The Objects of constitutional review may be as follows:

• a constitution;
• a constitutional act;
• international treaties;
• statutes (organic or systemic statutes, ordinary statutes);
• legal lacunas;
• parliamentary rules of procedure;
• other parliamentary regulations (ordinances, etc.);
• acts of the Head of State (having the force of law or not having the force of law);
• executive regulations of the Government (decrees, ordinances, budget acts, decisions, resolutions, etc.);
• governmental rules of procedure;
• executive regulations of the State administration (rules, orders, decisions, resolutions, etc.);
• individual acts of the State administration;
• rulings of territorial units (charters, ordinances, executive regulations etc.);
• collective agreements;
• judgments;
• interpretation of rules;
• the implementation of rules;
• legislative initiatives (ex officio duty of the Constitutional Court, citizen's initiatives etc.);
• jurisdictional disputes;
• the protection of human rights (the constitutional complaint, the popular complaint, other forms);
• election matters;
• referendum matters;
• capacity for offices;
• impeachment;
• other objects.

• individuals (citizens, non-citizens)¹⁵². Some constitutional review systems also allow for a private individual's access to the Constitutional Court (concerning the abstract as well as concrete review, based on a constitutional complaint, or on a popular complaint (actio popularis) or on other forms of constitutional rights' protection (see Chapter XI/A);
• legal entities¹⁵³;
• associations, trade unions etc.
• State bodies (i.e. privileged, legitimate petitioners):
• the legislature;
• the executive (the Head of State, the Government, the State administration);
• other State bodies or institutions;
• territorial units;
• the judiciary (ordinary courts; special courts; the Public Prosecutor);
• the Ombudsman.

According to statistical data there are 217 different current systems of constitutional and judicial review around the world. Among them there are 116 of a European character, 53 of an American character, 14 of a mixed character, 7 of a French character, 1 of New Commonwealth character, 21 of other forms of Constitutional/judicial review and 5 constitutional systems without Constitutional/judicial review.

The European model is the most widely spread current model of constitutional review in practice. Such a situation is first of all the result of the introduction of constitutional review, supported by the German experience as well as by the respective general models of constitutional systems created within some international organisations and/or associations (e.g. the Council of Europe), in Central and Eastern Europe, in the CIS as well as in several federal entities of the Russian Federation¹⁵⁴. In addition, the European model was introduced also as an additional system in some systems in Central and South America, which were based in the past on the judicial review system of the American type.

On the other hand, the introduction of certain models was a result of traditional, historical, cultural, political and commercial links among some countries and/or among several groups of countries, always depending on the specific circumstances in a particular country.

Constitutional Review in the Field of Human Rights Protection

A. The Individual as an Applicant before the Constitutional Court

Proceedings before the Constitutional Court have the nature of proposed proceedings (juridiccion voluntaries). In principle, the Constitutional Court cannot itself initiate proceedings; as a rule, the proceedings before the Constitutional Court are based on (restricted to) the corresponding application lodged by a special, duly qualified (privileged) constitutional institution (the so-called legitimate petitioners).

The initiation of constitutional review proceedings on the initiative of the Constitutional Court (ex officio) is quite rare. It may most often be traced to some of the constitutional review systems of Eastern Europe; further, it is strictly preserved in Croatia and in Slovenia¹⁵⁵, elsewhere ex officio proceedings are not as frequent. The Austrian Constitutional Court, for example, may on its own initiative begin proceedings of the constitutional review of a statute or a regulation only if it refers to a prejudicial question in some proceeding before the respective Constitutional Court. All above cases may be referred to as objective forms of constitutional review.

