The Federal Constitutional Court

Instructions on lodging a constitutional complaint with the Federal Constitutional Court

I. General remarks

Any person who claims that one of his or her fundamental rights (cf. Articles 1 to 19 of the Basic Law (Grundgesetz - GG)) or one of his or her rights under Articles 20.4, 33, 38, 101, 103 and 104 of the Basic Law, which are equivalent to fundamental rights, has been violated by public authority may lodge a constitutional complaint with the Federal Constitutional Court.

The Federal Court may ascertain the unconstitutionality of an act of public authority, declare a law null and void, or overturn an unconstitutional decision and refer the matter back to a competent court.

The Federal Constitutional Court cannot pass any other decisions on account of a constitutional complaint. It cannot, for instance, award damages or initiate criminal prosecution. Moreover, the individual citizen has, in principle, no claim to a specific action on the part of the legislature pursuable by means of a constitutional complaint.

Constitutional complaints against court decisions do not lead to the decisions being completely reviewed, but only to their being examined in order to determine whether the courts have violated constitutional law. The mere fact that the form of proceedings, the finding and interpretation 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 fundamental rights violation.

II. Form and content of the constitutional complaint

The constitutional complaint must be lodged, and reasons given, in writing (Section 23.1 sentence 2 and Section 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG)). The reasons must, at the very least, contain the following information:

1. The sovereign act (court decision, administrative act, law) against which the complaint is directed must be precisely described (in the case of court decisions and administrative acts, their date, their file reference and the day of their pronouncement or receipt should be given).

2. The fundamental right or equivalent right allegedly violated by the sovereign act under dispute must be named or at least described in terms of its legal content.

3. It must be stated in what individual areas the fundamental rights violation is alleged. To this end, the challenged court decisions (and all letters to which reference is made), notices etc. must be attached as originals, certified copies or photocopies; at the very least their content, including the grounds, must be ascertainable from the constitutional complaint.

4. Apart from the challenged decisions, other documents from the original proceedings (e.g. relevant written pleadings, minutes of hearings, expert opinions) without the knowledge of which it cannot be assessed whether the objections raised in the constitutional complaint are justified must be submitted (as explained under 3. above), or their content must be described.

5. If the constitutional complaint is directed against court and/or administrative decisions, the legal remedies, applications and objections with which the complainant has sought to avert the alleged fundamental rights violation in the proceedings before the non-constitutional courts must be ascertainable from the reasons given. To this end, the applications made in the proceedings before the non-constitutional courts, and other pleadings delivered there, 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 (Section 93.1 sentence 1 of the Federal Constitutional Court Act). The complete reasons (see II. above) must also be given within this period (Section 93.1 sentence 1 of the Federal Constitutional Court Act). If information that must be provided according to the minimum requirements for the substantiation of the constitutional complaint (see II. above) is submitted only after the expiry of the time-limit, the constitutional complaint is inadmissible. An extension of the time-limit by the Court is ruled out.

If the complainant was unable to comply with this time-limit through no fault of his or her own, the complainant shall on request be granted restitutio in integrum and be given an opportunity to renew the constitutional complaint; such request shall be made within two weeks of the disappearance of the factor hindering the complainant's action. The reasons for this request shall be substantiated. The fault of the complainant's attorney in failing to comply with the time-limit shall be deemed equal to that of the complainant him or herself (Section 93.2 of the Federal Constitutional Court Act).

2. Exhaustion of legal remedies

a) General remarks

Recourse to the Federal Constitutional Court may in principle only be had if the citizen has first of all exhausted all other legal remedies and apart from this, has availed him or herself of the other possibilities at his or her disposal of remedying or preventing the alleged fundamental rights violation. The constitutional complaint is inadmissible if and insofar as a possibility of removing the fundamental rights violation, or of achieving the same practical end without recourse to the Court, exists or has existed.

