Federal Constitutional Court of Germany
The Bundesverfassungsgericht
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The Federal Constitutional Court (in German: Bundesverfassungsgericht, BVerfG) is a special court established by the Basic Law for the Federal Republic of Germany, the German basic law (Grundgesetz). Since its inception, the Court has been located in the city of Karlsruhe, intentionally dislocated from the other federal institutions like the seat of the government (earlier in Bonn, now in Berlin) or the head office of the Bundesnachrichtendienst (BND), the German intelligence agency (in Munich).
The sole task of the court is judicial review. It may therefore declare public acts unconstitutional and thus render them ineffective. As such, it is similar to the Supreme Court of the United States. Yet the Court possess a number of powers that the U.S. Supreme Court does not have (see below). However, it differs from the U.S. Supreme Court and other supreme courts in that it is not an integral part of the regular judicial system (save for the areas of constitutional law and public international law), but rather installed as a separate judicial institution. Many other countries around the world possess separate constitutional courts similar to the Federal Constitutional Court.
Most importantly, the Court does not serve as a regular appellate court from lower courts or the Federal Supreme Courts as a sort of "superappellate court" on any violation of federal laws. Its jurisdiction is focused on constitutional issues, the integrity of the Grundgesetz and the immediate compliance of any governmental institution in any detail (article 1 subsection 3 of the Grundgesetz). Even constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz (due to its Article 79 (III), the so called 'eternity clause').
The court's practice of enormous constitutional control frequency on the one hand, and the continuity in judicial restraint and political revision on the other hand, have created a unique defender of the Grundgesetz since World War II and given it a remarkably valuable role in a modern democracy.
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Procedures
Article 20 subsection 3 of the Grundgesetz stipulates that all the three branches of the state –legislative, executive and judicial– are bound directly by the constitution. As a result, the court can abolish acts of all three branches as unconstitutional — either for formal violations, e.g. exceeding powers or violating procedures, or for material conflicts, e.g. because the civil rights prescribed in the Grundgesetz were not respected.
Decisions of the court on material conflicts are put into force through a federal law by the Federal Constitutional Court Act (BVerfGG).
The Constitutional Court has several strictly defined procedures in which cases may be brought before it:
- With a Constitutional Complaint (Verfassungsbeschwerde), any person may file a complaint alleging that his or her constitutional rights were violated. Although only a small fraction of these are actually successful (ranging around 2.5 % since 1951), several of these resulted in major legislation overturns, especially in the field of taxation. The large majority of the court's procedures fall in this category, with 135,968 such Complaints filed from 1957 to 2002.
- Several political institutions, including the governments of the Bundesländer, may bring a law passed by the federal legislation before the court if they consider it unconstitutional (procedure of Abstract Regulation Control). The most well-known examples of these procedures included legislation legalizing abortion, which -- in highly debated rulings -- were declared unconstitutional twice by the Constitutional Court.
- In addition, any regular court which has doubts about whether a law in question for a certain case is in conformance with the constitution may suspend that case and bring this law before the Federal Constitutional Court (procedure of Specific Regulation Control).
- Federal institutions, including members of the Bundestag, may bring internal disputes over competences and procedures before the court (Federal Dispute).
- The Länder may bring disputes over competences and procedures between them and federal institutions before the court (State-Federal Dispute).
- Committee on parliament investigation, including single members of the Bundestag, or the federal government may bring internal disputes over competences and procedures in case of committee’s investigation before the court (Investigation Committee Control).
- Violations of election laws may be brought before the court by political institution or any involved voter (Federal Election Scrutiny).
- Impeachment cases against the President or a judge, member of one of the Federal Supreme Courts, brought by the Bundestag, the Bundesrat or the federal government, based on violation of constitutional or federal law (Impeachment Procedure).
