Federal Constitutional Court
|Federal Constitutional Court
- BVerfG -
|founding||September 7, 1951|
|Headquarters||Karlsruhe , Baden-Wuerttemberg|
Stephan Harbarth ( President )
Doris König ( Vice President )
|Number of employees||approx. 260|
|Budget volume||37.17 million euros (2021)|
The Federal Constitutional Court ( BVerfG ) in the Federal Republic of Germany, as the federal constitutional court, is both the highest independent constitutional body of the judiciary , on a par with the other highest federal bodies , and the highest court of justice at the federal level . It thus has a double function. Here, the Federal Constitutional Court is responsible for the control of constitutionally particular political life, which, in the light of the Basic Law interprets this with special consideration of individual fundamental rightsof the citizen. In this respect, the court, in its capacity as guardian of the German constitution , was granted the basic authority to regulate the constitution in the face of social change.
On the other hand, the court is the highest body of justice . In this function, it has a special position compared to all other courts, as it is authorized to overturn their court decisions. The decisions made by the Federal Constitutional Court are legally binding and are enforced in terms of federal and state legislation. Although the Federal Constitutional Court controls the decisions of other courts, it is not part of the appeal . It does not exercise any professional control, but rather checks whether the decisions made by the specialized courts are in accordance with the Basic Law. If it comes to the result that there has been a violation of the constitution, it repeals this - also, if necessary, decisions of the lower courts - and refers the matter back to the specialized courts for further review ( (2 ) BVerfGG ).
The highest German court is the Federal Constitutional Court, because it can revoke actions at all administrative levels or, in the event of omissions, determine to act. The decisions of the court can neither be challenged by state organs nor by others. According to BVerfGG , the decision-making formulas of certain judgments of the Federal Constitutional Court are promulgated in the Federal Law Gazette.
Constitutional jurisdiction in Germany is not an instance from the time after the Second World War . Institutions such as the Reich Chamber of Commerce from 1495 and the Reichshofrat from 1518 already spoke law between state organs.
Constitutional jurisdiction of the modern style has its origin in a decision of the US Supreme Court of February 24, 1803, which was based on the famous Marbury versus Madison litigation . For the first time, a law was declared unconstitutional. According to this model, it should be possible to proceed according to § 126 of the Paulskirche constitution of 1849, according to which the Reichsgericht would have been endowed with far-reaching state and constitutional judicial powers if the norm had become effective. In 1850, the Bavarian State Court of Justice was the first special court for constitutional issues in Germany . The constitution of the German Empire of 1871, however, did not provide for a constitutional court. In 1919, the Weimar Constitution introduced the State Court of Justice for the German Reich, a constitutional court with limited powers, because its jurisdiction was limited to processes between the Reich and the states.
From 1924 onwards, there was an extensive and controversial discussion among scientists after judges at the Reichsgericht had considered whether future laws should be checked for their constitutional compatibility, if necessary. The majority voted against, in particular Carl Schmitt excelled in 1929 with his essay The Guardian of the Constitution . In it, he argued that judges had no competence to do this, since they were responsible for applying the law, but not for reviewing the law; rather, this competence fell to the Reich President . With Hitler's appointment as Reich Chancellor , however, a constitutional process of destruction was initiated, which in the years 1948/49 and thus after the war , within the framework of the constitutional convention of the Parliamentary Council in Herrenchiemsee, led to the insight that a viable constitutional court would be needed in the future .
The constitutional body
With the Federal Constitutional Court (BVerfG) from 1949 the Basic Law for the Federal Republic of Germany (GG) provided for a sui generis legal infrastructure . Unlike the US Supreme Court, for example, the Federal Constitutional Court specializes and is limited to constitutional disputes. It follows the Austrian model of constitutional jurisdiction from 1920. Two years after the Basic Law came into force, the court began its work in 1951, at the time consisting of two senates, each with twelve judges, half of whom were elected by the Bundestag and the Bundesrat . Over the next twelve years, the number of judges in the two panels was successively reduced, in 1956 to ten, in 1963 to eight. The background to this was a tough struggle between the parties for the political majority, in which Adenauer's CDU ultimately won the upper hand.
The first decisions were made on September 9, 1951. However, the court was not officially opened until September 28, 1951 in a solemn act, in the presence of Federal President Theodor Heuss and the Prime Minister of the State of Württemberg-Baden Reinhold Maier , by the then Chancellor Konrad Adenauer; this date went down in the annals of the court as “the opening day”. As early as 1952, the court experienced its first crisis in the constitutional dispute over rearmament , when it faced violent protests, particularly from the then Justice Minister Thomas Dehler, suspended the decision until the Bundestag election in 1953 and ultimately after Adenauer's clear election victory and due to his constitutional amendment in accordance with No. 1 GG no longer needed to decide.
From 1951 to the end of 1990, 76,623 constitutional complaints were decided in 80,046 proceedings, of which 2.25 percent were successful. By 2005 the number of constitutional complaints had almost doubled to 151,424. By the end of 2017, the number of constitutional complaints rose further to 224,221; of these, only 5,088 were successful, which corresponds to only 2.3 percent of the procedures.
The establishment, tasks and composition of the constitutional court are regulated in law on the Federal Constitutional Court (BVerfGG). Unlike the other constitutional organs of the Federation, the court had to be constituted by this law. As the seat of the former was Baden residential city of Karlsruhe selected, which sought compensation for the loss of their capital function after the Second World War and since 1950 therefore been the seat of the Federal Court had become.Basic Law. Further rules on organization, powers and procedural law can be found in the
The Federal Constitutional Court had its first official seat from 1951 to 1969 in the Prinz-Max-Palais , a historicist city villa in the west of Karlsruhe's inner city . When the court threatened to move to Munich in 1960 due to the growing need for space and the court's desire for representation, the city of Karlsruhe and the state of Baden-Württemberg made the area of the court theater, which had burned out during the war, available for a new building. It is located in the western part of the palace between the palace , the State Art Gallery , the palace square and the botanical garden , in the immediate vicinity of the center of the baroque city plan that tapers towards the palace in a fan shape . The architect Paul Baumgarten had previously won the competition for a new theater building with a modern design and has now been awarded the contract to build the courtroom at the same location.
According to Baumgarten's plans, a complex of five pavilion-like structures with flat roofs and a square floor plan was built between 1965 and 1969. They are arranged over a total length of 170 meters on a glazed connecting corridor and are embedded without a fence in the park that was redesigned for the 1967 Federal Horticultural Show . The meeting room building is the highest and faces closest to the Schlossplatz. To the north, the Richterbau, built in a ring around an open inner courtyard, and an administrative building are connected. The library is located behind the conference room building and the casino is towards the art gallery. The steel frame buildings have generous glass fronts framed in Oregon wood elements, the closed surfaces are clad with gray cast aluminum panels. The architecture is intended to represent the basic democratic order with sober forms and transparency and thus clearly sets itself apart from the monumental palaces of justice of the 19th and early 20th centuries. The architectural model was the German pavilion at the 1958 World Exhibition by Sep Ruf and Egon Eiermann . The front wall in the large conference room is dominated by an asymmetrically mounted eagle relief , created in 1969 by Hans Kindermann , the then rector of the Karlsruhe Art Academy .
The increased workload as a result of German reunification and the great distance to the new federal capital Berlin led to new considerations regarding an expansion or relocation of the court. The political demand for a move to the new federal states in Leipzig did not prevail. Expansion and renovation plans were controversial, as both the courthouse and the adjoining botanical garden are listed. Due to the lack of space, the western extension of the castle was used as a registry and in 1992 it was connected to the court via an underground corridor. In 1995 the casino, which had been accessible to the general public up until then, was converted into staff rooms and the library was given additional underground storage rooms. In 2000, the constitutional judges voted by a majority to remain at the Karlsruhe location. In 2007, on the south-western edge of the building complex, a compact extension was completed according to plans by the architect Michael Schrölkamp , who built over part of the botanical garden. From July 2011 to September 2014 a complete renovation took place while maintaining the appearance and technical modernization of the building ensemble at the office in the castle district. The cost was 55 million euros. The two senates, the scientific staff and the functional staff of the court (together approx. 120 staff) moved to three former headquarters of the command of the 1st Air Force Division of the Bundeswehr for this period . Stuttgart architects Lederer + Ragnarsdóttir + Oei and the Baden-Baden State Building Authority designed the temporary office in the General Kammhuber Barracks named after the Karlsruhe district of Waldstadt . Most of the administrative staff remained at the headquarters.
The judges of the Federal Constitutional Court are regarded as well-known personalities, also because this is assumed as a social and moral condition; they are characterized by special knowledge and experience in public law . The official designation of judges who are not President or Vice-President is "Judge of the Federal Constitutional Court" (BVR for short) or "Judge of the Federal Constitutional Court" (BVR'in), while judges (appointed for life) at the lower courts are called "Judges (in) on ... [e.g. B. District Court, Labor Court, Regional Court, Finance Court, Regional Social Court, Administrative Court, Federal Court of Justice, Federal Patent Court] ”.
According to retire a judge in the event of permanent incapacity for work .(3) BVerfGG, there is an age limit of 68 years for judges. At the end of the month in which the judge turns 68, his term of office ends, although he continues to hold office until a successor is appointed. According to BVerfGG, the plenum can authorize the Federal President to
The judges' term of office is twelve years; re-election is not permitted. This regulation, which came into force in 1970, is intended to strengthen their personal independence.
The President and Vice-President of the Federal Constitutional Court are alternately appointed by the Bundestag and Bundesrat in accordance with BVerfGG and appointed by the Federal President in accordance with BVerfGG. Usually these are the senate chairpersons; it is also customary to designate the vice-president as his successor after a president has left office. The senior judge present or, in the case of the same seniority, the senior judge present in a senate takes over the representation.
The President is the superior of the officials of the court. As a constitutional body, the court is not subject to any official supervision .
Choice of judges
The legal basis for the election isBasic Law, in which the election by the Bundestag and Bundesrat is laid down, as well as BVerfGG, which contain detailed provisions.
According to qualified to hold the office of judge under the German Judiciary Act (2nd state law examination or professor of law at a German university - this is equivalent to the qualification of a qualified lawyer according to GDR law at the time ). He must be eligible for election to the German Bundestag and may not belong to the Bundestag, the Bundesrat, the federal government or the corresponding organs of a state. Although he can be a member of the aforementioned bodies at the time of the election to the Federal Constitutional Judge, he leaves the aforementioned bodies when he is appointed Federal Constitutional Judge. Re-election is excluded in accordance with (2) BVerfGG. Before the election, the candidate must indicate in writing that he is ready to run.BVerfGG, anyone can be elected who is at least 40 years old and who is
The Federal Ministry of Justice is commissioned to keep a list of federal judges who have the necessary qualifications. A list of candidates who have been proposed for election by the federal government, a state government or a parliamentary group in the Bundestag and who have the necessary qualifications must also be kept. The lists are to be forwarded to the presidents of the Bundestag and Bundesrat one week before an election (BVerfGG).
Requirements and deadlines
(3) BVerfGG provides that each senate must include three judges who have worked at one of the highest federal courts for at least three years. The other five judges do not have to meet this requirement. The Bundestag and Bundesrat each elect half of the judges, i.e. four judges, to the senates, so that the nomination of judges with the aforementioned criterion is split according to the scheme 1: 2 and 3: 2 ( (1) BVerfGG). The constitutional body that elected the outgoing incumbent is also responsible for electing his successor.
