Headnotes (non-official):

If a Justice of the Federal Constitutional Court takes part in a non-appealable decision of this Court (in this case: a decision determining a fee for abusively lodging a constitutional complaint), which is nevertheless challenged before another court – without success because it is inadmissible as it is not appealable – the Justice is not debarred from participating in the constitutional complaint proceedings that are subsequently brought against the other court’s procedural decision.

Summary:

I.
The Second Chamber of the First Senate had assessed abuse fees against the complainant in three different constitutional complaint proceedings.

The complainant challenged those fees by bringing actions before the Administrative Court (Verwaltungsgericht). The court dismissed his actions as inadmissible because no remedy before the administrative courts was available, reasoning that administrative courts could not review, let alone set aside, decisions about constitutional complaints. The complainant’s applications before the Higher Administrative Court (Verwaltungsgerichtshof) for leave to appeal those decisions were unsuccessful on the same grounds.

In his constitutional complaint, the complainant challenged the decisions of the Administrative Court and the Higher Administrative Court. He considered the legal basis for the abuse fee and its assessment against him to be unconstitutional.

II.

The members of the Second Chamber of the First Senate are not debarred from taking part in the decision on the constitutional complaint. This also applies to the decision whether they may participate in these proceedings in the first place.

The Senate is required to decide ex officio about its lawful composition. This includes the decision whether a Justice is automatically debarred by law according to § 18 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, hereinafter, the “Act”).

According to § 18.1 no. 2 of the Act, a Justice of the Federal Constitutional Court shall be debarred from exercising his or her duties if the Justice has already been involved in the same case due to his or her office or profession. The criterion of the “same case” is always to be understood in a specific and strictly procedural sense. Prior judicial involvement in a case only leads to debarment if it took place in proceedings in an earlier instance. Furthermore, it must concern participation in the decision currently being challenged by the constitutional complaint.

At least in proceedings before the Constitutional Court, the participation in decisions which permanently conclude a case and against which no appeal whatsoever can be made does no longer constitute an involvement in the ‘same case’.

It is not permissible to contravene procedural law and appeal against final Federal Constitutional Court decisions to other courts, in order to secure a new Federal Constitutional Court decision against the prior courts’ rulings in which the participation of the previously involved Justices is excluded.

An abuse fee assessed by a chamber of the Federal Constitutional Court cannot be appealed and thus cannot be the subject of a decision by the administrative courts. In such situations, it is hence impossible to have prior involvement in the “same case” within the meaning of § 18.1 no. 2 of the Act.

The members of the Second Chamber of the First Senate may also take part in the decision on the question whether they are excluded from participation. The manifestly inadmissible actions brought before the Administrative Court constitute completely self-contained, new subjects of proceedings and can thus under no circumstances justify a debarment from participation.