1. Express and “Latent” Functions

Constitutional provisions and legislative norms regulating the composition and operation of constitutional courts often attribute them long lists of functions. These vary considerably depending on the country and, in addition to the constitutional review of laws, may include controlling electoral processes, guaranteeing the autonomy of municipalities, policing the constitutionality of political parties or resolving criminal proceedings against high government officials.

But despite this (apparent) diversity of functions, a historical analysis of the origin and development of constitutional courts makes it possible to reduce this variety of tasks to several generic functions or categories. Moreover, this analysis and a look at what constitutional courts really do demonstrate that in addition to the functions expressly entrusted to them in constitutions and legislation, constitutional courts presently have assumed latent functions that undoubtedly deviate from the classic Kelsenian model which inspired the creation of these institutions.

2. The Mixed Nature of Constitutional Courts

Today it is possible to affirm that none of the existing constitutional courts completely conforms to either of the “typical” models of constitutional justice outlined in textbooks: the “diffuse” American model, or the “concentrated” European model. From the creation of the first constitutional courts in Czechoslovakia and Austria in 1920 to the present, the functions of the constitutional courts in the countries in which they were adopted have evolved toward mixed formulas which display characteristics of both systems. From the American model modern constitutional courts have adopted the system for protecting individual rights in concrete cases, while taking from the Kelsenian model the system for abstract protection of the constitutional order.

1. In the “diffuse” or American model of constitutional justice, constitutional review of public acts (legislative and otherwise) is carried out within the scope of concrete judicial proceedings, in which decisions are rendered concerning specific individuals who are the parties to the proceedings. The ultimate objective of constitutional review is the protection of these individual rights, and the immediate effects of the judicial decisions are, thus, inter partes. The general impact of decisions rendered in these constitutional review proceedings are therefore not the result of a formal declaration of unconstitutionality with erga omnes effects, but rather are the indirect result of the structure of the courts and the fact that inferior courts are bound by the precedents set by higher courts.
2. In contrast, in the European/Kelsenian model constitutional justice procedures are conceived as techniques to protect the constitutional order by means of resolving conflicts or controversies between the powers of the state (or part thereof). We should bear in mind that the immediate predecessor of the Austrian Constitutional Court designed in the “Kelsenian” Constitution of 1920 was the Imperial Court (Reichsgericht), which was essentially a court of conflicts. Thus, these proceedings do not address specific complaints involving the rights of individual citizens, but rather they rule on the constitutionality of the acts of public powers in abstracto, seeking to protect the constitutional order. Public powers are the protagonists of these proceedings rather than individual citizens, and they are resolved by decisions having erga omnes effects.

The mixed nature of the structure of modern constitutional courts has resulted in their adopting functions derived from both models. There are a series of procedures to protect individual rights; there are others designed to protect the constitutional system in abstracto; and there are those which accomplish both goals, to a greater or lesser degree.

1. An example of procedures designed to defend individual rights is the individual complaint existing in numerous systems (Verfassungsbeschwerdein Germany; recurso de amparo in Spain) against acts of both the public powers and individuals.
2. In contrast, the abstract defense of the constitutional order on the part of public authorities (or part of them, such as parliamentary groups or parliamentary minorities) against the actions of other powers of the State is implemented principally through direct appeals of unconstitutionality. But this abstract defense of the constitution is also present in other procedures designed to resolve conflicts between the territorial entities of the state, or among the branches of government. Also falling within this category of procedures to defend the constitution are those which review the constitutionality of political parties or those which control the electoral process, as well as those in which the constitutional courts have the competence to resolve criminal proceedings against high government officials.
3. An example of a mixed procedure (which serves both to defend the constitution and to protect the rights of specific individuals) can be found in the so-called “question of constitutionality.” In such cases, in the course of legal proceedings a judge may choose to refer the case to the constitutional court for a preliminary ruling on the constitutionality of the legal norms he must apply in those proceedings. This procedure has both an abstract dimension (the constitutional court must rule on the constitutionality of a give law, not on an individual claim), and a concrete dimension (since the court’s ruling will ultimately determine the outcome of the individual proceeding which the judge referred to the constitutional court).

3. Is there a crisis in the traditional functions of constitutional courts?

But in practice, the traditional functions attributed to European constitutional courts reflected in these procedures are only a part (and perhaps not the most important part) of their present functions.