On the other hand, some constitutional review systems also allow for a private individual's access to the Constitutional Court (concerning abstract as well as concrete review, based on a constitutional complaint, or on a popular complaint (actio popularis) or on other forms of constitutional rights' protection. This involves the so-called subjective constitutional review, the violation of individual rights and the protection of individual rights against the State (in particular against the legislature). In the countries with a diffuse constitutional review and in some countries with a concentrated constitutional review, the individual citizen is offered the possibility of requesting the constitutional review of statutes, administrative measures or judgments in special proceedings. Only after the complaint has been lodged with the Constitutional Court do proceedings begin. Even then, as a rule, the complainant may withdraw their complaint in order to thereby terminate the respective proceedings.

The individual's standing as complainant before the Constitutional Court has been influenced by extensive interpretation of provisions relating to the constitutional complaint, as well as by ever more extensive interpretation of provisions relating to concrete review¹⁵⁶. In some systems the individual's access to constitutional courts has become so widespread that it already threatens the functional capacity of the Constitutional Court¹⁵⁷. Therefore, the legislature is trying to find some way for constitutional courts to eliminate less important or hopeless proceedings (e.g. the restriction of abstract reviews by standing requirements). All these proceedings envisage the condition that the complainant must be affected by a certain measure taken by the public authority. With a growth in the number of complaints, efficiency decreases. Nevertheless, citizens should have many opportunities to apply for the protection of their constitutional rights¹⁵⁸.

B. Bodies Empowered for Human Rights Protection and the Forms of Such Proceedings

The petition of an affected individual whose constitutional rights are claimed to have been violated is generally the basis for an appropriate proceedings of protection in which the protection of rights by the Constitutional Court is only one of a number of legal remedies. Even the bodies intended to provide protection are different, depending on the specific system.

1. Basic rights may be protected in ordinary Court proceedings.

a) Some legal systems provide protection of rights predominantly in proceedings before ordinary courts (general courts); for the most part these are countries which have also adopted the so-called diffuse or American model of judicial review¹⁵⁹.

The following are specific forms of the protection of rights by ordinary courts:

b) The Habeas corpus proceedings, i.e. the protection against unjustified deprivation of liberty; an appropriate application is lodged with an ordinary court having such jurisdiction. Such proceedings are characterised by speed, simplicity and openness¹⁶⁰.

c) Habeas data, which is a sub-form of habeas corpus and was introduced in Brazil by the Constitution of 1988. It is a constitutional guarantee of a personal decision about information, in essence the protection of personal data.

d) Further proceedings are recognised mainly by countries which have adopted the American model of judicial review, and include the following¹⁶¹:

- mandamus, whereby it is possible to annul a mistake of a lower court by order of a higher court;
- prohibition, which prevents a higher court from usurping the jurisdiction of a lower court;
- certiorari, which involves the right of a higher court to resolve a case from the jurisdiction of a lower court;
- quo-warranto, which prevents a specific person from performing a function of a public nature which they have usurped.

e) Respondeat superior, which is a compensation claim by an individual against the State¹⁶².

2. A specific form of the protection of rights which is reminiscent of the constitutional complaint, is the so-called amparo. This is a universal and a traditional form of human rights' protection in the Hispanophone legal system: the protection of an individual against violations of constitutional rights by government acts of all categories. Basically, the Supreme Courts of the State in question are responsible for this form of protection. The aim of such proceedings is to restore the violated right to the individual prior to its violation. It is also a characteristically accelerated proceedings. Mexico is the classic amparo country. It is followed by many Central and South American countries¹⁶³ as well as by the Seychelles.

3. Subsidiary amparo is still more similar to the constitutional complaint. This is a particular sub-species of amparo, in that the proceedings takes place before the Constitutional Court¹⁶⁴. This form of protection is also called accion de tutela. Colombian accion de tutela is comparable to the constitutional complaint. It was introduced by the Colombian Constitution of 1991. It is characterised by the fact that the circle of protected constitutional rights is explicitly defined. It is possible to annul legal or administrative acts (in addition to the popular complaint (actio popularis) and proceedings of habeus corpus in Colombia).