- Finally, only the Constitutional Court has the power to prohibit a political party in Germany. This has only happened twice in the 1950s: the Sozialistische Reichspartei (SRP), an outright neo-nazi party, was banned in 1952, the Communist Party of Germany (KPD) was banned in 1956. A third such procedure to prohibit the extremist right-wing National Democratic Party (NPD) spectacularly failed in 2003 after the court discovered that many of the party officials were in fact controlled by the German secret services that had injected its agents for the sake of surveillance. This was a 4-4 decision, which according to the court's rules is considered a dismissal. (It should be noted that the court did not decide on the ban itself)
Organization
The Court consists of two Senates, each of which has eight members, headed by a senate’s chairman. The members of each Senate are allocated to three Chambers for hearings in Constitutional Complaint and Single Regulation Control cases. Each Chamber consists of three judges, so each Senate chairman is at the same time a member of two Chambers.
Decisions by a Senate require an absolute majority of 5 votes (in some cases a ⅔ majority is required, i.e. 6 out of 8 votes), decisions by a Chamber need to be unanimous. A Chamber is not authorized to overrule a standing precedent of the Senate to which it belongs; such issues need to be submitted to the Senate as a whole. Similarly, a Senate may not overrule a standing precedent of the other Senate; such issues will be submitted to a plenary meeting of all 16 judges (the "Plenum").
Unlike all other German courts, the court often publishes the vote count on its decisions (though only the final tally, not every judge's personal vote) and even allows its members to issue a dissenting opinion. This possibility, which was only introduced in 1971, is a remarkable deviation from German judicial tradition.
One of the two Senate Chairmen is also the President of the Court, the other one is the Vice-President. The presidency alternates between the two Senates, i.e. the successor of a President is always chosen from the other Senate. The current president of the Court is Hans-Jürgen Papier.
Election of judges
The Court's judges are elected by the Bundestag and the Bundesrat. According to the Basic Law, each of these bodies selects four members of each Senate, while the authority to select the Court's President alternates between them. The selection of a judge requires a two-third majority.
As a matter of fact, the Bundestag has delegated this task to a special body ("Richterwahlausschuss", judges election board), consisting of a small number of Bundestag members. This procedure has caused some constitutional concern and is considered to be unconstitutional by many scholars. However, it has never been challenged in a court.
The judges are elected for a 12-year term, but they must retire when reaching the age of 68. A judge must be at least 40 years old and must be a well-trained jurist. Three out of eight members of each Senate must have served as a judge of a Federal Supreme Court. Of the other five members of each Senate, most judges previously served as a professor of law at a University, a public servant or an attorney. After ending their term, most judges withdraw themselves from public life. However, there are some prominent exceptions, most notably Roman Herzog, who was elected Federal President in 1994, shortly before the end of his term as President of the Court.
Members
First Senate (current only)
