Constitutional complaint proceedings start with a written application to the Federal Constitutional Court. Applications are recorded in the Register of Proceedings or in the General Register.
A constitutional complaint is recorded in the General Register if it is clearly inadmissible or has no prospects of success in light of the case-law of the Federal Constitutional Court. Where appropriate, the General Register communicates to the complainant the reasons why an application likely has no prospects of success. If the complainant seeks a judicial decision nonetheless, the constitutional complaint is transferred to the Register of Proceedings.
Constitutional complaints recorded in the Register of Proceedings receive the file reference ‘BvR’. Within the Senate or the Chamber, the case is assigned to one Justice as reporting Justice in accordance with the Court’s internal allocation scheme. The reporting Justice’s judicial clerks prepare a comprehensive report in which they set out the case, provide legal analysis and propose a decision.
A constitutional complaint must be admitted for decision if it has general constitutional significance or if admitting it is required to give effect to fundamental rights or rights that are equivalent to fundamental rights (listed in § 90(1) of the Federal Constitutional Court Act); a constitutional complaint may also have to be admitted for decision if the complainant would suffer particularly severe disadvantage if the Court did not render a decision on the merits (§ 93a(2) of the Federal Constitutional Court Act).
Decision by the Chamber or the Senate?
The majority of the Court’s decisions are rendered by the Chambers, each of which consists of three Justices from one Senate. A Chamber decision must be unanimous. If the three members of a Chamber do not reach agreement, the Senate must decide the matter, sitting with all eight Justices. Moreover, only the Senate may declare an act of Parliament void or incompatible with the Constitution.
The decision not to admit a constitutional complaint for decision is rendered by a Chamber; the Chamber does not need to give reasons for such a decision, which cannot be appealed (§ 93d(1) of the Federal Constitutional Court Act). If a constitutional complaint is not admitted for decision, this decision is communicated to the complainant, along with the information that this decision cannot be appealed.
The Chamber itself can grant the constitutional complaint if the complaint is manifestly well-founded and the decisive constitutional issues have already been decided by the Court.
The parties to the proceedings and anyone else entitled to submit a statement (such as federal and Land constitutional organs) are given the opportunity to do so by the Federal Constitutional Court. The Court can also request statements from expert third parties. If an oral hearing is conducted in Senate proceedings, the case is discussed in open court with the parties to the proceedings and expert third parties.
Before the Senate decides a case, it holds extensive deliberations in camera, which are based on the reporting Justice’s report and draft proposal.
A simple majority in the Senate is needed for a finding that constitutional law has been violated. Given that each Senate is composed of eight Justices, a tied vote is possible. In this event, the Court cannot declare that the Constitution has been violated.
Pronouncement of the judgment
If an oral hearing was held, the Senate’s judgment is pronounced publicly in the courtroom. Unlike the oral hearing itself, the pronouncement of the judgment may be broadcast on radio and television. All Senate decisions that are not preceded by an oral hearing and all Chamber decisions are issued as court orders, with a certified copy sent to the parties.
Dissenting opinion
If members of the Senate do not agree with a majority decision, they may present their view in a dissenting opinion, which is attached to the decision and signed by the dissenting Justices.