LAS PROVIDENCIAS DEL TRIBUNAL CONSTITUCIONAL Y LA APLICACIÓN A LAS MISMAS DEL ARTÍCULO 6 DEL CEDH (II)

KEY THEME

Prepared by the Registry. It does not bind the Court.

Article 6 § 1 (civil limb)
Constitutional Court proceedings
(Last updated: 31/08/2023)

Article 6 § 1 of the Convention is applicable to Constitutional Court proceedings, under its civil limb, if they relate to “the determination of civil rights and obligations” (Pierre-Bloch v. France, 1997, § 48; Voggenreiter v. Germany, 2004, §§ 30-33; Albuquerque Fernandes v. Portugal, 2021, § 54; Xero Flor w Polsce sp. z o.o. v. Poland, 2021, §§ 192-209, Pinkas and Others v. Bosnia and Herzegovina, 2022, §§ 37-38; and more recently, Lorenzo Bragado and Others v. Spain, 2023, § 106, concerning an amparo appeal by magistrates on final candidate list regarding the Parliament’s continuous failure to pursue appointment process of a new General Council of the Judiciary). However, considering that these proceedings may significantly differ from ordinary court proceedings, the Court had to adapt the principles developed under its Article 6 § 1 case-law, as well as establish new principles. These principles are generally applicable, even though the Constitutional Courts’ jurisdictions may vary from state to state

 Principles drawn from the current case-law

 
Access to court:

 Article 6 § 1 guarantees include the right to have a final determination on a matter submitted to a court including a decision on the admissibility and/or merits of a constitutional complaint (Marini v. Albania, 2007, § 120).

 A Constitutional Court that can inquire into the contested proceedings only from the point of view of their conformity with the Constitution without examining all the relevant facts is not considered to have full jurisdiction within the meaning of Article 6 § 1 (Malhous v. the Czech Republic [GC], 2001, § 62; Zumtobel v. Austria, 1993, § 30).

 Having regard to the specific nature of an appeal to the Constitutional Court, the Court has accepted that the conditions of access to that court could be stringent (Arribas Antónv. Spain, 2015, § 50; see also, Pinkas and Others v. Bosnia and Herzegovina, 2022, § 48 andOlivares Zúñiga v. Spain, 2022, § 29), in order to guarantee legal certainty and the proper administration of constitutional justice at the highest level of the judicial hierarchy (DosSantos Calado and Others v. Portugal, 2020, §§ 112 and 133; Albuquerque Fernandesv. Portugal, 2021, §§ 68 and 75 and Çela v. Albania, 2022, § 23).

 Three factors must be taken into consideration when determining the proportionality of restrictions on access to a Constitutional Court, namely

 (i) whether the modalities for exercising the appeal may be regarded as foreseeable from the point of view of the litigant, 

(ii) whether the person concerned had to bear an excessive burden due to procedural errors made during the proceedings and 

(iii) whether the restrictions in question can be regarded as “excessive formalism” (Dos Santos Calado and Othersv. Portugal, 2020, §§ 113-116; Albuquerque Fernandes v. Portugal, 2021, § 69).

Fairness of proceedings:

The guarantees enshrined in Article 6 § 1 include the obligation for courts, including Constitutional Courts, to give sufficient reasons for their decisions, in particular where thecase before them relates to the rights and freedoms guaranteed by the Convention (Paun Jovanović v. Serbia, 2023, §§ 105-109) or the guarantees of judicial independence(Ovcharenko and Kolos v. Ukraine, 2023, § 126) or novel or rare issues regarding which there is no settled jurisprudence on their applicability (Lorenzo Bragado and Others v. Spain, 2023, §§ 143-148).

Access to court:

 
 Lorenzo Bragado and Others v. Spain, 2023: Dismissal of amparo appeal, as out of time and without examining merits, against Parliament’s failure to pursue appointment process of a new General Council of the Judiciary, by magistrates on final candidate list (violation).