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How to Lodge a Constitutional Complaint

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I. General Remarks 

Any person may lodge a constitutional complaint with the Federal Constitutional Court if the person believes that one of his or her fundamental rights (cf. Art. 1 to Art. 19 of the Basic Law, Grundgesetz – GG) or certain rights that are equivalent to fundamental rights (Art. 20(4), Art. 33, Art. 38, Art. 101, Art. 103 and Art. 104 of the Basic Law) have been violated by public authority.

The Federal Constitutional Court may find an act of public authority to be unconstitutional, void a law, or reverse a court decision if it violates the Constitution and remand the matter to a competent court. The Federal Constitutional Court cannot issue any other decisions on account of a constitutional complaint. It cannot, for instance, award damages or initiate criminal prosecution. In principle, an individual citizen has no claim to a specific action on the part of the legislature that can be pursued by means of a constitutional complaint.

If a court decision is challenged by a constitutional complaint, it does not undergo complete judicial review, since review is limited to potential violations of constitutional law. The mere fact that the procedure, the finding and legal assessment of the facts of the case, the interpretation of a law or its application to the individual case may have been erroneous does not in itself imply a violation of fundamental rights.

II. Form and Content of the Constitutional Complaint

The constitutional complaint must be submitted in writing and state reasons (§ 23(1) and § 92 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG). The complaint brief must be written in German, the Court’s official language.The reasons stated must, at the very least, contain the following information:

1. The act of public authority (court decision, administrative act, law) against which the constitutional complaint is directed must be precisely described (if court decisions and administrative acts are challenged, their date, their file reference and the day on which they were pronounced or received should be given).

2. The fundamental right or equivalent right allegedly violated by the challenged act of public authority must be named, or at least described in terms of its legal content.

3. It must be stated in detail in what respects the fundamental rights violation is alleged. To this end, the challenged court decisions (and all documents to which reference is made), administrative acts etc. must be attached as originals, certified copies or photocopies, or it must be possible to determine their full content, including the reasons, from the constitutional complaint alone.

4. Apart from the challenged decisions, other documents from the initial proceedings (e.g. relevant briefs, minutes of hearings, expert opinions) without the knowledge of which it cannot be assessed whether the constitutional complaint is justified must be submitted (as just explained under 3. above), or their content must be described.

5. If the constitutional complaint is directed against court and/or administrative decisions, it must be possible to identify from the reasons stated in the complaint the legal remedies, applications and challenges with which the complainant has sought to avert the alleged fundamental rights violation in proceedings before the regular courts. To this end, the applications made in the proceedings before the regular courts and other briefs from these proceedings must be attached (as explained under 3. above), or their content must be described.

III. Other Preconditions for Admissibility

1. Time limit

Constitutional complaints against court and administrative decisions must be lodged within one month in order to be admissible (§ 93(1) first sentence BVerfGG). The complete reasoning of the complaint must also be submitted within this period (§ 93(1) first sentence BVerfGG). If information that must be provided according to the minimum requirements for substantiating the constitutional complaint (see II. above) is submitted after the expiration of the time limit, the constitutional complaint is inadmissible. The Court cannot extend the time limit.
If complainants were unable to comply with this time limit through no fault of their own, they shall, upon application, be granted reinstatement into their former procedural position and be given an opportunity to lodge the constitutional complaint again; the application for reinstatement shall be filed within two weeks of the removal of the cause for their non-compliance. Reasons for the request shall be stated and their factual basis substantiated by prima facie evidence. If the complainant’s authorised representative does not comply with the time limit, this fault shall be deemed equal to fault on the part of the complainant (§ 93(2) BVerfGG).

2. Exhaustion of Legal Remedies

a) General Remarks

Recourse to the Federal Constitutional Court may in principle only be had if the complainant has, first of all, exhausted all other legal remedies, and apart from that, has used all other possibilities of recourse available to him or her to correct or prevent the violation of the Constitution that is asserted. The constitutional complaint is inadmissible if and in so far as a possibility of removing the fundamental rights violation, or of achieving the same practical end without recourse to the Federal Constitutional Court, exists or has existed.
Thus, before lodging a constitutional complaint, the complainant must use any available legal remedies (e.g. appeal on points of fact and law, appeal on points of law, complaint, immediate complaint, complaint subject to a time limit, complaint against denial of leave to appeal).

A constitutional complaint lodged with the Constitutional Court of the respective Land (state) is, however, not a precondition for the admissibility of a constitutional complaint lodged with the Federal Constitutional Court. Among the possibilities of averting the alleged fundamental rights violation in proceedings before the regular courts are, for instance, a sufficient statement of all relevant facts, suitable motions for admission of evidence, applications for reinstatement into the complainant’s former procedural position if a time limit has not been complied with through no fault, etc. A constitutional complaint is inadmissible in so far as these possibilities have not been used in the proceedings before the regular courts.

b) Special Characteristics of Constitutional Complaints Challenging a Violation of the Right to a Hearing in Court

