ACCESS TO JUSTICE IN CONSTITUTIONAL COURT PROCEEDINGS: GERMANY
Dr. Ágnes Váradi PhD, research fellow
Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies
INTRODUCTION
In the well-known Airey vs. Ireland case [1] the European Court of Human Rights (hereinafter: ECtHR) stated that the obligation to secure an effective right of access to the courts falls into the category of duty on the part of the State. Generally, this obligation is understood on the light of effective judicial remedy, meaning the right to institute proceedings before ordinary courts, to obtain a determination of the dispute by a court and the requirement of the decision being able to remedy wrongs or asserting claims. At the same time a broad margin of appreciation is offered for the State regarding the determination of the most appropriate means of regulating access to justice.
A special field of access to justice might be the question of access to constitutional court procedures, particularly by means of constitutional complaints. It might seem that, due to their special character aiming at the protection of subjective individual rights while ensuring and developing the objective constitutional order [2], they fall outside the scope of court procedures in strict sense. However, the ECtHR stated in several judgements that the basic safeguards of fair trial [3] – as foreseen in Article 6 of the European Convention on Human Rights – and certain requirements derived thereof [4] might be equally applicable to procedures in front of constitutional courts.
From these requirements the efficient access to justice, the realistic chance of bringing a case to court for the needy is of special importance, as several social, political and legal tendencies result in a growing demand for constitutional complaint:
in this procedure, namely, the individual might challenge decisions or legal norms based on their relation to the constitution safeguarding this way his fundamental rights.
Therefore it is worth examining how national laws ensure the efficient access to such procedures. In this regard, several factors shall be taken into account: not only are the questions of court fees and necessity of legal representation relevant, but the requirements of admitting a case to decision as well. The current paper aims to analyze a certain, limited aspect of this complex problem, namely, the question of legal aid in constitutional court proceedings – particularly constitutional complaint procedures – in Germany. The examination is based on the national legal provisions and case-law as well as the relevant secondary literature.
MultiScience - XXXIII. microCAD International Multidisciplinary Scientific Conference University of Miskolc, 23-24 May, 2019. ISBN 978-963-358-177-3
DOI: 10.26649/musci.2019.108
THEORETICAL BACKGROUND
In lack of a concrete provision of the German Grundgesetz (hereinafter: GG) [5] on legal aid or access to justice, a more in-depth analysis is needed in order to discover the role and interpretation of legal aid in the German constitutional law. On the basis of this interpretation further conclusions can be drawn in relation to legal aid in constitutional court procedures.
A possible point of reference could be Article 103 Paragraph (1) GG. According to this provision, in the courts every person shall be entitled to a hearing in accordance with the law. The principle of equality of arms – which the institution of legal aid is closely linked to – “together with, among others, the principle audi alteram partem, is no more than a corollary of the very concept of a fair hearing (…).”[6] According to ECtHR it shall ensure “a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents.”[7] Or shortly: “Equality of arms” and other considerations of fairness therefore also militate in favour of a free and even forceful exchange of argument between the parties.” [8] In a constitutional court procedure, however, neither the concept of
“exchange of argument” nor that of “disadvantage vis-à-vis the opponents” is applicable, as the substance of the proceeding is generally related to a theoretical question of fundamental rights, functioning of institutions of the state or the situation of the state in the international community. Therefore, the right to fair hearing, especially the requirement of equality of arms itself does not seem to be an adequate point of reference.
That is why, other aspects of access to justice shall be evaluated as well. Article 47 Paragraph (3) of the Charter of Fundamental Rights of the European Union [9]
prescribes that “[l]egal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” So, this concept is related to the financial neediness, which might – in certain cases – significantly hinder the litigant in bringing his case to the court.
This argumentation connects the right to be heard with a certain aspect of social support [10] as well as the general principle of equality: in lack of legal aid a needy person would not be in the same position of bringing a case to court as a person not hindered by financial circumstances.[11] In the German constitutional law Article 20 Paragraph (1) GG (principle of the social state), Article 3 Paragraph (1) GG (general principle of equality) and Article 20 Paragraph (3) GG (principle of a democratic state governed by law) form the legal framework of this argumentation. Due to the general nature of this approach, it seems to be applicable to constitutional court proceedings as well. [12]
LEGAL AID IN PROCEDURES OF THE BVERFG
The German Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz; hereinafter: BVerfGG [13]) does not provide for detailed provisions regarding access to justice.
