Constitutional complaint before the Federal Constitutional Court
Constitutional complaint against public authority
Constitutional complaints are by far the most common type of proceedings before the Federal Constitutional Court. At the beginning of the Court’s work, in 1951, less than 500 constitutional complaints per year were brought before it. In 2015 this number increased to 3,253 (sourse Federal Constitutional Court, Annual Statistics 2015)
A constitutional complaint may be lodged by any natural or legal person if they believe that their fundamental rights (cf. Art. 1 to Art. 19 of the Basic Law) or specific rights which are equivalent to fundamental rights (Art. 20 sec. 4, Art. 33, Art. 38, Art. 101, Art. 103, Art. 104 of the Basic Law) have been violated by German public authority.
Article 19 of the Federal Constitutional Court Act
[Restriction of basic rights – Legal remedies]
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(4) Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts. The second sentence of paragraph (2) of Article 10 shall not be affected by this paragraph.
The constitutional complaint is not part of the avenue of appeal from regular courts; it is an extraordinary remedy in the course of which the Court only examines whether specific constitutional law was violated. If a constitutional complaint challenges errors in the application of a law that do not have a specific connection to fundamental rights, the constitutional complaint will not be successful.
Further details are provided in Art. 93 sec. 1 no. 4a and 4b of the Basic Law and §§ 90 et seq. of the Federal Constitutional Court Act.
Article 90 of the Federal Constitutional Court Act
(1) Any individual claiming a violation of one of his or her fundamental rights or of one of his or her rights under Art. 20 sec. 4, Arts. 33, 38, 101, 103, and 104 of the Basic Law by public authority may lodge a constitutional complaint with the Federal Constitutional Court.
It is not mandatory for the complainant to be represented by an attorney. The complainant may, however, be represented by an attorney; if an oral hearing takes place, the complainant must be represented by an attorney.
Constitutional complaints against court and administrative decisions must be lodged within one month of the decision in order to be admissible. Within this period, the complainant must also provide the complete reasoning, including all documents required.
Generally, the constitutional complaint is only admissible if all legal remedies before the regular courts have been exhausted.
Article § 90 of the Federal Constitutional Court Act
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(2) If legal recourse to other courts exists, the constitutional complaint may only be lodged after all remedies have been exhausted. However, the Federal Constitutional Court may decide on a constitutional complaint that was lodged before all remedies were exhausted if the complaint is of general relevance or if prior recourse to other courts were to the complainant’s severe and unavoidable disadvantage.
It follows from these principles that generally all remedies available before the regular courts (e.g. appeals on points of fact and law, appeals on points of law, immediate complaints, complaints on points of law, complaints against denial of leave to appeal) must have been unsuccessfully used before the constitutional complaint is lodged.
The proceedings are free of charge. The Federal Constitutional Court may charge a fee of up to EUR 2,600 if lodging the constitutional complaint or the complaint pursuant to Art. 41 sec. 2 of the Basic Law is abusive, or if an application for a preliminary injunction (Article 32) is made in an abusive way, (Article 34 of the Federal Constitutional Court Act).
The Federal Constitutional Court may find an act of public authority unconstitutional, reverse an unconstitutional court decision and remit it to a competent court, as well as declare a law unconstitutional. It is for the regular courts to render such subsequent decisions as may be necessary. The Federal Constitutional Court, for instance, does not award damages and does not order measures of prosecution.
Decisions pursuant to Article 93b and 93c shall be issued without an oral hearing. They cannot be appealed. Refusal to admit the constitutional complaint for decision does not require reasons (Article 93d of the Federal Constitutional Court Act).
Exceptional Case: Constitutional Complaints against Statutes
By way of exception, a constitutional complaint lodged against a statute may challenge laws, ordinances or bylaws. As a general rule, however, statutes – by their very nature – need to be executed through decisions made by public authorities or courts; individuals affected by such decisions must first challenge them before the competent courts exhausting all remedies possible. Generally, in such cases, a constitutional complaint is admissible only after the decision of the last-instance court.
The statute must affect the complainant personally, presently and directly. As a general rule, the complainant is affected personally and presently if there is some probability that the statute affects the complainant’s fundamental rights. The complainant’s rights are directly affected if the challenged statute does not require an act of execution.
In exceptional cases, the constitutional complaint may be directed against a statute which has not yet been executed, e.g. if legal recourse is not possible or if it would be unreasonable to expect the complainant to take recourse to the courts. This is often the case in criminal law or in the law relating to regulatory offences, as no one can be expected to first commit a criminal or regulatory offence in order to afterwards be able to assert the unconstitutionality of the statute before a regular court.