Constitutional Court (Verfassungsgericht) of a separate federal land, which
is the basis for consideration of the violation of the constitution of this land;
2) a federal constitutional complaint led with the Federal Constitutional
Court (Bundesverfassungsgericht, FCC), which considers violations of the
provisions of the Basic Law of Germany. The law governing the review by
the Federal Constitutional Court of Germany is the Basic Law, or rather its
provisions on the fundamental rights stipulated in Articles 1-19, and the
rights equated to the fundamental (equivalent) stipulated in Articles 20.4,
33, 38, 101, 103 and 104. At the same time, human rights (for example, to
human dignity) and the rights of a citizen (for example, to free movement
across all territory of the country) do not coincide. According to this
division, not only citizens of Germany have the right to appeal to the Federal
Constitutional Court, but also foreign citizens — to the extent that they deny
the act encroaching universal values (Kommers and Miller, 2012:12).
In the Republic of Poland, the procedure for handling constitutional
complaints is established by the Constitution (Internetowy System Aktów
Prawnych, 1997). In particular, Article 79 provides:
Everyone whose constitutional rights or freedoms have been violated shall
have the right to le a complaint to the Constitutional Court in a case on reviewing
the constitutionality of a law or other normative act underlying a nal resolution
on his rights, freedoms or obligations provided for in the Constitution adopted by
a court or state administration body.
The Law “On the Constitutional Tribunal” (Ustawa o Trybunale
Konstytucyjnym) provides:
Participants in the proceedings of the Tribunal are bodies or persons who has
submitted an appeal or led a complaint regarding a constitutional violation. A
constitutional complaint (hereinafter referred to as “the complaint”) may be led
after the exhaustion of all remedies provided within 3 months from the date of
sending the legally eective court judgement, nal decision or other nal judicial
act to the applicant. The court considers a complaint on the basis of the principles
and in accordance with the procedural rules provided for the consideration of
appeals to establish the conformity of laws and other normative acts with the
Constitution (Mavčič, 2000, p. 315).
840
Nataliia I. Brovko, Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov y Maksym I.
Leonenko
The role of the constitutional complaint in the legislative process: Comparative legal aspect
2.2. Proceeding of the Research
The comparative study was conducted for 39 weeks using the methods of
conceptual analysis, sociological analysis, comparative legal and statistical
research methods. The analysis of the results was conducted at each stage
in accordance with the objectives.
The study was carried out in three stages (Figure 1).
The rst stage of the research involved collection and processing
information about the role of the constitutional complaint in the formation
of a high-quality legal system of the studied countries through specic
sociological methods (analysis of expert positions, online public opinion
polls). The comparative legal method allowed studying international
standards and foreign experience in protecting the rights and freedoms of
citizens through the constitutional complaint.
In the second stage of the study, we selected countries with dierent
degrees of development of democratic constitutional institutions and
dierent forms of constitutional complaints provided by law and conducted
a comparative analysis of the eectiveness of impact of the chosen model
of constitutional complaint on the protection of legitimate rights and
interests of citizens and the quality of legislation in general. The authors
chose the following countries for the comparative analysis: Germany — a
country with a high level of constitutionalism and signicant experience
in the application of a full normative constitutional complaint, Poland — a
country where the tradition of a partial normative constitutional complaint
is being developed, and Ukraine, which is a synthesis of the above features
(although it is a young democracy but introduces the use of a full normative
constitutional complaint).
Figure 1: Stages of the study (Own creation)
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2.3. Research Design
The empirical background of this study is a sociological experiment
conducted by the author in the third stage of research. The experiment
involves 4 stages: preparatory and organizational; realization; analysis of
the data obtained; registration of research results.
At the preparatory stage, we selected 200 people aged 25 to 65 —
practicing lawyers, political scientists, and parliamentarians from the
studied countries. We prepared questionnaires containing 6 questions:
Do you think that the constitutional justice body of your country has a
sucient power to consider constitutional complaints?
Do you consider the process of reviewing a constitutional complaint in
your country to be in line with international principles?
Have you ever had to le a constitutional complaint with the
Constitutional Court?
Did your colleagues have to le a constitutional complaint with the
Constitutional Court?
Do you think that the legislation regulating the procedure for considering
constitutional complaints is declarative?
Do you follow the improvement of the quality of statutes and regulations
after the introduction of the institution of constitutional complaint in your
country?
We used STATA software to analyse the data obtained during the
sociological experiment and to take into account the dynamics of the
eectiveness of the constitutional complaint in the studied countries.
Number of respondents N = 200, the sample size is 200 reporting units.
