In order to give examples of how proceedings at the Bavarian Constitutional Court sometimes drag on for what feels like an eternity, Green circles are happy to try their own cases. The parliamentary group in the state parliament filed a lawsuit at the beginning of August 2017 about the alleged mixing of the work of the Office for the Protection of the Constitution and the police. And to date, April 2023, the Constitutional Court has not scheduled an oral hearing. “People in Bavaria have a right to fair and also to the fastest possible proceedings – including before the Constitutional Court,” says Toni Schuberl, legal policy spokesman. And the court must “review decisions on important options for action by the state,” for example on security policy, “in a reasonable time.”
With a draft law, the Greens parliamentary group now wants to “close a gap in legal protection” – and introduce the so-called delay complaint. According to the draft, the law that regulates the Constitutional Court in Bavaria does not provide an instrument with which those affected “can complain about the excessively long duration of their constitutional court proceedings”, it is about “unreasonably” long periods of time. This is the case, however, both in the Federal Constitutional Court and in front of ten other state constitutional courts. But how long do proceedings at the VerfGH actually take, and what length of time would be considered “unreasonable”? Difficult to answer.
Last year, the VerfGH received significantly less work than in the previous two years, and 93 new cases were filed. In 2021 there were 164 and in 2020 even 238 – because during the pandemic parts of the lavish corona rules often had to be checked by the constitutional authorities. The VerfGH recently announced that the 93 new cases in 2022 were matched by the same number of cases that were completed that year. That sounds like a decent pace. However, the average duration of all procedures is not included in the regular balance sheet. When asked by the SZ, the responsible Ministry of the Interior announced that there were “no indications” that the proceedings were taking an unreasonable amount of time. “In this respect, there is no need for a delay complaint before the Bavarian Constitutional Court.” Perhaps a breakdown by the Federal Constitutional Court in Karlsruhe offers a benchmark: 80 percent of all proceedings there were settled within a year. However, one in ten took three years or longer or remained pending.
In Karlsruhe, such a complaint option is permitted as the Greens in Bavaria want. However, the inappropriateness of the length of the procedure and the associated subjective disadvantage must be adequately justified – compared to the difficulty of the material matter, as it is said. Also not that easy. The Greens therefore see the instrument primarily as a legal remedy to determine possible claims for compensation. But not in order to oblige the court directly to make a quick decision in the specific proceedings. However, it is hoped that the instrument will “develop a certain amount of pressure”.
The draft law contains further proposed changes for the court – namely on the election of judges. The Constitutional Court consists of the President, 22 professional judges and 15 other honorary members (and their representatives). Currently, the professional judges are elected by the state parliament with a simple majority; The Greens argue that the hurdles are higher in the constitutional courts of many other countries or in Karlsruhe. In the case of new constitutional judges in Bavaria, the President of the Constitutional Court first transmits the personnel proposal to the State Chancellery and the cabinet, which is then elected in the state parliament in a commission sworn to silence and later without discussion in the plenary session. A hearing of the aspirants does not take place. “We can only raise our hands, so to speak, at the moment,” Schuberl had complained a good two years ago at an election. And promised a bill for more transparency, choice and independence. According to the draft, which will be presented to the state parliament for the first time next week, a two-thirds majority in the state parliament should be required for the election of professional judges. In addition, there should be at least two personnel proposals per position.
When asked, the state government sees no need to change the procedure for electing judges, “the previous election procedure has proven its worth without reservation”. Most recently, in 2018, a bill by the SPD to reform the election of judges in the state parliament was rejected. 23 years ago, a referendum failed, entitled: “Power needs control: For an independent constitutional court in Bavaria”. The honorary constitutional judges, on the other hand, who supplement the professional judges in the Arbitration Chambers, are clearly determined by the state parliament. The parliamentary groups may nominate persons with knowledge of public law in proportion to their strength.
Most recently, this group of judges was the focus because one of the two constitutional judges sent by the AfD was spotted in the pack in Berlin in 2020, shortly before Corona opponents stormed the Reichstag stairs. Rather coincidentally as a passer-by and private person, as he later asserted, without agreeing to any positions.