Strasbourg, 10 April 2000 Restricted
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION)
WORKSHOP ON “THE CONSTITUTIONAL COURT AS A PROTECTOR OF INDIVIDUAL RIGHTS AND FREEDOMS”
Organised by the Constitutional Court of Azerbaijan, the Venice Commission and the American Bar Association
Baku, 17-18 April 2000
Composition, competencies and tasks of the Federal Constitutional Court
REPORT by Dr Dr. Franziska Lang (Federal Constitutional Court, Karlsruhe, Germany)
This document will not be distributed at the meeting. Please bring this copy. Ce document ne sera pas distribué en réunion. Prière de vous munir de cet exemplaire.
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I.
The Federal Republic of Germany has celebrated last year its 50th birthday. Only four years after Nazi Germany's defeat in 1945, the German people in the western part of the country were granted the opportunity to form a democratic government. A new constitution, the so-called Basic Law (Annex I), was drafted. It has been the Supreme Law of the land since then.
Most commentators praise the Basic Law as "the best" constitution in German history. The Basic Law is taken as one of the reasons for the - overall - successful political, economic and social development of Germany in the last decades. The most significant change was in 1949 that a constitutional court was set up which was invested with vast powers to settle constitutional conflicts between branches and levels of government, and even to declare laws and political parties unconstitutional. Indeed, this was a bold and courageous experiment by the drafters of the Basic Law.
I would like to invite you to reflect with me upon the experience that Germany has made with this experiment. I propose to do this in three steps. In the first part of my report, I shall line out the composition of the Federal Constitutional Court. In the second part, I would like to draw your attention to the competencies and functioning of this Court, that is to say the case mangement, the role of the registry, the staff and the judges. In a final third part, I would like to talk shortly about the tasks of a constitutional court.
II.
Short overview of the composition of the Constitutional Court.
The German Federal Constitutional Court is composed of 16 Justices. Those 16 Justices are sitting in two senates with eight Justices each. The two senates are equal in power but exercising mutually exclusive jurisdiction. They both speak in the name of the Constitutional Court as a whole. The Plenum of 16 Justices sitting together only meets in order to resolve jurisdictional conflicts between the two senates or to deal with administrative matters.
In each Senate there are three Chambers with three members each. The chambers primarily determine wheter a constitutional complaint is to be accepted for adjudication. If the complaint is not accepted the procedure is terminate. On the other hand, the chamber may grant a constitutional complaint if it is manifestly justified and the question has already been decided by the Senate. In proceedings of fundamental importance, however, it is always the Senate that decide.
In order to become a justice at the Federal Constitutional Court, one must be at least 40 years of age and must have a judicial degree. The Justices must not be members of parliament, of the Federal Government, or of any of the corresponding bodies of one of the states (Länder). It is interesting that three justices of each senate must be recruited from the high federal courts of the German judiciary. This rule was designed to ensure some stability and continuity that experienced judges are expected to bring to the bench. The other justices usually are law professors, former politicians, sometimes lawyers. - 3 - CDL-JU (2000) 24
The justices are not appointed but elected. The Basic Law provides that half of the court's members shall be elected by the Bundestag (that is the German parliament) and half by the Bundesrat (which is the Council of State Governments).
The Federal Constitutional Court has a president who serves as the Court's administrative head and presides over her senate. Since 1994, Professor Limbach is the first woman to serve as president. Besides her judicial and administrative duties, she has representative obligations. However, as a Justice she is not superior to her colleagues in the senate.
It might be of interest to you that the compositional framework that I just lined out is only partly laid down in the constitution itself, in Article 94. In fact, the stipulations in the Basic Law with regard to the composition of the Constitutional Court are only few. Most of them you will find in a parliamentary law, the "Federal Constitutional Court Act". It is noteworthy that this law can be changed by the respective political majority without the constraints of a constitutional amendment.
III.
The competencies and the functioning of the Federal Constitutional Court.
The Court is designed to be the supreme guardian of the constitution. It is not a court of appeal in proceedings of civil or criminal law. Its exclusive power is to decide on questions of constitutional law. In doing so, the Court is called upon to prevent the state, that is to say all branches of government, to violate the constitution. To perform this mission, it is vested with far-reaching powers.
1. The competencies of the Federal Constitutional Court are not defined in an overall clause authorizing the court to settle constitutional conflicts. Rather, its competencies are carefully enumerated in the Basic Law itself. They include control over legislative bodies to determine whether legislation has been enacted in conformity with the Basic Law; the monitoring of all public authorities and courts to determine whether their measures are compatible with the Basic Law.
