Last Updated on November 29, 2022 by LawEuro
Information Note on the Court’s case-law
November 2022
Judgment 29.11.2022 [Section III]
Article 6
Civil proceedings
Article 6-1
Access to court
Dismissal of constitutional complaint due to unforeseeable application of new four-month time-limit introduced after lodging of complaint, depriving applicant of right of access to a court: violation
Facts – The applicant’s appeal in civil proceedings against him was dismissed by the Supreme Court on 11 November 2016. On 2 June 2017 the applicant lodged a constitutional complaint, which was declared inadmissible by the Constitutional Court on 29 June 2017 as being lodged outside the new four-month time-limit introduced by Law no. 99/2016 of 6 November 2016, counting from the date of adoption of the Supreme Court’s decision.
Law – Article 6 § 1:
Access to the Constitutional Court by way of lodging a constitutional complaint was, inter alia, restricted by a time-limit for lodging such a complaint which had been shortened by Law no. 99/2016 from two years to four months. A constitutional complaint was in principle lodged against final judicial decisions and other acts. However, a decision delivered by the Constitutional Court was capable of quashing such decisions or acts and of remitting the proceedings to a lower-instance stage, or of remedying the situation complained of by other means. The shortening of the said time-limit thus aimed at strengthening legal certainty and served to ensure that it did not take an overly-lengthy period of time to definitively resolve any case. It therefore pursued a legitimate aim.
Turning to the proportionality of the measure, the fact that the Constitutional Court applied the newly introduced time-limit to pending cases was not in itself contrary to the guarantees given under Article 6 § 1. Rather, the question that arose in this connection was whether that time-limit had been foreseeable for the applicant and whether, therefore, the penalty for failing to respect it had infringed the proportionality principle.
The amendments to the Constitutional Court Act by Law no. 99/2016 had been published in Official Journal no. 210 on 8 November 2016. Section 71(a) of that Act provided that the time-limit for lodging a constitutional complaint was four months. Section 86(3) of Law no. 99/2016 provided that the new time-limit would be applicable from 1 March 2017. The applicant’s understanding of these provisions had been that the newly introduced time-limit would be applicable in respect of final decisions adopted from 1 March 2017 onwards. However, the Constitutional Court had applied it to all cases where a decision against which a constitutional complaint was lodged had been adopted within the four months preceding 1 March 2017. A constitutional complaint was typically lodged against decisions of the Supreme Court that had been delivered in criminal, civil or administrative-law proceedings. Law no. 99/2016 had not specified whether the newly introduced four-month time-limit for lodging a constitutional complaint would be applied for final ordinary decisions adopted from 1 March 2017 onwards, thus creating uncertainty in that respect.
The Court has accepted that there was no infringement of an applicant’s right of access to a court where legal provisions that might have been lacking in clarity had been supplemented by settled case-law that had been published and had been accessible and sufficiently precise as to enable the applicant (if necessary with the benefit of skilled advice) to determine what steps they should be taking. A coherent domestic judicial practice and a consistent application of that practice would normally satisfy the foreseeability criterion in regard to a restriction on access to superior courts. Legislative amendments take effect after a certain period of time, in the manner of a vacatio legis, which allows all interested persons to become acquainted with the new rules. However, as in the present case, Law no. 99/2016 had created uncertainty as to the manner in which the new time-limit for lodging a constitutional complaint was to be calculated, the Constitutional Court had to clarify the exact method to be employed in its calculation.
As the measure was a newly introduced time-limit, the Constitutional Court’s practice could not have been seen as being developed. Given the timeframe between 23 November 2016, the date the amendments to the Constitutional Court Act had entered into force (fifteen days after the publication of Law no. 99/2016) and 29 June 2017, the date when the Constitutional Court had declared the applicant’s constitutional complaint inadmissible as having being lodged out of time, the application of section 86(3) had not been clarified by the Constitutional Court at the time when his complaint had been lodged. Therefore, the view of that court that the new time-limit applied to constitutional complaints lodged against all decisions of the Supreme Court adopted between 1 November 2016 and 1 March 2017 could not be seen as constituting established practice of which the applicant should have been aware.
Accordingly, it had not been unreasonable for the applicant to have had expected that the newly introduced time-limit had applied only to complaints against Supreme Court decisions that had been delivered after 1 March 2017. Moreover, his interpretation of the procedural rules in question did not appear to be inconsistent with the wording of section 86(3). Therefore, the application of procedural limitations by the Constitutional Court had not been sufficiently clear and foreseeable from the applicant’s point of view and thus had not been in compliance with the principle of legal certainty. There was nothing in the applicant’s behaviour to justify that the burden of the consequences of that uncertainty should be placed on him. A disproportionate burden had been imposed on him, upsetting the requisite fair balance between, on the one hand, the legitimate aim of ensuring compliance with the formal conditions for applying to the Constitutional Court, and on the other, the right of access to that court. The dismissal of the applicant’s constitutional complaint as having been lodged outside the four-month time-limit, in the absence of clear legislation and developed practice, had deprived him of his right of access to the Constitutional Court.
Conclusion: violation (unanimously).
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