Why can't the government be sued
Federal Constitutional Court
The constitutional complaint enables citizens in particular to enforce their fundamental rights guaranteed freedoms against the state. However, it is not an extension of the specialized courts, but an extraordinary legal remedy in which only the violation of specific constitutional law is examined. Details are in Art. 93 Para. 1 No. 4a and 4bGG and §§ 90ff. Federal Constitutional Court Act regulated.
We have summarized important information about the constitutional complaint, especially what must be observed when filing it, in a leaflet.
Constitutional complaints can be recognized by the file number "BvR". It is by far the most common type of procedure at the Federal Constitutional Court. When he started working in 1951, there were fewer than 500 complaints a year. By 1980 this number had risen to 3,107 procedures, and in 2013 it reached its highest level of 6,477 procedures.
Individual constitutional complaint
The constitutional complaint can be made by any natural or legal person with the assertion that the German public authority has exercised their fundamental rights (see Articles 1 to 19GG) or certain rights equivalent to fundamental rights (Article 20, paragraph 4, Article 33, 38, 101, 103, 104GG).
The district administration withdraws its license from the operator of a taxi company. After unsuccessful objection proceedings, he first files a complaint before the administrative courts and finally lodges a constitutional complaint. The Federal Constitutional Court is essentially examining the case to determine whether the relevant legal provisions in the Passenger Transport Act and their application are compatible with the taxi operator's occupational freedom (Art. 12, Paragraph 1GG).
German sovereign acts of all three state powers, i.e. jurisprudence, administration and legislation (for the special case of the legal constitutional complaint, see here) can be attacked. The decisive factor is whether the challenged sovereign acts were issued on the basis of constitutional laws and whether the fundamental rights were observed when these laws were applied. Errors in the application of the law that have no specific reference to fundamental rights therefore do not lead to the success of the constitutional complaint.
The person making the complaint must be personally, currently and directly affected in his or her rights.
There is no compulsory lawyer. The person making the complaint can be legally represented; in the case of an oral hearing, she must be represented.
The constitutional complaint is subject to strict requirements for reasons. It must be submitted in writing. Submission by fax is permitted, but not by email).
Constitutional complaints against decisions of the courts and authorities are only admissible within one month. The full justification including all necessary documents must be submitted within this period.
In principle, a constitutional complaint is only admissible if the professional judicial process has been fully followed (so-called legal process exhaustion). In addition, all further options available must have been taken in order to achieve or prevent a correction of the alleged constitutional violation (so-called subsidiarity of the constitutional complaint). From these principles it follows in particular that, as a rule, all available legal remedies (e.g. appeal, revision, immediate complaint, legal complaint, non-admission complaint) must have been used without success before the constitutional complaint was filed. If a complaint is made about the failure to be heard (Art. 103, Paragraph 1GG), this may also include the unsuccessful filing of a complaint before the competent court. The details can be found in the leaflet.
The procedure is free of charge. The granting of legal aid for attorney's fees can only be considered if the complainant is prevented from adequately exercising their rights even without legal assistance, if it will be impossible for them to raise the costs of litigation when hiring a lawyer and if the constitutional complaint has the prospect of success Has.
Procedure and decision
A constitutional complaint requires acceptance for a decision. However, this does not mean free discretion. The constitutional complaint must be accepted by the Federal Constitutional Court if it has fundamental constitutional significance or if this is indicated to enforce the complainant's own constitutional rights. Therefore, every non-acceptance decision is preceded by an intensive legal review.
In the event that the constitutional complaint is not accepted, the complainant will receive an information sheet on the completed constitutional complaint procedure in addition to the decision.
The Federal Constitutional Court can determine the unconstitutionality of an act of public authority, revoke an unconstitutional decision and refer the matter back to a competent court and declare a law null and void. Any subsequent decisions are reserved for the specialized courts; the Federal Constitutional Court, for example, does not award any compensation or take any criminal prosecution measures.
Special case legal constitutional complaint
With the so-called legal constitutional complaint, laws, ordinances or statutes can also be directly attacked in exceptional cases. As a rule, however, legal provisions must be enforced by an official or judicial decision, against which the person concerned must first exhaust their legal recourse before the competent courts. As a rule, the constitutional complaint in such cases is therefore only admissible after the decision of the court of last instance.
The legal norm must lodge a complaint with the person making the complaint, presently and directly. A person's own and current concern is usually present if the person making the complaint is likely to be affected by the legal norm in their fundamental rights. The legal impairment is immediate if no enforcement act is necessary.
In exceptional cases, the constitutional complaint can be directed directly against a legal norm that has yet to be implemented, e.g. if there is no legal process or if it would be unreasonable to go through legal process. In criminal or regulatory offense law, this is regularly the case, because no person can be required to commit a criminal offense or administrative offense first in order to be able to assert the unconstitutionality of the norm in specialized court proceedings.
Special case of a municipal constitutional complaint
The Federal Constitutional Court also decides on constitutional complaints from municipalities and municipal associations due to a law violating the right to self-administration.
The municipal constitutional complaint is special because municipalities and municipal associations are themselves bearers of public authority and are therefore fundamentally bound by basic rights, but not entitled to basic rights. However, they have the right to self-administration (Art. 28, Paragraph 2GG) and are in a similar position to the state as citizens entitled to basic rights. The municipal constitutional complaint takes account of this need for legal protection.
Example: Independent municipalities defend themselves against a statutory ordinance of the state with which they are forcibly assigned to administrative communities.
However, certain special features apply to the municipal constitutional complaint (see Section 91 of the Federal Constitutional Court Act): Municipalities and municipal associations cannot complain about the violation of basic rights or rights equivalent to basic rights, but only a violation of their right to self-administration (Art. 28, Paragraph 2GG) through a legal norm. The municipal constitutional complaint is excluded if a similar complaint can be lodged with the constitutional court of the respective country. This means that the Federal Constitutional Court only has "reserve jurisdiction" to protect the guarantee of local self-government.
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