Back to Government?: The Pluralistic Deficit in the Decisionmaking  Processes and Before the Courts, Symposium. University of Trento, Italy, June  11-12, 2004

Baldin, Serena

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Indiana University Bloomington Maurer School of Law

Indiana Journal of Global LegalStudiesVolume 12 | Issue 2 Article 16Summer 2005Pluralistic Deficit and Direct Claims to EuropeanConstitutional CourtsSerena BaldinUniversity of TriesteFollow this and additional works at: http://www.repository.law.indiana.edu/ijglsPart of the Construction Law Commons, Courts Commons, European Law Commons, and theInternational Law CommonsThis Symposium is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Journal of Global Legal Studies by an authorizedadministrator of Digital Repository @ Maurer Law. For more information,please contact wattn@indiana.edu.Recommended CitationBaldin, Serena (2005) "Pluralistic Deficit and Direct Claims to European Constitutional Courts," Indiana Journal of Global LegalStudies: Vol. 12: Iss. 2, Article 16.Available at: http://www.repository.law.indiana.edu/ijgls/vol12/iss2/16Pluralistic Deficit and Direct Claims to EuropeanConstitutional CourtsSERENA BALDIN*Pluralistic deficit is connected to the difficulties of representing individualand collective interests. From this perspective, access to European ConstitutionalTribunals, particularly in the newest Central and Eastern European countries, isbroadly guaranteed to persons or organizations, such as constitutional bodies,territorial entities, political parties, labor unions, socioeconomic organizations,and religious associations. With few exceptions, such as Italy and France, Euro-pean legal systems confer on citizens the option to resort to constitutional courtsdirectly. Where individual direct access is regulated, constitutional jurisdictionworks at the ideal level.'This brief approach makes it difficult to discuss pluralistic deficit with ref-erence to constitutional tribunals because the growth of individual and socialrights runs parallel to their judicial protection through different sorts of instru-ments (extensive access, more competencies, expansion of parameters, and typesof sentences).2 But this situation also produces a paradox: a generalized tendencyto increase access to constitutional justice risks diminished accuracy in judg-ment, prevision of summary proceedings, and minor legal guarantees, as I ex-plain below. In this way, public control and transparency-which are factorsstrictly connected to pluralism and used to anticipate the outcome of cases and*Researcher of Comparative Public Law at the University of Trieste, Italy; author ofLe "altre"funzioni delle corti costituzionali: Modelli europei e recezioni con particolare riferimento all'Esteuropeo (2000); editor of Diritti tradizionali e religiosi in alcuni ordinamenti contemporanei (2005).1. See Livio Paladin, La tutela delle libertdfondamentali offerta dalle Corti costituzionali europee:spunti comparatistici, in LE GARANZIE GtURISDIZIONALI DEI DIRITTI FONDAMENTALI 11 (Lorenza Car-lassare ed., 1988).2. The recently instituted constitutional courts have broader jurisdiction than the courts cre-ated immediately after World War II. Their jurisdiction is broader because, in addition to theconstitution and constitutional statutes, they can refer to international treaties (or constitutionalcustoms, fundamental principles, etc.) to verify the conformity of the laws. Moreover, the courtshave increased their own power by creating new types of sentences, which permit the court toavoid accepting or rejecting a claim. See Lucio PEGORARO, LINEAMENTI Di GIUSTIZIA COSTITUZION-ALE COMPARATA (1998).SERENA BALDINthus guarantee legal certainty (and respect for precedent) 3-- can be seriouslyaffected.For the reasons explained above, pluralistic deficit before constitutionalcourts is not so much a problem in terms of lack of representation, but difficultiesarise from much more than broad access. This can create disadvantages in func-tionality within judicial procedure, such as docket control problems and a reduc-tion in the quality of opinions. Consequently, in order to reconcile wide access tocourts with a reduction of the pluralistic deficit, a balance must be struck betweenefficiency and access to justice.Some examples will elucidate this view, beginning with individual directclaims-which represent the major problem for courts in balancing judicialinput and output in such a way that allows