This means that before lodging a constitutional complaint, all available legal remedies (e.g. appeal on points of fact and law, appeal on points of law only, complaint, complaint against denial of leave to appeal) must have been used. A constitutional complaint lodged with the constitutional court of the respective Land (regional state) is, however, not a precondition for the admissibility of a constitutional complaint lodged with the Federal Constitutional Court. The possibilities of averting the alleged fundamental rights violation already in the proceedings before the non-constitutional courts include for instance: the sufficient statement of the relevant facts of the case, suitable motions for the admission of evidence, applications for restitutio ad integrum if a time-limit has not been complied with through no fault of the complainant, etc. This means that a constitutional complaint is inadmissible insofar as such possibilities have not been used in the proceedings before the non-constitutional 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 a hearing in court (Article 103.1 of the Basic Law), and if no other legal remedy is available for the challenged decision, the constitutional complaint is only admissible if it has previously been tried to achieve remedy by lodging a complaint challenging a violation of the right to a hearing in court with the competent non-constitutional court (see in particular Section 321a of the Code of Civil Procedure (Zivilprozessordnung - ZPO), Section 152a of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung - VwGO), Section 178a of the Social Courts Act (Sozialgerichtsgesetz - SGG), Section 78a of the Labour Courts Act (Arbeitsgerichtsgesetz - ArbGG), Section 29a of the Act on the Matters of Non-Contentious Jurisdiction (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit - FGG), Section 133a of the Finance Courts Code (Finanzgerichtsordnung - FGO), Sections 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 a hearing in court but also covers all other objections raised.

c) Constitutional complaints challenging legal provisions

Laws, ordinances, statutes and by-laws may only in exceptional cases be directly challenged by a constitutional complaint; this is only possible if they affect the complainant personally, presently and directly. In this case, the complaint must be lodged within one year of the entry into force of the law, ordinance, etc. (Section 93.3 of the Federal Constitutional Court Act).

As a rule, however, such legal provisions must be enforced, i.e. applied in an individual case by means of an administrative or court decision against which the complainant must exhaust all legal remedies before the competent courts. Therefore, as a general rule, a constitutional complaint is not admissible until the court of last instance has passed its decision (Section 90.2 of the Federal Constitutional Court Act).

IV. Representation

The complainant may lodge the complaint him or herself. Should the complainant wish to be represented, this may in principle only be carried out by an attorney registered with a German court or by a lecturer of law at a German institution of higher education (Section 22.1 sentence 1 of the Federal Constitutional Court Act). Other persons may only be permitted by the Federal Constitutional Court to act as counsel if it deems this necessary in exceptional cases (Section 22.1 sentence 4 of the Federal Constitutional Court Act). The power of attorney must be granted in writing and must relate expressly to the proceedings before the Federal Constitutional Court (Section 22.2 of the Federal Constitutional Court Act).

V. Admission procedure

The constitutional complaint requires admission for decision. It must be admitted for decision

a) insofar as it has fundamental significance under constitutional law or

b) if admission is indicated to enforce the rights laid down under Section 90.1 of the Federal Constitutional Court Act; this can also be the case if refusal to admit the constitutional complaint for decision poses a particularly grave disadvantage to the complainant (Section 93a sentence 2 of the Federal Constitutional Court Act).

As a rule, a constitutional complaint will not have fundamental significance under constitutional law if the constitutional issues raised by it have already been decided upon 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 upon unanimously by the three-justice chamber. This decision does not require reasons to be given, and no appeal may be made against it (Section 93d.1 of the Federal Constitutional Court Act).

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 2,600 euros if the lodging of the constitutional complaint constitutes an abuse (Section 34.2 of the Federal Constitutional Court Act).

VII. Withdrawal of applications

Withdrawal of a constitutional complaint as a whole, or of individual objections that form part of a constitutional complaint, or of a motion for a temporary injunction is in principle possible at any time until the proclamation of the Federal Constitutional Court's decision. A fee (cf. VI. above) shall not be charged in this case.

VIII. General Register

Submissions to the Federal Constitutional Court through which the submitting party neither makes a specific application nor asserts a claim falling within the Court's competence shall be recorded in the General Register and treated as a matter of judicial administration.

In addition, constitutional complaints whose admission for decision (Section 93a of the Federal Constitutional Court Act) is out of the question because they are clearly inadmissible or because they, with due regard for the Federal Constitutional Court's case-law, clearly do not have sufficient prospect of success, may also be recorded in the General Register (see V. above).

Should the submitting party request a judicial decision after being informed of the legal situation, the complaint shall be transferred to the register of proceedings and dealt with accordingly (Section 61.2 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) of 23 May 1949 (Federal Law Gazette (Bundesgesetzblatt - BGBl) I p. 1), most recently amended by the Law Amending the Basic Law (Gesetz zur Änderung des Grundgesetzes) of 28 August 2006 (Federal Law Gazette I p. 2034)

BVerfGG = Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht) in the version of 11 August 1993 (Federal Law Gazette I p. 1473), most recently amended by the Act of 5 September 2006 (Federal Law Gazette I p. 2098)

GOBVerfG = Rules of Procedure of the Federal Constitutional Court (Geschäftsordnung des Bundesverfassungsgerichts) of 15 December 1986 (Federal Law Gazette I p. 2529), most recently amended as promulgated on 7 January 2002 (Federal Law Gazette I p. 1171)