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Decision on a remonstrance does not start a new time-limit for lodging a constitutional complaint - “Transitional period” until 2 March 2009
Press Release No. 3/2009 of 22 January 2009
Order of 25 November 2008
1 BvR 848/07
The First Senate of the Federal Constitutional Court overturned a decision of the Lawyers' Court (Anwaltsgericht) because it violated the fundamental right of the free exercise of an occupation or a profession. The subject-matter of the decision was a reprimand which had been issued against the complainant, a lawyer, for having avoided the opposing counsel. In this context, the question arose whether a remonstrance decided on the merits by the non-constitutional court starts the one-month time-limit for lodging and substantiating a constitutional complaint anew. The question was relevant to the admissibility of the constitutional complaint. The Senate answered the question, which had not been clarified by the Federal Constitutional Court before, in the negative. Due to the fact that the legal situation had been unclear as yet, the complainant, who had first remonstrated, is ex officio granted restitutio in integrum. When examining this question in future cases, it will only be possible to assume that concerning the non-observance of the time-limit no fault lies with the person seeking relief as regards the period of time which is necessary for providing the person seeking relief with the opportunity to prepare for the legal situation which has now been clarified and to act accordingly. A complainant who had so far refrained from lodging a constitutional complaint because he or she had first remonstrated will therefore only be granted restitutio in integrum if he or she lodges the constitutional complaint immediately, at the latest until Monday, 2 March 2009.
The complainant represented an applicant in court in a residential property case. In the oral hearing, the opponent, who was also represented by a lawyer in this matter, upon the court's suggestion concluded an irrevocable settlement agreement even though her lawyer was not present at the oral hearing due to an incorrect notification by the court. The opponent's lawyer complained with the Lawyers' Chamber, which reprimanded the complainant for violating the ban on avoiding the opposing counsel under § 12.1 of the Rules of Professional Practice (Berufsordnung - BORA). The complainant lodged an objection against the reprimand, which was rejected by the Lawyers' Chamber. The Lawyers' Court dismissed the application for a judicial decision which the complainant made thereupon. The complainant remonstrated against this; the remonstrance was rejected by the Lawyers' Court. By means of his constitutional complaint, which is directed against all the specified decisions, the complainant challenges the violation of Article 12. 1 of the Basic Law (Grundgesetz - GG) and Article 103.1 GG.
The decision is essentially based on the following considerations:
When the constitutional complaint was lodged, the time-limit laid down for doing so (§ 93.1 sentence 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG) had already expired because the decision of the Lawyers' Court about the remonstrance made by the complainant is not relevant to the beginning of the time-limit. This, however, does not run counter to admissibility because the Senate grants the complainant restitutio in integrum as regards the non-observance of the time-limit.
The remedies which under § 90.2 sentence 1 BVerfGG must in principle be exhausted as a precondition for the admissibility of a constitutional complaint, and the timely use of which will consequently keep open the time-limit for lodging and substantiating a constitutional complaint, do not include remonstrance. Instead, by means of the remonstrance, the person affected invokes a court's jurisdiction outside the relevant code of procedure and outside formal procedural rights with the objective of achieving a review of the court's decision.
The Federal Constitutional Court's case-law had not clarified as yet which conclusions as regards the keeping open of the one-month time-limit under § 93.1 sentence 1 BVerfGG if a remonstrance is made must be drawn from the change in case-law resulting from the decision of 30 April 2003 taken by the Plenum of the Federal Constitutional Court on the subsidiarity of the constitutional complaint as against extraordinary remedies. Due to the fact that the legal situation had been unclear as yet, the complainant is to be granted restitutio in integrum against the non-observance of the time-limit for lodging and substantiating the constitutional complaint. All preconditions for this have been complied with; in particular, no fault lies with the complainant for the delayed lodging of the constitutional complaint.
The reprimand issued against the complainant and the decisions taken by the executive board of the Lawyers' Chamber and the Lawyers' Court which confirm this measure also violate the complainant's fundamental right to freely practice an occupation or a profession, which is guaranteed by Art. 12.1 GG.
It is true that the ban on avoiding the opposing counsel under § 12.1 BORA does not meet with fundamental constitutional objections. Even though the ban encroaches on the freedom to practice an occupation or a profession because it prohibits, in principle, the direct contact with opposing parties represented by a lawyer and thus imposes regulations on their professional activity, this restriction on occupational freedom is legitimised by reasonable considerations of the common good, namely the protection of the opponent from being caught unawares and thus also the protection of the viability of the administration of justice.
Regardless of their legal basis, which is, accordingly, constitutionally unobjectionable, the challenged decisions taken by the executive board of the Lawyers' Chamber and the Lawyers' Court violate the complainant's fundamental right to occupational freedom because the interpretation of the ban on avoiding the opposing counsel does not take sufficient account of the meaning and scope of the free practice of an occupation or a profession which is guaranteed by Article 12.1 GG. Strict compliance with the ban on avoiding the opposing counsel would have required of the complainant not to engage in settlement negotiations with the opponent in the oral hearing in court; in particular, it would have required not to conclude a settlement agreement although it had not been established that in the concrete case, the opponent had been in need of protection against being caught unawares. This, however, would obviously have run counter to the interest of the lawyer's own client in speedily and appropriately terminating the litigation by concluding a settlement in court, something which the lawyer is contractually obliged to do. Under these circumstances, punishment under professional law solely as a sanction for uncooperative behaviour is ruled out.