them to resolve other claimsquickly-and ending with a very brief remark on the access given to local au-thorities and institutional bodies.Comparative studies reveal that with respect to judicial review cases, courtsare obliged to explain thoroughly the reasoning behind their decisions. This isbecause courts respond to specialized constituencies, such as advocates, parlia-ment, and other courts, in addition to public opinion. The opposite situation canbe seen with regard to individual direct claims where there is a problem ofdocket control, as Luigi Malferrari stated with reference to the European Com-munity Courts.4 To balance judicial input and output with regard to individualdirect claims, all remedies introduced or proposed imply a loss in terms of plu-ralistic guarantees. The necessity of strict case selection is related to modificationof the inner workings of the courts,5 and this inevitably prejudices the principle3. See Francesco Rimoli, Pluralismo, in 23 ENCICLOPEDIA GIURIDICA 6 (1997); Giuseppe Mor-bidelli, Introduzione al diritto e all'interpretazione, in DIRITTO COSTITUZIONALE ITALIANO E COMPAR-ATO (Giuseppe Morbidelli et al. eds., 1997).4. See Luigi Malferrari, The Functional Representation of the Individual's Interests before the ECCourts: The Evolution of the Remedies System and the Pluralistic Deficit in the EC, 12 IND. J. GLOBALLEGAL STUD. 667, 682-83 (2005).5. The European Court of Human Rights is also currently involved in a functional change thatshould relieve the workload. The main changes introduced are: in clearly inadmissible cases, thedecisions will be taken by a single judge, assisted by nonjudicial rapporteurs; repetitive cases maybe declared admissible and decided by a committee of three judges (instead of the present seven-judge Chamber) under a simplified summary procedure; and the introduction of new admissibil-ity criteria, such as the declaration of an inadmissible application if the applicant has not suffereda significant disadvantage. These changes are regulated in Protocol No. 14 to the Convention forthe Protection of Human Rights and Fundamental Freedoms. See Eur. Ct. H.R., Protocol No. 14mmmmPLURALISTIC DEFICIT & CLAIMS TO CONSTITUTIONAL COURTS713of collegiality and the duty of motivation.6 Thus, the lack of democracy that af-fects constitutional courts is amplified-even if their composition tries to re-spond to the demands of democratic legitimacy.7The procedural changes, starting from the German Bundesverfassungsgericht,have circulated in other European legal systems, so that there is a strict analogy inthe adopted solutions. The remedies are designed to provide constitutional tribu-nals with the flexibility and the procedural means they need to process all applica-tions in a timely manner, while allowing the tribunals to concentrate on the mostimportant cases that require in-depth examination.8 Thus, the preliminary con-trol over the formal requirements is delegated to single judges (such as in Croatiaand Poland) or to the administrative apparatus of the courts (such as in Germany,Hungary, and Russia). Few legal systems have introduced preliminary concilia-tory instruments that are aimed at immediately withdrawing the claim when thetribunal's administrative apparatus notes that the case does not have any possibil-ity of being accepted by the judges.9After this step, a committee of three judges often complies with the certifi-cation of admissibility, evaluating the aspects of objects and constitutionalto the Convention for the Protection of Human Rights and Fundamental Freedoms, Amendingthe Control System of the Convention, May 13, 2004, available at http://conventions.coe.int/Treaty/EN/Treaties/Word/194.doc (last visited Mar. 9,2005); see also Reform of the European Courtof Human Rights, COUNCIL OF EUROPE, at http://www.coe.int/T/E/Com/Files/Themes/ECHR/default.asp (last visited Mar. 9, 2005).6. The duty of motivation obliges judges to explain the bases of their opinions. Thus, the dutyof motivation represents a form of "social" control over the court's activity.7. The factors that legitimate the courts' composition are pluralism, which must reflect thegovernment's political formation; representativeness, which must include ethnic and linguistic in-terests of the society; and the professional and technical experiences of the judges. See LouisFavoreu, La legitimit,5 de la justice constitutionnelle et la composition des juridictions constitution-nelles, in LEGITIMIDADE E LEGITIMA;AO DA