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When should a constitutional complaint in Germany be considered?

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Die deutschsprachige Version dieses Artikels finden Sie hier.

Constitutional complaints are well known to most German citizens - at least roughly. One can file a lawsuit with the Federal Constitutional Court in Karlsruhe and enforce one's rights.

The constitutional complaint is an art in itself. It depends on different conditions and has to be formulated in a very specific way. Although every citizen can raise the constitutional complaint by himself, one usually needs a lawyer specializing in constitutional complaints, who knows and takes into account all the requirements of the constitutional complaint.

That a constitutional complaint is not the first means of choice to defend against something is plausible. If you get a ticket, you can not immediately go to the Constitutional Court. But why is that the case?

The "basics" of the constitutional complaint

On the one hand, the normal legal process must first be taken. Against a traffic ticket must first be appealed to re-examine him. Subsequently, this can be verified by the courts, in this case by the district court ("Amtsgericht") and the higher regional court ("Oberlandesgericht"). The constitutional complaint is only the subsequent step.

On the other hand, the Federal Constitutional Court is not interested in normal law. Whether the speeding ticket was justified according to the road traffic regulations or not, the specialized courts should clarify. As part of the constitutional complaint, only violations of fundamental rights under the Basic Law, also known as basic rights or "Grundrechte" in German, are examined.

These two conditions are only the absolute "basics" of a constitutional complaint. Whether a constitutional complaint is promising at all depends on other questions your lawyer has to go through with you.

Can the deadline be met?

There is basically a one-month period for lodging and substantiating the constitutional complaint. On the last day of the deadline, all documents required by the court must be available. It is not enough to send the complaint in advance and submit attachments later.

Your constitutional complaint lawyer will tell you if this deadline can still be met. The sooner you decide, the greater the likelihood that it will work.

Which basic rights can be invoked?

For the constitutional complaint, it is not enough to consider the verdict wrong. Rather, a violation of one or more fundamental rights must be asserted and explained. In the first planning of the constitutional complaint, all relevant articles of the Basic Law are examined. Subsequently, a concentration on the most promising fundamental rights takes place.

Does a hearing complaint have to be filed?

If a breach of the fundamental right to a fair hearing is alleged, before the constitutional complaint is lodged, a hearing complaint must first be brought before the last deciding court.

The deadline for this is two weeks. The constitutional complaint period begins in principle only with rejection of the complaint. But if the complaint was hopeless from the outset, it will be treated as non-existent. In that case, however, the time limit for the constitutional complaint would have already begun with the last judgment and as a rule has already expired if the rejection of the hearing is kept in hand.

If you did not understand this, that's not a problem. Most lawyers, who do not deal with constitutional complaints on a daily basis, usually do not know about this problem.

Are the costs worth it?

A constitutional complaint costs money, usually not just a little. You must expect a few thousand euros for the work of the lawyer, his scientific staff and the office staff. However, this is essential in this case, because careful processing is the gist of the constitutional complaint.

Therefore, one must also be critically examined whether it is worth these costs. Your lawyer will be able to give a financial perspective at the beginning of the procedure. Then one must consider whether this is in reasonable proportion to the disputed amount in the case.

Also the effects on further procedures, in particular in the family law as well as in the criminal law, one must keep in mind.

What does the jurisprudence say?

Often one has at first glance good arguments in mind, which can justify the constitutional complaint. But you always have to question this self-critically and, above all, compare it with the case law. It is always possible that there is already a decision of the Federal Constitutional Court, which assesses the legal questions completely different.

Althrough thorough research in constitutional literature and jurisdictional overviews, which are now frequently accessible online, a first prognosis can be made as to whether the constitutional complaint is promising. However, it will be difficult to say how the Federal Constitutional Court will decide on the basis of all the surrounding circumstances.

No one can guarantee that the process will succeed. But with an expert in constitutional terms, you can increase your chances significantly.

Lawyer Thomas Hummel accepts constitutional complaints stemming from all German courts. His English-speaking clients come from all over the world. While the constitutional complaint has to be written in German, the whole proceeding can be discussed in English.

Rechtstipp aus den Rechtsgebieten Familienrecht, Strafrecht, Verfassungsrecht, Öffentliches Recht

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