4. Brazil introduced a number of specific legal remedies for the protection of human rights in the Constitution of 1988, including:

- mandado de seguranca, which is a wider form of protection, for which the Supreme Court is competent, for the protection of rights not covered by habeas corpus;
- mandado de injuncao, which is a special individual complaint for a case involving the negligence of the legislature.

5. Chile introduced a special modified version of amparo, the so-called recurso de proteccion in the Constitution of 1980.

6. Individual complaint (actio popularis) may equally be lodged by an individual, generally without restrictions¹⁶⁵. It is a special, individual legal remedy for the judicial protection of rights, although intended for the protection of fundamental rights in the public interest (while a constitutional complaint is lodged in the interest of the individual). An individual complaint is normally directed against a general act (usually a statute) which is considered to have violated a constitutional right¹⁶⁶. The Constitutional Court is generally the competent body for reaching a decision which deals with the disputed act in the sense of an abstract review of rules. Individual complaint is less common in Europe¹⁶⁷. In Israel individual complaint is common in cases arising within Israel proper, the right to standing is decided mostly by the Court's willingness to grant it. It is most extensive in Central and South America¹⁶⁸. The individual complaint is a relatively common approach in Africa¹⁶⁹, while in Asia, the individual complaint is only recognised in Cambodia, in Japan, and only in electoral matters (as a people’s action or objective action) as well as in Iran (a complaint before the Court of Administrative Justice).

7. A specific group of systems of constitutional law guarantees the individual only indirect protection, such that the individual does not have direct access to the Constitutional Court or other body of constitutional review. These are systems that consider the protection of the rights of the individual to be satisfied through:

• an abstract review of rules¹⁷⁰; or
• a specific (concrete) review of rules¹⁷¹; or
• a preventative abstract review of rules¹⁷².

A constitutional complaint is a specific subsidiary legal remedy against the violation of constitutional rights, primarily by individual acts of government bodies which enables a subject who believes that their rights have been affected to have their case heard and a decision issued by a Court authorised to provide a constitutional review of disputed acts. Generally, the impugnment refers to individual acts (all administrative and judicial acts), in contrast to the popular complaint (actio popularis), although it may also indirectly¹⁷³ or even directly¹⁷⁴ refer to a statute.

Is constitutional complaint a right? The Slovenian Constitutional Court has taken the view that it is an institute of judicial proceedings, or a special legal remedly¹⁷⁵.

The constitutional complaint is not an entirely new institute; its forerunner may be found in the Aragon law of the 13th to 16th Century¹⁷⁶; and in Germany from the 15th Century onwards¹⁷⁷; while Switzerland introduced a special constitutional complaint¹⁷⁸ in the Constitution of 1874 and in the Statutes of 1874 and 1893.

The constitutional complaint is very common in systems of constitutional/judicial review. It is most widespread in Europe¹⁷⁹. In Germany, the constitutional complaint appears on the federal and on provincial levels¹⁸⁰.

In addition to Europe, some Asian systems recognise constitutional complaint¹⁸¹. It should also be noted that other Arabic countries, if they recognise judicial review at all, have basically adopted the French system of preventative review of rules, following the model of the French Constitutional Council of 1958, which does not recognise the right of the individual to direct access to specific constitutional/judicial review bodies. In Africa some countries recognise constitutional complaint¹⁸². The only example of constitutional complaint in Central and South America is the Brazilian mandado de injuncao, i.e. an individual complaint in case of negligence by the legislature (under the jurisdiction of the Brazilian Supreme Court) unless we also count the Colombian accion de tutela (the jurisdiction of the Constitutional Court), usually considered to be a subsidiary amparo.