JUSTIgA CONSTITUCIONAL: COL6QUIO NO Io ° ANIVERSARIODO TRIBUNAL CONSTITUCIONAL-LISBOA, 28 E 29 DE MAIO DE 1993, at 236 (Jos6 de Souza et al. eds.,1995). We cannot affirm a priori that nomination of the judges is preferable to their election, orvice versa. In both cases, only time will tell whether the decisionmaker's choice was able to guar-antee independence and neutrality.8. See A.A.V.V., L'acces direct d la protection: techniques et risultats, in 7 ANNUAIRE INTERNATIO-NALE DE JUSTICE CONSTITUTIONNELLE (1993); PAOLO BIANCHI, LA CREAZIONE GIURISPRUDENZIALEDELLE TECNiCHE DI SELEZIONE DEI CASI (2000); ELISABETTA CRIVELLI, LA TUTELA DEI DIRITTI FONDA-MENTALI E LACCESSO ALLA GIUSTIZIA COSTITUZIONALE (2003).9. This is also the case in Germany with the so-called "registration procedure," which allowsformal control of the claim before the court intervenes.SERENA BALDINparameters.' In particular, the possibility of rejecting a claim with a very conciseopinion, or without even that, if the three judges are unanimous, is a patent ero-sion of the guarantee of transparency; the duty of motivation succumbs beforethe principle of procedural economy. But this measure leaves room for abuse:minimal rulings can hide inaccuracies, and therefore damage legal certainty."Another tool that allows faster resolutions is that the same three-judge panelthat composed the committee for admissibility can also be empowered to decidethe merits of the case. Obviously, one can object that this measure implies a der-ogation of the principle of collegiality, which is quite relevant here consideringthat constitutional sentences cannot be appealed.Basically, if docket control is too strict, the risk is that the system leaves rightsand liberties that are considered minor without protection, as in the cases whereclaims are rejected in compliance with the Latin motto de minimis non curatpraetor. 2 But if the balance favors the protection of individuals, allowing claimantsaccess to the constitutional courts for any infringement can result in a low stan-dard of reasoning in simple, summary opinions-in other words, a manifestationof pluralistic deficit. Thus, this situation has remarkable effects on the quality ofjudicial protection for citizens and on the legal certainty of the system.Another example can be found with local authorities: the constitutional rec-ognition of municipal normative autonomy should be guaranteed before consti-tutional courts (or administrative tribunals) 3 for the protection of theircompetencies, as in the case of federative entities. This is so in the German and theAustrian legal systems and starting from them-for the prestige of the Kelsenian10. For example, Germany, Spain, Belgium, Slovenia, the Czech Republic, and Poland all em-ploy this process.11. The contrast that arose in Spain between Tribunal Supremo and Tribunal Constitucional inJanuary and February 2004 is emblematic. The constitutional judges have been condemned by theordinary judiciary for having rejected a recurso de amparo without deep motivation, thus actingwith "grave professional negligence." The Constitutional Tribunal annulled the civil sentence. SeeAcuerdo del Pleno, at www.tribunalconstitucional.es/ACUERDO%20DEL%20PLENO%2003022004.htm (last visited Mar. 9, 2005).12. This solution has been adopted by the European Court of Human Rights. See Eur. Ct. H.R.,supra note 5.13. This requirement is one of the points to be observed by the states adhering to the EuropeanCharter of Local Self-Government, Oct. 15, 1985, art. 11, available at http.//conventions.coe.int/Treaty/en/Treaties/Word/122.doc (last visited Mar. 9, 2005) ("Local authorities shall have the rightof recourse to a judicial remedy in order to secure free exercise of their powers and respect for suchprinciples of local self-government as are enshrined in the constitution or domestic legislation.").PLURALISTIC DEFICIT & CLAIMS TO CONSTITUTIONAL COURTs715model of constitutional justice 4 that has been imitated in a vast area of Europe' 5-this idea circulated, after the fall of the Berlin Wall, to Slovenia, Montenegro, Po-land, Hungary, and most recently, Spain.The Spanish solution reveals the duality of the approach of the Parliament.This solution allows access, but the conditions required are so strict that, in reality,it is extremely difficult to resort to the judicial body. Since 1999, the year this com-petence was introduced, few claims have been presented to the Tribunal Constitu-cional.16 This ambiguity reflects