Nevertheless, based on the above-mentioned argumentation – including the principles of rule of law and equality before the law – the German Federal Constitutional Court (Bundesverfassungsgericht, hereinafter: BVerfG) applies the general rules of legal aid – § 114 of the code on civil procedure (Zivilprozessordnung, hereinafter: ZPO) [14] – to the constitutional court procedure. [15] § 114 Paragraph (1) ZPO defines legal aid through the following general clause: “[a]ny parties who, due to their personal and economic circumstances, are unable to pay the costs of litigation, or are able to so pay them only in part or only as instalments, will be granted assistance with the court costs upon filing a corresponding application, provided that the action they intend to bring or their defence against an action that has been brought against them has sufficient prospects of success and does not seem frivolous”. [16] This definition includes the two major factors, which can be seen as preconditions of granting legal aid: the evaluation of the factors related to the applicant’s personal and financial status (the so-called ‘means test’) and the consideration of the features of the legal matter in dispute, especially its prospects to success (the so-called ‘merits test’).
After setting down that these criteria are applicable per analogiam to the constitutional court proceedings in front of the BVerfG, the question arises, how the Federal Constitutional Court interprets these in relation to the specificities of its proceedings.
Specific framework of legal aid in constitutional court procedures
The first fact, which shall be taken into account is that according to § 34 BVerfGG proceedings in front of the BVerfG shall be free of charge and there is no obligation of legal representation [cf. § 22 BVerfGG]. So, one could argue that there is no urgent need for granting legal aid in the proceeding before BVerfG. Nevertheless, the lack of direct costs per se does not exclude the necessity of legal aid, only leads to a rather narrow interpretation [17] of its conditions. Due to the complexity of constitutional court proceedings, namely, the lack of legal knowledge can cause a sustainable disadvantage: the requirements, the BVerfG makes in case of constitutional complaints are very complex, and are partially not directly derivable from the wording of the BVerfGG. [18] Therefore, there is a realistic chance that a party not supported by a lawyer cannot present his case in a comprehensive, clearly understandable manner including proper legal arguments as well.
According to the practice of restrictive interpretation, the BVerfG grants legal aid – practically an assigned attorney – if the complainant is not in the position of representing himself, [19] particularly if there is an oral hearing foreseen or such a hearing could give a substantial contribution to the decision-making process. [20] On the one hand, in a concrete case, the BVerfG argued, when rejecting a claim for legal aid that from the wording of the pleading itself it can be perceived that the applicant is able to present a coherent argumentation in relation to his situation and legal standpoint. [21] On the other hand, however, in another order it argued that it is expectable that the applicant included substantial pieces of information regarding the merits of the case even in the legal aid procedure. [22]
From this, it could be followed that when determining the possibility of granting legal aid the BVerfG demands rational arguments, from which it is apparent that the complainant has a clear vision on the problem of constitutional law nature, generally on the violation of his rights and the BVerfG can assert this on the basis of the data provided by the applicant in the documentation. However, the need for legal representation is confirmed only, if this reasoning not sufficiently elaborated in legal terms so that it could be the basis of a successful participation in the procedure. Thus, the reference point seems to be an argumentation that can be presented by a rational layman. [23]
Application of the general rules of ZPO
If these specific conditions can be confirmed, the BVerfG examines the other general conditions foreseen in § 114 ZPO. Therefore, the demonstration of the overall financial situation of the applicant is an inevitable precondition of a successful claim for legal aid. [24] As far as the detailed evaluation of the financial situation is concerned, the BVerfG applies the standards defined in § 117 Paragraph (2)-(3) ZPO [25] accordingly.
The next and very interesting element of the evaluation of the claim for legal aid is the merits test. The wording of the ZPO does not limit the possibility of rejecting the claim for legal aid to the case if there is an obvious lack of prospects for success, as e. g. in the Hungarian law before the entry into force of the new code of civil procedure, [26] but it makes the position of the applicant more difficult: he has, namely, to prove that the claim has sufficient chance of success. [27] Deciding on the chances of success, the court examining the application for legal aid shall rule to a certain extent on the substance of the case. This way, there might be a presumption that the court possibly makes a prejudice on the claim before the detailed examination of the merits of the case. [28] Nevertheless, from the analysis of the case-law follows that the BVerfG usually does not give further details on the grounds of rejection than stating that the intended enforcement of rights does not seem to have sufficient chance of success [29] and adding a general and compact reasoning.
