Federal Constitutional Court: constitutional complaint against prohibition of a gathering based on the Protection against Infection Act and the underlying laws and ordinances

Author: Year:
Dr. Carlo Piltz

Facts of the case

In their constitutional complaint (Case No. 1 BvR 661/20), the appellants sought a temporary injunction against a prohibition on gatherings based on the Protection against Infection Act (1.) and the underlying laws and ordinances (2.).

On 18 March 2020, Appellant 2 registered an event with the City of Karlsruhe, to be held on 20 March 2020 from 2:00 PM to 4:00 PM, in which about 400 participants were to gather in the public square in front of Karlsruhe Palace. The gathering was registered as an "Urgent Gathering to Protest Human Rights Violations at and near the Greek Border and in Refugee Camps." Appellant 1 had planned to take part in the event. The City of Karlsruhe prohibited the gathering on 19 March 2020 by issuing an order based on the Coronavirus Ordinance of 17 March 2020, which was enacted in accordance with the Protection against Infection Act, as well as the Public Gathering Act.

Content of the decision

The motion was denied. The court found that the appellants had not taken advantage of the opportunity to seek a temporary injunction from the competent court of law, so that all remedies had not been exhausted.

The court noted that, while the temporary resolution of disputes by the Federal Constitutional Court is theoretically possible in accordance with § 32(1) of the Federal Constitutional Court Act, the principle of the subsidiarity of constitutional complaints  in accordance with § 90(2) of the Act applies in this case as well. As a result, issuance of an injunction in accordance with § 32(1) of the Federal Constitutional Court Act would only come into consideration once the appellants have exhausted all remedies. The court found that the appellants in the present case have failed to do so. In accordance with § 80(5) of the Rules of the Administrative Courts, the appellants should have first contested the prohibition through the ordinary courts of law, since it is not evident from the petitioners' argumentation that such a course of action would have been unreasonable, cf. § 90(2) Sentence 2 of the Federal Constitutional Court Act. The court stated that, even at short notice, the appellants could have sought a temporary injunction against the prohibition on gatherings from the competent court of law, noting that the pandemic is not a sufficient reason for them not to take advantage of this option.

Moreover, litigants before the Higher Administrative Court must be represented by attorneys, cf. § 173 Sentence 1 of the Rules of the Administrative Courts in conjunction with § 78b of the Civil Procedure Code. The court stated that the pandemic cannot be cited as a reason why the necessary representation was unavailable and, in any case, the petitioners have failed to explain what efforts they made in this regard.

The court also stated that summary proceedings before the Federal Constitutional Court are not a suitable vehicle for conclusively deciding questions of constitutional law.

Conclusion

Summary proceedings before the Federal Constitutional Court are a possibility, in theory. However, the general principles remain in effect, even during the pandemic. Litigants must first exhaust all remedies and, if it appears that they will be unable to do so, they must provide a comprehensive explanation of the adverse effects which threaten to arise in this case.

[March 2020]