The Protection of Fundamental Rights by the Constitutional Court in the Republic of Latvia. Perspectives, Opportunities and Limits of an Introduction of the Model in Italy

Abstract

The contribution aims to analyse the constitutional complaint in the Republic of Latvia, a particular type of appeal to the Constitutional Court that can be filed by an individual directly, without any intermediation, if a legal norm that conflicts with a hierarchically superordinate source has caused a violation of one of his or her fundamental rights provided for in the Constitution the Republic of Latvia of 15 February 1992 (Satversme). The objective will be to explore, also through the examination of constitutional jurisprudence, the adequacy of this technique of protecting fundamental rights in the Republic of Latvia, the possible development of the legal system through the referral to the Latvian Constitutional Court of issues that should have been dealt with by the legislature, and its exportability in the Italian legal system. With regard to this last profile, we will proceed to examine the obstacles to the introduction of some form of direct access to the Constitutional Court, represented not already by Article 134 of the Constitution (which, notoriously, provides for the jurisdiction of the constitutional court “over disputes relating to the constitutional legitimacy of laws and acts, having the force of law, of the State and the Regions”), but by Constitutional Law no. 1 of 1948 and Law No. 87 of 1953, which structure the control of constitutionality exclusively on incidental access (“in the course of a judgment”) and by the model of protection of fundamental rights outlined by the Constitution, in which the function of protection is attributed to the ordinary judge and, in cases of exclusive jurisdiction, to the administrative judge. Finally, special attention will be paid to the constitutional jurisprudence on election laws, which, according to some, would have legitimized the introduction in the national system of a direct appeal “disguised” as an incidental appeal.