1. Comparative constitutional law Wednesday, 17 February 2015 Dr. Davide Paris – paris@mpil.de Max Planck Institute for Comparative Public Law and International Law Heidelberg

2. The German Bundesverfassungsgericht  Composition and jurisdiction  Judicial review of legislation and constitutional complaints The Spanish Tribunal constitucional  Composition and jurisdiction  Current challenges for the Constitutional court’s legitimacy

3.  The symbol of the new democratic order after the National Socialism  An extremely powerful court: the “Karlsruhe Republic”  An internationally influential court  A leading court at European level

4.  Age limits: between 40 and 68 years old  Appointees must posses qualification for judicial office  The term lasts 12 years 8 judges Elected by a Committee consisting of 12 members of the Bundestag by qualified majority Elected by the Bundesrat by qualified majority

5.  The two Senates work autonomously and in full independence from each other. The Plenum meets very rarely, to solve conflicts between the two Senates  The Chambers’s role is crucial in managing constitutional complaints. They decide on their admissibility First Senate 8 judges spec. in rights Second Senate 8 judges powers’ disputes 333 3 333

6. The BVerfG has jurisdiction over  Conflicts between the highest organs of the Federal Republic and between a Land and the Bund; complaints against the Bundestag’s decisions on elections; impeachment of the Federal President for willful violation of the Basic Law or of any other federal law; municipalities’ right to self- government  Forfeiture of basic rights of those who abuse of their rights in order to combat the free democratic basic order and prohibition of parties that seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany  Judicial review of legislation  On constitutional complaints, which may be filed by any person alleging that one of his basic rights has been infringed by a public authority

7. Judicial review of legislation  Abstract review: Art. 93, para. 1, No. 2 GG: “in the event of disagreements or doubts concerning the formal or substantive compatibility of federal law or Land law with this Basic Law, or the compatibility of Land law with other federal law, on application of the Federal Government, of a Land government, or of one fourth of the Members of the Bundestag  Interlocutory proceeding / concrete review of legislation: Art. 100, para. 1 GG: “If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained […] from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic Law is held to be violated by Land law and where a Land law is held to be incompatible with a federal law”. 1951-2013: ≈ 3600 proceedings Abstract review <10%

8. Constitutional complaints Any individual claiming a violation of one of his or her fundamental rights or of one of his or her rights under Art. 20 sec. 4, Art. 33, 38, 101, 103, and 104 of the Basic Law by a public authority may lodge a constitutional complaint with the Federal Constitutional Court.  Previous exhaustion of all other available remedies. Exceptions: 1) the complaint is of general relevance; 2) prior recourse to other courts were to the complainant’s severe and unavoidable disadvantage;  1 month time (1 year for challenging a law)

9.  Between 1951 and 2013: 197.000 proceedings completed (97% of all proceedings); of these 4640 were successful (2,4%)  Approximately six thousand new incoming cases yearly. In 2013: 6.477 new constitutional complaints, 18 concrete review and 3 abstract review new proceedings  Average Length of Proceedings of Constitutional Complaints 2006-2013 In 2013: 5.770 const. compl. were lodged against judicial decisions, with 91 judicial decisions reversed, including 3 decisions of the Supreme court

10. If, during deliberations, a Justice expressed a differing view on the decision or its reasoning, the Justice may set forth these views in a separate opinion; the separate opinion shall be annexed to the decision. Senate decisions with/without separate opinions 1971-2013

11. Supremacy over ordinary courts The constitutional complaint enables the constitutional court to correct other courts’ jurisprudence regarding constitutional questions. Its jurisdiction does not exclusively depend on ordinary courts’ will to refer questions of constitutionality The “best equipped” constitutional court In European and international comparison no other constitutional court possesses the same large range of competences A jurisdiction on rights, not just on laws The Bundesverfassungsgericht has jurisdiction not just when a law of the Parliament violates the Constitution, but also (and especially) when a constitutional right is violated by a judicial or administrative decision

12. The Spanish Tribunal constitucional  Composition and jurisdiction  Current challenges for the Constitutional court’s legitimacy

13. The Spanish Tribunal constitucional was established by the Spanish Constitution of 1978 and was set up in 1980.  Commitment to respect constitutional values + establishment of Autonomous Communities with legislative powers  Influence of the German and Italian models  Ordinary judges appointed under the Franco’s dictatorial regime were not replaced => the protection of the new democratic values cannot be entrusted in judges that had been educated and served under a non democratic regime

14.  The term lasts 9 years  The members of the Constitutional Court shall be appointed from amongst Magistrates and Prosecutors, University professors, public officials and lawyers, all of whom must be jurists of recognised standing with at least fifteen years’ experience in the professional exercise 4 judges 2 judges Elected by the Congress of the Deputies by a qualified majority (3/5) Elected by the Senate by a qualified majority (3/5) Elected by the Government 2 judges Elected by the Council of the Judiciary

15.  The Court as a whole: judicial review of legislation and conflicts of powers  The Chambers: constitutional complaints  The Sections: admissibility of constitutional complaints First Chamber 6 judges Second Chamber 6 judges 33 3 3

16.  Abstract review of legislation: the Prime Minister, the Ombudsman, 50 Deputies or 50 Senators can challenge a law with 3 months from its publication. The governments and the legislative assemblies of the Autonomous communities can challenge a State law within the same term  Concrete review of legislation: Where a judge or a court, proprio motu or at the request of a party, considers that an enactment having the force of law which is applicable to a case and on which the validity of the ruling depends may be contrary to the Constitution, the judge or court shall raise the question before the Constitutional Court. It must specify the law or enactment having the force of law whose constitutionality is contested and the constitutional precept that is deemed to have been violated, and indicate with supporting evidence the extent to which the judgement emanating from the proceedings depends on the validity of the enactment.

17. Constitutional complaint - Amparo  Any individual with a legitimate interest can file a constitutional complaint for the protection of the fundamental rights listed in Art. 14 to 30 of the Spanish Constitution  Constitutional complaints are available against violations of these rights resulting from provisions, legal enactments, omissions or flagrantly illegal actions by the public authorities of the State, the Autonomous Communities and other territorial, corporate or institutional public bodies  All available judicial remedies must have been exhausted  In 2006: - Over 11.000 constitutional complaints received - Over 13.000 pending constitutional complaints The constitutional court is overwhelmed by constitutional complaints: constitutional proceedings last years!

18. It helped spreading constitutional values in the legal order, especially in the judiciary but two current threats to the Constitutional court’s legitimacy Excessive length of the proceedings 2007 reform of constitutional complaint: the applicant shall justify the special constitutional significance of the complaint Political influences on and within the Constitutional court The President and the Judges of the Court may express their disagreement in the form of a dissenting opinion