Constitutional Courts and Parliamentary Democracy (Special Issue on Delegation)

review processes result in decisions on the constitutionality of legislation that has been adopted by parliament but has not yet entered into force (France), or that has been adopted and promulgated, but not yet applied (Germany, Italy, Spain). It is initiated by specifically designated, elected politicians. Executives and legislators (France, Germany, Spain), federated member states or regional governments (Germany, Italy, Spain), or an ombudsman (the Defender of the People in Spain) may, within prescribed time limits, attack legislation as unconstitutional before the constitutional court. These attacks are made in writing, in documents here called referrals. In practice, nearly all referrals are made by members of opposition parties, against legislation proposed by the majority, or governing, party or parties. Referrals usually suspend the legal force of the referred law (France, Germany, Italy) pending a ruling, but in Spain the law may be applied notwithstanding a referral. Concrete review is initiated by the judiciary (Germany, Italy, Spain) in the course of litigation in the courts. Judicial officials are authorised to refer constitutional questions – is a given law, legal rule, judicial decision, or administrative act constitutional? – to constitutional judges. The general rule is that a presiding judge must go to the constitutional court if two conditions are met: (1) that the constitutional question is material to litigation at bar, that is, who wins and who loses depends on the answer to the question; and (2) there is reasonable doubt in the judge’s mind about the constitutionality of the act or rule in question. Referrals suspend proceedings pending a review by the constitutional court. Once rendered, the constitutional court’s judgment is sent back to the referring judge, who then decides the case with the help of the ruling. Constitutional decisions are binding on the judiciary. Ordinary judges are not permitted, at least in theory, to determine the constitutionality of public acts on their own (but see the section below on Constitutional Adjudication). Individual complaints (a Verfassungsbeschwerde in German, an amparo in Spanish) bring private actors into the mix. Once judicial remedies have been exhausted, individuals (Germany, Spain), and an ombudsman (Spain) have the right to go to directly to constitutional judges. In Spain, individuals may attack the act of any public official that they think has violated their constitutional rights, with one important exception. Technically, the amparo may not be used to attack a statute, although this occurs under certain conditions. In Germany, persons who believe that they have suffered as a result of a specific infringement of the constitutional law, by a public official, may file a complaint. A statute may be targeted, as long as the complainant’s rights have been abridged in some ‘personal’ and ‘direct’ way. In both countries, appeals of judicial decisions (on the grounds that due process has been denied) comprise, by far, the largest class of complaints. 87 CONSTITUTIONAL COURTS AND PARLIAMENTARY DEMOCRACY 251wep04.qxd 18/12/2001 11:38 Page 87