In accordance with Section 5 (2) and (3) BVerfGG, the following deadlines must be observed for the election:
- The election of a successor for an outgoing judge takes place at the earliest three months before the end of the term of office.
- If the office is vacant (e.g. due to immediate resignation, incapacity or death), the election takes place after one month at the latest.
The stipulation that, if the Bundestag is dissolved, the election takes place at the latest one month after the new Bundestag has met, no longer applies. Even with early elections, the legislative period does not end until the new Bundestag meets. There will be no dissolution within the meaning of Section 5 (2) BVerfGG.
If no election has taken place two months after the end of the term of office, the President of the Bundesrat or the oldest member of the electoral committee of the German Bundestag must request the plenary session of the Federal Constitutional Court to submit proposals immediately, depending on their jurisdiction. For a vacant position, the plenum must submit three proposals, with several positions twice as many proposals as positions are available (i.e. four proposals for two open positions, six for three, etc.,BVerfGG).
Election in the Federal Council
In the Federal Council, the judges have been elected by the plenum since the court was formed. The basis for this is usually an application submitted by the Prime Minister. To accept the motion and thus to elect the proposed person, the latter must have a two-thirds majority of the votes of the Federal Council, i.e. 46 of 69 votes ( BVerfGG).
While the right to make proposals in the Bundesrat and Bundestag was largely exercised alternately by the CDU / CSU and the SPD up to 2016, a naming sequence was agreed in 2016 with the involvement of the Greens: Union - SPD - Union - SPD - Greens. The reason for this was the blocking minority of the Greens in the Federal Council, due to which no election in the Federal Council was possible without the consent of the Greens.
Election in the Bundestag
Since the electoral procedure was revised by a legislative resolution dated June 24, 2015 to June 30, 2015 ( Federal Law Gazette I p. 973 ), judges have been elected by the plenum of the German Bundestag with concealed voting cards without debate. To be elected, the candidate has a two-thirds majority of the votes cast, but this must be at least the majority of the statutory members of the Bundestag. To prepare for the election, the Bundestag sets up a twelve-member electoral committee, which is convened and chaired by the oldest member. The members of this committee are elected according to the d'Hondt'schen maximum number procedure on the basis of nomination lists . The committee advises confidentially - the members are bound to secrecy - and resolves with at least eight out of twelve votes to submit an election proposal to the Bundestag. This procedure is intended to ensure that only candidates with sufficient support are presented to the plenary for election ( BVerfGG).
Before the electoral process was revised, the electoral committee was directly responsible for the binding election, so the election was not carried out by the plenary. The Federal Constitutional Court has declared this procedure to be compatible with the Basic Law, but the main criticism was the lack of transparency in the process.
Appointment and swearing in
The appointment takes place according to Federal President . Upon appointment, the elected person takes the following oath provided for in BVerfGG: "I swear that as a just judge [resp. fair judge] will always faithfully uphold the Basic Law of the Federal Republic of Germany and conscientiously fulfill my judicial duties towards everyone. So help me God. ”The religious affirmation can either be replaced by another, legally permitted affirmation, or it can be omitted.BVerfGG by the
The responsibilities of the two Senates are basically laid down inBVerfGG. According to this, (to put it simply) the First Senate is responsible for checking norms, which essentially concern the compatibility of a regulation with fundamental rights, and for constitutional complaints. In particular, the Second Senate is responsible for disputes over jurisdiction between the federal government and the federal states, as well as between the constitutional bodies. The First Senate should therefore primarily be a “Fundamental Rights Senate”, the Second Senate the function of a “State Court of Justice”.
It was not foreseen by the legislature that considerably more proceedings would arise in the area assigned to the First Senate than in the area of the Second Senate. As early as 1956, in response to this, a change in the BVerfGG transferred individual areas of competence to the Second Senate, which it had initially assigned to the First Senate. In addition, a new fourth paragraph was added to Section 14, according to which the Federal Constitutional Court itself may in future redefine the jurisdiction of its senates by means of a plenary resolution. It has made repeated use of this since then. Since then, it has no longer been possible to determine whether a certain pending procedure will be decided by the First or Second Senate according to the wording of the BVerfGG. Instead, the current plenary resolution must be consulted, which is published in the Federal Law Gazette and applies from the beginning of the calendar year following the date of the resolution.
The Senates are now both responsible for certain constitutional complaints (with the exception of constitutional complaints from municipalities and those relating to the right to vote ) as well as judicial review procedures in which predominantly the violation of fundamental rights is asserted. There is no longer a clear differentiation between a “fundamental rights” and a “constitutional law senate”.
If one Senate intends to make a decision that deviates from the legal opinion of the other Senate, the plenary session of the Federal Constitutional Court decides.
|Surname||Beginning of the term of office||Term expires||nominated by||elected by||successor of|
Stephan Harbarth (* 1971)
(President since June 2020)
|Nov. 30, 2018||Nov 29, 2030||CDU / CSU||Bundestag||Ferdinand Kirchhof|
|Andreas Paulus (* 1968)||March 16, 2010||March 15, 2022||FDP||Bundestag||Hans-Jürgen Paper|
|Susanne Baer (* 1964)||Feb 2, 2011||Feb 1, 2023||Green||Bundestag||Brun-Otto Bryde|
|Gabriele Britz (* 1968)||Feb 2, 2011||Feb 1, 2023||SPD||Federal Council||Christine Hohmann-Dennhardt|
|Yvonne Ott (* 1963)||Nov 8, 2016||Nov 7, 2028||SPD||Federal Council||Reinhard Gaier|
|Josef Christ (* 1956)||Dec. 1, 2017||Nov 30, 2024||CDU / CSU||Bundestag||Wilhelm Schluckebier|
|Henning Radtke (* 1962)||16th July 2018||May 31, 2030||CDU / CSU||Federal Council||Michael Eichberger|
|Ines Härtel (* 1972)||July 10, 2020||July 9, 2032||SPD||Federal Council||Johannes Masing|
|chamber||1st judge||2nd judge||3rd judge|
|Surname||Beginning of the term of office||Term expires||nominated by||elected by||successor of|
Doris König (* 1957)
|2nd June 2014||June 30, 2025||SPD||Bundestag||Gertrude Lübbe-Wolff|
|Peter M. Huber (* 1959)||Nov 16, 2010||Nov 15, 2022||CDU / CSU||Bundestag||Siegfried Broß|
|Monika Hermanns (* 1959)||Nov 16, 2010||Nov 15, 2022||SPD||Bundestag||Learn Osterloh|
|Sibylle Kessal-Wulf (* 1958)||Dec 19, 2011||Dec 18, 2023||CDU / CSU||Federal Council||Rudolf Mellinghoff|
|Peter Müller (* 1955)||Dec 19, 2011||Sep 30 2023||CDU / CSU||Federal Council||Udo Di Fabio|
|Ulrich Maidowski (* 1958)||July 15, 2014||July 14, 2026||SPD||Bundestag||Michael Gerhardt|
|Christine Langenfeld (* 1962)||20th July, 2016||July 19, 2028||CDU / CSU||Federal Council||Herbert Landau|
|Astrid Wallrabenstein (* 1969)||June 22, 2020||June 21, 2032||Green||Federal Council||Andreas Vosskuhle|
|chamber||1st judge||2nd judge||3rd judge|
Presidents and Vice Presidents
The President and the Vice-President are elected by the Bundestag and the Bundesrat alternately with a two-thirds majority, whereby the Vice-President must always be elected from the Senate to which the President does not belong (BVerfGG). The President and Vice-President preside over their Senate.
According to diplomatic protocol , the President of the Federal Constitutional Court ranks fifth in the state after the Federal President , the President of the Bundestag , the Federal Chancellor and the President of the Bundesrat .
President of the Federal Constitutional Court
|No.||Surname||Life dates||Beginning of the term of office||Term expires|
|1||Hermann Höpker-Aschoff||1883-1954||September 7, 1951||January 15, 1954|
|2||Josef Wintrich||1891-1958||March 23, 1954||October 19, 1958|
|3||Gebhard Müller||1900-1990||January 8, 1959||December 8, 1971|
|4th||Ernst Benda||1925-2009||December 8, 1971||December 20, 1983|
|5||Wolfgang Zeidler||1924-1987||December 20, 1983||November 16, 1987|
|6th||Roman Duke||1934-2017||November 16, 1987||June 30, 1994|
|7th||Jutta Limbach||1934-2016||September 14, 1994||April 10, 2002|
|8th||Hans-Jürgen Paper||* 1943||April 10, 2002||March 16, 2010|
|9||Andreas Vosskuhle||* 1963||March 16, 2010||June 22, 2020|
|10||Stephan Harbarth||* 1971||June 22, 2020|
Vice-President of the Federal Constitutional Court
|No.||Surname||Life dates||Beginning of the term of office||Term expires|
|1||Rudolf Katz||1895-1961||September 7, 1951||July 23, 1961|
|2||Friedrich Wilhelm Wagner||1894-1971||December 19, 1961||October 18, 1967|
|3||Walter Seuffert||1907-1989||October 18, 1967||7th November 1975|
|4th||Wolfgang Zeidler||1924-1987||7th November 1975||December 20, 1983|
|5||Roman Duke||1934-2017||December 20, 1983||November 16, 1987|
|6th||Ernst Gottfried Mahrenholz||1929-2021||November 16, 1987||March 24, 1994|
|7th||Jutta Limbach||1934-2016||March 24, 1994||September 14, 1994|
|8th||Johann Friedrich Henschel||1931-2007||September 29, 1994||October 13, 1995|
|9||Otto Seidl||* 1931||October 13, 1995||February 27, 1998|
|10||Hans-Jürgen Paper||* 1943||February 27, 1998||April 10, 2002|
|11th||Winfried Hassemer||1940-2014||April 10, 2002||May 7, 2008|
|12th||Andreas Vosskuhle||* 1963||May 7, 2008||March 16, 2010|
|13th||Ferdinand Kirchhof||* 1950||March 16, 2010||November 30, 2018|
|14th||Stephan Harbarth||* 1971||November 30, 2018||June 22, 2020|
|15th||Doris King||* 1957||June 22, 2020|
Proportion of women at the Federal Constitutional Court
As of February 2021, there are a total of nine women with the judges Susanne Baer , Gabriele Britz , Ines Härtel and Yvonne Ott in the First Senate and Monika Hermanns , Sibylle Kessal-Wulf , Doris König , Christine Langenfeld and Astrid Wallrabenstein in the Second Senate and thus closed 56 percent of the 16 constitutional judges. This represents the historically highest proportion of women in this court. Since it was founded in 1951, 20 women have been appointed judges at the Federal Constitutional Court.
In terms of development, the proportion of women in the entire Federal Constitutional Court has for a long time hardly been different from that in the German Bundestag since 1949 , which elects half of the Federal Constitutional Judges. By the mid-1980s, the participation of women in both bodies was below 10 percent and then rose rapidly to almost a third of their respective members by the 1990s. While the proportion of women among the roughly 600 members of the Bundestag has remained at this level to this day, it fell to almost 20 percent in the Federal Constitutional Court after 2006 due to the failure to appoint female successors to two female judges.
