Summary:

I.
In their constitutional complaint, the applicants are in particular complaining of the fact that the Higher Administrative Court (Oberverwaltungsgericht) rejected their application for ad-mission of an appeal against a judgment by the Administrative Court (Verwaltungsgericht). They had raised a complaint in the Administrative Court against a planning decision regarding a dyke. That decision stipulated that a “green dyke” was to be constructed on one of their properties instead of the existing flood protection wall.

The Administrative Court rejected the applicants’ complaint for the most part; it argued that they could not successfully claim a violation of the requirement to balance public and private interests. The Higher Administrative Court rejected the applicants’ application for admission of their appeal. The reason given for this was that while the Administrative Court had clearly proceeded from the erroneous assumption that the applicants’ property would not be requisitioned permanently, but only for the duration of the construction work and to the extent of a working strip, this was not relevant in terms of the correctness of the judgment. The balancing of interests in the planning procedure had, the court found, taken due account of the permanent requisitioning of part of the property.

II.

The Federal Constitutional Court decided that the decision by the Higher Administrative Court violated the applicants’ fundamental right to effective remedy under the first sentence of Article 19.4 GG. The decision was reversed and the matter remanded to the Higher Administrative Court.

1) The fact that the applicants did not lodge an Anhörungsrüge against the Higher Administrative Court’s decision does not affect the admissibility of the constitutional complaint. The Anhörungsrüge is a specific procedural remedy, with which violations of the right to a fair trial can be asserted where no other legal remedy is available.

Where the object of the constitutional complaint is to claim a violation of the right to be heard in court, the Anhörungsrüge addressed to the regular court is one of the remedies in the legal process the exhaustion of which is normally a requirement for the admissibility of a constitutional complaint. If, on the other hand, the violation of the right to be heard in court is neither expressly nor implicitly made the subject of the constitutional complaint, the admissibility of the constitutional complaint does not depend on whether specific complaint proceedings available before the regular courts to remedy a violation of the right to be heard have been conducted beforehand.

In the present case, the applicants claim no violation of their right to a fair trial in their constitutional complaint – neither expressly nor implicitly.

The principle of subsidiarity of the constitutional complaint means that applicants may, however, be required to challenge a violation of the right to be heard in regular court proceedings via an Anhörungsrüge even if they do not base their constitutional complaint on a violation of the right to be heard in court. This is the case if the regular courts seem to have violated the right to be heard in court and if, considering the respective grievance brought before the court, a reasonable participant in court proceedings could be expected to bring such remedy already in the course of the regular court proceedings.

In the present case, the principle of subsidiarity of the constitutional complaint has not been violated. In particular, while the applicants have failed to lodge an Anhörungsrüge, there is no reason to believe that the applicants merely wanted to circumvent that requirement.

2) The constitutional complaint is well-founded. In its decision concerning the admissibility of the appeal, the Higher Administrative Court violated the requirement of an effective remedy in court: In the way it handled the criterion for appeal, namely “serious doubts as to the correctness of the judgment”, it restricted the access to the appeal instance in a manner that cannot be objectively justified.

As a rule, serious doubt as to the correctness of an administrative court judgment already exist if the appellant, by submitting conclusive arguments, convincingly questions the application of even a single legal provision essential to the decision or the existence of even a single fact decisive for the decision. The applicants have succeeded in this. They have shown that the Administrative Court, in one decisive point, proceeded from wrong assumptions about the content of the planning decision.

Already when determining the admissibility of the appeal, the Higher Administrative Court undertook its own assessment of the planning authorities’ balancing of interests; this resulted in a finding that the judgment of the Administrative Court was correct. This exceeds the narrow purpose of the admissibility proceedings, which also grant the parties involved fewer opportunities to establish facts than do the main proceedings, in particular due to the absence of a formal procedure for gathering evidence. To examine the facts of the case in the admissibility proceedings – a procedural stage prior to the appeals stage – constitutes a violation of the fundamental right to an effective judicial remedy.