The Path of the Decision
Incoming cases first enter the operating management office of the Constitutional Court. Often, applications arrive at the court by mail, sometimes they are filed in person by the attorneys. Now it is the President's turn. He writes the name on the new case of the justice who should then work on it. The President decides which one of the so called "Permanent Reporters" should work on the case. The President has free discretion for this assignment. Generally, he makes this decision according to the specialty of the individual justices, which they have previously agreed on.
From then on, the content of the case is the focus. The Permanent Reporter first examines the formal requirements for the admissibility of an application, in particular, whether or not the Constitutional Court has jurisdiction to deal with it and whether or not the petition meets the legal requirements. Then the Permanent Reporter works out the basis on which the case should be decided, which the rest of the members of the court will discuss.
If it is obvious that the petitioner has no reasonable prospect of success (for instance, because relevant precedents of the Constitutional Court already exist, which would obstruct a positive decision), then a decision is prepared to refuse the petition, which includes relevant internal reasoning. Another reason for a refusal is that no constitutional issue is in question. A petition will also be rejected if it is inadmissible. However, if a case is pursued further, then the justice will initiate a preparatory proceeding: The "opposing party" (such as the authority that passed the controversial decree or the government, if the constitutionality of a piece of legislation is in question) is asked to present a statement in reply.
If the case is ready for judgment in the eyes of the justice responsible for the preliminary proceeding, a draft for discussion is prepared and sent to the other justices, including all necessary enclosures (which are the application or complaint itself, the statements, important records, research reports relating to the legal issue in question, as well as relevant decisions). The clerks assist in the preparation of the draft opinion. The case will be discussed on the basis on which it was prepared. This happens during the sessions. The 14 justices meet four times a year - and more frequently in especially urgent cases - to discuss the draft, to vote on the draft and thereby pass a judgment. Cases that are legally easier to resolve are dealt with in the so-called "small assembly": In such cases, the participation of four justices, in addition to the attendance of the chair, suffices. The other cases are dealt with in the Plenary. The deliberations of the Constitutional Court are not open to the public, just as is the case with other court proceedings.
Initially, the justices present the prepared draft and the reasons for the proposed decision. The President then opens up the case for discussion. It is often necessary to consult and vote separately on various legal issues. At the end of the discussion the justices vote on the draft, which is often amended or corrected in the course of the discussions: Eventually, the results of every discussion, that have earned a majority in a vote, have to be included in the draft, If the draft does not gain a majority, then another draft has to be prepared, based on the results of the discussions. Another member of the Court may take charge of these preparations. Only when a draft is capable of achieving majority approval, will the Constitutional Court pass a final judgment. If the case is complicated, then the discussion may extend over several sessions.
If the preparatory proceeding has not been able to answer all questions or if the case is of special legal or political significance, then the Constitutional Court can also set up a public hearing. In this hearing the parties have to undergo oral questioning by the justices. Initially, however, every affected person presents his case in the hearing room. The hearing is again led by the President of the Constitutional Court. The deliberations do not always directly lead to a final decision in one case. If the discussions, for instance, reveal that the justices have to apply a law that in itself seems unconstitutional, then the Constitutional Court will interrupt the actual proceeding and concentrate on the controversial passage in the law. The justices review the legal norms in question to ascertain whether or not their earlier reservation against the legal text is confirmed. During this constitutional review, the original case can naturally not be dealt with further, which influences the length of the proceeding. These interruptions of proceedings due to constitutional review are often the reason for prolonged procedure. Proceedings also take longer than the average time if the Constitutional Court first has to wait for the judgment of the European Court in Luxembourg regarding a question that is relevant to the ongoing proceeding.
When a draft is finally accepted in the Plenary, the case is closed. The justice who has prepared the majority opinion then writes the final version (Ausfertigungsentwurf) that includes the various formulations agreed on in the plenary session. The President of the Constitutional Court then carefully studies all final versions. If necessary, he may still clarify some details, in agreement with the Reporter. In special cases, if he deems it necessary, he can consult the Plenary again. After it receives his signature, which signifies the "release" of the decision, the paper still has to be written out in final form. The clerks carefully read and control the text for "quality control". After that the decisions of the Constitutional Court are printed and sent to the parties to the proceedings via the operations management office. The media is also informed about very important decisions, which are relevant to the citizens, after they have been delivered.