The constitutional complaint does not have sufficient chance of success – according to the case-law of the BVerfG – e.g. if the complainant has passed away after filing the complaint, as this procedure is aimed at protecting the individual’s personal rights, [30] if the complainant does not define the act he wishes to challenge or the right which has been violated by the given act, [31] if the complainant fails to provide such substantial facts from which the chances of success could be determined, [32] if the complainant challenges the result of the appreciation by the court (not the limits of the margin of appreciation), [33] or, if the complaint has not been filed within the statutory time-frame. [34]
These examples show in a direction that the BVerfG denies the existence of sufficient chance of success, if the most basic preconditions of the procedure are not given, namely, the presentation of a violation of subjective, individual rights, a legal problem related to the protection of fundamental rights or constitutional principles or observance of the basic statutory requirements towards the complaint.
This way, the interpretation of this condition of the ZPO seems to be more permissive than what would follow from the strict grammatical interpretation of ZPO – and the interpretation followed by ordinary courts. However, it shall not be forgotten, that in constitutional court procedures the conditions of admissibility are usually very high.
[35] Therefore, if chances of success in the legal aid procedure are evaluated rather broadly, it supports with the help of a qualified attorney the preparation of an admissible claim in those procedures where a realistic possibility of serious problem of constitutional law nature arises.
Finally, the general clause of § 114 ZPO contains the examination of a negative condition: the litigation shall not seem to be frivolous. In this regard, the situation seems to be easier in constitutional court proceedings, as Section 34 Paragraph (2) of the BVerfGG contains a separate provision on abusive complaints: “[t]he Federal Constitutional Court may charge a fee of up to EUR 2,600 if the lodging of a constitutional complaint or of a complaint pursuant to Article 41 para. 2 of the Basic Law or the application for a preliminary injunction (section 32) constitutes an abuse of rights”. [36] Therefore, there is a clear normative basis and a relevant case-law that can be a sui generis reference point at determining the frivolous nature of a claim for legal aid. Although these two concepts are not connected directly, their strong correlation can be derived from the structure and argumentation of an order [37] from 2018, which rejected the claim for legal aid and declared the complaint inadmissible because it failed to comply with the basic criteria of the complaint. At the same time the order referred to the consequences of an abusive complaint for the future, which shows that the repeated lodging of a manifestly-ill-founded complaint and/or claim for legal aid might be seen as an abuse of rights.
CONCLUSIONS
From this analysis the following conclusions can be derived: the general framework of initiating procedures in front of the German Federal Constitutional Court supports access to justice as the procedures are free of charge and legal representation is not obligatory. Nevertheless, the case-law of BVerfG acknowledges that in certain cases it can be difficult for the complainant to provide a sufficiently elaborate and complex argumentation in terms of constitutional law. Therefore, legal aid can be granted under the provisions of ZPO, if the party cannot represent himself or if there is an oral hearing possible, where the correct presentation of legal arguments is especially important. This procedural factor is a precondition of legal aid in addition to those included in § 114 ZPO.
This is a point, where the claimant might face a certain challenge: he shall present a sufficiently reasonable, logical, clear description of his case and his neediness.
However, if, from this presentation, the BVerfG comes to the conclusion that the complainant could be able to represent himself throughout the procedure, the claim for legal aid might be rejected. As far as the objective conditions – personal and financial circumstances of the case – are concerned, the general provisions of the ZPO are applied accordingly.
The analysis of the conditions related to the constitutional problem itself (chances of success, lack of frivolous nature) are, however, applied in line with the characteristics of the constitutional court procedures. Although the reasoning of the rejecting orders is usually very laconic, the BVerfG seems to stress such criteria, from which the sincere and well-thought-out nature of the complaint can be determined without any difficulty (e.g. observance of time-frames, description of the facts, reasonable argumentation regarding the alleged violation of rights). As, however, all conditions of legal aid are defined per analogiam in constitutional court proceedings, the main factors to be evaluated by the BVerfG remain to a large extent subjective or based on the special circumstances of the case. On the one hand, this approach is in line with the special nature of constitutional court proceedings [38] focusing on abstract legal problems. On the other hand, it might make it difficult for the complainants to estimate the chance whether their case will be decided on the merits by the BVerfG:
to achieve this, however, should be a main aim of the institution of legal aid.
