GERMAN CONSTITUTIONAL COMPLAINT

CONSTITUTIONAL COMPLAINT

German law recognises further legal remedies in addition to the regular appeal process. As a “last resort” (in addition to the individual complaint to the ECtHR), every citizen may, under particularly strict conditions, lodge a constitutional complaint with the Federal Constitutional Court pursuant to Art. 93 para. 1 nos. 4a and 4b GG and §§ 90 et seq. BVerfGG. The Federal Constitutional Court has its seat in Karlsruhe. The constitutional complaint is a so-called extraordinary legal remedy in which only the violation of specific constitutional law is examined. Therefore, not every procedure is suitable for a “trip to Karlsruhe”.

The constitutional complaint is the most frequent procedure heard by the Federal Constitutional Court (approx. 6,000 cases per year, corresponding to approx. 96 % of pending proceedings), but at the same time the one with the lowest chances of success (only approx. 1 % success rate). One of the reasons for this is that constitutional complaints are subject to strict requirements in terms of justification. The Federal Constitutional Court decides comparatively quickly within one to two years, but some proceedings can also drag on for several years.

The Federal Constitutional Court itself likes to emphasise that it is not a “super appellate court”. This means that the court only intervenes to make corrections in very rare exceptional cases. The 16 judges in Karlsruhe do not see themselves as “knowing everything better” than thousands of their colleagues throughout Germany. Rather, the constitutional judges see themselves as a kind of mediator between the constitution, the people and politics. On the one hand, this is the reason for the court’s high reputation. However, the flipside of judicial self-restraint is the low success rate, particularly of constitutional complaints.

The Federal Constitutional Court can remedy a violation of fundamental rights in three ways: It can determine the unconstitutionality of an act of public authority, annul an unconstitutional decision and refer the case back to a competent court or declare a law null and void. The Federal Constitutional Court, on the other hand, does not award damages or compensation to the injured party and does not itself take any prosecution measures.

REQUIREMENTS FOR A CONSTITUTIONAL COMPLAINT

Only sovereign acts of the three state powers, i.e. decisions by authorities, judgements and resolutions as well as – within narrow limits – legal provisions, are suitable objects of appeal.

The constitutional complaint can be lodged by any natural or legal person if their fundamental rights (Art. 1 to Art. 19 of the Basic Law) or the so-called rights equivalent to fundamental rights (Art. 20 para. 4, Art. 33, Art. 38, Art. 101, Art. 103, Art. 104 of the Basic Law) have been violated by German public authority. If there is no specific reference to fundamental rights, the appeal is unsuccessful.

For example, a religious community can sue if it is prohibited from using ritual slaughter methods (possible violation of freedom of religion under Art. 4 GG), a woman if she is not admitted to the German armed forces (possible violation of the principle of equality under Art. 3 para. 2 and freedom of occupation under Art. 12 GG) or a property owner if the state plans to expropriate land for a major construction project (possible violation of the right to property under Art. 14 GG). Fundamental judicial rights are relevant to criminal proceedings, in particular the violation of the right to be heard (Art. 103 para. 1 GG), the violation of the prohibition of double jeopardy or the prohibition of retroactivity (Art. 103 para. 2 and 3 GG) or the principle of acceleration in detention cases (Art. 2 para. 2 sentence 2 GG in conjunction with Art. 104 GG, Art. 6 para. 1, Art. 5 para. 3 ECHR).

The complainant’s fundamental rights must be affected by the act of state complained of in person (i.e. not on behalf of another person), currently (i.e. already, still or imminently) and directly (without further intermediate acts).

Due to the nature of the constitutional complaint as an extraordinary legal remedy, it is not normally possible to go directly to Karlsruhe. The constitutional complaint is therefore generally only admissible if the legal process before the specialised courts has been completed (so-called exhaustion of legal remedies). In addition, all other available options must also have been taken in order to obtain a correction of the constitutional violation complained of (so-called subsidiarity of the constitutional complaint). In concrete terms, this means that the complainant must first have unsuccessfully appealed to all specialised courts (e.g. appeal, revision, immediate appeal, appeal on points of law, appeal against denial of leave to appeal, etc.).

The deadline for the constitutional complaint is very tight. A constitutional complaint against decisions by the courts and authorities is only admissible within one month. The full grounds, including all necessary documents, must also be submitted to the court within this period.

Although there is no obligation to be represented by a lawyer when lodging an appeal, the appellant must be represented in the event of an oral hearing. The proceedings are free of charge. As a rule, the complainant bears the lawyer’s fees. An abuse fee may be imposed in the event of abusive recourse to the court, which the court is increasingly making use of due to the increased workload.