Viewed individually, the First and Second Senate, which are separate bodies in their work, developed very differently in terms of the participation of women. While a female judge was represented in the First Senate from the time the court was founded, no woman worked in the Second Senate until Karin Graßhof was appointed in 1986. Since Jutta Limbach took office in 1994, who was elected President of the Court a little later by the Bundestag, until December 2011, the Second Senate consisted of exactly two women.
In 1994, when the Bundestag also laid down the national goal of promoting equality between men and women as a constitutional amendment , the proportion of women working in the First Senate tripled through the appointment of two constitutional judges to positions previously occupied by men. With three female judges (37.5 percent), the First Senate was only one judge's post from 1994 to 2004 from a balanced mix of men and women. After 2006, the proportion of women fell back to the participation of only one judge, which existed from 1951 to 1994, which led to criticism and the committee once again entered the name " Snow White Senate" due to the ratio of one woman to seven men . From February 2011 onwards, with the appointment of Susanne Baer as the successor to Brun-Otto Bryde and Gabriele Britz to the judge's position, which has been female since the establishment of the court, the proportion of women in the First Senate has now increased to two women. In November 2016, Yvonne Ott succeeded Reinard Gaier in the First Senate and brought the proportion of women there back to the 2004 level (37.5 percent).
In December 2011, Sibylle Kessal-Wulf, a woman, took the place of one of the two judges who were up for a new appointment and had previously been held by men. This was the first time that the Second Senate had three women (37.5 percent). When Christine Langenfeld took office in July 2016, half of this Senate was made up of women for the first time in its history. Since Astrid Wallrabenstein succeeded Andreas Voßkuhle in June 2020, the Senate has consisted of five women and three men. As of February 2021, women are in the majority at the BVerfG, while nine judges hold office at the BVerfG.
The judges are known in public not least for their scarlet robes with a white jabot . With the establishment of the court as an independent body, the aim was to make this known to the outside world and the judges received an official costume based on the traditional judge's costume made of satin fabric from the city of Florence from the 15th century , which had been designed by a costume designer from the Baden State Theater . The detailed robes from Duchesse still require the help of a judicial officer when putting them on and are worn during the oral proceedings. In the mid-1990s, a modernized version in terms of fabric quality and workmanship was commissioned. It was carried out by the Karlsruhe-based tailor and fashion studio Zangl.
Salary and additional income
The judges are paid in accordance with the relevant statutory provisions. According to this, the president receives remuneration equal to the ministerial remuneration, the vice-president receives seven sixths of the remuneration of a federal state secretary and the other judges receive remuneration equal to the remuneration of the president of a federal supreme court.
It follows that the president receives 1.333 times the salary of grade B 11 , the vice-president 1.1667 times the salary of grade B 11 and the other judges receive remuneration equal to grade R 10 . In the case of the federal constitutional judges, there is an additional official allowance, as also received by the presidents of the highest federal courts. This amounts to 12.5% of the base salary.
The exact amount of the allowance may vary based on marital status, number of dependent children, etc. However, it does not increase with age or seniority, as grades B 11 and R 10 are fixed grades. Their basic salary does not increase.
Judges of the Federal Constitutional Court who were civil servants or judges before their service retire after the end of their term of office as Federal Constitutional Judge, unless they are assigned another office. The pension is then calculated as if a judge had worked in his previous office until the end of his work as a federal constitutional judge. If the former federal constitutional judge did not previously work for the federal government as a judge or civil servant and his former employer incurs costs in the form of retirement pensions or the like after the end of his term of office, the federal government reimburses these costs.
Point 9 of the Code of Conduct reads: "The judges of the Federal Constitutional Court can only accept remuneration for lectures, participation in events and publications insofar as this does not affect the reputation of the court and there are no doubts about the independence, impartiality, Can establish the neutrality and integrity of its members. They disclose the income generated in this way. The organizer takes over the costs for travel, accommodation and meals to a reasonable extent. "
The federal constitutional judges are not subject to the federal disciplinary law , which applies to other judges with restrictions. Apart from the dismissal, other disciplinary measures (reprimand, fines, salary cuts, transfer to an office with a lower final basic salary ) against Federal Constitutional Court judges are out of the question.
Dismissal for disciplinary reasons is finally regulated inBVerfGG. According to this, a judge can be released for dishonorable behavior, a gross breach of duty or a conviction to a prison sentence of more than six months. The dismissal is decided by the plenary session of the Federal Constitutional Judges with a majority of two thirds and carried out by the Federal President. With the dismissal, the judge loses his rights from his office. Even in the case of less serious offenses, only dismissal can be ordered or the behavior remains unpunished under disciplinary law. There is no gradation that is provided for in such cases for federal judges and federal civil servants in disciplinary law.
A federal constitutional judge can be temporarily prohibited from exercising his service by the plenary if the main hearing against him has been opened in criminal proceedings or if proceedings have been decided that aim to remove him from the service.
Binding effect and force of law
The special importance of the Federal Constitutional Court is expressed in ) BVerfGG :(1
"The decisions of the Federal Constitutional Court are binding on the federal and state constitutional organs as well as all courts and authorities."
The Federal Constitutional Court thus has a very extensive position of power, although it is dependent on the cooperation of the other federal and state organs with regard to the observance and enforcement of its decisions. This only became clear recently (2018) when the city of Wetzlar refused to comply with a preliminary injunction ordered by the court.
The formal binding effect of a decision only exists in a specific case ( inter partes ). There is no substantive connection for other courts to the legal opinion of the court. These have no legal force. The legal opinion of the Federal Constitutional Court is a guideline for the subordinate courts, which is usually followed. Deviations are quite rare. However, each court can follow a different legal opinion in another case that is the same or similar if it deems this to be correct.
In the cases mentioned in Section 31 (2) BVerfGG, however, the decisions of the court have the force of law and apply to everyone ( inter omnes ). These are essentially proceedings in which the court determines whether a law is compatible with the constitution or not (constitutional interpretation). Only the Federal Constitutional Court is entitled to determine that a law passed after the Basic Law came into force is unconstitutional ( (3) sentence 1 or sentence 2 BVerfGG; authority to reject norms ). If another court considers a law to be unconstitutional, it has to submit this to the BVerfG in accordance with GG, insofar as this is relevant to the decision ( concrete control of norms ).
Although the wording of legislature instead on a revision of the laws of matter; Until the new regulation, the law will then continue to apply, but no longer applicable. In a very simplified way, one can say that this is always applied when a law is (only) contrary to equality.(3) sentence 1 or sentence 2 BVerfGG is clear (“If the constitutional complaint against a law is upheld, the law is to be declared null and void”), the Federal Constitutional Court refrains from a declaration of nullity in some cases and reflects the
Organization and Arbitration Body
The court is divided into two senates and six chambers with different substantive competences as well as an additional board of appeal. This distribution takes place through the rules of procedure , which the Federal Constitutional Court itself enacts and can change. The judges' legal background and focus are increasingly taken into account. To simplify matters , the First Senate can be classified as a Fundamental Rights Senate and the Second Senate as a Constitutional Law Senate : The First Senate is primarily responsible for questions relating to the interpretation of Articles 1 to 17, 19, 20 Paragraph 4, 33, 38, 101, 103 and 104 GG, while organ disputes between constitutional organs or party prohibition proceedings tended to reach the Second Senate.
Each Senate originally had twelve judges. With effect from 1963 the number of judges was reduced to eight. This includes the President and the Vice-President of the Federal Constitutional Court , who each preside over one of the Senates. The judges of the Senate are supported in their work by the administration of the Federal Constitutional Court, headed by the Director at the Federal Constitutional Court on behalf of the President, by academic staff and presidential councils. The director at the Federal Constitutional Court is paid according to salary group B 9. Peter Weigl has held the position of director since April 2011 .
A senate has a quorum if at least six judges are present. There is no replacement or replacement of outgoing judges during ongoing proceedings. If so many judges have left the proceedings that the court no longer has a quorum, the hearing must be restarted after the by-election. If a senate does not have a quorum, the chairman of the senate orders a lottery procedure in the case of particularly urgent proceedings in accordance with Section 15 (2) BVerfGG until the senate has a quorum through judges from the other senate. According to Section 32 (7) BVerfGG, in the event of a quorum in urgent cases, at least three matching judges are sufficient for the common good to order a temporary remission for a period of one month. The Senate with a quorum can confirm this temporary decree and extend it to six months. With at least two-thirds of the votes of the Senate, the temporary remission can be extended for a further six months (Section 32, Paragraph 6).
Because of the even number of judges in a senate, stalemates are possible (so-called four-to-four decision). In most proceedings, an applicant or complainant wins if at least five judges share his legal opinion. In some special procedures, i.e. those that are particularly intrusive, a qualified two-thirds majority is required ; that is, a majority of two-thirds of the Senate's members (i.e. six out of eight judges).
The senates independently appoint several chambers within their areas of responsibility, each of which has three judges. These chambers decide on constitutional complaints, specific normative controls and procedures in accordance with the Investigation Committee Act (PUAG) instead of the Senate and exonerate it if the underlying legal question has already been decided by the Senate. There are currently three chambers in each Senate. Therefore, some judges are members of several chambers. In addition to these six chambers, a Board of set up for the 2016 and 2017 accordance with , which is made up of two judges from each of the two Senates.
If the Senate does not decide unanimously, the losing judges have the option, individually or jointly, to attach a separate opinion to the decision of the court . This is then published together with the decision of the court under the heading "Dissenting opinion of the judge ...". To standardize its jurisprudence , the court meets as a plenary if a senate wishes to deviate from the jurisprudence of the other senate. This requires a referral resolution from the deviating Senate. The plenary consists of all judges and is chaired by the President. So far, the plenary has only been called five times.
The court has had its own press office since 1996, the spokesman for which is appointed by the court president for a term of two to three years. The reason for the establishment of the press office were communication problems and the associated loss of social trust in the context of the highly controversial decisions about soldiers are murderers (1994/95) and the decision on the crucifix (1995). Until then, the senates or the respective reporters were responsible for external communication. The tasks of the press office include the publication of press releases of various kinds (e.g. summaries of decisions (around 100 per year), announcements of hearings, birthdays, visits), the organization of the annual press conference and the publication of all important decisions the website of the court. The Federal Constitutional Court is breaking new ground in terms of communication and closeness to the citizen on the occasion of its 70th birthday and has also been offering information via the social network Instagram since August 18, 2021 .
Responsibilities and types of procedures
The Federal Constitutional Court is only competent to resolve disputes if this results from the Basic Law or BVerfGG (so-called enumerative principle ). Like any other dish, it cannot act on its own, but has to be called upon. In addition to its tasks at the federal level, there may be jurisdiction in constitutional disputes about the interpretation of state constitutions , if this is provided for by the constitution of a federal state . An example of this was the state of Schleswig-Holstein (Art. 44 LVerf Schl.-H. old version), which, however, was the last federal state to also set up its own state constitutional court in 2008 , which has performed this task since then.
However, the Federal Constitutional Court is not responsible for disputes that affect the European Union or its treaties. In this case, the European Court of Justice (ECJ) is responsible. However, the Federal Constitutional Court then decides on issues related to European law if these concern the interpretation of the German constitution, such as in the well-known Solange II judgment .
