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READING 24-E Strasbourg, 10 April 2000 Restricted <cdl\doc\2000\cdl-ju\24-e> CDL-JU (2000) 24 Engl. only 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. - 2 - CDL-JU (2000) 24 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.
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