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Organstreit proceedings relating to the election of the Federal President - Exclusion of Federal Constitutional Court Justice Müller
Press Release No. 26/2012 of 02 May 2012
Order of 18 April 2012
2 BvE 2/09, 2 BvE 2/10
The Second Senate of the Federal Constitutional Court decided in two Organstreit proceedings (proceedings on disputes between supreme Federal bodies) that Federal Constitutional Court Justice Müller is excluded from exercising his judicial office. Inter alia, the applicant was a member of the Fourteenth Federal Convention to elect the Federal President, and he regards his constitutional rights as having been violated, above all by resolutions of the Convention on rules of procedure. He rejected Federal Constitutional Court Justice Müller, who, he said, had been a member of the Federal Convention and had shared responsibility for its resolutions.
Under the provisions of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG), justices of the Federal Constitutional Court are excluded from the exercise of their office if they have already acted in the same matters by reason of their office or profession (§ 18.1 no. 2 BVerfGG). This is the case with regard to Federal Constitutional Court Justice Müller. Before he was appointed a justice, he acted in the same matter, participating in the decision. Participating in votes and elections in the Federal Convention is not participation in the legislative process; the Act does not provide for exclusion in this case (§ 18.3 no. 1 BVerfGG).