How can I get up again
Federal Constitutional Court
Leaflet [pdf version] (PDF, 58KB, file is not barrier-free)
Anyone can lodge a constitutional complaint with the assertion that one of his fundamental rights or one of his rights contained in Art. 20 Para. 4, Art. 33, 38, 101, 103, 104GG has been violated by the public authority. Art. 93 Para. 1 No. 4 a GG
The Federal Constitutional Court can determine the unconstitutionality of an act of public authority, declare a law null and void or revoke an unconstitutional decision and refer the matter back to a competent court.
The Federal Constitutional Court cannot make any other decisions in response to a constitutional complaint. For example, it can neither award damages nor initiate criminal prosecution measures. In principle, there is also no claim to specific action by the legislature that can be pursued with a constitutional complaint.
Constitutional complaints against court decisions do not lead to a full review, but only to a review for constitutional violations. Even if the design of the procedure, the determination and assessment of the facts, the interpretation of a law or its application to the individual case should show errors, this does not in itself mean a violation of fundamental rights.
II. Form and content of the constitutional complaint
The constitutional complaint must be submitted in writing in German and the reasons given (Section 23 (1), Section 92BVerfGG). The reason must contain at least the following information:
1. The sovereign act (judicial decision, administrative act, law) against which the constitutional complaint is directed must be precisely described (in the case of judicial decisions and administrative acts, the date, file number and date of the announcement or receipt should be given).
2. The fundamental right or right equivalent to fundamental right that is said to have been violated by the attacked sovereign act must be named or, in any case, designated according to its legal content.
3. It is to be shown in which details the violation of fundamental rights is seen. For this purpose, the court decisions challenged by the constitutional complaint (including letters referred to), notices, etc. must also be submitted. At least its content, including the reasons, must be evident from the notice of appeal. A reference to your own pleadings from other proceedings or other documents is not sufficient.
4. In addition to the challenged decisions, other documents from the main proceedings (e.g. relevant pleadings, hearing minutes, expert opinions) must be presented (as under 3.) or the content must be reproduced, without the knowledge of which it cannot be assessed whether the complaints raised in the constitutional complaint are justified are.
5. If the constitutional complaint is directed against official and / or judicial decisions, the reasoning must also show that all legal remedies, applications and complaints in the proceedings before the specialized courts have been used to defend against the alleged violation of fundamental rights. To this end, the applications and other written submissions made in the specialized court proceedings must be attached (as under 3.) or the content must be reproduced.
6. Pleadings and other documents submitted to the Federal Constitutional Court will be part of the court files and will therefore not be returned. Therefore, please only send written pleadings and copies that can remain with the files. Furthermore, you are requested not to submit duplicate pleadings without being asked.
III. Further admissibility requirements
1. Deadline for appeal
The constitutional complaint against decisions of the courts and authorities is only admissible within one month (Section 93 (1) sentence 1BVerfGG). Also the complete Justification must be submitted within this period (Section 93 (1) sentence 1BVerfGG). If information that is part of the minimum requirements for the justification of the constitutional complaint (see II. Above) is only submitted after the deadline has expired, the constitutional complaint remains inadmissible. An extension of the deadline by the court is excluded.
If the deadline could not be met through no fault of your own, you can apply for reinstatement in the previous status within two weeks after the obstacle has ceased to exist and the constitutional complaint can be made up. The facts to justify the application must be made credible. The fault of the agent is equivalent to the fault of a complainant (Section 93 (2BVerfGG)).
2. Exhaustion of the legal process
The appeal to the Federal Constitutional Court is generally only permitted if legal action has previously been exhausted and all further options have been taken to correct the alleged violation of the constitution or to prevent it. The constitutional complaint is inadmissible if and to the extent that another possibility exists or existed to remedy the violation of fundamental rights or to achieve the same result in practice without recourse to the Federal Constitutional Court.