1. As for the constitutional courts’ role in defending the constitution, the political evolution of Western Europe has considerably reduced the relevance of the procedures of abstract review of constitutionality. The majority of the Western European constitutional courts were created (in the Italian Constitution of 1948, the Fundamental Law of Bonn of 1949, the Portuguese Constitution of 1976 and the Spanish Constitution of 1978) in the context of very real threats to the constitutional system derived from the political situation of the cold war in the 1940s, the existence of anti-constitutional forces, or the influence of authoritarian traditions. When these constitutions were enacted there was a real possibility of anti-constitutional forces gaining control of the branches of government (among them, the legislature). But subsequent developments in the political life of Western Europe have greatly diminished this danger (with brief exceptions more striking than real). And in conflicts between political parties, the adversary’s loyalty to the constitution is now generally taken for granted.

   In consequence, the traditional procedures for defending the constitution are now used only sporadically. The direct appeal of unconstitutionality is now practically non-existent in Italy (except in matters involving territorial disputes), and in relative terms, statistical data provided from the courts show that it is scarcely used in Spain or Germany. The same may be said (respecting the peculiarities of each country) of other procedures for defending the constitution.

2. The situation is (apparently) different with regard to procedures totally or partially intended to protect individual rights. Constitutional complaints (Verfassungsbeschwerde, recursos de amparo) are so numerous that they have practically flooded the German and Spanish constitutional courts, causing long delays. In Italy, where this procedure does not exist, the question of constitutionality used frequently to protect individual rights has also created a considerable backlog of pending cases in the Italian Constitutional Court. But the frequency with which such procedures are used cannot hide their real significance. It is evident that despite their best efforts, a single court with only 12 or 15 judges cannot truly guarantee the protection of the constitutional rights of individuals in countries whose populations number in the tens of millions. In fact, to counteract the large number of appeals filed (which can never be resolved by a single court), systems to filter and select cases are being used more and more often. The German and Spanish constitutional courts now only grant leave to those appeals deemed to be of special relevance, declining to hear those which in their opinion are lacking in “constitutional content.”

4. “Latent” Functions of Constitutional Courts

This phenomenon is an example of the evolution of the role and functions of constitutional courts. Being no longer widely warranted, its function as defender of the constitution has diminished, at least in those countries enjoying a degree of political stability and a climate of consensus among political parties, as is the case in the countries of Western Europe. On the other hand, these courts can no longer truly fulfill their function to protect individual constitutional rights, due to their very composition and structure. And, nevertheless, the role of constitutional courts is increasingly becoming more relevant in the overall European legal system.

An explanation for this may be found in the fact that these courts fulfill a function, which is often not explicit in their countries’ constitutions and is far removed from the initial expectations of Hans Kelsen, but which is reflected in their will (and the need) to select constitutionally relevant cases from the thousands which are filed each year. When deciding which criteria these courts should apply when selecting cases to hear (in admission procedures which are becoming more like the U.S. Supreme Court’s writ of certiorari) academic analysis and daily practice show that the criterion applied, whether explicitly or implicitly, is increasingly whether the specific case will contribute to the interpretation of the constitution d to the establishing of guidelines for the future. It is progressively becoming more evident that the most crucial task of constitutional courts is the interpretation of constitutional precepts. This implies providing judges, legislators, attorneys and civil servants with general guiding criteria, not only as to how to interpret the constitutional text, but also as to how to interpret ordinary (infraconstitutional) laws, so that their application conforms with the mandates of the constitution. This is achieved, not only through so-called “interpretative judgments,” or Verfassungskonforme Auslegung, but also through guidelines and instructions to the public powers as to how existing legal norms should be applied. The “sentence additive di principio” in the case of Italy, the Warn- und Ankündigungsentscheidungen of the German Constitutional Court, as well as some decisions in the Spanish Court’s amparo proceedings are examples of this tendency.

Thus, European constitutional courts have taken on an unexpected task: that of introducing general rules through their judicial decisions in a manner that is unthinkable for those who still believe in the radical difference between the civil law and common law systems. This is manifested in the continuous citation of maxims or general rules taken from the judgments of the constitutional courts, which can be found in the decisions of the ordinary courts, in the grounds cited in administrative resolutions, and in the preambles of newly-passed laws.