This summary can be a first step in understanding the role of legal aid in constitutional court proceedings as well as its interpretation in the case-law of the European constitutional courts. A comprehensive study of the national examples can contribute to a higher level of access to justice in a field being especially important from the point of protection of fundamental rights and constitutional values.
[1] ECtHR, Airey vs. Ireland, Judgement of 9 October 1979. (Application no.
6289/73), Series A, no. 32.
[2] Kleine-Cosack, M.: Verfassungsbeschwerden und
Menschenrechtsbeschwerde: Tipps und Taktik. Heidelberg, C.F. Müller, 2007. p.
29.
[3] ECtHR, Ruiz-Mateos vs. Spain, judgement of 23 June 1993 (Application no. 12952/87). Series A no. 262. §§ 59-60.; Kübler vs. Germany, judgement of 13 January 2011 (Application no. 32715/06). §§ 47-48.
[4] ECtHR, Milatová and Others vs. the Czech Republic, judgement of 21 June 2005 (Application no. 61811/00). §§ 58-61; Gaspari vs. Slovenia, judgement of 21 July 2009 (Application no. 21055/03). §§ 50-53.
[5]Grundgesetz für die Bundesrepublik Deutschland. Retrieved 22 March 2019 from https://www.bundestag.de/gg
[6] European Court of Justice, C-169/14., Juan Carlos Sánchez Morcillo and María del Carmen Abril García v. Banco Bilbao Vizcaya Argentaria, SA., judgement of 17 July 2014. [ECLI:EU:C:2014:2099] para 49.
[7] ECtHR, Avotiņš vs. Latvia, judgement of 23 May 2016 (Application no. 17502/07), ECHR 2016. § 119. Similarly: ECtHR, Dombo Beheer B.V. vs. the Netherlands, judgement of 27 October 1993 (Application no. 14448/88), Series A no.
274. § 33.
[8] ECtHR, Nikula vs. Finland, judgement of 21 March 2002 (Application no. 31611/96), ECHR 2002-II. § 49.
[9] Charter for Fundamental Rights of the European Union. OJ C 202., 7. 6. 2016.
Retrieved 22 March from https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:12016P/TXT&from=EN
[10] Certain authors argue that legal aid would be a certain form of social support and therefore position this legal institution in the field of social law. This approach can be lead back to a decision of the BVerfG, which stated that as the judge decides on a claim for legal aid, he grants or rejects a social benefit.
Albers, J.: Prozeßkostenhilfe als Sozialhilfe. In: Selmer, P. – Münch, I. (eds.):
Gedächtnisschrift für Wolfgangs Martens. Berlin, de Gruyter, 1987. p. 283; Meyer, D.: GKG/FamGKG 2012. Berlin, de Gruyter, 2012, p. 113; Adoplhsen, J.:
Europäisches Zivilverfahrensrecht. Heidelberg – Dordrecht – London – New York, Springer, 2011, p. 43.
BVerfG, order of the 1st Senate from 3 July 1973- 1 BvR 153/69, para 20.
However, this paper follows the approach that the nature of legal aid is primarily to compensate financial neediness, lack of legal knowledge etc. in court proceedings;
briefly: to ensure access to justice. Therefore, the efficient enforcement of judiciary rights forms a significant framework of interpretation which shall be taken into account when evaluating the institution supporting the party in the representation of his interests before the court. Further details on this question of interpretation in:
Váradi, Á.: Verfahrenshilfe im Zivilprozess. Hamburg, Verlag Dr. Kovac, 2014.
[11] Schoreit, A. – Groß, I. M. – Dehn, J.: Beratungshilfe, Prozesskostenhilfe, Verfahrenskostenhilfe: BerH/PKH/VKH. Heidelberg, C.F. Müller, 2010. p. 4.
[12] Barczak, T. (ed.): BVerfGG: Mitarbeiterkommentar zum Bundesverfassungsgerichtsgesetz. Berlin, de Gruyter, 2018. p. 557.
[13] Gesetz über das Bundesverfassungsgericht (Bundesverfassungsgerichtsgesetz - BVerfGG). Retrieved 20 March 2019 from http://www.gesetze-im- internet.de/bverfgg/BJNR002430951.html
[14] Zivilprozessordnung. Retrieved 21 March 2019 from https://www.gesetze-im- internet.de/zpo/BJNR005330950.html
[15] BVerfG, order of the 2nd Chamber of the 2nd Senate from 11 August 2016 - 2 BvR 1754/14, para 2.; order of the 1st Chamber of the 2nd Senate from 4 July 2018 - 2 BvR 62/18, para 1.