Before filing a constitutional complaint, all available legal remedies (e.g. appeal, appeal, complaint, non-admission complaint) must have been used. However, the filing of a constitutional complaint to the state constitutional court is not required. The possibilities to ward off the asserted violation of fundamental rights already in the proceedings before the specialized courts include, in particular, sufficient presentation of the relevant facts, suitable applications for evidence, and applications for reinstatement in the event that the deadline is not neglected.
b) Particularities in the case of hearing complaints
If the independent and new violation of the right to be heard (Art. 103, Paragraph 1GG) is criticized by a final court decision, the constitutional complaint is only admissible if an attempt has been made beforehand by filing a hearing complaint (in particular § 321aZPO, § 152aVwGO, § 178aSGG, § 78aArbGG, § 44FamFG, § 133aFGO, §§ 33a, 356aStPO) to obtain remedy at the competent court. Failure to submit a complaint that is not obviously hopeless can lead to the inadmissibility of the constitutional complaint not only with regard to the alleged hearing violation, but also with regard to other complaints, insofar as these could have been remedied by the complaint. On the other hand, the filing of an obviously hopeless complaint for the hearing is not relevant for the start of the period for filing the constitutional complaint. If there are doubts about the necessity and the chances of success of a hearing complaint, a complainant is free to lodge a constitutional complaint with the specialized court at the same time as the hearing complaint.
c) Legal Constitutional Complaint
Laws, ordinances or statutes can only be directly attacked with a constitutional complaint in exceptional cases, namely if they complain directly and currently against the person concerned. In this case, the constitutional complaint must be lodged within one year of the entry into force of the legal provision (Section 93, Paragraph 3BVerfGG).
As a rule, however, legal provisions must be enforced, i.e. application in individual cases by an official or judicial decision against which those affected must exhaust their legal recourse before the competent courts. As a rule, the constitutional complaint is therefore only admissible in such cases after the decision of the court of last instance (Section 90 (2BVerfGG)).
The constitutional complaint can be lodged by those concerned themselves. In any stage of the proceedings, the parties involved can ask a lawyer or a law teacher at a state or state-recognized university of a member state of the European Union, another signatory state to the Agreement on the European Economic Area or Switzerland, which is qualified to hold judicial office, as Have an authorized representative represented (Section 22 (1) sentence 1BVerfGG). The Federal Constitutional Court will only allow another person to act as counsel if, in exceptional cases, it considers this to be pertinent (Section 22 (1) sentence 4BVerfGG). The power of attorney must be granted in writing and must explicitly refer to the proceedings before the Federal Constitutional Court (Section 22, Paragraph 2BVerfGG) and specifically describe the sovereign acts challenged by the constitutional complaint.
V. Acceptance procedure
The constitutional complaint must be accepted for a decision (Section 93a, Paragraph 1BVerfGG).
It is to be accepted for a decision insofar as it is of fundamental constitutional importance. A constitutional complaint usually has no fundamental constitutional significance if the constitutional questions it raises have already been clarified in the case law of the Federal Constitutional Court. It is also to be accepted if it is appropriate to enforce the rights mentioned in § 90 Paragraph 1BVerfGG; this can also be the case if the complainant suffers a particularly serious disadvantage as a result of the refusal to decide on the matter (Section 93a, subsection 2BVerfGG).
The refusal to accept the constitutional complaint can be made by unanimous decision of the chamber, which consists of three judges. The decision does not require any justification and is not contestable (Section 93d, Paragraph 1BVerfGG).
VI. Court costs
The procedure before the Federal Constitutional Court is free of charge. The Federal Constitutional Court can, however, impose a fee of up to EUR 2,600 on a complainant or an agent if the filing of the constitutional complaint constitutes abuse (Section 34 (2 )BVerfGG).
VII. Withdrawal of applications
Until the decision of the Federal Constitutional Court, the withdrawal of a constitutional complaint as a whole or individual complaints as well as the withdrawal of an application for an interim order is possible at any time. A fee (see VI) is not charged in this case.
VIII. General Register (AR)
Entries with which the sender neither pursues a specific application nor raises a matter for which the Federal Constitutional Court has jurisdiction are recorded in the general register and processed as a judicial administrative matter.
In the general register, constitutional complaints can also be registered that cannot be accepted for decision (Section 93aBVerfGG) because they are obviously inadmissible or, taking into account the case law of the Federal Constitutional Court, obviously cannot be successful (see V. above).
If a judicial decision is requested after being informed of the legal situation, the constitutional complaint is transferred to the procedural register and dealt with further (Section 64, Paragraph 2GOBVerfG).
GG = Basic Law for the Federal Republic of Germany in the revised version published in the Federal Law Gazette Part III, structure number 100-1, which was last amended by the law of 29 September 2020 (Federal Law Gazette I p. 2048).
BVerfGG = Federal Constitutional Court Act in the version published on August 11, 1993 (Federal Law Gazette I p. 1473), which was last amended by Article 4 of the law of November 20, 2019 (Federal Law Gazette I p. 1724).
GOBVerfG = Rules of Procedure of the Federal Constitutional Court of November 19, 2014 (BGBl 2015 I p. 286).
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