A constitutional complaint to the Federal Constitutional Court or the state constitutional courts is an instrument of the German legal system used to challenge violations of fundamental rights by state action. It is of particular importance in criminal proceedings: State measures – from house searches and pre-trial detention to conviction and sentencing – frequently affect fundamental rights or rights equivalent to fundamental rights.
A constitutional complaint is subject to strict admissibility requirements. Therefore, the process regularly demands in-depth knowledge of criminal procedure and constitutional law, as well as the requirements of the Federal Constitutional Court. Our lawyers in Berlin and throughout Germany advise defendants at all stages of criminal proceedings regarding constitutional complaints in criminal law. We examine whether their fundamental rights have been violated, determine the appropriate legal steps, and file constitutional complaints with the state constitutional courts and the Federal Constitutional Court.
What is a constitutional complaint – and when is it admissible in criminal law?
A constitutional complaint allows any person to challenge a violation of their fundamental rights by public authorities – including decisions of criminal courts and actions of law enforcement agencies. In criminal law, it is relevant in two typical situations:
- After a conviction: Once the court of appeal (Federal Court of Justice or Higher Regional Court) has concluded the proceedings, a constitutional complaint can be lodged against the final judgment.
- Against procedural measures in ongoing criminal proceedings: Certain interventions, such as pre-trial detention or search warrants, can be challenged by means of a constitutional complaint even during the proceedings.
Two prerequisites must always be observed. First, all reasonable remedies before the competent courts must have been exhausted before filing the constitutional complaint (so-called exhaustion of legal remedies). Second, the complaint must be filed within one month of service of the final decision. If this deadline is missed, the complaint is inadmissible – therefore, early legal review is crucial.
The requirement of exhausting all legal remedies often necessitates adherence to the time limits for filing an appeal under criminal procedure law, which are frequently shorter than the one-month period for a constitutional complaint. For example, a complaint regarding the right to be heard must be filed within one week of the appeal proceedings (§ 356a of the German Code of Criminal Procedure).
Therefore, if a constitutional complaint is to be filed, it is essential to consult a lawyer immediately in order to meet the admissibility requirements for a constitutional complaint.
Which fundamental rights are particularly relevant in criminal proceedings?
Criminal proceedings affect a multitude of constitutionally protected rights. In this context, violations of the following fundamental rights and rights equivalent to fundamental rights are frequently alleged:
- General right of personality and human dignity (Articles 1 and 2, Paragraph 1 of the Basic Law): e.g., in cases of degrading prison conditions or unlawful investigative methods.
- Freedom of the person (Article 2, Paragraph 2 of the Basic Law): in particular in cases of disproportionate pre-trial detention or unlawful continuation of detention.
- Inviolability of the home (Article 13 Paragraph 1 of the Basic Law): in the case of unlawful search warrants or disproportionate search measures.
- Secrecy of telecommunications (Article 10 Paragraph 1 of the Basic Law): in the case of unlawfully ordered telecommunications surveillance
- Right to a fair trial (Article 2 Paragraph 1 in conjunction with Article 20 Paragraph 3 of the Basic Law): in cases of violations of the principle of a fair trial, for example through the use of unlawfully obtained evidence.
- Right to be heard (Article 103 Paragraph 1 of the Basic Law): in cases of ignored requests for evidence or insufficient reasoning for decisions.
- Principle of guilt and principle of legal certainty (Article 103, paragraph 2 of the Basic Law): in the case of convictions based on indeterminate criminal offenses or analogous application of the law.
- Right to a lawful judge (Article 101 Paragraph 1 of the Basic Law): in case of incorrect composition of the court or failure to refer a legal question to the European Court of Justice or the Federal Constitutional Court.
Constitutional complaint against measures taken in the investigation proceedings
It is not only a legally binding judgment that can violate fundamental rights. Even during the preliminary investigation, the public prosecutor's office and investigating judge make decisions that deeply infringe on the rights of those affected, such as search or seizure warrants, or the imposition of pre-trial detention.