| Name | Term | Nomination by | Election by |
|---|---|---|---|
| Hans-Jürgen Papier (*1943) (President of the Court, Chairman of the Senate) |
2/1998 - 2/2010 (12-year term) | CDU/CSU | Bundestag |
| Wilhelm Schluckebier (*1949) | 10/2006 - 11/2017 (retirement) | CDU/CSU | Bundestag |
| Michael Eichberger (*1953) | 4/2006 - 4/2018 (12-year-term) | CDU/CSU | Bundesrat |
| Ferdinand Kirchhof (*1950) | 10/2007 - 6/2018 (retirement) | CDU/CSU | Bundestag |
| Christine Hohmann-Dennhardt (*1950) | 1/1999 - 1/2011 (12-year term) | SPD | Bundesrat |
| Wolfgang Hoffmann-Riem (*1940) (to be replaced by Johannes Masing in April 2008) |
12/1999 - 3/2008 (retirement) | SPD | Bundesrat |
| Brun-Otto Bryde (*1943) | 1/2001 - 1/2011 (retirement) | Alliance '90/The Greens | Bundestag |
| Reinhard Gaier (*1954) | 11/2004 - 11/2016 (retirement) | SPD | Bundesrat |
Second Senate (current only)
| Name | Term | Nomination by | Election by |
|---|---|---|---|
| Andreas Voßkuhle (*1963) (Vice-President of the Court, Chairman of the Senate) |
5/2008 - 5/2020 (12-year term) | SPD | Bundesrat |
| Siegfried Broß (*1946) | 9/1998 - 9/2010 (12-year term) | CDU/CSU | Bundestag |
| Lerke Osterloh (*1944) | 10/1998 - 10/2010 (12-year term) | SPD | Bundestag |
| Udo Di Fabio (*1954) | 12/1999 - 12/2011 (12-year term) | CDU/CSU | Bundesrat |
| Rudolf Mellinghoff (*1954) | 1/2001 - 1/2013 (12-year term) | CDU/CSU | Bundesrat |
| Gertrude Lübbe-Wolff (*1953) | 4/2002 - 4/2014 (12-year term) | SPD | Bundestag |
| Michael Gerhardt (*1948) | 7/2003 - 7/2015 (12-year term) | SPD | Bundestag |
| Herbert Landau (*1948) | 10/2005 - 4/2016 (retirement) | CDU/CSU | Bundesrat |
Presidents of the Senate
- Josef Wintrich
- Gebhard Müller
- Ernst Benda
- Wolfgang Zeidler
- Roman Herzog
- Jutta Limbach
- Hans-Jürgen Papier
All judges
- Ernst Benda
- Ernst-Wolfgang Böckenförde
- Werner Böhmer
- Siegfried Broß
- Hans Brox
- Brun-Otto Bryde
- Udo Di Fabio
- Thomas Dieterich
- Michael Eichberger
- Wilhelm Ellinghaus
- Hans Joachim Faller
- Reinhard Gaier
- Michael Gerhardt
- Karin Graßhof
- Dieter Grimm
- Karl Haager
- Evelyn Haas
- Winfried Hassemer
- Johann Friedrich Henschel
- Roman Herzog
- Konrad Hesse
- Martin Hirsch
- Dieter Hömig
- Hermann Höpker-Aschoff
- Christine Hohmann-Dennhardt
- Wolfgang Hoffmann-Riem
- Renate Jaeger
- Hans-Joachim Jentsch
- Rudolf Katz
- Dietrich Katzenstein
- Ferdinand Kirchhof
- Paul Kirchhof
- Hans Hugo Klein
- Konrad Kruis
- Jürgen Kühling
- Herbert Landau
- Gerhard Leibholz
- Jutta Limbach
- Gertrude Lübbe-Wolff
- Ernst Gottfried Mahrenholz
- Johannes Masing (to be from 4/2008 on)
- Rudolf Mellinghoff
- Gebhard Müller
- Engelbert Niebler
- Gisela Niemeyer
- Lerke Osterloh
- Hans-Jürgen Papier
- Theodor Ritterspach
- Joachim Rottmann
- Wiltraut Rupp-von Brünneck
- Erna Scheffler
- Fabian von Schlabrendorff
- Wilhelm Schluckebier
- Helga Seibert
- Otto Seidl
- Walter Seuffert
- Alfred Söllner
- Bertold Sommer
- Helmut Steinberger
- Udo Steiner
- Ernst Träger
- Friedrich Wilhelm Wagner
- Klaus Winter
- Wolfgang Zeidler
External links
- www.bundesverfassungsgericht.de, the Court's website
- Federal Constitutional Court Act (BVerfGG) in German
- Federal Constitutional Court Act (BVerfGG) in English
- http://news.google.co.uk/news?ned=de&ncl=1218060447&hl=de&topic=h&scoring=d&sa=N&start=180
| Supreme Courts of Germany |
| Bundesverfassungsgericht | Gemeinsamer Senat der Obersten Gerichtshöfe |
| Bundesverwaltungsgericht | Bundesgerichtshof | Bundesfinanzhof | Bundesarbeitsgericht | Bundessozialgericht |