Let me enumerate just some competencies: the Court can declare the forfeiture of basic rights (Article 18 of the Basic Law), it decides on the prohibition of unconstitutional political parties (Article 21), on the validity of parliamentary elections (Article 41), on the impeachment of the Federal President and judges (Article 61 and 98) and on disputes between individual governmental organs (Article 93). As I have already mentioned before, the Constitutional Court must not make use of those competencies at its own discretion but may exercise its power only if there is a case that is brought to the court in the proper way. There are several ways how to bring a case to the Federal Court. I shall point out just three of them:
(1) The most important is the constitutional complaint. In the Basic Law you find it in Article 93, paragraph 4a. Every citizen has the right to file a complaint at the Federal Constitutional Court claiming that his rights have been violated by public authority. This complaint is an extraordinary legal remedy available to the individual for the maintenance of his basic rights. Its impact on constitutional law in Germany cannot be overstressed. Most landmark cases in Germany‘s constitutional history have originated from a constitutional complaint. Let me give you just a few examples: - 4 - CDL-JU (2000) 24
In a 1958 case the Federal Constitutional Court held that an injuction violated the right of free expression. This judicial order prohibited someone to entreat 1 the public for boycotting a certain movie film.
In 1987 the court decided on a constitutional complaint of a farmer who won his case: On his land the Daimler Benz company wanted to build a test course for cars. The court decided that the expropriation for a private company requires a written law, which describes the purpose of the expropriation, the preconditions and the procedure to find out if the preconditions are fulfilled.
And in 1995 the Court held that former nationals of East Germany who had engaged in espionage against the Federal Republic of Germany may only be prosecuted for espionage after reunification under certain circumstances. In all those instances, there were ordinary citizens who brought cases to the Federal Constitutional Court that had enormous social and political impact.
(2) Second, whenever a court considers a law or statute, which is relevant in it`s case, unconstitutional, it has to suspend it`s proceedings and bring the case before the Constitutional Court. It is the so-called review of specific law. In the Basic Law it is regulated in Article 100, paragraph 1.
(3) A third way of bringing a case to the Constitutional Court is the organ complaint. These are disputes between governmental organs in which one organ claims that its constitutional rights have been harmed by the conduct of another organ. These disputes seldom occur but they usually have a far-reaching impact on political affairs.
These few examples may suffice to illustrate how many ways there are to bring a case to the Federal Constitutional Court. I do not want to name them all. But I think it is important to note that the Court serves as a guardian of the constitution in a very extensive manner, because it resolves not only constitutional disputes on a governmental level but it also ensures the constitutional rights of every citizen.
2. The functioning of the Federal Constitutional Court
If you have a look at the statistics of the court, you will see, that we had in the last year almost 5000 (4.885) proceedings. Most of them were constitutional complaints.
Then you ask: how can the court manage such a flood of cases? When a file reaches the court, it first comes to the administration, the so-called presidential councilor. He decides if the case - if it is evidently unadmissible - comes to the so-called general register or to a certain judge.
The judges in the first Senat are competent for legal review proceedings in which a legal provision is claimed to be largely incompatible with basic rights or with rights under Articles 33, 101, 103 and 104 of the Basic Law and as well for constitutional complaints. The second senat is competent for the cases concerning forfeiture of basic rights, unconstitutionality of a party, impeachment for the President, disputes between organs, review of law in general, disputes between the Federation and the Länder, judicial impeachment and the Review of law of nations and constitutional complaints concerning right of asylum and tax law.
1 ersuchen, auffordern - 5 - CDL-JU (2000) 24
When the competent judge is chosen, the file goes in the first instance to the office, where it gets a folder and where the case is registered. After that the judge reads the file and gives it to one of his law clerks. Most of the judges have three law clerks, but some - who have a great number of cases - have four or even five law clerks. Then the law clerk writes a vote on the case. I have for example only constitutional complaints concerning occupational freedom (trade, exams, advertising of lawyers, doctors etc.). So I suggest if the case should be accepted or not. Furthermore I can suggest that the chamber or the senate should grant a constitutional complaint. Most of the constitutional complaints are unsuccesful, only 2,6 % succeed. Let me give you an example: In the last year 4.756 constitutional complaints were not accepted by the chamber, 82 succeeded in the chamber, 21 succeeded in the senate.
The vote of the law clerk is read by his justice. If he or she accepts it, the vote goes to the other justices of the chamber or the senate. The justices of the chamber usually agree with the vote and sign the attached decision. If the senat decides, the justices discuss the case. After the debate the justice who is responible for that case writes the decision and then the senates debates for the second time the contents of the decision. After that the decision is pronounced.
IV.
The tasks of the Federal Constitutional Court
The task of the court is to ensure that all organs of the state obey the Basic Law. The work of the Federal Constitutional Court also has political effect. This becomes particularly clear when the Court declares a law unconstitutional. But the Court is not a political body. Its sole criterion is the Basic Law. Questions of political expediency are not allowed to play any part as far as the Court is concerned. It merely determines the constitutional framewok for political decisionmaking. The delimitation of State power is a feature of the rule of law.
