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Gemeinsame Zulässigkeitshürden von Bundes- und Landesverfassungsbeschwerde in der Praxis

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Constitutional complaints against court decisions do not lead to the decisions being completely reviewed. Decisions are only examined in order to determine whether the specialised courts have specifically violated fundamental rights. Therefore, it is insufficient for the complainant to simply allege the wrongness of the challenged decision. The ,,Adressatentheorie“ known from the administrative procedural law does not apply in this case. The preconditions laid down by the Federal Constitutional Court to prove violation of specific constitutional law – (1) specialised courts completely ignored applicable fundamental rights or misjudged their significance or extent or (2) their decisions disproportionately limit the complainant's fundamental rights or (3) are completely unsustainable and arbitrary – may only be considered as a guiding value. The mere fact that application of non-constitutional law corresponding to judicial fundamental rights may have been erroneous, does not automatically imply an infringement of such fundamental rights. A violation of these rights, however, takes already place if non-constitutional procedural law is evidently misinterpreted and misapplied by specialised courts.

Section 90 subsection 2 sentence 1 of the Federal Constitutional Court Act requires that a complaint challenging a violation of the right to a hearing in court (Gehöhrsrüge), as it is laid down in various codes of procedure, has previously been lodged with and finally rejected by the competent specialised court before lodging the constitutional complaint with the Federal Court. In case of being obviously unpromising, such a previous complaint is, however, not necessary. When both complaints are lodged at the same time, the constitutional complaint is clearly inadmissible. Nevertheless, once the complaint lodged with a specialised court has been rejected, the constitutional complaint may be lodged again. A complainant that renounces lodging a not obviously unpromising previous complaint with the specialised court may only lodge the constitutional complaint if not submitting the refusal to grant the right to a hearing in court.

According to the established jurisdiction of the Federal Court, a constitutional complaint against acts that cannot directly be challenged by legal remedies (e.g. legislative acts) is only admissible if the complainant has previously tried to achieve the same practical end with recourse to the specialised courts. In particular, a declaratory action has to be taken into consideration. The complainant may sue for a legally binding declaration that he is not to obey a certain statutory exception or prohibition. This even applies to legislative acts that provide for administrative and penal sanctions in case of infringement. Especially in such cases, one should consider the additional use of administrative provisional legal protection to be exempted from the obligation to comply with law until the final decision on the declaratory action is made. It is not necessary to make use of administrative indirect legal protection when this is unacceptable for the complainant or if it is of general public interest (Section 90 subsection 2 sentence 1 of the Federal Constitutional Court Act).

Language: German

Document Type: Research Article

DOI: http://dx.doi.org/10.1628/000389111796190041

Publication date: April 1, 2011

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