According to fundamental rights violated by state action can submit a constitutional complaint to the Federal Constitutional Court (so-called individual complaint ). Its ability to lodge a complaint is derived from (3) of the Basic Law (so-called fundamental rights ). The general rules of §§ 51 ZPO and 62 VwGO , as well as the fundamental rights of age, apply to the process capability .(1) No. 4a GG, §§ 13 No. 8 a, 90, 92 ff. BVerfGG, anyone who sees their
State action is to be understood as any act of public authority that encroaches on the legal position of the holder of fundamental rights. This includes all acts of executive power , law and legislation , therefore, laws , regulations , statutes , administrative acts , Real acts , judgments and decisions . In addition to acting, failure to act can also be relevant to a complaint. The so-called classic term of intervention , which was decisive until 1992, defined an intervention, the
- final and not just an unintended consequence of government action
- is immediate
- is justified by a legal act with an imperative external effect.
The modern understanding of interference dispenses with the characteristics of the legal act, the immediacy and the imperative external effect and makes almost every state intervention verifiable as a result.
However, the court is not a super-revision instance : the incorrect application of simple laws by specialized courts is not sufficient for a permissible complaint if these legal positions are not protected by fundamental rights ( Heck's formula ). However, any violation of simple law affects the fundamental right to equality if the interpretation concerned is arbitrary.
Also legal persons may bring a constitutional complaint. However, this only applies if the fundamental rights by their nature apply to legal persons ( 19.3 of the Basic Law), such as freedom of occupation ( Basic Law) or property ( Basic Law). Legal persons under public law are generally not entitled to complain (see Sasbach decision ; exceptions, however, are possible for freedom of broadcasting ( GG)).
Pursuant to municipal constitutional complaints ” - not to be confused with the so-called municipal constitutional dispute, which is an intra-community administrative legal organ dispute.(1) No. 4 b GG, §§ 13 No. 8 a, 91 BVerfGG, municipalities and associations of municipalities can submit a constitutional complaint on the grounds that their right to local self-government has been violated. In this case, one speaks of “
In order for the constitutional complaint to be admissible, the complainant must no longer have any other legal remedies. Exceptions are only permissible if the complainant cannot reasonably be expected to exhaust the legal process and the effective enforcement of his fundamental rights would otherwise be thwarted, or if the decision on the constitutional complaint is of general importance ( (2) sentence 2 BVerfGG).
The constitutional complaint is by far the most common type of procedure (around 96 percent of all procedures are constitutional complaints). Most of these proceedings are decided not by the Senate but by a Chamber if they raise legal issues that have already been clarified or are obviously unfounded or justified. In some cases, the court can decide a limine .
There is no "processing guarantee" for the constitutional complaint. Since 1951, just under 2.5% of all complaint applications have been successful; many are not accepted for decision for formal reasons. In addition to the possibility of an A-Limine rejection, from 1993BVerfGG created the possibility not to accept constitutional complaints without justification for a decision. The justification for this was, in terms of legal policy, that justifications for judicial decisions were only necessary to appeal to other instances. The court does not belong to the instance. The court has so far made very seldom use of the possibility of charging an abuse fee for the procedure, which is basically free of court fees.
Concrete control of norms
A specialized court that considers a certain federal law, which is relevant to the decision, to be incompatible with the Basic Law or a state law to be incompatible with a federal law, must initiate the process of specific norm review by resolution (right to refer pending proceedings and submits the case to the Constitutional Court for incidental examination. Only the constitutional court can declare laws unconstitutional and has exclusive authority to reject norms in the German legal system (if a law is incompatible with a state constitution, the law must be submitted to the court responsible under state law).(1) GG, § 80 (1) BVerfGG). In doing so, it interrupts its own
However, a specific review of norms is not permitted for pre-constitutional law , i.e. for laws that were promulgated before the Basic Law came into force. Specialized courts and authorities can reject their application themselves. However, this does not include the following cases:
- essential elements of the pre-constitutional law were changed or changed after the Basic Law came into force
- Referral of a new law to a pre-constitutional law or
- the new law is closely related to the pre-constitutional law or
- the pre-constitutional law was newly promulgated.
If the validity of a standard of Community law is important in judicial proceedings, the specialized court must first obtain the preliminary ruling from the ECJ. If the European Court of Justice affirms its validity, the German specialized court has nevertheless to decide on a submission to the BVerfG as a concrete norm control (corresponding application of Art. 100 Abs. 1 GG), if it is of the invalidity of the EU norm
- because of a violation of the minimum standard of fundamental rights that is indispensable according to Paragraph 1, Sentence 1 of the Basic Law or
- because of exceeding community competencies (breaking out of the "integration program" of the contracts)
Abstract norm control
According to Federal Government , a state government or at least a quarter of the members of the Bundestag by means of abstract normative review . The subject is the difference of opinion or the doubt about the compatibility of federal or state law with the Basic Law or of state law with other federal law. If the subordinate law is incompatible with the priority law due to formal or material illegality, the control procedure is justified.Paragraph 1, Number 2 of the Basic Law and Section 13, Paragraph 1, Number 6 of the BVerfGG, the Federal Constitutional Court can act at the request of the
Above all, it enables the opposition to have the constitutionality of a law or international treaty passed by the majority supporting the government examined. The application can be submitted by at least a quarter of the members of the Bundestag. The opposition in the 18th German Bundestag , for example, was structurally below this quorum. Christine Lambrecht , the SPD parliamentary manager at the time, saw no minority rights in the norm control application, which is why the requirements were not lowered. The Federal Constitutional Court rejected a corresponding demand by the opposition in May 2016. According to the justification of the judges, the Basic Law neither explicitly establishes specific opposition (factional) rights, nor can a requirement to create such rights be derived from the Basic Law.
Organ dispute proceedings
An organ dispute is a legal dispute between state organs (and parts of these organs equipped with their own rights) over the interpretation of the Basic Law on the rights and obligations arising from the special constitutional status of the parties involved, namely from the constitution or from their self-governing Rules of Procedure or Articles of Association.
The applicant and the respondent must be able to participate. Organ dispute proceedings are justified if the respondent has committed a constitutional violation that has actually led to a violation or immediate endangerment of the applicant's constitutional rights or obligations.
The federal-state dispute is permissible if there are disagreements about the violation or immediate endangerment of constitutionally established rights and duties or obligations of the federal government or a state, for example on questions of legislative competence. The procedure is based on action for a declaratory judgment with the aim of establishing the legislative power of the federal states to substitute according to Paragraph 2 of the Basic Law, if the federal government does not cooperate with the federal states.(1) no. 3 GG, §§ 13 no. 7, 68 ff. BVerfGG. The federal and state governments are therefore able to participate. If the action taken or not taken violated the applicant's rights and obligations, the procedure is justified. A complex variant of the federal-state dispute is the procedure under (2) of the Basic Law. This is an
The procedure is similar to a declaratory action, but without any special subsidiarity requirements with regard to other procedures. On the contrary, this type of procedure has priority in relation to the federal-state dispute, as it is the more specific one.
Holders of the state legislature's right of initiative (state government or parliament of a state) and the Federal Council are entitled to apply.
competing federal legislation . However, some of them are subject to the reservation of the right to substitute in favor of the federal states if federal legislation is not required (Article 72.2 of the Basic Law) or the continuity requirements do not meet the requirements of being able to continue to be enacted as federal law ( Basic Law ).GG determines the areas for
It is required if and to the extent that the establishment of equivalent living conditions in the federal territory or the preservation of legal or economic unity in the national interest require a regulation under federal law. If this requirement no longer exists, the federal government can state this in a law and create legal certainty for substitute laws by the states. This has a declaratory effect for the power to replace - Article 72 (3) of the Basic Law. If he does not do this and if there is a dispute about the substitution authority of the state legislature, an action can be taken for determination.
The determination is a surrogate for a declaratory federal regulation; it has the force of law. It is therefore a competence surrogate for the law of surrogation .
Ban on party
Party bans are procedures in accordance with Article 21 (2) of the Basic Law, §§ 13 No. 2, 43 ff. BVerfGG. The Bundestag, Bundesrat and the Federal Government are entitled to apply. So far in 1952 the SRP (Socialist Reich Party) and in 1956 the KPD have been banned . Prohibition proceedings against the NPD were discontinued by the court in 2003 for procedural reasons . Another NPD prohibition procedure ran from 2013 to 2017 , whereby the admissible application for a ban was again rejected by the judges of the Second Senate.
Forfeiture of fundamental rights
The Bundestag, a state government or the federal government are entitled to apply. In the history of the court, four cases were pending, none of which was forfeited.
Clarification of party status
According to Article 93 (1) No. 4c of the Basic Law, the Federal Constitutional Court also decides on complaints from associations against their non-recognition as a political party in the federal election by the Federal Electoral Committee .
The court is the second and last instance in the event of objections to the validity of the Bundestag and European elections (election of the members of the European Parliament from the Federal Republic of Germany). The first instance is when self-governing body, the Bundestag itself. A Verification appeal to members of the Bundestag, the Bundesrat, the Federal Government or voting citizens themselves rise (alone or as a group) ( the FCC). To this end, an error must have occurred through action or failure to act during the election, which had an impact on the distribution of seats in the Bundestag or in the European Parliament .
Charges against the Federal President
The Bundestag and Bundesrat are entitled to apply. Such a charge has never occurred before.
Settlements before the Federal Constitutional Court are de jure not intended. Nonetheless, the First Senate actually made a proposal for a settlement in the process of an application for a normative review or constitutional complaint with regard to the structuring of life, ethics and religion (LER) teaching in Brandenburg.
The main reason for this was that the dispute also concerned religious instruction and thus a res mixta and that the court wanted to avoid a sovereign decision vis-à-vis the religious communities . The comparison corresponded more to the cooperation relationship in which the res mixta between the state and religious communities are to be regulated.
The possibility of obtaining a legal opinion from the Federal Constitutional Court only existed in its early years according to the old version of Section 97 of the BVerfGG. Such an opinion was only issued twice: in 1951 the court issued an opinion on the need for approval of the Federal Council to the law on the administration of income and corporation tax , in 1954 on the competence of the federal government to enact a building law.
Plenary decisions according toBVerfGG are necessary if one Senate wishes to deviate from the legal opinion contained in a decision of the other Senate on a legal issue.
This was the case, for example, with the question of the standing of political parties in the Organstreit proceedings. In August 2012, the Federal Constitutional Court ruled in the fifth plenary decision since it was founded on the approval of Federal Armed Forces deployments in Germany .
Provisional legal protection
As under any other procedural order, the constitutional court can make preliminary decisions until the main proceedings have been decided ( interim orders according to BVerfGG). A special feature is that organ dispute procedures and norm controls are dealt with in practice when they are politically explosive. The "unsuccessful" side often does not continue the main proceedings.
For example, provisional legal protection was granted prior to the decision on the constitutional complaint against the Census Act ( census judgment ) in the form of the suspension of the implementation of the Census Act.
In addition to the competences and types of proceedings listed above, the Federal Constitutional Court also acts in other cases assigned to it by federal law (Article 93 (3) of the Basic Law). An example of this is the law on referendums and referendums when the federal territory is reorganized in accordance with Article 29 Paragraphs 2 to 6 of the Basic Law , which made it possible to appeal to the Federal Constitutional Court against a rejected referendum . In one such procedure, the court delivered the Lübeck judgment .
