Whoever appeals to the Federal Constitutional Court runs the risk of failing due to newly invented admissibility hurdles. This happened even to state constitutional judges from Thuringia. They wanted to know whether and until when corona measures could be based on an actually unsuitable law.
At first glance, the most recent decision of the Federal Constitutional Court on Corona policy seems of little interest: It does not contain any assessments of the content of the individual measures and their (constitutional) legal limits; instead, the application is simply rejected as inadmissible. However, the decision becomes remarkable when you consider that the allegedly inadmissible request for a decision did not come from any legally inexperienced citizen. But by the judges of the Thuringian Constitutional Court.
You have to know that if judges reject a procedure as “inadmissible”, they don’t even have to deal with the factual justification of the questions raised therein (“reasonability”). Admissibility is intended as a kind of filter to sort out procedures that have no place in Karlsruhe from the outset. For example, because they revolve around ordinary legal questions without specific reference to constitutional law, because the instances have not been exhausted or deadlines for appealing to the Federal Constitutional Court have expired.
That sounds like simple formalities. In fact, the requirements that the Karlsruhe judges place on admissibility have grown to such a Byzantine convolute over the decades that even experienced lawyers cannot be entirely sure whether their submissions to the Constitutional Court will meet the high hurdles.
The fact that even seasoned state constitutional judges fail feeds the frequently voiced criticism that the Federal Constitutional Court broadens the standards of its admissibility check at will or narrows it to the point of being unfulfillable, depending on whether it wants to make a substantive decision on the procedure in question or not.
A closer look at the current decision also suggests this. In order to understand this, however, one must first have an overview of the somewhat complicated starting position.
Two regional courts, two opinions
The reason for the decision was a difference of opinion between the Constitutional Court in Thuringia and its counterpart in Saxony-Anhalt on the question until when were the respective state governments allowed in the first Corona year to adapt their measures to those from before the pandemic and as a legal basis to support the actually inadequate federal infection protection law in its form at the time.
The Saxony-Anhalt constitutional judges had already ruled that any period of grace during which the interventions in fundamental rights were exceptionally allowed to take place on the basis of the law, which had not yet been adapted to the new situation, had expired in September 2020. After all, Germany had already had the “first wave” for months and the Bundestag would have had more than enough time during the low incidence phase in the summer to revise the Infection Protection Act in a Corona-friendly manner.
The Thuringian Constitutional Court, on the other hand, wanted to rule that corona measures could still be enacted at the beginning of November 2020 on the basis of the outdated law; especially since it was already foreseeable that a few weeks later the Bundestag would finally bring itself to implement the necessary reform.
Two state constitutional courts, two opinions. Article 100 paragraph 3 of the Basic Law prescribes what is to be done in this case, seemingly unequivocally: "If the constitutional court of a state wishes to deviate from a decision of the Federal Constitutional Court or the constitutional court of another state when interpreting the Basic Law, the constitutional court shall have the decision of the Federal Constitutional Court."
The Thuringian constitutional judges did the same - and still had to be told that their submission was inadmissible. The Federal Constitutional Court also sees the different opinions on the length of the grace period. However, these do not refer to a "contradictory abstract legal rule", but only to "an individual case-related question of subsumption not covered by Article 100 (3) of the Basic Law".
Obviously, there is no mention of “abstract legal principle” or “case-related subsumption” in Article 100 paragraph 3, which is quoted in full above. Certain restrictive readings are established for individual norms in case law and specialist legal literature, which cannot be readily inferred from the wording of the law itself, but are known to experts. Only: not in this case.
As far as can be seen, literally no one has yet thought of adding this restriction to said article, which is why the passage in question in the judgment of the Federal Constitutional Court comes without the usual references. And also without justification where this new restriction comes from and what factual considerations it is based on.
A strange note from Karlsruhe
In this respect, it is quite brazen when the Karlsruhe judges reproach their Thuringian colleagues in the next sentence that they "did not explain that the judgment of the State Constitutional Court of Saxony-Anhalt contained an abstract legal sentence that contradicted [their] own legal opinion ..." . Of course they didn't - because they could not have guessed that corresponding statements would be expected from the Federal Constitutional Court.
It is also strange to note that the draft “does not make it clear which abstract criteria” the Thuringian Constitutional Court would apply to the length of the grace period. Because it is in the nature of things that restrictions on fundamental rights – if at all – may only be based on actually unsuitable laws in exceptional cases. The question of whether and for how long this should be admissible in exceptional cases will not depend on abstract criteria, but rather on the specific circumstances of the individual case.
From today's perspective, one may find it irrelevant whether or not the Thuringian constitutional judges are allowed to contradict their colleagues from Saxony-Anhalt when assessing the long-abolished corona measures. However, the Federal Constitutional Court should have shown its colors in deciding the dispute, whether it wanted to extend its leniency with later corona policy, which was often criticized as excessive, to the early days of the pandemic, when there was not even a usable legal basis for the numerous interventions.
Thanks to the newly invented admissibility hurdle, it has now spared itself that burden. It is worth keeping this hands-on approach in mind and bringing it to the fore whenever the Karlsruhe judges give the impression in the future that they have been sentenced to speak or remain silent in one or another politically explosive procedure because of the existence or lack of admissibility.
As you can see, this hurdle is often surprisingly variable. Perhaps it would be more honest, following the example of the American Supreme Court, to officially introduce what is already partly factual and partly legal: a free acceptance procedure.
Comments
Post a Comment