the unresolved balance between the costs andbenefits of extremely broad access to constitutional justice, which creates a prob-lem of excessive caseloads and a consequent slowing in the resolution of otherclaims considered more important for the definition and protection of the state'svalues and for the relationships among and between constitutional bodies.With reference to access conferred to institutional bodies, parliaments todaydeem it proper to give constitutional judges functions that are not always consti-tutional in nature and that could be assigned to other jurisdictional subjects (e.g.,ordinary courts, specialized tribunals). As the new constitutional courts of Centraland Eastern Europe reveal, there is great confidence in the neutrality and impar-tiality of these bodies. The result is that they are serving many functions that arenot strictly judicial, such as asserting constitutional control over political parties; 714. While in the U.S. model of judicial review of legislation every judge can declare null andvoid an act that is contrary to the Constitution, in the majority of European countries this poweris given only to a specialized court (the constitutional court) that is separate from the judicialbranch. This solution was theorized by Hans Kelsen at the beginning of the twentieth century andapplied for the first time in Austria with the Constitution of 1920.15. See MAURO MAZZA, LA GIUSTIZIA COSTITUZIONALE IN EUROPA ORIENTALE (1997); LA JUSTICECONSTITUTIONNELLE EN EUROPE CENTRALE (Marc Verdussen ed., 1997). See generally GiUSTIZIA COS-TITUZIONALE E SVILUPPO DEMOCRATICO NEI PAESI DELL'EUROPA CENTRO-ORIENTALE (Giuseppe deVergottini ed., 2000); LA DEMOCRATIE CONSTITUTIONNELLE EN EUROPE CENTRALE ET ORIENTALE,BILANS ET PERSPECTIVES (Slobodan Milacic ed., 1998) (containing numerous articles that discuss thesetup of new constitutional courts in Europe).16. See Tania Groppi, La garanzia dell'autonomia costituzionale degli enti locali: un'analisi com-parata, 5 LE RECIONI 1021 (1998); Tania Groppi, Il "conflitto a difesa dell'autonomia locale" inSpagna, 28 LE REGIONI 35 (2000); Tania Groppi, Spagna: Ammesso il primo conflitto a difesadell'autonomia locale, in 2001 DIRITTO PUBBLICO COMPARATO ED EUROPEO 492.17. For example, this is done in Germany, Portugal, Bulgaria, Romania, Moldova, Poland,Croatia, Slovenia, and Albania.SERENA BALDINover regularity of referenda,"8 general,' 9 and presidential elections;2" and overjudgment on the impeachment of the president.2 They also engage in interpretiveand consultative activities for constitutional bodies.22 These roles are quite differ-ent from their "traditional" functions, which are judicial review of legislation andconflict resolution between federation and state members (or states and regions).23These remarks should make parliaments carefully examine the conferral ofnew powers on constitutional tribunals. When adopted, these new functionsshould be introduced with streamlined measures to enable courts to resolve casesexpeditiously. It is possible that, in the future, some competencies given to con-stitutional tribunals will be taken away. This is what happened in Italy, wherethe Constitutional Court, in the wake of the Lockheed scandal, was preventedfrom resolving other claims for many years, and the function of the impeach-ment of ministers was reassigned to ordinary jurisdiction in 1989.2418. For example, Italy, France, Austria, Germany, Portugal, Romania, Croatia, Albania, Slova-kia, Moldova, Slovenia, and Hungary allow for this control.19. For example, Germany, Austria, France, Portugal, Croatia, Bulgaria, Slovakia, Albania,and Moldova allow for this control.20. For example, France, Austria, Portugal, Romania, Bulgaria, Croatia, Slovakia, and Albaniaallow this.2 1. For example, Germany, Austria, the Czech Republic, Hungary, Slovenia, Croatia, Slovakia,Bulgaria, Albania, Moldova, Romania, and Russia allow this.22. This is allowed in France, Slovenia, Slovakia, Hungary, Moldova, Poland, and Russia.23. See SERENA BALDIN, LE "ALTRE" FUNZIONI DELLE CORTI COSTITUZIONALI: MODELLI EUROPEI ERECEZIONI CON PARTICOLARE RIFERIMENTO ALLEST EUROPEO 10 (2000).24. See PIERPAOLO DELL'ANNO, IL PROCEDIMENTO PER I REATI MINISTERIALI (2001).716

Pluralistic Deficit and Direct Claims to European Constitutional Courts

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Pluralistic Deficit and Direct Claims to European Constitutional Courts

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