Pluralistic Deficit and Direct Claims to European Constitutional Courts

Abstract

Pluralistic Deficit and Direct Claims to European Constitutional Courts Serena Baldin (bio) Pluralistic deficit is connected to the difficulties of representing individual and collective interests. From this perspective, access to European Constitutional Tribunals, particularly in the newest Central and Eastern European countries, is broadly 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, European legal systems confer on citizens the option to resort to constitutional courts directly. Where individual direct access is regulated, constitutional jurisdiction works at the ideal level.1 This brief approach makes it difficult to discuss pluralistic deficit with reference to constitutional tribunals because the growth of individual and social rights runs parallel to their judicial protection through different sorts of instruments (extensive access, more competencies, expansion of parameters, and types of sentences).2 But this situation also produces a paradox: a generalized tendency to increase access to constitutional justice risks diminished accuracy in judgment, prevision of summary proceedings, and minor legal guarantees, as I explain below. In this way, public control and transparency-which are factors strictly connected to pluralism and used to anticipate the outcome of cases and [End Page 711] thus guarantee legal certainty (and respect for precedent)3-can be seriously affected. For the reasons explained above, pluralistic deficit before constitutional courts is not so much a problem in terms of lack of representation, but difficulties arise from much more than broad access. This can create disadvantages in functionality within judicial procedure, such as docket control problems and a reduction in the quality of opinions. Consequently, in order to reconcile wide access to courts with a reduction of the pluralistic deficit, a balance must be struck between efficiency and access to justice. Some examples will elucidate this view, beginning with individual direct claims-which represent the major problem for courts in balancing judicial input and output in such a way that allows them to resolve other claims quickly-and ending with a very brief remark on the access given to local authorities and institutional bodies. Comparative studies reveal that with respect to judicial review cases, courts are obliged to explain thoroughly the reasoning behind their decisions. This is because courts respond to specialized constituencies, such as advocates, parliament, and other courts, in addition to public opinion. The opposite situation can be seen with regard to individual direct claims where there is a problem of docket control, as Luigi Malferrari stated with reference to the European Community Courts.4 To balance judicial input and output with regard to individual direct claims, all remedies introduced or proposed imply a loss in terms of pluralistic guarantees. The necessity of strict case selection is related to modification of the inner workings of the courts,5 and this inevitably prejudices the principle [End Page 712] of collegiality and the duty of motivation.6 Thus, the lack of democracy that affects constitutional courts is amplified-even if their composition tries to respond to the demands of democratic legitimacy.7 The procedural changes, starting from the German Bundesverfassungsgericht, have circulated in other European legal systems, so that there is a strict analogy in the adopted solutions. The remedies are designed to provide constitutional tribunals with the flexibility and the procedural means they need to process all applications in a timely manner, while allowing the tribunals to concentrate on the most important cases that require in-depth examination.8 Thus, the preliminary control over the formal requirements is delegated to single judges (such as in Croatia and Poland) or to the administrative apparatus of the courts (such as in Germany, Hungary, and Russia). Few legal systems have introduced preliminary conciliatory instruments that are aimed at immediately withdrawing the claim when the tribunal's administrative apparatus notes that the case does not have any possibility of being accepted by the judges.9 After this step, a committee of three judges often complies with the certification of admissibility, evaluating the aspects of objects and constitutional [End Page 713] parameters.10 In particular, the possibility of rejecting a claim with a very concise opinion, or without even that, if the three judges are unanimous, is...