Bundesverfassungsgericht

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Formal complaint against judicial delay in constitutional complaint proceedings unsuccessful

Press Release No. 96/2015 of 22 December 2015

Order of 08 December 2015
Vz 1/15, 1 BvR 99/11

In an order published today, the Complaints Chamber of the Federal Constitutional Court has rejected as unfounded a formal complaint against judicial delay (Verzoegerungsbeschwerde) in which the complainant had complained about the duration of his concluded constitutional complaint proceedings, which he considered to be excessively long. In the reasoning of the order, the Complaints Chamber emphasised that even proceedings taking longer than usual are not excessively long for that reason alone; as a rule, excessive duration requires exceptional and particular circumstances to be present, which is not the case here. This is due to the fact that the legislature intentionally did not provide a general rule as to when the duration of proceedings before the Federal Constitutional Court is to be considered excessive within the meaning of § 97a sec. 1 sentence 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). Instead, the legislature focussed on the circumstances of the individual case taking into account the particular circumstances that ensue from the tasks and the position of the Federal Constitutional Court. While it is unusual for proceedings to take four years and eight months as in the present case, the duration was justified by factual reasons – in particular by the reporting Justice’s heavy workload – and therefore not excessive.

Facts of the Case and Procedural History:

In the initial proceedings, the complainant pursued the deletion of his personal data from the public prosecutor’s register of proceedings; moreover, he challenged a criminal file on him being handed over to the Archives of the Land North-Rhine Westphalia. He filed an application for judicial decision with the Higher Regional Court against the rejection of his requests by the public prosecutor; the application was dismissed as unfounded in the last instance. On 4 October 2010, he lodged a constitutional complaint (AR 7295/10, later 1 BvR 99/11) challenging this decision. By letter dated 1 February 2015, he filed a formal objection to judicial delay (Verzoegerungsruege), combined with a request for a prompt decision on the merits. The constitutional complaint was not admitted for decision on 13 May 2015 by a decision that stated reasons, whereupon the complainant filed his formal complaint against judicial delay on 7 September 2015.

Key Considerations of the Complaints Chamber:

1. A party to proceedings before the Federal Constitutional Court who suffers a disadvantage due to excessive duration of the proceedings before the Federal Constitutional Court shall receive adequate compensation (§ 97a sec. 1 sentence 1 BVerfGG). Adequate duration of proceedings shall be established on a case-by-case basis, taking into account the Federal Constitutional Court’s tasks and position(§ 97a sec. 1 sentence 2 BVerfGG). When identifying and assessing the relevant circumstances for establishing an adequate duration, one has to draw on the standards that the Federal Constitutional Court and the European Court for Human Rights have developed in assessing the excessive duration of judicial proceedings. However, when assessing the duration of proceedings before a constitutional court, it is particularly important to also take into account other circumstances than merely the order of registration, such as the nature of the case and its political and social relevance. Proceedings that are of particular importance for the common good are to be accorded priority. Taking into account a constitutional court’s tasks and position, the duration of proceedings taking longer than usual is not as such excessive, at least not without further indications. As a rule, exceptional and particular circumstances are needed to establish an excessive duration.

2. The constitutional complaint was received by the Federal Constitutional Court in October 2010, and the order not admitting it for decision was dispatched in June 2015, so it took about four years and eight months to conclude the contested proceedings. Thus, the proceedings took unusually long. However, taking into account the tasks and the position of the Federal Constitutional Court, the duration was justified by factual reasons and therefore not excessive.

a) In the relevant period of time, an exceptionally high amount of proceedings of large dimensions and of high political importance were pending in the reporting Justice’s Cabinet, which is, amongst others, competent for the law on data protection. In addition, there were important proceedings pending in the Chamber of the First Senate competent to deal with the proceedings instituted by the complainant that were given priority. Allocating those proceedings mentioned above that had particularly large dimensions and were particularly difficult to other Justices of the Senate was not possible, as they were also burdened with a heavy workload.

There is no indication that the reporting Justice’s decision to defer the proceedings might have been based on extraneous considerations. The complainant’s proceedings were not of a political and social relevance exceeding that of the pending Senate proceedings, which would have been an obstacle to deferring the proceedings. In addition, the fact that this decision to defer the case was taken, in January 2011 for the first time, was not as such contested by the complainant. The same reasons to defer applied with regard to the proceedings decided by the competent Chamber of the First Senate and mentioned in the reporting Justice’s statement; moreover, these proceedings, with the exception of the ones decided in March 2014, had been received by the Federal Constitutional Court earlier than the complainant’s proceedings.

The complainant holds the view that the Chamber competent to decide his case would not have had to deal with the merits of the case. However, he fails to realise that the mere fact that a constitutional complaint has not been admitted for decision does not provide a sound basis for such a conclusion. Moreover, the order of non-admission contained reasons, which is not required by law; in 2014, which are the latest figures available, this was the case, with regard to the two Senates taken together, in 3.58% of the constitutional complaint proceedings concluded by an order of non-admission issued by a Chamber. From a purely statistical perspective, this makes the complainant’s proceedings stand out from the multitude of proceedings, irrespective of its outcome. Furthermore, the fact that the order of non-admission contains reasons demonstrates that contrary to the complainant’s statement, the Chamber competent to decide the case did discuss the case and the legal issues it raised in depth.

Moreover, there was no indication that the constitutional complaint had a particular subjective significance, which would have been an obstacle to its being deferred. According to the reporting Justice’s statement, which has not been contested in this respect, the complainant, in substance, seeks above all the deletion of data that are stored in the public prosecutor’s register of proceedings, and that are specifically protected against misuse. The purpose of storage of these data is highly specific, and there is no indication that specifically those data are to be accessed. The same applies to the data transmitted to the Land Archives, whose use is, in addition, subject to specific conditions.

bb) According to the reporting Justice’s statement, the reason for deferring the complainant’s constitutional complaint proceedings ceased to exist after the written opinion in the proceedings concerning the Federal Criminal Police Office Act (Bundeskriminalamt-Gesetz) had been completed on 17 March 2015. The subsequent period of time until the conclusion of the complainant’s constitutional complaint proceedings on 13 May 2015 is not inadequate, also when taking into account the Court’s obligation to at least partially compensate time accrued with increasing length of proceedings by advancing the course of proceedings in a particularly timely manner. This period of the processing time is not challenged by the complainant either.