The peculiarity of individual systems is that they recognise a cumulation of both forms, individual and constitutional complaint¹⁸³. The two forms may compete in their functions. The rationaie for both forms is the protection of constitutional rights: the individual complaint (actio popularis) in public and the constitutional complaint in the private interest. In both cases the plaintiff is an individual. As a rule, the subject disputed is different: the individual complaint (actio popularis) refers to general acts and constitutional complaints refer to individual acts¹⁸⁴. The standing of the plaintiff or that the remedy might have a personal effect upon the plaintiff is a precondition for a constitutional complaint. Although it should be possible to exclude the standing of the appellant as a precondition for the individual complaint (actio popularis), individual systems do require it¹⁸⁵, such that for both the constitutional and the individual complaint (actio popularis), the standing or the personal effect on an individual works as a corrective with the aim to prevent the abuse and overburdening of the Constitutional Court or other constitutional/judicial review body. In both cases the same aim may be pursued through the introduction of a filing fee. It is, however, characteristic that in practice the number of constitutional complaints is increasing everywhere. Therefore, many constitutional courts have adapted the organisation of their work following this trend either in the form of specialised individual chambers for constitutional complaints¹⁸⁶ or by narrower units of the Constitutional Court (chambers, sub-chambers)¹⁸⁷ issuing decisions on constitutional complaints.

D. The Fundamentals of Constitutional Complaint

The following are the elements of the system of the constitutional complaint:

- the preliminary selection of complaints (the integration of filters into proceedings). This is most highly developed in the German system with the intent to sift out potentially unsuccessful complaints, and as such the maneuvering space of the Constitutional Court in rejecting a frivolous complaint is extended. This, in fact, involves the narrowing of the constitutional complaint as a legal remedy in principle open to everybody. One general problem of constitutional courts is how to separate the wheat from the chaff and at the same time secure efficient protection of human rights in a democratic system. In addition, in certain systems the proposals for introducing the constitutional complaint are recent; some tend to introduce prior selection systems; on the other hand, certain systems tend towards the abolition of this legal institution;

- protection through the constitutional complaint generally refers to constitutional rights and freedoms, and the circle of rights protected by the constitutional complaint is less specifically defined in individual systems (e.g. Slovenia, Croatia, the FRY and Montenegro, where "all" constitutionally guaranteed fundamental rights are supposed to be protected), while other systems mostly define the (narrow) circle of protected constitutional rights¹⁸⁸. Special forms of constitutional complaint may also protect special categories of rights¹⁸⁹;

- as a rule, acts disputed by constitutional complaint refer to individual acts, with some exceptions¹⁹⁰;

- those entitled to lodge constitutional complaint are generally individuals but in Austria, Germany, Spain, Switzerland, the FRY and Montenegro, legal entities explicitly may do so also, while in the Croatian system legal entities are explicitly excluded as a potential appellant; in some systems, the complaint may be lodged by the Ombudsman (Spain, Slovenia, the FRY) or by the public prosecutor (Spain, Portugal).

- the standing, or the personal effect the remedy might have upon the plaintiff is a mandatory element, although in most systems the concept of standing is defined fairly loosely;

- the prior exhaustion of legal remedies is an essential precondition, but with exceptions when the Constitutional Court may deal with a case irrespective of the fulfilment of this condition (Germany, Slovenia, Switzerland);

- the time limit for lodging an application ranges from 20 days to three months with an average of one month from the day of receipt or delivery of the final, legally binding (individual) judgment or decision or act of the State administration;

- the contents of applications are prescribed in detail in a majority of systems: in written form, sometimes with the language explicitly stated (Germany, Austria), along with the particular country, the disputed act, and a definition of the violation of the relevant constitutional right, etc.;

- a majority of systems (but not the systems of Middle and Eastern Europe) envisage the issuing of a temporary restraining order (injunction) or ruling (of the Constitutional Court) i.e. an order temporarily suspending the implementation of the disputed act until the adoption of a final decision;

- in some systems the payment of the costs of the proceedings is explicitly foreseen in cases of frivolous applications (Germany, Austria, Portugal, Spain, Switzerland);

