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Please note that only the German version of this decision is authoritative. Further information can be found here.
This is an abstract from the CODICES database maintained by the Venice Commission. Please cite as follows: Abstract of the German Federal Constitutional Court’s Order of 16 January 2017, 2 BvR 2034/16, 2 BvR 2011/16.
Abstract

Second Chamber of the Second Senate
2 BvR 2034/16, 2 BvR 2011/16

Order of 16 January 2017

Headnotes (not official):

1. Provisions for determining someone’s lawful judge (second sentence of Article 101.1 of the Basic Law) have to specify, in advance and as clearly as possible, the court, the adjudicating bodies, and the judges to whom the decision on an individual case will be assigned.

2. All provisions of an allocation of jurisdiction scheme (Geschäftsverteilungsplan) have to define, in advance and in a general-abstract manner, the competence of the adjudicating bodies and the assignment of the individual judges in order to determine the deciding judge “blindly” pursuant to general, previously established criteria.

3. As far as proceedings are already pending and are subject to a re-allocation of established competences, provisions only define the competence in advance and in a general-abstract manner if the re-allocation is based on the scheme allocating the jurisdiction. This is not the case if the provisions, in an individual case, allow for re-allocating or maintaining established competences, conditioning the competences on decisions by the adjudicating bodies.

4. If proceedings concern the question of whether a certain provision of an allocation of jurisdiction scheme can be considered to be general-abstract within the meaning of the second sentence of Article 101.1 of the Basic Law, the Federal Constitutional Court reviews the provision to its full extent to determine whether it is general-abstract.

Summary:

I.

The Federal Constitutional Court decided in two proceedings (2 BvR 2023/16 of 23 December 2016 and 2 BvR 2011/16, 2 BvR 2034/16 of 16 January 2017) on the constitutional complaints that were lodged by three complainants. Due to details of the case the decision on one of the proceedings has already been made in December 2016. Apart from these details, the facts of the cases and also the reasons of the decisions are the same.

In July 2014, the applicants were charged with tax evasion as well as aiding and abetting tax evasion. According to the allocation of jurisdiction scheme of the Rostock Regional Court (Landgericht) in force at that time the Rostock Regional Court’s division 18 (8th grand court division for serious criminal offences – 8. Große Strafkammer) would have been the competent court division for these proceedings. After receiving the indictment, on 12 November 2014 the presiding judge of the 8th grand court division extended the time period for statements responding to the indictment for all the accused before trial until 1 December 2014. On the same day, the presiding judge of the 8th grand court division also notified the Presidium of the Regional Court (Präsidium des Landgerichts) of the division’s excessive workload and explained the relevant details. Consequently, on 19 November 2014, the Presidium confirmed that the division’s workload was excessive and established an additional court division for criminal offences (Hilfsstrafkammer) effective 25 November 2014. According to the Presidium’s order the additional division was to be competent for all proceedings received by the 8th grand court division since 1 August 2014 and the main proceedings of which were not instituted by 24 November 2014. The applicants’ main proceedings were not instituted until 27 January 2015. In the first oral hearing of these main proceedings conducted by the additional court division the applicants’ legal representatives lodged objections concerning the composition of the court. The objections were mainly based on the assertion that the allocation of jurisdiction stipulated in the Presidium’s order of 19 November 2014 violated the right to one’s lawful judge under the Basic Law as it allowed for manipulations of competences by instituting or not instituting main proceedings. The objections were rejected. The additional court division found the applicants guilty and sentenced them to prison. The applicants’ appeals on points of law remained without success.

The applicants challenge the judgment of the Rostock Regional Court and the order of the Federal Court of Justice (Bundesgerichtshof) dismissing their appeals on points of law and claim a violation of the right to their lawful judge under the second sentence of Article 101.1 of the Basic Law.

 

II.

The Federal Constitutional Court held that the decisions of the criminal courts violated the applicants’ rights to their lawful judge under the second sentence of Article 101.1 of the Basic Law. The relevant stipulation of the Presidium’s order is not compatible with the guarantee to one’s lawful judge under the Basic Law. Hence, the judgment of the additional court division is not a decision by the applicants’ lawful judge. By dismissing the appeals on points of law the appellate court has perpetuated the violation of the right to one’s lawful judge – a right which is equivalent to fundamental rights.

 

The decisions are based on the following considerations:

The right to one’s lawful judge has the purpose of preventing the risk of improper interference in the administration of justice. One of its main functions is to safeguard the independence of jurisdiction and public confidence in the impartiality and objectivity of the courts. According to the constitutional guarantee the allocation of jurisdiction has to be as specific and unambiguous as possible. It has to be possible to determine the competent judge or court division for any proceedings by simply adhering to the allocation of jurisdiction scheme.

The solution chosen by the Regional Court’s Presidium to introduce a deadline is incompatible with the Basic Law because it allows for an undue influence of the adjudicating bodies by deciding on whether or not to initiate the main proceedings. A subsequent change of the allocation of jurisdiction can become necessary, if this is the only way to guarantee effective legal protection. Such a change is not generally prohibited by the right to one’s lawful judge, but has to comply with the standards set forth above.

The allocation of jurisdiction scheme in dispute did not contain any general-abstract provisions with regard to the initial case. The chosen solution which establishes a deadline only allows for a subsequent determination of specific competences, namely subject to whether main proceedings are initiated or not. Delegating the decision on the allocation of jurisdiction to adjudicating bodies who should in fact be the addressees of the general-abstract competence is incompatible with the second sentence of Article 101.1 of the Basic Law.

Further information can be found in the CODICES database, as soon as it has been processed.

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Additional Information

ECLI:DE:BVerfG:2017:rk20170116.2bvr201116

Please note that only the German versions are authoritative.