Initially, legal remedies against such measures are available through the ordinary courts – for example, an appeal under Section 304 of the Code of Criminal Procedure or an application for a judicial decision under Section 98 Paragraph 2 of the Code of Criminal Procedure. If these legal remedies are unsuccessful, a constitutional complaint can be the last resort to stop measures that violate fundamental rights or to have their illegality established – possibly even if the measure has already ended.
Why are constitutional complaints so rarely successful?
The chances of success for a constitutional complaint are often overestimated. One reason for this is that constitutional courts only accept a fraction of all complaints received for review. Acceptance requires that the complaint either be of fundamental importance or that the enforcement of the alleged fundamental rights necessitates it. Furthermore, the other admissibility requirements are also very high. Consequently, constitutional complaints are frequently dismissed as inadmissible without any examination of the alleged violation of fundamental rights. Moreover, constitutional courts only review specific constitutional law. Therefore, a decision that is incorrect solely under criminal or criminal procedure law does not, in itself, constitute grounds for a constitutional complaint.
Constitutional protection requires experience
A constitutional complaint is not an ordinary legal remedy. It requires precise knowledge of the requirements of the constitutional courts as well as a careful analysis of the facts from a constitutional perspective. We will guide you through this process: from the initial assessment of whether a constitutional complaint is likely to succeed, to drafting the complaint and filing it with the constitutional courts of the Federal Government and the Länder (states), we will support you every step of the way.
Please contact us to arrange an appointment.
A constitutional complaint is a legal remedy by which anyone can challenge a violation of their fundamental rights or rights equivalent to fundamental rights by public authorities – including decisions of criminal courts and measures taken by law enforcement agencies. It is addressed to the Federal Constitutional Court or to the constitutional courts of the Länder (federal states).
In principle, a constitutional complaint is only admissible if all reasonable remedies before the ordinary courts – such as appeal, complaint, or revision – have been exhausted without success. The Federal Constitutional Court may only deviate from this requirement in very limited exceptional cases.
The deadline is generally one month from the date of service or informal notification of the final decision. This deadline must be strictly observed; if it is missed, the constitutional complaint is usually inadmissible. Therefore, do not hesitate to contact a lawyer. You should bear in mind that drafting a promising complaint takes time. Furthermore, particularly due to the requirement of exhausting all legal remedies, other, possibly shorter, deadlines may apply – such as the one-week deadline for filing an appeal or for alleging a violation of the right to be heard. It is therefore strongly recommended that you seek legal advice as soon as you suspect a violation of your fundamental rights.
Yes. In addition to a constitutional complaint against a legally binding judgment, individual investigative measures – such as search or seizure warrants and the ordering of pre-trial detention – can also be challenged during the ongoing proceedings, provided that the ordinary courts have been exhausted beforehand.
In principle, a constitutional complaint requires a continuing need for legal protection. However, in cases of particularly serious infringements of fundamental rights—such as a search or a now-terminated period of pre-trial detention—the Federal Constitutional Court recognizes a continuing interest in obtaining a declaratory judgment under certain conditions. In such cases, a constitutional complaint may still be admissible even after the measure has been completed, in order to have its unlawfulness established. Whether this is applicable in a specific case depends on the nature and intensity of the infringement and should be reviewed by legal counsel.
No. The Federal Constitutional Court is not a further instance for reviewing factual and legal issues in ordinary criminal law and, in particular, does not re-examine the evaluation of evidence or sentencing by the lower courts. Its sole review is whether the challenged decision violates so-called specific constitutional law – that is, whether fundamental rights or rights equivalent to fundamental rights have been disregarded. A mere erroneous application of ordinary law is generally insufficient for this purpose.
Only a small proportion of constitutional complaints are accepted by the constitutional courts for a decision, as this requires either fundamental constitutional significance or the enforcement of the challenged fundamental rights. Many complaints also fail due to strict admissibility requirements. Therefore, careful examination and reasoning in each individual case are crucial.
First, we will review the available documents to determine whether a constitutional complaint is generally an option in your case and whether the admissibility requirements can be met. Following this, we will work with you to prepare the constitutional grounds for the complaint and file it within the prescribed time limit.