General and procedural protection of fundamental rights
The Elfes judgment in 1957 dealt with the general freedom of action ; it is legally significant through the definition of procedural protection of fundamental rights: the court defines as a “ constitutional objective legal order ” the totality of all norms at all hierarchical levels that are formally and materially in accordance with the constitution and have them point out that positions protected by constitutional rights are not only laid down in the Basic Law, but are also numerous and often regulated by simple law on a case-by-case basis. A violation of this can always be reprimanded at least as a violation of Paragraph 1 of the Basic Law and reviewed by the Constitutional Court. The hurdle for access to the constitutional court and the success of a constitutional complaint is initially set very low. However, since the German legal system does not have a super-revision, i.e. the possibility of a legal review of all decisions of all other courts by the Federal Constitutional Court, a constitutionally focused limitation (so-called " Heck's formula ") is required , according to which the court only the decisions of specialized courts checks for the violation of "specific constitutional law":
- if the influence of a constitutional norm has been completely or fundamentally misunderstood,
- if the application of the law was grossly or obviously arbitrary, or
- if the limits of judicial legal training have been exceeded.
Protection of fundamental rights in private law
The basic rights served in their origin as defensive rights against the state . Primarily the protection of the rights of the individual, later also the right to be left alone by the state for general freedom of action ( general right of personality ). Today it is generally recognized that the protection of fundamental rights applies not only in the relationship between the citizen and the state, but also in the relationship between the citizen and the citizen the fundamental rights of the individual count. This does not emerge from the Basic Law and its creation. The origin is the Lüth judgment, which dealt with this point of dispute. The BVerfG emphasizes here that it regards the Basic Law as a " system of values " that is centered on the human personality that develops freely within the social community . As such, it must apply to all areas of law. Therefore, it also influences civil law . No civil law regulation should contradict it, each one must be interpreted in the spirit of the Basic Law.
Basic right to a decent future
With a ruling of March 24, 2021, the Federal Constitutional Court postulated a “fundamental right to a future that is dignified”. The German Climate Protection Act must also make detailed regulations for the years after 2030 in order to effectively implement the national goal of environmental protection from Basic Law in the interests of future generations .
Basic right to informational self-determination
- In 1983, in the census judgment, a basic right not codified in the Basic Law was derived from human dignity and the general right of personality and defined as an independent legal institution .
- In 2006, the court ruled that internet-based communication stored privately on a hard drive is not protected by telecommunications secrecy, since transmission processes have already ended, but in a supplementary relationship it is protected by the basic right to informational self-determination and the inviolability of the home .
- In 2006, the court overturned the order for a grid search in North Rhine-Westphalia. The police law , which was amended for the purpose of combating terrorism, did not meet the requirements of the protection of fundamental rights to only intervene when there is an imminent danger . In the case of a so-called “general threat situation”, a concrete, fact-based risk prognosis is required . The decision is criticized because it would go too far and de facto prohibit the legislature from suspect-independent preliminary prevention and research, which is, however, customary in far less sensitive areas. This is contrary to the rule of judicial self-restraint (→ judicial restraint ).
- In 2007 the court confirmed the constant practice of the specialized courts, according to which clandestine paternity tests are illegal and unsuitable as evidence in judicial proceedings, but it calls for the creation of a legal possibility for fathers to determine the biological descent of the child - as long as legal paternity does not coincide with biological paternity is. The decisive factor here is the conflict between genetic / informational self-determination in a triangular relationship.
- In 2008 the court ruled that an unprovoked or comprehensive automated checking of vehicle license plates is disproportionate and therefore unconstitutional. The corresponding regulations in Schleswig-Holstein and Hesse have been declared null and void.
- In 2008 the court redefined a non-codified basic right, the basic right to guarantee the confidentiality and integrity of information technology systems . In its judgment on the online search , the court declares provisions in the Constitutional Protection Act of North Rhine-Westphalia to be null and void and sets high hurdles for the application of this measure. It requires a judge's reservation and precautions to protect the core area of private life and restricts its use to cases in which there are actual indications of a concrete danger for an extremely important legal asset.
Right of injured person to effective criminal prosecution
As a matter of principle, there is no right to prosecute someone else beyond the possibilities of enforcement proceedings and enforcement proceedings prescribed by simple law . According to the case law of the Federal Constitutional Court, however, the injured party has a constitutional right to effective criminal prosecution in specific and narrowly defined case constellations. This was assumed in serious crimes against life, physical integrity, sexual self-determination and freedom of the person, to the extent specifically specific in existence welfare and custody obligations of the state towards persons who are entrusted to him as well as allegations that a public official has in perception official duties committed criminal offenses.
- In the version of § 218a StGB of July 1992, the termination of pregnancy was not illegal; However, this was declared unconstitutional in 1993 by the Federal Constitutional Court. The Criminal Code was then amended in 1995 in such a way that in this case the termination is no longer expressly declared “not unlawful”, but the fact that the pregnancy is terminated is deemed not to have been fulfilled. This means that the timely deliberated termination is not a criminal offense for all parties involved . The exclusion of the offense does not clarify the question of illegality ; The extent to which the regulation left the question open is controversial. The prevailing view de facto equates the exclusion of the facto with a justification .
- In a judgment announced on February 26, 2020, the Federal Constitutional Court declared the ban on commercial euthanasia to be unconstitutional and therefore null and void. According to the court, the general right of personality in connection with human dignity includes "as an expression of personal autonomy a right to self-determined death." It also includes the right to take one's own life. The prohibition in Section 217 of the Criminal Code makes it “de facto impossible for those who want to commit suicide to take advantage of the business-related suicide assistance they have chosen”, so “that the individual has in fact no room to exercise his constitutionally protected freedom.” Under strict conditions that the Legislators can determine, according to the court, business help should also be possible in the future.
- At the beginning of 2020, the Federal Constitutional Court upheld the constitutional complaint of the patient concerned in the event of a patient being restrained. An illegally fixed patient complained successfully against the termination of the investigation against the responsible ward doctor, a public health officer and a nurse. With regard to the judge who was also reported, the complaint was rejected because indications of a perversion of the law ( Criminal Code) had not been substantiated. This decision represented the final point of the case law of the BVerfG on strengthening patient rights in the event of illegal restraints.
Equality before the law
- In the 1957 decision on homosexuals, the Federal Constitutional Court found Section 175 of the Criminal Code to be compatible with the Basic Law. The criminal liability of male homosexuality does not violate the general principle of equality.
- In the ruling on the speculation tax for 1997 and 1998, the court declared parts of the Income Tax Act unconstitutional and null and void that provide for the taxation of capital gains on securities, but waive their own legal enforceability, so-called structural enforcement deficit . This means that an uneven load is already laid down in the law.
- In a 2007 decision on preferential treatment, the court ruled that male prisoners may not be withheld from male prisoners privileges (access to telephones) that female prisoners of the same security level receive without special reasons relating to male prisoners. Male prisoners are also allowed to spend as much of their own money on cosmetic products as female prisoners.
Freedom of conscience
- In its decision of December 20, 1960 (conscientious objection I) the Federal Constitutional Court developed the following definition for a decision of conscience : Any serious moral, i.e. H. Decision based on the categories of “good” and “bad”, which the individual experiences internally in a certain situation as binding and unconditionally binding, so that he could not act against it without serious conscience.
- In 1978 the court repealed a federal law according to which conscripts could refuse military service by means of a written declaration without specifying their conscientious decision in detail (also known as “refusal by postcard”).
- In 1960 the Federal Constitutional Court gave its opinion on the freedom of belief enshrined in the Basic Law. Accordingly, the basic right of freedom of belief allows one to express and also to conceal the fact that and what one believes or does not believe. This basic right includes the promotion of one's own faith as well as the enticement of someone else's faith.
- In the ruling on the " Rumpelkammer " action in October 1968, the Federal Constitutional Court ruled that, in addition to churches, religious and ideological communities, associations are also entitled to freedom of religion which do not aim at all-round but only partial care of the religious or ideological life of their members have ("religious associations").
- In 1971 the Federal Constitutional Court recognized that the freedom of belief protected by Article 4 Paragraph 1 of the Basic Law grants the individual a legal space free from state interference. He can use this to give himself a way of life that corresponds to his convictions. In a state in which human dignity is the highest value and in which the free self-determination of the individual is at the same time recognized as a community-building value, this form of formation is fundamentally covered by constitutional law. This could be a religious or irreligious or an anti-religious or non-religious creed or worldview. “In this respect, freedom of belief is more than religious tolerance, i. H. mere toleration of religious beliefs or irreligious beliefs. Because it allows not only to express and also to conceal the fact that and what one believes or does not believe. Rather, it corresponds to the meaning of this political decision made in the Basic Law to extend freedom of belief to advertising one's own belief as well as to soliciting someone else's belief. "( BVerfGE 12, 1 (3) )
Freedom of belief does not only include" (inner) freedom to believe or not to believe, but also the outer freedom to manifest, profess and spread the faith ", as well as" the right of the individual to orient his entire behavior to the teachings of his belief and according to his inner beliefs to act. ”This includes not only convictions based on imperative beliefs, but also“ religious convictions that do not necessarily require an exclusively religious reaction for a concrete life situation, but consider this reaction to be the best and adequate means of assessing the life situation of belief to cope with. Otherwise the fundamental right of freedom of belief would not be able to fully develop. "
According to the constitutional decision, freedom of belief applies to members of recognized churches and religious communities as well as to members of other religious associations, regardless of the numerical strength of such a community or its social relevance . Furthermore, the Constitutional Court ruled that the limits of freedom of belief should only be determined by the constitution itself.
- In the Baha'i ruling in 1991, the Federal Constitutional Court dealt with the conditions under which communities are to be recognized as religious communities, with religious freedom of association and its impact on private association law . The court ruled that communities in this sense are only bearers of religious freedom if it is actually a religion and religious community - in terms of its spiritual content and outward appearance. Religious freedom of association is part of religious freedom. It does not exempt from the prerequisites of private association law, but with regard to the church's right to self-determination (→ state church law ), a constitutional interpretation may be necessary.
- In the Scientology decision in 1994, the court defined freedom of religion, among other things. as a collective basic right and the resulting freedom of self-administration for religious communities. In any case, this is not violated in the case of commercial activity with the intention of making a profit if the religious community is obliged to register a business and to pay business tax.
- The crucifix resolution of 1995 declared parts of the Bavarian School Act to be unconstitutional, according to which a crucifix or a cross had to be placed in every classroom of the elementary schools in Bavaria.
- In 2002 the Federal Constitutional Court ruled that it is unconstitutional to deny Muslim butchers special permits for the religious slaughter of animals.
- In the headscarf dispute in 2003, the court forbade the state of Baden-Württemberg from banning the wearing of a headscarf without a legal basis and from that to conclude that it was not suitable for public service (see: Headscarf judgment ).
Freedom of expression and freedom of the press
- In German jurisprudence, the Blinkfüer decision is a decision of the Federal Constitutional Court of February 26, 1969 , in which the Federal Constitutional Court deals with the importance of freedom of the press for the competition of opinions.
- In the “Tucholsky decision” of 1995 on the public statement “ Soldiers are murderers !” The court remained true to its tradition of protecting freedom of expression and freedom of the press as a vital, indispensable constitutional asset for democracy, and carried out an exemplary examination of encroachments on fundamental rights a legal reservation as a constitutional barrier . This decision shows the practical application of important principles from the permanent jurisprudence on the protection of fundamental rights such as the Heck formula , the theory of interaction , the objective value ranking and the definition of the scope of protection of value judgments and factual assertions .