The Federal Constitutional Court is our supreme protector of individual rights and freedoms. But the statistics prove that the legislation, the government and the jurisdiction are protectors of indiviual rights and freedoms as well. Otherwise more constitutional complaints would be successful. But the Constitutional Court shows the way how to interprete and to develop the Constitution. - 6 - CDL-JU (2000) 24
A N N E X I
Basic Law for the Federal Republic of Germany (Grundgesetz - GG) promulgated by the Parliamentary Council on 23 May 1949 as amended up to 16 Juli 1998
Article 18 [Forfeiture of basic rights]
Whoever abuses the freedom of expression, in particular the freedom of the press (Paragraph (1) of Article 5), the freedom of teaching (paragraph (3) of Article 5), the freedom of assembly (Article 8), the freedom of association (Article 9), the privacy of correspondence, posts and telecommunications (Article 10), the rights of property (Artickle 14), or the right of asylum (Article 16a) in order to combat the free democratic basic order shall forfeit these basic rights. This forfeiture and its extent shall be declared by the Federal Constitutional Court.
Article 21 [Political parties]
(1) ... (2) Parties that, by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.
Article 41 [Scrutiny of elections] (1) Scrutiny of elections shall be the responsibility of the Bundestag. It shall also decide whether a Member has lost his seat. (2) Complaints against such decisions of the Bundestag may be lodged with the Federal Constitutional Court.
Article 61 [Impeachment before the Federal Constitutional Court]
(1) The Bundestag or the Bundesrat may impeach the Federal President before the Federal Constituional Court for willful violation of this Basic Law or of any other federal law. The motion of impeachment must be supported by at least one quarter of the Members of the Bundestag or one quarter of the votes of the Bundesrat. The decision to impeach shall require a majority of two thirds of the Members of the Bundestag or of two thirds of the votes of the Bundesrat. The case for impeachment shall be presented before the Federal Constituional Court by a person commissioned by the impeaching body. (2) If the Federal Constitutional Court finds the Federal President guilty of a willful violation of this Basic Law or of any other federal law, it may declare that he has forfeited his office. After the Federal President has been impeached, the Court may issue an interim order preventing him from exercising his functions.
Article 84 [Execution by the Länder in their own right and federal oversight]
(4) Should any deficiencies that the Federal Government has identified in the execution of federal laws in the Länder not be corrected, the Bundesrat, on application of the Federal Government or of the Land concerned, shall decide whether that Land has violated the law. The decision of the Bundesrat may be challenged in the Federal Constitutional Court.
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Article 93 [Federal Constitutional Court: jurisdiction]
(1) The Federal Constitutional Court shall rule: 1. on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body; 2. in the event of disagreements or doubts respecing the formal or substantive compatibility of federal law or Land law with this Basic Law, or the compatibility of Land Law with other federal law, on application of the federal Government, of a Land government, or of one third of the Members of the Bundestag; 2a. in the event of disagreements whether a law meets the requirements of paragraph (2) of Article 72 2, on application of the Bundesrat or of the government or legislature of a Land; 3. in the event of diagreements respecting the rights and duties of the Federation and the Länder, especially in the execution of federal law by the Länder and in the exercise of federal oversight; 4a. on other disputes involving public law between the Federation and the Länder, between different Länder, or within a Land, unless there is recourse to another court; 4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 3 or under Article 33 4, 38 5, 101 6, 103 7, or 104 8 has been infringed by public authority; 4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 has been infringed by a law; in the case of infringement by a Land law, however, only if the law cannot be challenged in the constitutional court of the Land; 5. in other instances provided for in this Basic Law.
(2) The Federal Constitutional Court shall also rule on such other matters as may be assigned to it by a federal law.
Article 94 [Federal constituional Court: composition]
(1) The Federal Constitutional Court shall consist of federal judges and other members. Half the members of the Federal Constituionla Court shall be elected by the Bundestag and half by the Bundesrat. They may not be members of the Bundestag, of the Bundesrat, of the Federal Government or of any of the corresponding bodies of a Land. (2) ...
2 Article 72 concerns the concurrent legislative power between the Federation and theLänder. 3 Art. 20 concerns the right ot resist any person seeking to abolish this constitutional order, if no other remedy is availabe. 4 Art. 33 concerns equal citizenship and professional civil sevice, e.g.: Every German shall be equally eligibel for any public office according to his attitude, qualifications, and professional achievements (Paragraph (2) of Art. 33). 5 Paragraph (1) of Article 38:" Members of the German Bundestag shall be elected in general, direct, free, equal, and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience." 6 right to a legally competent judge 7 right ot be heard by a court 8 Legal guarantees in the event of detention - 8 - CDL-JU (2000) 24
Article 98 [Legal status of federal and Land judges]
(1) ... (2) If a federal judge infringes the principles of this Basic Law or the constitutional order of a Land in his official capacity or unofficially, the Federal Constituional Court, upon application of the Bundestag, may by a two-thirds majority order that the judge be transferred or retired. In the case of a intentional infringement it may order him dismissed. (5) The Länder may enact provisions respecting Land judges that corresond with those of paragraph (2) of this Article. Existing Land constitutional law shall not be affected. The decision in cases of judicial impeachment shall rest with the Federal Constitutional Court.
