Federal Constitutional Court of Germany
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The Federal Constitutional Court (in German: Bundesverfassungsgericht) is a special court established by the German Constitution, the Grundgesetz (Basic Law). From its inception, the Court has been located in the city of Karlsruhe, intentionally dislocated from the other federal institutions (earlier in Bonn, now in Berlin).
The sole task of the court is judicial review. It may therefore declare public acts unconstitutional and thus render them ineffective. As such, it is somewhat similar to the Supreme Court of the United States. However, it differs from it and other supreme courts in that it is not part of the regular judicial system, but more a unique judicial branch.
Most importantly, it does not serve as a regular court of appeals from lower courts or the Federal Supreme Court (BGH) as a sort of “superappellate court” on any violation of federal laws. Its jurisdiction is focused on constitutional issues, the integrity of the Grundgesetz and the immediate compliance of any governmental institution in any detail (article 1 subsection 3 of the Grundgesetz). Even constitutional amendments or changes passed by the Parliament are subject of its judicial review, since they have to be compatible to the main principles of the Grundgesetz.
The court’s practice of enormous constitutional control frequency on the one hand, and the continuity in judicial self-restraint and political revision on the other hand, created a unique defender of the Grundgesetz since World War II and assigned a remarkably outstanding role in a modern democracy.
Procedures
Article 20 subsection 3 of the Grundgesetz stipulates that all the three branches of the state –legislative, executive and judicial– are bound directly by the constitution. As a result, the court can abolish acts of all three branches as unconstitutional — either for formal violations, e.g. exceedance of competences or violation of procedures, or for material conflicts, e.g. because the civil rights prescribed in the Grundgesetz were not respected. Due to the principle of subsidiarity no case may be brought before it until complete judicial review though another court branch.
Decisions of the court on material conflicts are put in force of a federal law by the Federal Constitutional Court Code (BVerfGG).
The Constitutional Court has several strictly defined procedures in which cases may be brought before it.
- With a Constitutional Complaint (Verfassungsbeschwerde), any person may file a complaint alleging that his or her constitutional rights were violated. Although only a small fraction of these are actually successful (ranging around 2.5 % since 1951), several of these resulted in major legislation overturns, especially in the field of taxation. The large majority of the court's procedures fall in this category, with 135,968 such Complaints filed from 1957 to 2002.
- Several political institutions, including the governments of the Bundesländer, may bring a law passed by the federal legislation before the court if they consider it unconstitutional (procedure of Abstract Regulation Control). The most well-known examples of these procedures included legislation legalizing abortion, which -- in highly debated rulings -- were declared unconstitutional twice by the Constitutional Court.
- In addition, any regular court which has doubts about whether a law in question for a certain case is in conformance with the constitution may suspend that case and bring this law before the Federal Constitutional Court (procedure of Single Regulation Control).
- Federal institutions, including members of the Bundestag, may bring internal disputes over competences and procedures before the court (Federal Dispute).
- The Bundesländer may bring disputes over competences and procedures between them and federal institutions before the court (State-Federal Dispute).
- Committee on parliament investigation, including single members of the Bundestag, or the federal government may bring internal disputes over competences and procedures in case of committee’s investigation before the court (Investigation Committee Control).
- Violations of election laws may be brought before the court by political institution or any involved voter (Federal Election Scrutiny).
- Impeachment cases against the President or a judge, member of one of the Federal Supreme Courts, brought by the Bundestag, the Bundesrat or the federal government, based on violation of constitutional or federal law (Impeachment Procedure).
- Finally, only the Constitutional Court has the power to prohibit a political party in Germany. This has only happened twice in the 1950s: the Sozialistische Reichspartei (SRP), an outright neo-nazi party, was banned in 1952, the Communist Party of Germany (KPD) was banned in 1956. A third such procedure to prohibit the extremist right-wing National Democratic Party (NPD) spectacularly failed in 2003 after the court discovered that many of the party officials were in fact controlled by the German secret services that had injected its agents for the sake of surveillance.
Organization
Two Senates –each of them split into three Chambers for hearings in Constitutional Complaint and Single Regulation Control cases– belong to the court and eight judges belong to every of these Senates, headed by a senate’s chairman. Three judges belong to every Chamber; every chairman is member of two chamber colleges.
Decisions by one of the Senates need an absolute majority of 5 votes; decisions by one of the Chambers need to be unanimous. The court allows its members as the only court in Germany to release a dissenting vote in public, since internal votes in other courts are confidential.
A Chamber is authorized to release any ruling except dissenting of the jurisdiction practice of the Senate it belongs to. A Senate is authorized to release any ruling except dissenting of the jurisdiction practice of the court; such cases have to be brought before the full plenum of all 16 judges.
External links
- www.bundesverfassungsgericht.de, the Court's website
- Federal Constitutional Court Code (BVerfGG) in German
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