- In the Benetton decisions , the court lifted publication bans against the publisher, which wanted to publish shocking advertising by means of photo ads, and made it clear that freedom of expression as a derivation of the guarantee of human dignity can only be restricted with difficulty with reference to human dignity. An expression of opinion cannot be prohibited simply because of anti-competitive factors. The criticism of social grievances cannot be forbidden if it is placed in a commercial context, because it remains an expression of opinion.
- The Mephisto decision (1971) defines the constitutional area of protection of artistic freedom through an open concept of art.
- In the Mutzenbacher decision on the indexing of the novel Josefine Mutzenbacher in 1990, the court dealt with the relationship between freedom of art and the protection of minors and made it clear that pornography and art are not mutually exclusive.
marriage and family
- The court upheld the Civil Partnership Act in 2001 and 2002, respectively, and made it clear that equating homosexual partnerships with the institution of marriage does not contradict the special constitutional protection of the latter and the family ( Basic Law). The Basic Law requires a particularly active promotion of marriage and family, but does not describe a requirement to distance themselves from other forms of life - marriages and families do not suffer from the disadvantage of others.
- See also: Overview of further jurisprudence on economic and tax issues
- In 2008 the court ruled that the prohibition of incest sanctioned by criminal law in (2) sentence 2 of the Criminal Code was compatible with the Basic Law. Despite widespread criticism in jurisprudence of the purpose of the norm, it saw the health of the population ( eugenics ) as legislative cornerstones in addition to the protection of sexual self-determination and the family .
- In 2009 a resolution was passed on the issue of unequal treatment of registered civil partners in terms of pensions for surviving dependents in the public sector . In it, the First Senate decided that unequal treatment is unconstitutional and formulated in the guiding principle that “the mere reference to the protection requirement of marriage according to Article 6, Paragraph 1 of the Basic Law” does not justify a differentiation between marriage and other comparable partnerships.
- In 2013, the court declared the unequal treatment of registered civil partnerships and marriage unconstitutional in two decisions. According to a judgment in February, the non-admission of the successive adoption of adopted children of registered life partners by the other life partner violates both the children concerned and the life partners concerned in their right to equal treatment ( Article 3, Paragraph 1, Basic Law ). In addition, in May the court saw the exclusion of civil partnerships from spouse splitting in the Income Tax Act as a violation of the general principle of equality , as there were no sufficiently weighty factual reasons for the unequal treatment.
Freedom of demonstration and assembly
- In the Brokdorf ruling in 1985, the court emphasized the special importance of the freedom of demonstration and assembly for democracy, which is why a particularly strong status negativus acts against excessive regulation by law or administrative act. The state is not allowed to take intervention measures on the basis of the police laws, but only on the basis of the right to assemble (so-called police resistance ). Also, such should not be taken with reference to a violent minority.
- According to a decision of the Federal Constitutional Court of April 17, 2020, Az. 1 BvQ 37/20, a demonstration against official measures in the course of the Corona crisis in 2020/21 was approved.
Inviolability of the home and freedom of telecommunications
- House search : The term “imminent danger” in (2) of the Basic Law is to be interpreted narrowly; Law enforcement agencies and courts have to ensure that searches without a judicial decision are the exception. Even then, the search must be justified with facts relating to the specific case and be subject to judicial control; general assumptions or “criminal experience” are not sufficient.
- Major eavesdropping : In 2004, regulations on acoustic surveillance of living spaces were repealed as partially unconstitutional. Based on the basic right to informational self-determination, the court defined an inviolable "core area of private life", as the citizen's personal refuge, which cannot be penetrated by state measures and even criminal prosecution must not be a justification for intervention.
- Preventive telephone monitoring in Lower Saxony was declared unconstitutional in 2005 because the federal states lacked legislative competence. The decision in favor of similar state legislation in Thuringia and Bavaria is materially significant .
Ownership and freedom of occupation
- In the pharmacy ruling in 1958, the court defined freedom of occupation as a uniform basic right that can be restricted on 3 levels according to strict, graduated criteria, the so-called 3-level theory ( BVerfGE 7, 377 ).
- In the wet gravel ruling in 1981, the court established the scope of protection of a fundamental right with a high degree of definition, such as property, and the legal techniques for its permissible restrictions as "content and limitation provisions" of the property institution, legal expropriations or legal criteria for administrative expropriations ( BVerfGE 58, 300 ).
- In 2008 the Federal Constitutional Court upheld a lawsuit against the nonsmoker protection laws of Baden-Württemberg and Berlin . The laws put the operators of one-room pubs at a disadvantage compared to restaurateurs who have restaurants with several rooms and can therefore set up a smoking room. Discotheques with several rooms are also disadvantaged compared to restaurants with several rooms, since they are not allowed to offer a smoking room. However, an unexceptional smoking ban for all restaurants and discotheques would also be possible for health protection , because this would not disadvantage anyone. The Federal Constitutional Court ordered a deadline to revise the laws and a transitional regulation.
- In 1972, the Numerus clausus judgment defined a legal right to admission to university studies and capacity expansion as status positivus , which belongs to the protection area of professional freedom ( BVerfGE 33, 303 ).
- The fourth amendment to the Higher Education Framework Act (HRG) will be declared unconstitutional in full in 2004, and important parts of the 5th HRG amendment in 2005, because the federal government only has the legislative competence. This concerns the junior professorship , the ban on tuition fees and the mandatory introduction of student bodies at universities in the federal states.
The transformation law to the EU arrest warrant was declared unconstitutional in 2005. The decision defines the area of protection of GG in the sense of a comprehensive home law that guarantees permanent citizenship , political participation and a general ban on extradition .
The first broadcast judgment of February 1961, in which the " Deutschland-Fernsehen GmbH ", founded by Adenauer's initiative , was declared unconstitutional (but not because of the planned legal form as a GmbH ) , is of particular importance . The planned television station in the hands of the federal government did not fulfill the constitutional guarantee of the institutional freedom of broadcasting. In addition, “Germany television” would have violated the principle that broadcasting as a cultural good is a matter for the country. Only the task of providing the technical broadcasting operation was assigned to the federal government.
De facto , this judgment led to the broadcasting monopoly of public service broadcasting, which lasted until 1984, and also to the decision of the federal states to set up a second broadcasting company, the Second German Television (ZDF), on the basis of an interstate treaty (see also the Interstate Broadcasting Agreement ) .
On March 25, 2014, the Federal Constitutional Court declared parts of the ZDF State Treaty to be incompatible with the freedom of broadcasting after it made the following requirements for the supervisory bodies of public broadcasters:
- The proportion of “state and state-affiliated persons” in the supervisory bodies of public broadcasting corporations may not exceed a third. For each state or state-affiliated representative in the supervisory bodies, there must be at least two non-state members. The state sphere includes prime ministers, ministers, political officials and party representatives.
- Since broadcasting freedom is aimed at ensuring diversity in terms of content, “which cannot be guaranteed through the free market alone”, “people with the most diverse perspectives and horizons of experience from all areas of the community” must be present in the supervisory bodies.
- Representatives of the executive branch may not have a decisive influence on the selection of non-state members; In addition, incompatibility regulations are to be created, which guarantee the personal distance of the non-state members.
- To strengthen personal independence, members of supervisory bodies must be independent of any instructions and may only be dismissed for “good cause”.
- Minimum level of transparency in the supervisory bodies, d. H.
- The composition of the bodies and committees as well as the upcoming agendas must be easy to experience;
- Timely publication of the minutes of the meetings of the supervisory bodies and committees or substantial information to the public about the subject matter and results of the deliberations by other means.
Active and passive right to vote
- In its judgment of July 3, 2008, the Federal Constitutional Court found in the examination of the 2005 Bundestag election that the version of the Federal Election Act in force at the time, by the possibility of negative voting weight, violated the principle of equality and immediacy of the election enshrined in the Basic Law. The court obliged the federal legislature to find a new regulation by June 30, 2011.
- In March 2009, the Constitutional Court declared the use of voting computers that do not allow for public transparency in accordance with the constitution to be unconstitutional. The use of the Nedap voting computers used in two models was therefore also unconstitutional in around 1,800 electoral districts in the 2005 federal election , which was examined by the court , but the election does not have to be repeated (in the affected electoral districts) because there is no evidence of manipulation.
- In November 2011, the Federal Constitutional Court declared the 5 percent clause in the Act on the Election of Members of the European Parliament from the Federal Republic of Germany (European Election Act - EuWG) in European elections to be null and void, as this regulation interferes with the electoral principle the same choice and equal opportunities for the parties, which cannot be justified. However, the repetition of the 2009 European elections was not ordered. A previous ruling in 2008 had already abolished the five percent hurdle in the local electoral law of Schleswig-Holstein by the court.
- The federal legislature reacted to the judgment of July 3, 2008 with the nineteenth law amending the federal election law of November 25, 2011 ( Federal Law Gazette I p. 2313 ), which the Federal Constitutional Court on July 25, 2012 also rejected as unconstitutional. Central provisions were declared null and void because they violate the electoral principles of equality and immediacy of the election as well as equal opportunities for the parties. The following objections were made in detail:
- It can lead to a negative voice weight.
- The number of overhang seats can "cancel the basic character of the federal election as proportional representation" and was limited to a "maximum permissible limit of around 15 overhang seats" (half the size of the parliamentary group).
- The utilization of the remaining votes was declared unconstitutional because not every voter can participate in it with the same chance of success.
- The Federal Constitutional Court sees the legislature as obliged to enact a new constitutional electoral law. A deadline was not provided, but results from the fact that the latest possible election date is October 27, 2013.
- After the German Bundestag passed a three percent threshold for European parliamentary elections on June 13, 2013, the Federal Constitutional Court announced on February 26, 2014 that this threshold was unconstitutional. Under the given legal and factual circumstances, the serious encroachment on the principles of equal voting rights and equal opportunities associated with the threshold clause cannot be justified. At the same time, the court allowed the legislature to react to future developments if they can already be reliably forecast at present based on sufficiently reliable factual indications.
- According to the decision of the Federal Constitutional Court of December 15, 2020, Az. 2 BvC 46/19, there is no legislative obligation for a parity law.
Parliamentary rights and legislation
- In the 1983 decision on Helmut Kohl's bogus vote of confidence , the court emphasized that the dissolution of parliament should not help the government to arrange a favorable next election date. A government installed by means of a constructive vote of no confidence does not require any new legitimation by the voter, the so-called equivalence formula (BVerfGE 62, 1).
- In the judgment of the Federal Constitutional Court on the question of confidence in 2005 , these principles are further developed. Fake and genuine questions of trust are put on an equal footing and adjusted to the purpose of Article 68 of the Basic Law. The Chancellor is also allowed to base his proposal for dissolution on hidden circumstances. The court again exercises judicial self-restraint and reduces its review competence in the distribution of power among the constitutional organs.
- In the decision on deployments of the Bundeswehr abroad in 1994, the court specified the principle of the parliamentary army and stated that the government could only order military operations if it obtained the constitutive consent of the Bundestag beforehand. The Bundestag could do this in sufficient form by means of a simple parliamentary resolution (BVerfGE 90, 286). The judgment of the Federal Constitutional Court on the Aviation Security Act 2005 was partially qualified by the Federal Constitutional Court in a decision (Az .: 2 PBvU 1/11) . The use of military force in Germany by the Bundeswehr is therefore permissible within narrow limits of the ultima ratio and in principle not excluded by Article 35, Paragraph 2, Clause 2 and Paragraph 3 of the Basic Law.
