Federal constitutional court

The federal constitutional Tribunal ( Bundesverfassungsgericht , shortened in BVerfG) is the German Constitutional court . Created in 1951 and sitting at Karlsruhe, he judges conformity of the laws with the Fundamental law of 1949.

Competences and procedures

The federal constitutional Court controls the application of the Fundamental law of the Federal Republic of Germany and in particular the respect of the basic rights which are stated there. Its function is defined by articles 92 to 94 of the Fundamental law. Its operation is rule by the law on the federal constitutional Court ( Gesetz über das Bundesverfassungsgericht , BVerfGG).

This court thus has for principal competences:

to take care of the regards of the basic rights
ensure the separation of the capacities between the various bodies of the State
to arbitrate the dispute enters the standards enacted by the various bodies of the State
to arbitrate at the time of electoral dispute

The principal procedures making it possible to call upon the court are the following ones:

the Verfassungsbeschwerde is the recourse against a decision, generally a judgment of a court of last spring, whose applicant considers that it carries reached to its basic rights.
the Normenkontrollverfahren makes it possible the court to check the conformity of the legislation to the fundamental law, either on prejudicial reference of another jurisdiction ( konkrete Normenkontrolle ), or at the request of the Federal government, a government of Land or of a third of the members of the Bundestag ( abstrakte Normenkontrolle ).
the Verfassungsstreit is used when various institutions differ on the interpretation of the constitution. They can be for example arguments of competences between the Federal state and the Länder . The Court is also the judge of the elections and can prohibit political parties if they endanger the system resulting from the constitution.

Under the terms of a provision of the Constitution of the the Schleswig-Holstein, the Court acts also as constitutional court of this Land (whereas all the others Länder have their own constitutional court).

Operation

The seat of the Court is with Karlsruhe, in the Bade-Wurtemberg.

It includes/understands sixteen judges, named for twelve years a not-renewable mandate. Eights of them are elected by the Bundestag and the remainder by the Bundesrat , according to different procedures in both cases. These judges are divided into two senates ( Senate ) of eight judges each one (“Senate” being the word employed to indicate the rooms of the superior courts in Germany - but the Senate of Bundesverfassungsgericht are also subdivided in “ Kammern ”, cf will infra). The procedures of constitutional appeal ( Verfassungsbeschwerde ) and those known as Normenkontrollverfahren are distributed between the two senates. All the other procedures are treated by the second senate. The judges of each senate also meet in rooms ( Kammern ) of three judges, such a room being able to decide to summarily reject a constitutional appeal like not having obviously any chance of success.

A procedure in front of the federal constitutional Court is addressed to him in writing. If the request is admissible, it can be directly judged by the room if it is about a simple case, already distinct in the past. The decisions of greater range are made by a senate. As a whole, the majority of the requests are treated by the rooms. From 1951 to 2001, they made 109.366 decisions against only 6.119 decisions by a senate.

The majority of these procedures are recourse against the violations of the basic rights ( Verfassungsbeschwerden ). From 1951 to 2001, the court received 131.445 from them on a total of 136.622 requests. Only a minority of these recourse are crowned success: over the same period, 2,5% are 3.268 decisions.

Outstanding decisions

Solange

The Court is in particular known abroad for its jurisprudence Solange . In the decision Solange I of 1974, it reserves the right to draw aside a standard of European Droit due to violation of the basic rights as a long time as (in German) the European right does not guarantee a total protection of the basic rights of the person equivalent - but not necessarily identical in any point to that of the German fundamental law. Following progress of European jurisprudence as regards basic rights, the court then accepted in its decision Solange II of 1986 which it cannot control any more the European standards compared to the German basic rights as a long time as the European right offers a protection of the basic rights overall equivalent to that of the German fundamental law. These decisions enable him to accept in theory the supremacy of the European right while preserving in practice the possibility of drawing aside any rule contravening the most important provisions of the German constitutional law. Like the majority of the European constitutional courts, the federal constitutional Court thus does not yield completely with the vision monist of the relationship between European right and national right defended by the Court of justice of the European Communities.

Kopftuchentscheidung

In its decision on the veil ( Kopftuchentscheidung ) of April 2004, the Court invalidated an administrative decision made against teaching refusing to remove its Hijab during the courses. This censure was justified by the fact that there was a restriction on the religious liberty. According to the Court, this restriction could be justified by the obligation of neutrality of the religious and philosophical matter State and the particular part which the civil servant as a representative of the State plays in this respect. The court estimated nevertheless that such a restriction required a decision express in a law voted by the Parliament - law which was lacking with the Bade-Wurtemberg at the time of the facts. The court recalls that any law imposing this type of measurement must apply indistinctly to all the religions - thinking, according to many observers, with the clothes of nuns still carried in some public schools. Another similar law was voted in the Land of Hesse whereas Berlin prepared a law of complete prohibition of any religious symbol in the public office. Although this jurisprudence does not concern that the teachers - the pupils are perfectly in right to wear the veil - certain observers noted a bringing together with the French design of the Laïcité, whereas the Churches are traditionally much related to the State in Germany.

Anticipated elections of 2005

The August 25th 2005, the eight judges of the federal constitutional Court rejected with seven votes against recourse of the green Werner Schulz against the dissolution of the Bundestag by the federal President. So the call of' anticipated elections the September 18th is confirmed. Dissolution had been obtained by the federal Chancelier Gerhard Schröder following a use of the constitution considered to be by certain opposite with its spirit: the Fundamental law lays down a possibility of dissolution when a government does not have any more majority; for this purpose, the chief of the government had asked his own parliamentary group to vote the distrust at the time of the question of confidence ( Vertrauensfrage ).

De facto, the Chancellor almost sees himself conferring to a right of dissolution of the Bundestag similar to the capacity of the British Prime Minister , this dissolution requiring however the common agreement of the Chancellor, the Bundestag and the federal President.

This decision nourishes a passionate debate on the balance of power.

List presidents of the federal Court constitionnel

External bonds

Bundesverfassungsgericht
Gesetz über das Bundesverfassungsgericht

Simple: Bundesverfassungsgericht

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