[16] Translation retrieved 21 March 2019 from https://www.gesetze-im- internet.de/englisch_zpo/index.html
[17] BVerfG, order of the 1st Senate from 24 January 1995 - 1 BvR 1229/94, para 3.
[18] Umbach, D. C. – Clemens, Th. – Dollinger, F-W. (eds.):
Bundesverfassungsgerichtsgesetz: Mitarbeiterkommentar und Handbuch.
Heidelberg, C.F. Müller, 2005. p. 632.
[19] BVerfG, order of the 3rd Chamber of the 2nd Senate from 9 July 2010 - 2 BvR 2258/09, para 6; order of the 1st Chamber of the 1st Senate from 2 December 2016 - 1 BvR 2014/16, para 2; order of 2nd Chamber of the 2nd Senate from 11 August 2016 - 2 BvR 1754/14, para 2.; order of the 2nd Chamber of the 2nd Senate from 9 June 2017- 2 BvR 336/16, para 2.
[20] BVerfG, order of the 1st Senate from 18. April 2007- 1 BvL 9/04, para 2.; order of the 1st Senate from 25 January 2007- 1 BvL 12/04, para 2.
[21] BVerfG, order of the 3rd Chamber of the 2nd Senate from 11 October 2017- 2 BvR 932/17, para 3.
[22] BVerfG, order of the 1st Chamber of the 1st Senate from 2 February 2017 - 1 BvR 2897/16, para 2.
[23] e.g. in a concrete case the applicant claimed to be transferred from a closed psychiatric institute. The requirement of the BVerfG in order to consider the claim for legal aid was that the applicant demonstrated why his conduct would not be a danger for the community and what measures would be available in case of a misconduct. BVerfG, order of the 3rd Chamber of the 2nd Senate from 20 June 2016 - 2 BvR 1154/13.
[24] BVerfG, order of the 1st Chamber of the 1st Senate from 8 November 2018- 1 BvR 1020/17.; order of the 1st Chamber of the 1st Senate from 27 October 2017 - 1 BvR 1746/16, para 3.
[25] BVerfG, order of the 2nd Senate from 21 October 2003 - 2 BvR 1588/02.
[26] Before the entry into force of the new Hungarian civil procedure code (act CXXX of 2016), Section 85 Paragraph (3) of the previous Code on Civil Procedure (act III of 1952) – governing the exemption from costs – and Section 61 Paragraph (2) of the Code on Duties (act XCIII of 1990) – governing the prenotation of duties – used this formulation.
[27] Schoreit, A. – Groß, I. M. – Dehn, J.: op.cit. p. 297.
[28] Lissner, S. et al.: Beratungshilfe mit Prozess- und Verfahrenskostenhilfe, Stuttgart, Kolhammer, 2010., p. 225.
[29] Barczak, T.: op. cit. p. 558.
[30] BVerfG, order of the 1st Chamber of the 2nd Senate from 4 July 2018 - 2 BvR 62/18, para 2.
[31] BVerfG, order of the 2nd Chamber of the 2nd Senate from 28 June 2018- 2 BvR 2380/17, para 3.; order of the 4th Chamber of the 2nd Senate from 6 July 2001 - 2 BvR 881/01, para 7.
[32] BVerfG, order of the 1st Chamber of the 1st Senate from 8 March 2017- 1 BvR 1868/16, para 2.; order of the 3rd Chamber of the 1st Senate from 2 December 2014 - 1 BvR 561/13, para 3.
[33] BVerfG, order of the 3rd Chamber of the 1st Senate from 8 October 2015 - 1 BvR 3049/13, para 2.
[34] BVerfG, order of the 1st Chamber of the 2nd Senate from 7 February 2000 - 2 BvR 106/00; order of the 3rd Chamber of the 1st Senate from 10 January 2012 - 1 BvR 3069/11.
[35] Kleine-Cosack, M.: op. cit. p. 30.
[36] Translation retrieved 21 March 2019 from https://www.gesetze-im- internet.de/englisch_bverfgg/index.html
[37] BVerfG, order of the 2nd Chamber of the 2nd Senate from 12. April 2018 - 2 BvR 415/18.
[38] Barczak, T.: op. cit. p. 557.