- The Life Partnership Act was confirmed as constitutional in 2002 with a reference to the freedom of parliament. At the same time, the court specifies criteria for the government's freedom to decouple parts of a draft package in the legislative process and to have them come into effect as a law against the will of the Federal Council (BVerfGE 105, 313).
- The Immigration Act was repealed in 2002 because of procedural deficiencies in the legislative process of the same year and a constitutional conflict was resolved in the Federal Council (BVerfGE 106, 310).
Party bans and rejected proposals for bans
- On October 23, 1952, the Socialist Reich Party (SRP) was banned and the free democratic basic order was defined. (BVerfGE 2, 1)
- On August 17, 1956, the Communist Party of Germany (KPD) was banned. (BVerfGE 5, 85)
- The first NPD ban proceedings were discontinued in 2003 because the material presented could not be separated from the secret service activities of the Office for the Protection of the Constitution . The court requires that before, but the latest state in the process V people off are (BVerfGE 107, 339).
- The second NPD ban proceedings (2013-2017) ended with the rejection of the ban application. The NPD was assessed as unconstitutional in the judgment, but essential features for a party ban are missing. (2 BvB 1/13)
- In a memorandum in August 2009, 30 high-ranking university lecturers and judges called on the legislature to oblige the Federal Constitutional Court to submit proceedings on European law issues first to the European Court of Justice (ECJ) in Luxembourg. From the Lisbon ruling in June 2009, the signatories learned that the Constitutional Court "is heading for a judicial conflict with the ECJ".
- The ECHR sees when examining the exhaustion of domestic remedies ( ECHR), the Federal Constitutional Court in cases of undue delays in civil matters ( para. 1 ECHR) is not as effective remedy within the meaning of of the European Convention on Human Rights (ECHR ) on. In such cases, the Federal Constitutional Court can only determine the unconstitutionality of the excessively long duration of the proceedings, but cannot stop the civil courts from pursuing the proceedings more quickly in ongoing proceedings, nor grant appropriate compensation in completed proceedings as compensation for the excessively long duration of the proceedings. Before an individual complaint is lodged with the ECHR in such cases , it does not necessarily have to be brought before it.
- In the “ Solange I decision ”, the Federal Constitutional Court ruled in 1974 that as long as there was no adequate protection of fundamental rights in line with the constitution in EU law , it had to check whether it was compatible with national law (national point of view). The inferior opinion saw such protection through the respective national constitutions and through the Charter of Fundamental Rights as given (Europeanized perspective). The minority opinion became the majority opinion in the “Solange II decision”.
- In the “ Solange II decision ” in 1986, the court suspended its own jurisdiction with regard to impairment of fundamental rights from or on the basis of secondary EC law, as long as an essentially equivalent protection of fundamental rights is guaranteed at Community level by community organs such as the ECJ . This is essentially given by two components: The German Act of Approval for the EGV as an application instruction for secondary Community law and the structural examination density by the ECJ (BVerfGE 73, 339).
- In the Maastricht ruling in 1993, these principles were further specified and the “cooperation relationship” in the fundamental rights jurisdiction between the Federal Constitutional Court and the European Court of Justice was outlined in more detail. According to the EUV, every Community legal act is a new connection point for the density of examinations and the tasks of the BVerfG, and not its implementation by the German executive . This means that the Basic Law is also the test standard for them. With regard to the transfer of sovereignty and competences to the community, the “principle of limited individual authorization” applies by the member states , which influences the TEU interpretation together with the international law effet-utile rule , but does not allow any expansion or re-establishment of competencies.
- In the Lisbon ruling in 2009, the constitutionality of the Lisbon Treaty , which is intended to give the European Union a uniform structure and legal personality. At the same time, however, according to the judgment, the German accompanying law partially violates the Basic Law. The inadequate participation rights of the Bundestag and Bundesrat are criticized. The ratification of the treaty was only allowed to take place once the necessary rights of participation had been formulated in law.
- At the beginning of 2014, the BVerfG submitted a question for a decision to the Court of Justice of the European Union for the first time since it was founded in the OMT submission named after Outright Monetary Transactions . This concerns the decision of the European Central Bank of 6 September 2012 to be able to buy unlimited amounts of government bonds from member states if and for as long as these member states participate in a reform program agreed with the European Financial Stability Facility (EFSF) or the European Stability Mechanism (ESM) . The BVerfG considers the action admissible and leaves it to the ECJ to decide whether the decision of the ECB can be interpreted in accordance with European law.
- In its decision of May 5, 2020, the Federal Constitutional Court declared the government bond purchase program (PSPP) of the ECB - contrary to the opinion of the European Court of Justice - to be incompetent. The program would affect the limits of the German Bundestag's overall budgetary responsibility. It is therefore an act of ultra vires that is no longer compatible with the Basic Law. The Federal Constitutional Court complained that the ECJ and the ECB had not weighed up the monetary and economic effects of the program. The German constitutional organs are therefore obliged to oppose the PSPP. The Bundesbank is no longer allowed to participate in the program three months after the ruling has been pronounced unless the Governing Council of the ECB clearly demonstrates in a new resolution within this period that the monetary policy objectives pursued by the PSPP are not disproportionate to the economic ones - and fiscal policy implications. The Federal Constitutional Court sees the main problem in the fact that the Eurosystem becomes more dependent on the policies of the member states as the program runs longer and the total volume increases, since the PSPP significantly improves the refinancing conditions of the member states and thus has a significant impact on the fiscal policy framework in the member states affects. In addition, there are strong economic and social effects on citizens, such as shareholders, tenants, property owners, savers and policyholders. This would result in significant risks of loss for savings assets, for example. In addition, companies that are no longer economically viable would continue to remain in the market as a result of the general interest rate level that was also reduced by the PSPP (“zombification”). Following the decision of the BVerfG, the EU Commission prepared infringement proceedings against Germany.
Right to school education
The Federal Constitutional Court spoke out in favor of the recognition of the “right to school education” and the associated 'subjectification' ofParagraph 1 of the Basic Law: “The right of children and young people protected by Article 2, Paragraph 1 of the Basic Law is ... that Subjective-legal 'counterpart' to the objective-legal obligation of the state from Article 7, Paragraph 1 of the Basic Law to open up school-based educational opportunities that serve their personal development ”.
Criticism of the Federal Constitutional Court
Regardless of the varying criticism, the court developed a remarkable frequency and density of controls that were outstanding in international comparison and at the same time committed itself to strict judicial self-restraint . The constitutional understanding, which he continuously developed himself, made the Federal Constitutional Court into a democratic institution of its own, which enjoys a unique level of trust among the people of the state; internationally it is known as an example of highly developed legal control. The role of the court as guardian of the Basic Law ( GG) goes beyond mere arbitrary control of the state; it is the conservative and integral preservation of the constitution in the internal German development dynamic and in the context of the European Union.
The court is told that it established its authority in the 1950s on the basis of “cautious liberal jurisprudence” and consolidated it in the 1960s. From the 1970s onwards, the Federal Constitutional Court exercised a not inconsiderable "political braking function", which was reflected in decisions on the reform policy of the social-liberal coalitions under Brandt and Schmidt , for example in the sometimes explosive judgments on university reform in 1973 (university ruling BVerfGE 35, 79) , 1975 against the reform of the punishable abortion (BVerfGE 39, 1) or 1978 against the draft amendment (BVerfGE 48, 127). Since the 1980s, the Federal Constitutional Court has been moving in the middle between the parties. During this period, for example, decisions were made on new elections in 1983 (BVerfGE 62, 1), in 1984 on retrofitting (BVerfGE 68,1) to the Maastricht Agreement 1993 ( BVerfGE 89, 155 ), but also on the census ( BVerfGE 65, 1 ) or the Flick Files (BVerfGE 67, 100). With the crucifix decision , the court experienced a second crisis after that of 1952, after strong criticism from Bonn and Munich.
The court cooperates with the highest constitutional courts of over 70 states, and its position as a strong constitutional body has served other countries as a state-organizational model. Last but not least, this reputation is due to the ability of the court to have made value decisions that have penetrated into the value system of civil and criminal law and thus stabilize the entire social order. The Lüth judgment from 1958, on the occasion of which the court dealt with the question of the necessity of an “objective value system” and raised it to an essential part of the German constitution in terms of the dogma of fundamental rights, is considered to be a great moment.
Some judgments are criticized for avoiding clear decisions. For example, the “ headscarf judgment ” was often perceived as unsatisfactory and postponing. One hears this criticism above all from those who would like to see the court as the final political corrective. The court has remained resistant to this since its inception. His practice of judicial self-restraint sees it as indispensable not to intervene as far as possible in the distribution of roles between the constitutional organs. This was last shown in the decision to dissolve the Bundestag in 2005 .
On the other hand, politicians have criticized several judgments that the court is expanding its powers to include those of a substitute legislature, even though the legislative powers are intended for parliament according to the constitution. Instead of restricting itself to significant excesses and arbitrariness on the part of the legislature, it brings its own social and political ideas and gives the legislature specific guidelines on justice that are often difficult to finance and, on the other hand, deviate from the ideas of politics. In this context, political science speaks of the “judicialization of politics” by the Federal Constitutional Court.
In a FAZ dispute, Federal Interior Minister Wolfgang Schäuble (CDU) criticized the Karlsruhe urgent decision to restrict data retention . Hans-Jürgen Papier , then President of the Federal Constitutional Court, saw in a lecture in Tutzing attempts to try to put Karlsruhe in its place. They exist above all “in the area of so-called safety legislation”. Such demands hit "the nerve of the constitutional state ". Anyone who questions the constitutional court's right to review could abolish it right away. Those who demand a "primacy of politics" are shaking the basic structures of the constitutional state, said the paper.
In part, the two Senates of the Federal Constitutional Court judge differently despite legal norms on the uniformity of case law, for example on the question of whether a doctor is liable for the maintenance of a disabled child if he does not adequately inform parents about an abortion for health reasons.
The European Court of Human Rights assumed in some decisions of the court that human rights were not sufficiently respected, for example the protection of the privacy of public figures, which the court granted only to children of these persons without restriction.
In cases of the principle of religious and ideological neutrality, the promotion of religion, church tax law, church labor law and the school system, a "highly church-heavy imbalance" and the disregard of recognized rules of law, creation of law and reasons for decision-making are criticized.
Another point of criticism is the choice of judges by politicians after consultation between the political parties, in particular the rotational nomination. The planned transfer of Peter Müller , who was Prime Minister of the Saarland from 1999 to 2011, to the Federal Constitutional Court was criticized by constitutional lawyer Hans Herbert von Arnim as a “further step into the party state ”. However, a proposal by the Federal Minister of Justice would curtail parliamentary rights. Even if a partiality can be proven in the judges' decisions, this does not affect the balance of the judgments.
Criticism is made of the composition of the court in religious and ideological terms "especially in favor of the Catholic Church". The question of the inner bias of judges like Willi Geiger should be raised. A considerable number of judges have received high papal awards for services to the Catholic Church.
Forwarding of decision texts
The Federal Constitutional Court is under criticism for the exclusive transfer of its officially documented decision texts to juris GmbH. Due to the action brought by the operator of a legal database, the Federal Constitutional Court was sentenced by the VGH Baden-Württemberg in 2013 to hand over its decisions to all interested publishers.
