Constitutional guardians
September 28, 2011
Calling Germany's Federal Constitutional Court the "final authority on appeals," its common designation, makes the country's highest court seem like it has unsurpassable powers of adjudication that allow it to reassess and restore order to any case, big or small.
However, the Bundesverfassungsgericht, as it's known in German, is nowhere near capable of deciding on all legal issues and thus does not deserve this hyperbolic distinction.
For 60 years, the judges in Karlsruhe, a charming city in southwestern Germany tucked away from the other major state institutions, have concentrated solely on protecting the country's constitution, the Basic Law.
Any person who feels his or her rights have been violated by an act of the state is welcome to file a complaint, after all other legal avenues have been pursued, and these constitutional complaints are most often the cases over which the court presides.
Constitutional guardians
The court assesses whether any body of the executive, legislative or judicial branches of the state has violated Germany's Basic Law. The single precedent to which the body can refer is thus the German constitution.
It is therefore not exactly correct to speak of the Constitutional Court as Germany's "highest court," for it is not the final authority. This distinction most likely comes from the common perception that rulings made by the court act as a cohesive force for all federal and state constitutional bodies, as well as all courts and authorities.
In most instances, the rulings issued in Karlsruhe are valid only for the specific case in question. However, seeing as the court is itself a constitutional body, the findings often set a precedent for later cases.
Even if legal scholars or other German courts are in disagreement, rulings from Karlsruhe have the final say. If the issue concerns the compatibility of a law with the constitution, then the judgment of the Constitutional Court has the force of law.
Testing ground for laws
The court thus rules in more than mere constitutional complaints. In what's known as concrete judicial reviews, the court checks whether a law is compatible with the Basic Law.
Generally, a specialized court prepares the review in question and presents its arguments as to how the law violates the constitution. In contrast to these concrete cases, there are also abstract judicial reviews. These reviews are prepared by courts commissioned by either the federal government or one of Germany's 16 state governments, or by request of at least a quarter of the members of parliament.
In another group of cases, known as disputes between state bodies, the Constitutional Court must define the constitutional rights and duties of state bodies and distinguish them from one another. Typical cases here concern disputes between the states and the federal government. Other cases could include decisions to ban a political party on constitutional grounds, or the forfeiture of basic rights.
The 16 judges of the Constitutional Court are divided in two senates. The first deals mostly with cases concerning basic rights, and the second with cases of state law. Both senates can form chambers composed of three judges to deal with constitutional complaints. Each year, some 6,000 complaints are filed; just under 7,000 senate judgments and over 130,000 chamber judgments have so far been issued.
Explosive political rulings
The judges in Karlsruhe do not have to decide unanimously; normally it is sufficient if the majority of the judges are in agreement with the plaintiff's position for the case to be decided. In exceptional cases, for instance those concerning particularly severe violations of the constitution, a two-thirds majority - that is seven of the eight senate judges - is required.
The Constitutional Court occupies a tense position between politics and law. On the one hand, it can have a direct impact on political affairs, such as in the overturning of a law recently passed by the federal or a state parliament. This is why critics, usually from the political arena, often accuse the court of practicing a form of inadmissible politics.
But on the other hand, the judges in Karlsruhe have the German constitution as their sole precedent and thus aren't able to serve any explicit political will. For just this reason, the court is often exposed to criticism that its rulings - especially with regard to political matters - lack adequate clarity.
Author: Daphne Grathwohl / glb
Editor: Martin Kuebler