- the effects of the decision: the Constitutional Court is limited to decide on constitutional matters, on the violation of constitutional rights. However, if a violation is found, a decision may have a cassatory effect which is as a rule inter partes (and erga omnes in a case in which the subject-mafter of the decision is a legislative act). The Constitutional Court here retains the position of the highest judicial authority. These Courts can be referred to as the "high ranking courts of cessation", because Constitutional Courts reviewing the decisions of ordinary courts ,act in fact as the third and the fourth instance. Although the Constitutional Court is not a court of full jurisdiction, in specific cases it is the only competent court to judge whether an ordinary court has violated the constitutional rights of the plaintiff. It involves the review of micro-constitutionality, perhaps the review of the implementation of a law, which, however, is a deviation from the original function of the Constitutional Court. Constitutional complaint cases raise sensitive questions on defining constitutional limits. In any case, the Constitutional Court in its activities is limited strictly to questions of constitutional law. The Slovenian system is specific in that the Constitutional Court may, under specified conditions, make a final decision on constitutional rights or fundamental freedoms themselves (Para. 1 of Article 60 of the Slovenian Constitutional Court Act, Official Gazette RS, No. 15/94).

The protection of fundamental rights and freedoms is an important function of a majority of constitutional courts, irrespective of whether they perform the function of constitutional judgment in the negative or positive sense. Whenever a Constitutional Court has the function of a "negative legislature", constitutional review is strongest precisely in the field of fundamental rights. Even in other fields (the concretisation of Stateorganisational and economic constitutional principles) in which the legislature has the primary role even in principle, constitutional courts insure that fundamental rights are protected. Precisely in the field of the protection of rights, the Constitutional Court also has the function of a substitute "Constitution-maker" (the "positive function"), which means that in specific cases constitutional courts even supplement constitutional provisions.

E. Various International Forms of Individual Complaint

1. The concept of "constitutional complaint" is usually connected with the national constitutional protection of fundamental rights. However, certain international documents also envisage specific legal remedies for the protection of fundamental rights and freedoms in the form of a complaints¹⁹¹.

2. The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 gives individuals the right to the so-called individual complaint¹⁹². An individual may lodge a complaint with the European Commission for Human Rights following an alleged violation of rights guaranteed by the Convention. It is an explicit international legal remedy comparable to a national constitutional complaint. It fulfills the function of an individual complaint where national law does not guarantee any appropriate protection of rights. Individual complaints are a subsidiary legal remedy (preconditioned on the exhaustion of national legal remedies), it is not a popular complaint (actio popularis) and it does not have retroactive or cassatory effect. It differs from the constitutional complaint in the way that, contrary to the latter, it leads merely to a finding declaratory relies.

The position of the European Convention for the Protection of Human Rights and Fundamental Freedoms in national law specifies whether an individual may refer to the Convention or even base a national constitutional complaint thereon. It further narrows the maneuvering space of the Constitutional Court itself in the interpretation of the provisions of the Convention. It actually connects the national Constitutional Court to European bodies in cases in which a judicial final national decision becomes the subject of an individual complaint to a European forum¹⁹³.

The institution of constitutional complaint and the European complaint and the function of European bodies (above all the European Court of Human Rights) raises the question of national and supranational (final) instance. The national (final) instance would entail that the Constitutional Court as the highest body of judicial authority in a particular country for the protection of constitutionality and legality and human rights and fundamental freedoms¹⁹⁴ would be limited to the investigation of constitutional-legal questions only. The review of the correct findings of the actual circumstances and the use of simple rules of evidence are matters for the ordinary courts. The subsidiary nature of the constitutional complaint lies in the division of responsibility between the Constitutional and the ordinary courts. The gradation of instance could be established as ascending from the national Supreme Court through the national Constitutional Court to the European Commission or European Court. In fact, instance is not the essence of this gradation although it is essential in the role of supplementing, in that the national constitutional complaint supplements national judicial protection while the supranational European complaint supplements the national constitutional complaint.