Measurement error 7% (Table 1).
Table 1. Analysis of the eectiveness of the constitutional complaint
(Own creation)
Years
Countries 2016 1017 2018 2019
The total number of
constitutional complaints led
Ukraine 39 356 690 375
Germany 5,754 5,982 5,959 5,446
842
Nataliia I. Brovko, Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov y Maksym I.
Leonenko
The role of the constitutional complaint in the legislative process: Comparative legal aspect
Poland 303 243 59 72
The number of rejected
constitutional complaints
Ukraine 32
(82.05%)
273(76.69) 426
(61.74%)
125
(33.33%)
Germany 5,729
(99.57%)
5,268
(88.06%)
5,740
(96.32%)
4,793
(88.01%)
Poland 283
(93.40%)
234
(96.30%)
29
(49.15%)
62
(86.11%)
The number of constitutional
complaints on which a positive
decision was adopted
Ukraine 0 (0%) 83
(23.31%)
37
(5.36%)
7 (1.87%)
Germany 42
(0.73%)
28 (0.47%) 44
(0.74%)
26
(0.48%)
Poland 19
(6.27%)
9 (3.70%) 15
(25.42%).
10
(13.89%)
3. Results
Comparative legal analysis of the main models of constitutional
complaint allows us to conclude that with the growing importance of human
rights protection there is a clear tendency to exercise constitutional review
over individual administrative acts and court judgements on the basis of
full normative constitutional complaints, as “human rights violations are
often the result of unconstitutional individual acts based on constitutional
normative acts” (Mavčič, 2000: 32). The authors of this study support the
institution of a full constitutional complaint not only because the remedies
in the European Court of Human Rights and thriving to address human
rights issues at the national level, taking into account overloaded Strasbourg
court, are currently institutionally limited. A full normative constitutional
complaint undoubtedly provides an opportunity for comprehensive
individual access to constitutional justice and, consequently, for the full
protection of individual rights. A person may appeal against any act of
public authorities that directly currently violates his fundamental rights
in a subsidiary manner. That is, a person may appeal a general act, if the
latter is directly applicable in his case, or an individual act addressed to
him. There are various grounds and forms of constitutional complaints.
The main of the above is the “constitutional review”, when a person “is
given a remedy against the nal decisions of ordinary courts, but not
against individual administrative acts” (Mavčič, 2000:78). This type is
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found in Poland, Bosnia and Herzegovina, Chile and Albania. In contrast,
in Austria only individual administrative acts can be considered and not
nal decisions in civil or criminal cases. In case of consideration of a case on
the basis of a full constitutional complaint, the Constitutional Court usually
does not make a decision on the merits (Ukraine, Germany). It considers
constitutional issues in the case only. Besides, the Court does not review
compliance with the whole hierarchy of rules (Table 2). The main function
of a full constitutional complaint is to protect human rights.
Table 2. Analysis of the constitutional complaint models
Characteristics
of the
Constitutional
complaint
Germany Poland Ukraine
Name of the
constitutional
justice body
Federal Constitutional
Court
Constitutional
Tribunal
Constitutional Court of
Ukraine
Formation
procedure
Elected by the Bundestag
and the Bundesrat
The Prime
Minister
approved by the
Seimas
6 – selected by the
President
6 - selected by the
Parliament
6 - selected by the
Congress of Judges
Form of
constitutional
complaint
full normative
constitutional complaint
partial normative
constitutional
complaint
full normative
constitutional
complaint
Subjects of
appeal
Citizens of the country
and foreigners, legal
entities
Citizens of the
country
Citizens of the country
and foreigners, legal
entities, except for legal
entities under public
law
The subject
of the
constitutional
complaint
Concerning a sentence
in a criminal case based
on a rule found to be
inconsistent with the
Basic Law or invalid
under Article 78, or on an
interpretation of a rule
recognized by the Federal
Constitutional Court to
be not compliant with the
Basic Law, it is allowed
to resume proceedings
in accordance with
the provisions of the
Criminal Procedure
Code.
The decision of
the Constitutional
Tribunal on the
inconsistency of a
normative act of
the Constitution,
international
treaty or law which
was the basis for a
legally valid court
decision, nal
administrative
decision or
decision on other
cases, is grounds
for resumption
If non-compliance with
the Constitution of
Ukraine of other legal
acts (their separate
provisions), except
for those in respect
of which proceedings
are opened and which
inuence decision-
making or conclusion
in the case, is revealed
in the course of
consideration of a case
on a constitutional
petition or
constitutional appeal,
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Nataliia I. Brovko, Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov y Maksym I.
