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The Bundesverfassungsgericht
Germany

This article is part of the series:
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Germany



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The Federal Constitutional Court (in German: Bundesverfassungsgericht, or BVerfG) is a special court established by the Grundgesetz, the German basic law. Since its inception, the constitutional 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), the head office of the Bundesnachrichtendienst (BND), the German intelligence agency (near Munich), or the seat of the Bundesbank in Frankfurt (Main).

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 SCOTUS 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 Germany's modern democracy.

Contents

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 rule acts of any branches unconstitutional, whether for formal violations (exceeding powers or violating procedures) or for material conflicts (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 happened just twice, both times in the 1950s: the Socialist Reich Party (Sozialistische Reichspartei, SRP), an outright neo-Nazi party, was banned in 1952, and the Communist Party of Germany (Kommunistische Partei Deutschlands, KPD) was banned in 1956. A third such procedure to prohibit the far-right National Democratic Party of Germany (NPD) 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

First Senate 1989
Second Senate 1989

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.

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
Johannes Masing (*1940) 4/2008 - 4/2020 (12-year term) 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

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All judges

External links

Coordinates: 49°00′45″N 8°24′06″E / 49.0125°N 8.40167°E / 49.0125; 8.40167


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