If the constitutional complaint challenges the refusal to grant the right to be heard (Art. 103(1) of the Basic Law), and if no other legal remedy is available against the challenged decision, the constitutional complaint is only admissible if the complainant has tried before to remedy the refusal with the competent regular court by lodging a complaint seeking remedy of a violation of the right to be heard (cf. in particular § 321a of the Code of Civil Procedure, Zivilprozessordnung – ZPO; § 152a of the Code of Administrative Court Procedure, Verwaltungsgerichtsordnung – VwGO; § 178a of the Social Courts Act, Sozialgerichtsgesetz – SGG; § 78a of the Labour Courts Act, Arbeitsgerichtsgesetz – ArbGG; § 44 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction, Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit – FamFG; § 133a of the Finance Courts Code, Finanzgerichtsordnung – FGO; §§ 33a and 356a of the Code of Criminal Procedure, Strafprozessordnung – StPO). In such a case, the inadmissibility of the constitutional complaint is, as a general rule, not restricted to the alleged violation of the right to be heard but also covers all other objections raised.

c) Constitutional Complaints Challenging Legal Provisions

Laws, regulations and bylaws may only in exceptional cases be directly challenged by a constitutional complaint. This is only possible if they affect the complainant individually, presently and directly. In this case, the constitutional complaint must be lodged within one year of the entry into force of the statute (§ 93(3) BVerfGG).

As a general rule, however, such statutes need to be executed, i.e. need to be applied in an individual case by an administrative or court decision first, and the complainant must exhaust all available legal remedies before the competent courts before a complaint in the Federal Constitutional Court may be admissible. Generally, a constitutional complaint is admissible only after the decision of the last-instance court (§ 90(2) BVerfGG).

IV. Representation

The complainant may lodge the constitutional complaint him- or herself. If the complainant wishes to be represented, this may in principle only be done by a lawyer or by a professor of law at a state or state-recognised higher education institution of a Member State of the European Union, another Contracting State to the Agreement on the European Economic Area or Switzerland who is qualified to hold judicial office (§ 22(1) first sentence BVerfGG). The Federal Constitutional Court may permit another person to act as adviser to a party if it deems this necessary in exceptional cases (§ 22(1) fourth sentence BVerfGG). If the complainant wants to be represented, the power of attorney shall be granted in writing and must expressly be granted specifically for the proceedings in question before the Federal Constitutional Court (§ 22(2) BVerfGG).

V. Admission Procedure

The constitutional complaint shall be subject to admission for decision (§ 93a(1) BVerfGG).
It shall be admitted for decision
a) in so far as it has general constitutional significance or
b) if this appears necessary in order to enforce the rights referred to in § 90(1) BVerfGG, which may also be the case if the complainant would suffer a particularly severe disadvantage if the Federal Constitutional Court refused to decide on the complaint (§ 93a(2) BVerfGG).

As a rule, a constitutional complaint will not have general constitutional significance if the constitutional issues raised by it have already been decided by the Federal Constitutional Court.

In order to enforce fundamental rights, it may be necessary to admit the constitutional complaint for decision if, for example, a general practice by administrative bodies or courts that violates fundamental rights is to be countered, or if a violation of the Constitution poses a particularly grave disadvantage to the complainant.
Refusal to admit the constitutional complaint for decision may be decided by a Chamber, which consists of three Justices, by unanimous vote. This decision may be rendered without giving reasons, and it cannot be appealed (§ 93d(1) BVerfGG).

VI. Court Fees

Proceedings before the Federal Constitutional Court are free of charge. The Court may, however, charge the complainant a fee of up to EUR 2,600 if the lodging of the constitutional complaint constitutes an abuse of rights (§ 34(2) BVerfGG).

VII. Withdrawal of Applications

It is, in principle, possible to withdraw a constitutional complaint as a whole, or particular challenges as part of a constitutional complaint, or an application for a temporary injunction at any time, until the Federal Constitutional Court has decided. A fee (see VI. above) shall not be charged in this case.

VIII. General Register

Submissions to the Federal Constitutional Court without a specific request or an assertion of a claim falling within the jurisdiction of the Federal Constitutional Court shall be recorded in the General Register and treated as matters of judicial administration.
In addition, constitutional complaints whose admission for decision (§ 93a BVerfGG) is out of the question, since they are clearly inadmissible or, with due regard to the jurisprudence of the Federal Constitutional Court, clearly have no prospect of success, may also be recorded in the General Register (see V. above).
Should the submitter, on being informed of the legal situation, request a judicial decision, the complaint shall be transferred to the Register of Proceedings and dealt with accordingly (§ 64(2) of the Rules of Procedure of the Federal Constitutional Court, Geschäftsordnung des Bundesverfassungsgerichts – GOBVerfG).

GG = Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland) in the revised version published in the Federal Law Gazette (Bundesgesetzblatt – BGBl), Part III, no. 100-1), most recently amended by Article 1 of the Act of 23 December 2014 (Federal Law Gazette I p. 2438).

BVerfGG = Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) in the version published on 11 August 1993 (Federal Law Gazette I p. 1473), most recently amended by Article 1 of the Act of 29 August 2013 (BGBl I p. 3463).

GOBVerfG = Rules of Procedure of the Federal Constitutional Court (Geschäftsordnung des Bundesverfassungsgerichts) of 19 November 2014 (BGBl 2015 I p. 286).

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