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The role of the constitutional complaint in the legislative process: Comparative legal aspect
2. This rule shall not
apply to other nal
judgments which are
based on a norm which
has been declared invalid
in accordance with
Article 78, provided that
provisions of Article
95(2) or special statutory
provisions are applied.
Such a decision shall
not be enforced. Where
enforcement is required
under the provisions
of the Code of Civil
Procedure, the provisions
of Article 767 shall apply
accordingly. Code of Civil
Procedure. Complaints
about unjust enrichment
are excluded.
of proceedings or
for cancellation
of administrative
decision or other
judgement in
accordance with
the principles and
in the manner
prescribed by the
rules applicable in
this process
the Constitutional
Court of Ukraine
declares such
legal acts (their
separate provisions)
unconstitutional
Term 30 days from the
moment when a person
learns that his right has
been violated
60 days from the
moment when the
person learned
that his right was
violated
120 days from the
moment when the
person learned that his
right was violated
Conditions for
accepting a
constitutional
complaint
if a lawsuit for violation
is admissible, a
constitutional complaint
may be led after all
remedies have been
exhausted
The complaint,
in addition to
the requirements
for procedural
documents, must
indicate:
1) a law or other
normative act
which was the
basis for the
court or other
public authority
to make a nal
decision on the
rights, freedoms
or obligations
provided for in the
Constitution, and
which is denied
by the person who
led the complaint
for conrmation of
unconstitutionality
A constitutional
complaint is considered
admissible if it
meets the following
requirements:
1) all national remedies
have been exhausted
(provided a court
decision adopted as
an appellate review of
judgement, which has
entered into force, and
in case of the possibility
provided by law for a
cassation appeal - a
court decision rendered
in a cassation review);
2) from the date of
entry into force of the
nal court decision
in which the law of
Ukraine (its separate
provisions) is applied,
if no more than three
months have elapsed.
We used STATA software to analyze the data obtained during the
sociological experiment and take into account the dynamics of the eectiveness
of the constitutional complaint in the studied countries (Table 3).
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Table 3. The results of sociological surveys conducted by the author
Questions and answer options Countries
Germany Poland Ukraine
Do you think that the constitutional justice body
of your country has a sucient power to consider
constitutional complaints?
Yes 75% 42% 31%
No 25% 58% 69%
Do you consider the process of reviewing a
constitutional complaint in your country to be in
line with international principles?
Yes 57% 48% 34%
No 43% 52% 66%
Have you ever had to le a constitutional
complaint with the Constitutional Court?
Yes 14%
No 86% 100% 100%
Did your colleagues have to le a constitutional
complaint with the Constitutional Court?
Yes 10%
No 90% 100% 100%
Do you think that the legislation regulating
the procedure for considering constitutional
complaints is declarative?
Yes 12% 75% 82%
No 88% 25% 18%
Do you follow the improvement of the quality of
statutes and regulations after the introduction
of the institution of constitutional complaint in
your country?
Yes 76% 33% 30%
No 24% 67% 70%
According to opinion polls, experts have not recognized the eectiveness
of the constitutional complaint model of any country. However, the support
of certain elements of the proposed models allows forming a single eective
model of constitutional complaint that eectively aects the quality of the
legal system of individual countries (Figure 2).
846
Nataliia I. Brovko, Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov y Maksym I.
Leonenko
The role of the constitutional complaint in the legislative process: Comparative legal aspect
Figure 2: Constitutional complaint consideration model
4. Discussion
The debate on the role and importance of a constitutional complaint
in improving the quality of legislation in international scientic circles
has been going on for a long time, with many supporters and many critics
(González-Ocantos, 2016). Bricker and Wondreys (2018) support the
position that anyone can le a complaint against a normative act after
its promulgation, without being obliged to prove that the relevant norm
directly and currently aects his rights and freedoms. Lübbe-Wol (2016)
also dened the actio popularis as the main guarantee of comprehensive
constitutional review, since anyone can apply to the Constitutional Court.
In this case, the citizen simply fullls his duty to protect the Constitution.
It is not necessary that the applicant’s fundamental rights be violated.
According to the case of Goldstein v. Sec’y Commonwealth, actio popularis
plays a minor role in Liechtenstein (where several conditions must be met
for actio popularis), Malta, Peru and Chile, while it promotes law and order
in Hungary and Georgia (Casetext, 2020; Pellegrina et al., 2017). In South
Africa, a party to justice may go to court in the public interest. However,
Wendel et al. (2020) exclude actio popularis from the number of eective
solutions, because abuse is inevitable in this case. In Croatia, the actio
popularis has led to an overload of the Constitutional Court, a problem that
the Venice Commission is also critical of.
