As part of my very popular series of legal FAQ, I introduce the German Constitutional Complaint (“Verfassungsbeschwerde”) today. It is a way by which every citizen and even foreign citizens living in Germany can address the Supreme Court if they feel that their human rights have been violated.
I have also posted FAQ about divorce in Germany, child custody law in Germany, inheritance law in Germany, the right to freedom of movement within the EU, German citizenship law, about international child abduction and about how to work with me as your lawyer. You can see the full list of FAQ on my website.
1. I feel that my human rights have been violated in or by Germany. Can I seek redress against this?
Yes. Everyone can file a constitutional complaint (“Verfassungsbeschwerde”) with the Supreme Court (“Bundesverfassungsgericht”) if the appellant believes and argues that his/her fundamental rights have been violated by an act of the German executive, by a German court order or by a German act of parliament.
2. What are these fundamental rights that I have in Germany?
They are all the fundamental rights enumerated in Art. 1 through 19 of the Constitution (“Grundgesetz” [GG]) as well as the rights mentioned in Art. 20 IV, 33, 38, 101, 103 and 104 GG.
Some of these, like freedom of assembly (Art. 8 I GG), freedom of association (Art. 9 I GG), freedom of movement (Art. 11 I GG), the protection against removal of German citizenship and others, are citizens’ rights and are only applicable if you have German citizenship.
Other rights, like human dignity (Art. 1 I GG), equal protection (Art. 3 I), equality between men and women (Art. 3 II), protection from discrimination (Art. 3 III), freedom of religion (Art. 4 I), free speech (Art. 5 I) and many others, are human rights and you can also invoke them if you are not a German citizen.
Theoretically it’s very easy. You don’t need to be represented by a lawyer, you can write the complaint yourself and the court charges no fees (except in frivolous cases).
What is hard however is to file a successful complaint. The Supreme Court receives thousands of constitutional complaints every year. In 2011, only 1.62 % of these were successful.
4. Why are the chances of success so small?
For one, many of the constitutional complaints don’t have any merit. If you are thinking of not paying taxes and and want to base this on “freedom of religion” (Art. 4 I GG) because you founded your own cult which does not believe in paying taxes, don’t waste your time bothering the court. If you have been convicted of a crime and are appealing your prison sentence for violation of your “freedom of movement” (Art. 11 I GG), save yourself the time.
Second, there are a whole number of formal requirements, some of them easier, some of them quite complicated, that need to be met in order for your complaint to even qualify for the judges to read through it.
5. What are the formal requirements for the constitutional complaint?
There are plenty and I can’t go into all of them here. I will list the ones that usually cause the complaints to fail or that cause me to dissuade a client from filing a constitutional complaint:
(a) You can only seek remedy against acts of the state. If your human rights have been violated by a company, by a private individual or by your spouse, you have to address this to the civil courts.
(b) The constitutional complaint is the last resort. You need to have exhausted all other remedies and appeals before addressing the Supreme Court. If you are not happy with a verdict of a Family Court or a Criminal Court, you need to file the regular appeal(s) first. If you don’t like that the police ordered you to do something, you need to sue them in the Administrative Court first, then go through the appeals and then you can finally address the Supreme Court. Because of this, the Supreme Court usually hears cases years after the underlying situation actually occurred.
(c) The constitutional complaint needs to include all the necessary information and documents to enable the Supreme Court to decide the case. You need to point out which of your constitutional rights has or have been violated and you need to explain how they have been violated. You need to show what attempts you have made in the lower courts to seek redress against this problem.
6. Is there a deadline for filing the constitutional complaint?
Yes. It is one month from the time of the last court order, usually the denial of your last appeal. One month is a short time to put together a solid and well-written constitutional complaint, so you better contact me or another lawyer as soon as possible.
No. Absolutely not. The Supreme Court only looks at whether your constitutional rights have been violated. It does not supplement the lower courts’ decisions with its own decision. The Supreme Court may think that the lower courts were wrong in evaluating the facts, that they miscalculated damages, that a sentence was too harsh, that a decision should have been issued differently from the way it was, but all of this is irrelevant, as long as it does not touch on your constitutional rights.
It is therefore imperative to limit the constitutional complaint to matters constitutional and not attempt to retry the whole case once more.
8. Are there any other constitutional complaints in Germany?
Yes. Germany is a Federal Republic and thus each of the 16 states has its own Constitutional or Supreme Court. 10 of these states allow constitutional complaints. Baden-Württemberg just introduced this possibility and it will be available from April 2013 on. Before the State Supreme Court, you can only claim your rights under the State Constitution. Most of the basic rights are however very similar to those in the Federal Constitution.
9. Can I go to the European Court of Human Rights instead?
It depends on the specific case, but usually no. Or more precisely: not yet. The European Court of Human Rights (ECtHR) requires that you have exhausted all possible remedies in national law, including the German constitutional complaint. Thus, if you do not address the German Supreme Court before and await its decision, your human rights complaint will be dismissed by the ECtHR in Strasbourg on formal grounds.
10. Can you help me with my case?
Sure. I can determine if your case has any merits and if you then decide to go ahead, I’ll be happy to write the constitutional complaint for you.