The Federal Constitutional Court has an internal, only by members of the Court-to-use specialized library with a focus on state and constitutional law , administrative law , state and social studies , politics and contemporary history . Only two online catalogs are available to the public.
The library's holdings comprised around 366,000 volumes in December 2008 and grows by around 6,000 to 7,000 copies every year. The journal inventory includes around 1,290 current subscriptions, the majority of which are parliamentary and official publications of the federal and state governments. In addition, all court-related materials are collected in the affiliated press archive; between 30 and 40 daily and weekly newspapers are evaluated every day. All existing works are cataloged by the Library Service Center Baden-Württemberg (BSZ) in the Southwest German Library Network (SWB). The library of the Federal Constitutional Court has the largest online legal catalog in German-speaking countries.
Development of the procedural files by the Federal Archives
Since August 15, 2016, the Federal Archives have been organizing, evaluating and cataloging more than 90,000 case files of the Federal Constitutional Court from 1951 to 1990. The basis are two agreements with the court from 1979 and 2000 as well as BVerfGG, which was amended in 2013 was. The files can be viewed after 30 years; the opinions of the reporters, on which the judgments are essentially based, as well as the judges' files remain protected for 60 years. The files can be searched in the Invenio database . The project is expected to be completed by the end of 2020.
- One of the surviving originals of the black, red and gold flags carried at the Hambach Festival in 1832 hung in the large conference room . However, this has now been preserved and replaced by a new flag.
- The Federal Constitutional Court itself has already been convicted (in 2013 by the VGH Baden-Württemberg) for a violation of the principle of equal treatment - but not because of its own judgment.
- In public and in professional circles, the court is also viewed ironically: Since many decisions are prepared by the academic staff , one occasionally speaks of a "third senate" in legal circles when referring to the group of these employees, who are also predominantly judges belong.
- Memorandum of the Federal Constitutional Court of June 27, 1952: The position of the Federal Constitutional Court. Addressed to the Federal President, the Presidents of the Bundestag and Bundesrat and the Federal Government , JZ 1953, p. 157 f .; Reprinted in the Journal of Public Law. New series , 1957, pp. 144–148.
- Jutta Limbach (Ed.): The Federal Constitutional Court. History - task - jurisprudence (= motifs, texts, materials . Volume 91 ). CF Müller, Heidelberg 2000, ISBN 3-8114-2143-3 .
- Stephan Detjen : The Federal Constitutional Court between law and politics . In: From Politics and Contemporary History . B37-38, 2001, ISSN 0479-611X , p. 3–5 ( bpb.de [accessed September 5, 2011]).
- Jutta Limbach: The Federal Constitutional Court (= Beck'sche series . Volume 2161 ). Beck, Munich 2001, ISBN 3-406-44761-9 .
- Horst Säcker: The Federal Constitutional Court (= series of publications by the Federal Agency for Political Education . Volume 405 ). 6th edition. Federal Agency for Civic Education / bpb, Bonn 2003, ISBN 3-89331-493-8 .
- Uwe Wesel : The trip to Karlsruhe. The Federal Constitutional Court in the history of the Federal Republic . 1st edition. Blessing, Munich 2004, ISBN 3-89667-223-1 .
- Robert Chr. Van Ooyen : The Federal Constitutional Court in the political system . Ed .: Martin H. W. Möllers. VS Verlag, Wiesbaden 2006, ISBN 3-531-14762-5 .
- Oliver Lembcke : Guardian of the Constitution. An institutional theoretical study on the authority of the Federal Constitutional Court. Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149157-3 .
- Klaus Schlaich / Stefan Korioth : The Federal Constitutional Court. Position, procedure, decisions . A study book (= short legal textbooks ). 7th edition. Beck, Munich 2007, ISBN 978-3-406-56044-6 .
- Clemens Kieser: "Functionality and calm" . The Federal Constitutional Court in Karlsruhe . In: Preservation of monuments in Baden-Württemberg . tape 37 , no. 4 , 2008, ISSN 2366-486X , p. 210–215 ( uni-heidelberg.de [PDF; 1.6 MB ]).
- Federal Constitutional Court . In: Federal Center for Political Education (Ed.): From Politics and Contemporary History . Issue 35–36, 2011, ISSN 0479-611X ( bpb.de [PDF; 1.6 MB ; accessed on September 5, 2011]).
- Axel Hopfauf : Commentary on Art. 93 and Art. 94 GG . In: Schmidt-Bleibtreu / Hofmann / Hopfauf (ed.): Commentary on the Basic Law . 12th edition. Heymanns, Cologne 2011, ISBN 978-3-452-27076-4 .
- Matthias Jestaedt et al. (Ed.): "The court without borders" . A critical assessment after sixty years of the Federal Constitutional Court . Suhrkamp Verlag, Berlin 2011, ISBN 978-3-518-12638-7 .
- Rolf Lamprecht : I'm going to Karlsruhe . A history of the Federal Constitutional Court . Deutsche Verlags-Anstalt / Spiegel-Verlag, Munich / Hamburg 2011, ISBN 978-3-421-04515-7 .
- Michael Stolleis (Ed.): Chambers of the Heart of the Republic. The Germans and the Federal Constitutional Court. Beck, Munich 2011, ISBN 978-3-406-62377-6 .
- Uwe Kranenpohl : Behind the veil of the confidentiality of advice. The decision-making and decision-making process of the Federal Constitutional Court . VS Verlag für Sozialwissenschaften, Wiesbaden 2012, ISBN 978-3-531-16871-5 .
- Falk Jaeger in connection with the Federal Constitutional Court and the Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (Ed.): Transparency and dignity. The Federal Constitutional Court and its architecture. Jovis Verlag, Berlin 2014, ISBN 978-3-86859-286-3 .
- Justin Collings: Democracy's Guardians. A History of the German Federal Constitutional Court, 1951-2001. Oxford University Press, Oxford 2015, ISBN 978-0-19-875337-7 (English).
- Gertrude Lübbe-Wolff : How does the Federal Constitutional Court work? Universitätsverlag Osnabrück / V & R unipress, Göttingen 2015, ISBN 978-3-8471-0449-0 .
- Thomas Darnstädt : "Karlsruhe classified information" . The internal files of the Federal Constitutional Court . Piper, Munich 2018, ISBN 978-3-492-05875-9 .
- Ernst Benda , Eckart Klein , Oliver Klein: Constitutional procedural law. A teaching and manual. 4th, revised edition, CF Müller, Heidelberg 2020, ISBN 978-3-8114-4927-5 .
- Gerhard Czermak : Seventy years of the Federal Constitutional Court in ideological imbalance. Cases, structures, correction options (= writings on Weltanschauung , Vol. 2). Nomos, Baden-Baden 2021, ISBN 978-3-8487-8194-2 .
Further content in the
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- Official website of the Federal Constitutional Court (with database of important decisions from 1998)
- Federal Constitutional Court Act (BVerfGG) of March 12, 1951
- Decisions of the BVerfG on OpinioIuris
- Overview of the case law of the Federal Constitutional Court on dejure.org
- Decisions of the BVerfG - database of the German-speaking case law project (DFR)
- Federal laws declared void or unconstitutional. (PDF; 560 kB; 28 pages) German Bundestag , as of June 24, 2019, excerpt from the data manual
- Election Committee for the Judges of the Federal Constitutional Court , website of the German Bundestag
- Hans Vorländer : Is Karlsruhe involved in governing? The Federal Constitutional Court between Law and Politics , bpb , August 19, 2011
- Joachim Wieland: ( Page no longer available , search in web archives: Citizens' access to the Federal Constitutional Court ) (PDF; 246 kB)
- Hans Vorländer (ed.): The power of interpretation of the constitutional jurisdiction (PDF; 365 kB), VS Verlag, 2006, ISBN 3-531-13745-X
- Position of the Federal Constitutional Court (submissions from the Federal Minister of Justice of April 13 and May 15, 1953) , cabinet minutes 1953, website of the Federal Archives (accessed on August 18, 2021)
Milestones in the history of the Federal Constitutional Court. Retrieved February 14, 2016 . Ferdinand Kirchhof , Vice President of the Federal Constitutional Court: Welcome to the ceremony on the occasion of the 60th anniversary of the Federal Constitutional Court ( Memento from January 18, 2012 in the Internet Archive )
- Law on the adoption of the federal budget for the budget year 2021 (Budget Law 2021). (PDF; 34.1 MB) In: bundeshaushalt.de. Federal Ministry of Finance (BMF), December 21, 2020, p. 18 , accessed on June 13, 2021 .
- Ernst Benda / Eckart Klein : Constitutional Law , 4th Edition, CF Müller, Heidelberg 2020, § 4 I, Rn. 116 ff.
- Simon Kempny: The state financing according to the Paulskirche constitution. An examination of the financial and tax constitutional law of the constitution of the German Empire of March 28, 1849. Tübingen 2011, ISBN 978-3-16-150814-1 , pp. 42–54.
- Uwe Wesel : History of the law. From the early forms to the present . 3rd, revised and expanded edition, Beck, Munich 2006, ISBN 3-406-47543-4 , p. 559 f.
- Abbreviations. (PDF; 49 kB) Abbreviations for the constitutional bodies, the highest federal authorities and the highest federal courts . Federal Office of Administration (BVA), accessed on January 26, 2016 (as of March 2015).
- Dieter Grimm , Constitutional Jurisdiction , 2021, p. 16.
- Jutta Limbach : The Federal Constitutional Court , 2nd edition, CH Beck, Munich 2010, p. 14; History of the Federal Constitutional Court on Planet Wissen , accessed on March 11, 2013.
- Aktuell '92 - Das Lexikon der Gegenwart , ISBN 3-611-00222-4 , p. 89.
- BVerfG: Annual Statistics 2017. Accessed on April 28, 2018 .
- City of Karlsruhe City Archives (Ed.): Karlsruhe. The city history. Badenia, Karlsruhe 1998, ISBN 3-7617-0353-8 , pp. 591-593.
- Building - From the Prinz-Max-Palais to the castle district , website of the Federal Constitutional Court, accessed on January 13, 2015.
- City of Karlsruhe City Archives (Ed.): Karlsruhe. The city history. Karlsruhe 1998, p. 594.
- Clemens Kieser: "Expediency and calm" - The Federal Constitutional Court in Karlsruhe. In: Monument Preservation in Baden-Württemberg 4/2008, pp. 210–215 ( PDF; 1.6 MB ); Klaus Jan Philipp: The Federal Constitutional Court in Karlsruhe - Prolegomena on a style history of post-war architecture . In: INSITU 2018/1, , pp. 131-142.
- Hans-Jürgen paper, Thorsten Bürklin, Jutta Limbach, Michael Wilkens: The Federal Constitutional Court in Karlsruhe. Architecture and jurisprudence. Edited by the Association of Judges of the Federal Constitutional Court e. V. Birkhäuser, Basel 2004, ISBN 3-7643-6949-3 ( preview in Google book search).
- See Federal Constitutional Court in Karlsruhe. In: Bauwelt , No. 48, 1969, pp. 1714–1722 ( PDF; 4.7 MB ); Klaus Jan Philipp: The Federal Constitutional Court in Karlsruhe - Prolegomena on a style history of post-war architecture . In: INSITU 2018/1, pp. 131–142.
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