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An individual proposal is a type of abstract control initiated by a natural
or legal person and leaves much room for judgment to the Constitutional
Court (Reutter, 2020). In this case, a natural or legal person may apply to
the Constitutional Court with a proposal to consider the constitutionality of
a normative act, but it may not demand consideration of the case. He also
notes that the dismissal of review must be motivated. A natural or legal
person may le “a complaint against the violation of his basic subjective
rights by an individual act adopted on the basis of a normative act. In this
case, the initiative to exercise review is related to a specic case” (Meyer,
2020:483).
However, an “individual act applying a normative act cannot be
challenged, and the review exercised by the Constitutional Court does not
concern the application of a normative act” (Meyer, 2020:480). In support
of its position Meyer (2020) notes that there is a regulatory complaint in
Armenia, Belgium, Georgia, Hungary, Kyrgyzstan, Latvia, and Monaco,
among others.
The restricted form has been introduced in Estonia, where some
decisions of the Parliament and the President can be appealed. According
to Article 96 of the Federal Constitutional Law of the Russian Federation
“On the Constitutional Court”, citizens “whose rights and freedoms are
violated by the law applicable in a particular case” may apply directly to the
Constitutional Court. An individual complaint may be led directly with the
Constitutional Court and referred to an administrative decision.
It should be noted that an individual complaint diers from an abstract
review, as the applicant must prove that there is a certain probability that
the law is applicable in his case. According to Pildes (2020), the eectiveness
of a normative constitutional complaint as a means of protecting human
rights depends more on the decisions of ordinary courts that apply the
decisions of the Constitutional Court, especially when there is no mandatory
legal requirement for ordinary courts to comply with the Constitutional
Court. When ordinary courts do not take into account the legal positions
expressed in the decisions of the Constitutional Court, and formally satisfy
only their nal part, the normative constitutional complaint becomes an
end in itself and an ineective means of protecting the constitutional rights
of the person concerned. Decisions of the Constitutional Court are sources
of constitutional law that give a nal interpretation of constitutional
provisions, and all public authorities, including ordinary courts, must abide
by them (Sadurski, 2015).
In countries where there is a specialized Constitutional Court, an
individual complaint to this Court is a logical choice as such a remedy,
since the complaint is also, as a rule, subsidiary at the national level and
is applied only after exhaustion of remedies in ordinary courts at the last
possible stage at the national level, until there is an opportunity to appeal
to the European Court of Human Rights.
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Nataliia I. Brovko, Liudmyla P. Medvid, Ihor Y. Mahnovskyi, Vusal A. Ahmadov y Maksym I.
Leonenko
The role of the constitutional complaint in the legislative process: Comparative legal aspect
It is obvious that some other types of individual access to the
Constitutional Court covered in this study cannot be considered in this sense
as an eective “domestic remedy”: for example, actio popularis aims at the
norm from an abstract point of view and usually cannot be an appropriate
remedy against certain violations of human rights (Rezende Oliveira,
2020). “Normative” individual complaint is aimed only at the normative act
and not at its application in a particular case. It is an appropriate national
“lter”, as in practice violation of human rights is often not the result of
“technically correct” application of unconstitutional law. A large number of
human rights violations thus do not fall within the scope of the normative
complaint, and the eectiveness of this institution becomes insignicant.
Conclusions
Summing up the above, we note that the results of our sociological,
empirical and comparative studies, as well as world experience show that
it is impossible to systemically ensure the supremacy of the Constitution
and ensure sustainable development of constitutionalism without
the introduction of an eective institution of full (rather than partial)
constitutional complaint. On the basis of analytical and statistical research,
we can say that the most eective form of human rights protection is the
consideration of a constitutional complaint directly in the Constitutional
Court without intermediaries (courts of general jurisdiction, for example).
Based on the results of the study, we propose an eective model of a
constitutional complaint: a full normative constitutional complaint.
Subject of the constitutional complaint: laws or their separate
provisions, normative acts of the head of state, government, other
statutes and regulations, individual administrative acts, court decisions in
particular cases. Subjects that have the right of appeal: citizens, foreigners,
stateless persons, and legal entities. Conditions for the admissibility of a
constitutional complaint: the fact and proof of violation of constitutional
rights and freedoms, the use of all other legal possibilities to protect violated
rights and freedoms, compliance with deadlines for ling a constitutional
complaint in some countries, as well as payment of state duty.
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