ACCESS TO THE CONSTITUTIONAL JUSTICE

THE PROPOSERS AS A KEY ELEMENT OF THE PROCEDURE FOR CONTROL OF THE CONSTITUTIONALITY OF ACTS

Abstract

The basic elements of the procedure for control of the
constitutionality of normative acts at the constitutional courts are: the
entities, subjects (proposers) that can initiate the procedure and the
manner of its initiation.
The issue of legal legitimacy directly determines the extent to
which the judicial review of the laws and other acts will be exercised
de facto.
Another indicator regarding the extent to which a certain
constitutional court is going to be the final arbiter only with regard to
the legal disputes is the pool of entities that may initiate the
appropriate proceedings at the constitutional court.
For the procedure on control of the constitutionality of legal
acts before the constitutional courts, it is of utmost importance to
determine whether the initiators of the procedure are precisely defined
entities with legal capacity arising from the constitution and
constitutional or organic law or its initiators upon whose initiative the
court will rule on the constitutionality of legal acts. Namely, as the
initiators directly determine the answer to the question whether the
constitutional court is “a true guardian of constitutionality'', it follows
that in circumstances where the court decides on the initiative, it has
the discretionary authority to decide whether to raise or not the
procedure for judicial review. Quite the contrary, if the holders of the
right to initiate the procedure are precisely determined, the court is
bound to a particular treatment of the presented proposal for judicial
review of the disputed act.
That leaves the impression that the precise determination of
the entities that can initiate the procedure for control of the
constitutionality at the constitutional courts is not only a question of
technical nature.