Subsidiarity principle (constitutional procedural law)

from Wikipedia, the free encyclopedia

In constitutional procedural law, the principle of subsidiarity is understood as a sequence according to which a certain procedural act is only admissible after another procedural act.

Constitutional complaint to the BVerfG

According to the case law of the Federal Constitutional Court , the principle of subsidiarity is expressed in Section 90 (2) sentence 1 BVerfGG . If the complainant violates the principle of subsidiarity, his constitutional complaint is inadmissible for lack of exhaustion of the legal process . It therefore has no prospect of success and is usually not accepted for decision (rejection a limine ).

The principle of subsidiarity means two things: On the one hand, the complainant must do everything possible to ensure that a violation of fundamental rights does not occur or is eliminated in the course of the specialized courts . On the other hand, the principle of subsidiarity contains a fundamental statement about the relationship between the specialized courts and the Federal Constitutional Court. According to the constitutional distribution of competences , the specialized courts initially have the task of protecting and enforcing fundamental rights. This is primarily intended to ensure that the Federal Constitutional Court has already thoroughly examined factual material as a result of the preliminary examination of the objections by the specialist court and that the case study and the assessment of the factual and legal situation are conveyed to it by the more relevant specialist courts.

The complainant has to present the reasons for the alleged violation of fundamental rights, on which he later bases his constitutional complaint, in the specialized court. Otherwise the legal process in terms of the subsidiarity principle is not exhausted. If the complainant wants to assert the violation of his right to be heard ( Article 103, Paragraph 1 of the Basic Law ), he must first submit a complaint to be heard in order to uphold the principle of subsidiarity in order to induce the specialized court to reverse its obviously incorrect decision.

However, if the complaint of a hearing violation is not made the subject of the constitutional complaint either expressly or in terms of the matter, or if the complaint of a hearing violation initially valid in the constitutional complaint procedure is withdrawn, the admissibility of the constitutional complaint from the point of view of the requirement of exhaustion of legal recourse does not depend on the previous implementation of a specialized court Hearing complaint procedure.

For reasons of subsidiarity, however, complainants must, in order to avoid the inadmissibility of a constitutional complaint, in which they do not invoke a violation of Article 103.1 of the Basic Law, take a hearing complaint or other legal remedy against a hearing violation if the circumstances indicate a hearing violation by the specialized courts and it would be expected that reasonable parties involved in the proceedings would take an appropriate legal remedy in consideration of the alleged complaint already in court proceedings. In this case, however, the principle of subsidiarity only has to fall back to the extent that exhaustion of the legal process would be unreasonable in exceptional cases.

The principle of subsidiarity must also be observed in the case of interim legal protection. If preliminary legal protection is finally refused, this refusal can be challenged with a constitutional complaint. This applies in particular if the complainant complains about violations of fundamental rights which are based precisely on the fact that an urgent decision has not been made. Something else applies, however, if the main proceedings offer sufficient opportunities to eliminate the alleged violation of fundamental rights. This is usually the case when the complainant alleges violations of fundamental rights relating to the main issue.

example

The enormous legal scope of the subsidiarity principle was particularly clear in the Edathy case : A constitutional complaint by Edathy against the search of his home on February 10, 2014, despite his continuing immunity, was not decided by the 3rd Chamber of the Second Senate of the Federal Constitutional Court on August 15, 2014 assumed, since Edathy could have recognized both the flawedness of the judiciary's procedure and the misjudgment of the President of the German Bundestag without further ado . Edathy should have reprimanded these errors before he lodged his constitutional complaint. Since Edathy had failed to make such complaints, he lost his asserted rights as a result.

Human rights complaint to the ECHR

The subsidiarity principle also applies to human rights complaints to the European Court of Human Rights . The other admissibility requirements for a complaint to the ECHR result from Art. 35 ECHR. The restrictive stance of the ECHR with regard to human rights complaints from Turkey is politically controversial in 2018.

Individual complaint to the state constitutional courts

The principle of subsidiarity also applies insofar as the respective state constitutions allow individual complaints to the respective state constitutional courts. The procedural legal basis for the proceedings before the BayVerfGH are the provisions of the BayVerfGHG. Such complaint is in this case parallel and adjacent to the constitutional complaint with the Federal Constitutional permitted .

literature

Web links

Individual evidence

  1. ↑ BVerfGE 22, 287
  2. ↑ Rüdiger Zuck, The Right of Constitutional Complaint. The subsidiarity of the constitutional complaint , 4th edition 2013, para. 28 ff.
  3. ↑ Example: BVerfG, decision of July 16, 2015 - 1 BvR 1014/13
  4. ↑ Usually abbreviated as Bf. In decisions of the BVerfG
  5. ↑ BVerfGE 78, 58
  6. ↑ BVerfGE 68, 334
  7. ↑ BVerfGE 79, 1, 20; 86, 382, ​​386 f .; 114, 258, 279
  8. ↑ Law Lupe: constitutional complaint against Supreme Court decisions - and no legal recourse exhaustion from March 22, 2018
  9. ↑ BVerfGE 107, 257
  10. ↑ Rüdiger Zuck, The Right of Constitutional Complaint , 4th Edition 2013, on the hearing complaint, para. 754 ff.
  11. ↑ Klaus Ferdinand Gärditz : Overview on the admissibility of the constitutional complaint .
  12. ↑ Rüdiger Zuck, The Right of Constitutional Complaint. The unwritten exceptions , 4th edition 2013, marginal no. 785 ff.
  13. ↑ BVerfGE 104, 65
  14. ↑ Decision of the 3rd Chamber of the Second Senate of the BVerfG of August 15, 2014, Az. 2 BvR 969/14, Rn. 35
  15. ^ Proceedings before the European Court of Human Rights website on the ECHR
  16. ↑ Rüdiger Zuck, The Law of Constitutional Complaints, Constitutional Complaints and Other Legal Remedies , 4th edition 2013, Rn. 275 ff.
  17. ↑ Article 35 (1) of the ECHR reads: "The Court of Justice can only deal with a matter after all domestic remedies have been exhausted (...)."
  18. ↑ Markus Sehl: DAV Conference on Human Rights Violations in Turkey, Where is the ECHR? from March 6, 2018
  19. ^ Decision of the Bavarian Constitutional Court of May 30, 2012, Vf. 45-VI-11 : “The constitutional complaint is inadmissible. According to Art. 51, Paragraph 2, Clause 1 of the Constitutional Court, the constitutional complaint can only be lodged when the judicial process has been exhausted. "
  20. ↑ Rüdiger Zuck, The Law of Constitutional Complaints, Constitutional Complaints and Constitutional Jurisdiction , 4th Edition 2013, Rn. 215 ff.
  21. ↑ Legal text Art. 51 para. 2 sentence 1 BayVerfGHG reads: "If legal recourse is admissible with regard to the subject of the complaint, it must be proven when filing the complaint that the legal process has been exhausted."