Home » Literature » Instructions on lodging a constitutional complaint with the Federal Constitutional Court

Instructions on lodging a constitutional complaint with the Federal Constitutional Court

I. General Remarks
II. Form and content of the complaint
III. Other preconditions for admissibility:
IV. Representation:
V. Acceptance procedure:
VI. Court fees:
VII. Withdrawal of applications:
VIII. General Register:

I. General Remarks

Any person who claims that one of his basic rights or one of his rights under Articles (4), 33, 3 8, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a constitutional complaint with the Federal Constitutional Court.

The Court may ascertain the unconstitutionality of an act of public authority, declare a law null and void, or quash an unconstitutional decision and refer the matter back to a competent court.

Other objectives (for example claims for damages, criminal prosecution, etc.) cannot be achieved by means of a constitutional complaint. Moreover, the individual citizen has no claim to a certain action on the part of the legislator pursuable by means of a complaint.

Complaints against court decisions do not lead to the latter being completely reviewed, but only to their examination in order to determine whether the courts have violated constitutional law. The mere fact that the form of proceedings, the finding and interpretation of the facts of the case, the interpretation of a law or its application to the individual case may have been erroneous does not in itself imply a violation of a basic right.

II. Form and content of the complaint

The constitutional complaint must be lodged and reasons given in writing. These reasons must, at the very least, contain the following information (Articles 23 (1), sentence 2, 92 BVerfGG):

1. The sovereign act (court decision, administrative act, law) against which the complaint is directed must be precisely described (in the case of court decisions and administrative acts the date, reference and day of proclamation or receipt must be given).

2. The basic right or similar right allegedly violated by the sovereign act under dispute must be named or at least described in terms of its legal content.

3. It must be stated in what individual areas the violation of the basic right is alleged. To this end the disputed court decisions, notices etc. must be attached as originals, certified copies or photocopies; at the very least their content must be definable from the content of the complaint.

III. Other preconditions for admissibility:

1. Complaints against court and administrative decisions must be lodged within one month in order to be admissible. The reasons (see II above) must also be given within this period (Article 93 (1), sentence 1, BVerfGG).

If the complainant was unable to comply with this time-limit through no fault of his own, he shall on request be granted restitutio in integrum and be given an opportunity to renew his complaint; such request shall be made within two weeks of the disappearance of the factor hindering his action. The reasons for this request shall be substantiated. The fault of the complainant’s attorney in failing to comply with the time-limit shall be seen as being equal to that of the complainant himself (Article 93 (2) BVerfGG).

2. Recourse to the Federal Constitutional Court may in principle only be made if the citizen has first of all exhausted all other remedies within the relevant branch of jurisdiction (e.g. appeal or complaint to the next instance) and if no other legal option is (or was) open to him of removing the violation of basic rights or of achieving the same practical end without recourse to the Court.

3. Laws, statutory provisions or statutes can only in exceptional cases be directly affected by a complaint if they cause direct and immediate disadvantage to the complainant himself. In this case the complaint must be lodged within one year of the entry into force of the law, provision etc.

As a rule, however, such laws and provisions must be enforced, i.e. applied in an individual case by means of an administrative or court decision against which the complainant must exhaust all remedies before the competent courts. Therefore, in all cases, a constitutional complaint is not admissible until the court of last instance has passed down its decision (Article 90 (2) BVerfGG).

IV. Representation:

The complainant may lodge the complaint himself. Should he require representation, this may in principle only be carried out by an attorney registered with a German court or by a lecturer of law at a German institution of higher education (Article 22 (1), sentence 1, BVerfGG). Other persons may only be permitted by the Federal Constitutional Court to act as counsel if it deems this necessary in exceptional cases (Article 22 (1), sentence 4, BVerfGG). The powers of attorney must be granted in writing and must relate expressly to the proceedings in hand (Article 22 (2) BVerfGG).

V. Acceptance procedure:

The constitutional complaint shall require acceptance prior to a decision. It shall only be accepted if it has fundamental significance for constitutional law or if acceptance is necessary in order to enforce basic rights or similar rights (Article93 a BVerfGG).

A complaint will as a rule not have such fundamental significance if the constitutional issues raised by it have already been decided upon by the Federal Constitutional Court.

In order to enforce basic rights it may be necessary to accept the complaint if, for example, a general practice by administrative bodies or courts violating the constitution is to be countered, or if a violation of the constitution poses a grave disadvantage to the complainant.

Refusal to accept the complaint may be decided upon unanimously by the threejudge chamber. This decision requires no justification and may not be challenged (Article 93 (d) (1) BVerfGG).

VI. Court fees:

Proceedings before the Federal Constitutional Court are free of change. The Court may, however, charge the complainant a fee of up to 5,000 Deutsche Mark if the lodging of the complaint represents an abuse (Article 34 (2) BVerfGG).

VII. Withdrawal of applications:

Withdrawal of a constitutional complaint or an application for a temporary injunction is possible at any time up to the proclamation of the Federal Constitutional Court’s decision. A fee (cf. VI. above) shall not be charged in this case.

VIII. General Register:

Submissions to the Federal Constitutional Court through which the submitting party neither makes a specific application nor asserts a claim falling within the Court’s competence shall be recorded in the General Register and treated as a matter of judicial administration.

In addition, the General Register may contain constitutional complaints which are inadmissible or, with due regard for the precedents of the Court, clearly do not have sufficient prospect of success (see V. above).

Should the submitting party request a judicial decision on being informed of the legal position, the complaint shall be transferred to the register of proceedings and dealt with accordingly (Article 61 (2) Rules of Procedure of the FCC).

The above article was first published by Inter Nationes as part of: Law on the Federal Constitutional Court, ed. by Sigrid Born, translated by Martin Fry and produced by Ilona Orthen. Reproduced with kind permission. © 1996 Inter Nationes. This HTML edition © 1998 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.