Unconstitutionality

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Unconstitutionality is the incompatibility of a state act of sovereignty with the existing constitution . Acts of sovereignty in this sense are laws , administrative acts and judicial decisions . It is unconstitutional, especially when fundamental rights are violated.

If the unconstitutionality can be checked in the legal system of a state , it is usually determined by the courts . The practice of this determination differs between different countries. In some political systems, unconstitutionality can only be determined by specially established courts, while in others these powers are available to all courts.

The UK's political system does not have a codified constitution, but institutions such as parliamentary sovereignty or the Magna Carta are regarded as permanent.

In addition, German law also speaks of the unconstitutionality of parties . This term is related in content, but describes the fact that the anti-constitutional goals of a political party go hand in hand with sufficient political power of the said party and that there is a serious danger of abolishing the free democratic basic order .

Situation in Germany

Legal norms

In Germany , the Federal Constitutional Court generally determines the unconstitutionality of laws . The relevant decisions of the Federal Constitutional Court in turn have the force of law ( Section 31 BVerfGG ). A law is unconstitutional if it is not compatible with the constitution in terms of form, i.e. in accordance with the conditions in which it came into being, or materially and thus in accordance with its content. Only laws that existed before the Basic Law (GG) came into force on May 23, 1949, may also be declared unconstitutional by the ordinary courts. A constitutional complaint can be lodged against such a decision with the aim of having the Federal Constitutional Court declare the legal norm to be constitutional. If, on the other hand, the courts hold a relevant law, which was passed after the Basic Law came into force, to be unconstitutional, they must submit the question to the Federal Constitutional Court for a specific review of norms ( Art. 100 GG). This also applies to laws that came into effect after the Basic Law came into force but before the Federal Constitutional Court was established. State laws must be submitted to the respective state constitutional court . If there is no state constitutional court (until the end of April 2008 in Schleswig-Holstein ), the Federal Constitutional Court decides.

Other norms such as ordinances or statutes as well as individual acts of public authority ( administrative acts , actual action ) can also be checked for unconstitutionality by the simple courts. However, since state actions always take precedence over the law , i.e. must comply with the statutory provisions, the simple legal situation is usually decisive. If simple, higher-ranking law is violated with individual files or norms , the measure is illegal, but not necessarily unconstitutional.

Parties

According to Article 21 (2) of the Basic Law, the Federal Constitutional Court ( BVerfG) is exclusively responsible for banning a party and establishing that a political party is unconstitutional (so-called party privilege ).

A party is unconstitutional within the meaning of Article 21 (2) of the Basic Law if it uses violence against the free democratic basic order or if it propagates violence as a means. In the judgment on the KPD ban of 1956 it says: “Rather, there must be an active, combative, aggressive attitude towards the existing order. It must deliberately impair the functioning of this order, and in the further course want to remove this order itself. ”Mere anti- constitutionalism is not enough.

The literature also speaks of unconstitutional [m] behavior.

Situation in Austria

In Austria , the Constitutional Court generally determines that laws are unconstitutional - both at the federal and state level. If it is found to be unconstitutional, the decisions of the Constitutional Court are to be published in the Federal Law Gazette for the Republic of Austria (for federal laws) or in the respective Land Law Gazette (for state laws). The repeal becomes effective at the end of the day of the announcement, unless the Constitutional Court determines a different period; until then, everyone is bound to the original version.

The other courts are not entitled to review properly announced laws for their unconstitutionality (see Art. 89 Para. 1 B-VG), but they can, if necessary, apply to the Constitutional Court to review the applicable laws. In contrast, laws that have not been properly announced are not applicable.

The review of ordinances for their unconstitutionality or even for their unlawfulness by the ordinary courts is also inadmissible. But even here there is the possibility of a review request to the Constitutional Court.

Situation in Switzerland

In Switzerland, there is no constitutional court at the federal level that could determine the unconstitutionality of laws.

Situation in the United States

In the United States the unconstitutionality from either is the Supreme Court (United States Supreme Court) or a constitutional court of a State (State Supreme Court) found. The Supreme Court has both the right of Congress to declare enacted federal laws and laws in the states unconstitutional. The latter, however, is rather the exception. As a rule, the constitutional courts of the federal states determine the unconstitutionality of a law passed by the parliaments of the states . The US Supreme Court has already declared the President's Executive Order unconstitutional in the past .

See also

Individual evidence

  1. ↑ The NPD is not worth a ban . NZZ.ch . January 17, 2017. Retrieved January 18, 2017.
  2. ^ Ingo Richter , Gunnar Folke Schuppert : Casebook Constitutional Law. With the collaboration of Christian Bumke , Katharina Harms and Hans Christoph Loebel . CH Beck, Munich 1996, ISBN 3-406-39388-8 , pp.  476 f. = Art. 21 . with reference to the BVerfG, BVerfGE 5, 85, 140 and BVerfGE 12, 296, 304 f.
  3. ↑ BVerfG, judgment of August 17, 1956 - 1 BvB 2/51
  4. ↑ Toralf Staud: Parties and Prohibitions: Seven Questions and Answers , bpb , October 16, 2013.
  5. ^ Ingo Richter, Gunnar Folke Schuppert: Casebook Constitutional Law. With the collaboration of Christian Bumke, Katharina Harms and Hans Christoph Loebel . CH Beck, Munich 1996, p. 474 ff. = Art. 21 B. II. 2 .

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