Article 99 [Decision by the Federal Constituional Court and the supreme federal courts in disputes concerning Land law]
A Land law my assign the decision of constituional disputes within a Land to the Federal Constitutional Court, and the final decision in matters involving the application of Land law to the supreme courts specified in paragraph (1) of Article 95.
Article 100 [Compatibility of laws with the Basic Law]
(1) If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes where the constitution of a Land is held to be violated, or from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic Law is held to be violated by Land law and where a Land law is held to be incompatible with a federal law. (2) If, in the course of litigation, doubt exists whether a rule of international law is an integral part of federal law and whether it directly creates rights and duties for the individual (Article 25), the court shall obtain a decision from the Federal Constituional Court. (3) If the constitutional court of a Land, in interpreting this Basic Law, proposes to deviate from a decision of the Federal Constitutuional Court or of the constituional court of another Land, it shall obtain a decision from the Federal Constitutional Court.
Article 126 [Disagreements respecting the continued applicability of law as federal law]
Disagreements respecting the continued applicability of law as federal law shall be resolved by the Federal Constitutional Court.
Law on the Federal Constitutional Court (Federal Constitutional Court Act - BVerfGG ) of 12 March 1951 as published on 11 August 1993
Article 16
(1) If, in a point of law, a panel intends to deviate from the legal opinion contained in a decision by the other panel, the plenum of the Federal Consitutuional Court shall decide on the matter. (2) ...
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Article 32
(1) In a dispute the Federal Constitutional Court may deal with a matter provisionally by means of a temporary injunction if this is urgently needed to avert serious detriment, ward of imminent force or for any other important reason for the common weal. ...
A N N E X II - Entries
Kinds of proceedings AZ until 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 total
Forfeiture of basic rights BvA 2 ------2 ------4 (Art. 18 GG) Unconstitutionality of a party BvB 2 ------3 ------5 (Art. 21 Abs. 2 GG) Scrutiny of elections BvC 62 - - 6 - 2 19 - - - - 28 - - 21 138 (Art. 41 Abs. 2 GG) Impeachment of the President BvD ------(Art. 61 GG) Disputes between organs BvE 63 1 - 1 3 14 5 4 8 8 5 2 4 4 6 128 (Art. 93 Abs. 1 Nr. 1 GG) Review of law in general BvF 86 2 6 6 6 4 2 8 2 2 2 2 3 6 3 140 (Art. 93 Abs. 1 Nr. 2 GG) Disputes between the Federation and the BvG 20 1 - 1 1 - 1 1 1 - 4 1 2 - - 33 Länder (Art. 93 Abs. 1 Nr. 3 u. Art. 84 Abs. 4 Satz 2 GG) Other disputes involving public law BvH 41 - 3 - 1 5 9 7 2 1 2 1 - 1 - 73 (Art. 93 Abs. 1 Nr. 4a GG) Judicial impeachment BvJ ------(Art. 98 Abs. 2 und 5 GG) Disputes within a Land (Art. 99 GG) BvK 12 ------1 - 1 2 - 1 3 - 20
Review of specific laws BvL 2.237 100 74 48 30 31 99 137 90 55 54 43 45 38 40 3.121 (Art. 100 Abs. 1 GG) Review of law of nations BvM 8 2 - - - - 2 - - - - - 1 1 1 15 (Art. 100 Abs. 2 GG) Submission of a constitutional court of a BvN 7 ------1 - - - - 8 Land (Art. 100 Abs. 3 GG) Continued applicability of law BvO 151 ------151 (Art. 126 GG) Other matters (Art. 93 Abs. 2 GG) - BvP 3 ------1 2 - - - - 6 since 1971 - Provisional Regulation (§ 32 BVerfGG) BvQ 364 19 35 27 24 35 36 57 88 62 72 52 60 54 85 1 .070 and- until 1970 - other proceedings Constitutional complaint BvR 61.541 2.935 3.358 3.613 3.693 3.309 3.904 4.214 5.246 5.194 5.766 5.117 4.962 4.676 4.729 122.257 (Art. 93 Abs. 1 Nr. 4 a, 4 b GG) Cases of the plenum PBvU 1 ------1 - - - - 2 (§ 16 Abs. 1 BVerfGG)
Total amount 64.600 3.060 3.476 3.702 3.758 3.400 4.077 4.431 5.440 5.324 5.911 5.246 5.078 4.783 4.885 127.171