Federal Constitutional Court - Press office -

Press release no. 03/2009 of 22 January 2009

Order of 25 November 2008 – 1 BvR 848/07 –

Decision on a remonstrance does not start a new time-limit
for lodging a constitutional complaint
“Transitional period” until 2 March 2009


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
(Berufs¬ordnung – 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. 


This press release is also available in the original german version.