Bundesverfassungsgericht

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Constitutional Complaint

A constitutional complaint makes it possible for individuals – and sometimes other actors – to assert their freedoms that are guaranteed under the Constitution vis-à-vis the state. However, the constitutional complaint is not part of the avenue of appeal from regular courts; it is an extraordinary remedy in the course of which the Court only examines whether specific constitutional law was violated. Further details are provided in Art. 93 (1) no. 4a and 4b of the Basic Law and §§ 90 et seq. of the Federal Constitutional Court Act.

We have compiled important information on the constitutional complaint, particularly on the essential requirements that need to be met when lodging a constitutional complaint, in a leaflet.

Constitutional complaints are recognisable by their “BvR” file references. Constitutional complaints are by far the most common type of proceedings at the Federal Constitutional Court. At the beginning of the Court’s work, in 1951, less than 500 constitutional complaints per year were brought before it. Until 1980, this number increased to 3,107, reaching its all-time peak in 2013 with 6,477 proceedings.

Constitutional Complaint Lodged by an Individual

A constitutional complaint may be lodged by any natural or legal person stating that their fundamental rights (cf. Art. 1 to Art. 19 of the Basic Law) or certain rights that are equivalent to fundamental rights (Art. 20  (4), Art. 33, Art. 38, Art. 101, Art. 103, Art. 104 of the Basic Law) have been violated by German public authority.

Example

The district authorities revoke a taxi company owner’s concession. After unsuccessful objection proceedings, the owner first brings an action before the administrative courts and subsequently lodges a constitutional complaint. The Federal Constitutional Court essentially reviews whether the relevant provisions in the Carriage of Passengers Act and the way they were applied are compatible with the company owner’s freedom of occupation (Art. 12 (1) of the Basic Law).

Requirements

Sovereign acts of all three German state powers, i.e. judiciary, executive branch and legislature (for the exceptional case of a constitutional complaints against statutes click here) may be challenged with constitutional complaint. The decisive questions are whether the laws the sovereign acts challenged were based on were constitutional, and whether the complainant’s fundamental rights were respected in the application of these laws. Therefore, if a constitutional complaint challenges errors in the application of a law that do not have a specific connection to fundamental rights, the constitutional complaint will not be successful.

The complainant must be affected individually, presently and directly with regard to his or her fundamental rights.

It is not mandatory for the complainant to be represented by a lawyer. The complainant may, however, be represented by an lawyer; if an oral hearing takes place, the complainant must be represented by an lawyer.

Strict requirements exist regarding the substantiation of a constitutional complaint. It must be submitted in writing. It may be submitted by telefax, but not by email.

Constitutional complaints against court and administrative decisions must be lodged within one month of the decision in order to be admissible. Within this period, the complainant must also provide the complete reasoning, including all documents required.

Generally, the constitutional complaint is only admissible if all legal remedies before the regular courts have been exhausted. Apart from that, all other available possibilities to correct or prevent the challenged violation of the Constitution must have been used (so-called subsidiarity of the constitutional complaint). It follows from these principles that generally all remedies available before the regular courts (e.g. appeals on points of fact and law, appeals on points of law, immediate complaints, complaints on points of law, complaints against denial of leave to appeal) must have been unsuccessfully used before the constitutional complaint is lodged. If a violation of the right to a hearing in court (Art. 103 sec. 1 of the Basic Law) is challenged, complaint to this effect must have been unsuccessfully lodged before the competent regular court.

The proceedings are free of charge. Financial aid for lawyer’s fees is only possible if a complainant cannot adequately assert his or her rights on his or her own, if he or she will be unable to meet the cost of the proceedings if a lawyer is hired, and if the constitutional complaint has prospects of success.

Proceedings and Decision

A constitutional complaint is subject to admission for decision. However, this does not mean that admission is at the discretion of the Court. The constitutional complaint shall be admitted for decision by the Federal Constitutional Court if it has general constitutional significance, or if this appears necessary in order to enforce the complainant’s own rights under the Constitution. Thus, each denial of admission is prededed by a thorough legal analysis.

The Federal Constitutional Court may find an act of public authority to be unconstitutional, reverse an unconstitutional court decision and remand the matter to a competent court, as well as void a law. It is for the regular courts to render such subsequent decisions as may be necessary. The Federal Constitutional Court, for instance, does not award damages and does not order measures of criminal prosecution.

Exceptional Case: Constitutional Complaints Against Statutes

In exceptional cases, a constitutional complaint lodged against a statute may challenge laws, regulations or by laws. As a general rule, however, statutes – by their very nature – need to be executed through decisions made by public authorities or courts; individuals affected by such decisions must first challenge them before the competent courts exhausting all remedies possible. Generally, in such cases, a constitutional complaint is admissible only after the decision of the last-instance court.

The statute must affect the complainant personally, presently and directly. As a general rule, the complainant is affected personally and presently if there is some probability that the statute affects the complainant’s fundamental rights. The complainant’s rights are directly affected if the challenged statute does not require an act of execution.

In exceptional cases, the constitutional complaint may be directed against a statute which has not yet been executed, e.g. if legal recourse is not possible or if it would be unreasonable to expect the complainant to take recourse to the courts. This is often the case in criminal law or in the law relating to regulatory offences, as no one can be expected to first commit a criminal or regulatory offence in order to afterwards be able to assert the unconstitutionality of the statute before a regular court.

Exceptional Case: Constitutional Complaints Lodged by Municipalities

The Federal Constitutional Court also decides on constitutional complaints lodged by municipalities and municipal associations claiming their right of self-government was violated by a law.

Constitutional complaints lodged by municipalities are a particular case as municipalities and associations of municipalities themselves hold public authority. They are therefore as a matter of principle bound by the fundamental rights, but are not themselves entitled to them. However, they possess the right to self-government (Art. 28 (2) of the Basic Law) rendering their position towards the state similar to that of a person who is entitled to fundamental rights. The constitutional complaint lodged by municipalities accommodates this need for legal protection.

Example: Autonomous municipalities oppose an ordinance by the Land which makes them members of administrative communities against their will.

However, certain particularities apply to constitutional complaints lodged by municipalities (cf. § 91 of the Federal Constitutional Court Act): municipalities and associations of municipalities cannot claim a violation of fundamental rights or of rights that are equivalent to fundamental rights but only a violation of their right to self-government (Art. 28 (2) of the Basic Law) by a statute. Municipalities may not lodge a constitutional complaint with the Federal Constitutional Court if a similar complaint may be lodged with the Constitutional Court of the respective Land. Thus, when it comes to protecting the guarantee of local self-government, the Federal Constitutional Court merely has a “back-up competence”.