Federalny Sąd Konstytucyjny

  • Scope of Immunity of Members of the Bundestag – A Case Study of a Bundestag Member, Mr. Pofalla

    Author: Kamila M. Bezubik
    E-mail: kamila.bezubik@uwb.edu.pl
    Institution: Uniwersytet w BIałymstoku
    ORCID: https://orcid.org/0000-0002-2572-334X
    Year of publication: 2019
    Source: Show
    Pages: 141-155
    DOI Address: https://doi.org/10.15804/ppk.2019.06.11
    PDF: ppk/52/ppk5211.pdf

    Members of the Bundestag enjoy parliamentary immunity under the Basic Law. The mem- ber may be held liable or arrested for an offense punishable by criminal law only if the Bundestag permits it and waives the member’s immunity, unless the member is caught red-handed or on the following day. Since the majority rule also applies here, the deci- sion to waive immunity is decided by the governing majority. This raises the question, especially on the part of members of individual opposition parties, to what principles the Bundestag is subject to when deciding whether or not to waive the immunity of a mem- ber of the Bundestag. The Bundestag’s reservation of permission (Genehmigungsvorbe- halt) to conduct criminal proceedings according with the jurisprudence of the Federal Constitutional Court serves primarily the benefit of the parliament as a whole. The sub- jective rights of members of the Bundestag to certain conduct of the Bundestag cannot be derived directly from the Article 46 (2) of the Basic Law. However, pursuant to the second paragraph of Article 46 in conjunction with the second sentence of the Article 38 (1) of the Basic Law, a member of the Bundestag may demand that the Bundestag, deciding whether or not to waive his or her immunity, not be guided by unreasonable and arbitrary motives.

  • Democratic Legitimacy or Political Calculation? - On the Election of Judges to the German Federal Constitutional Court

    Author: Kamila M. Bezubik
    E-mail: kamila.bezubik@uwb.edu.pl
    Institution: University of Białystok
    ORCID: https://orcid.org/0000-0002-2572-334X
    Year of publication: 2020
    Source: Show
    Pages: 295-306
    DOI Address: https://doi.org/10.15804/ppk.2020.05.22
    PDF: ppk/57/ppk5722.pdf

    The election and appointment of judges of the Federal Constitutional Court (FCC) have been the subject of a dispute in the German legal literature for decades. According to the second sentence of para. (1) of Art. 94 of the Basic Law, the members of this court are elected in equal parts by the Bundestag (BT) and the Bundesrat (BR). An outside observer would probably conclude from this that the entire BT, i.e. the plenary chamber, and the entire BR must decide on the election of constitutional judges. However, in practice, the BT does not decide in a plenary session but by the twelve-member committee for the election of FCC judges, which also deliberates and votes in secret. A number of constitutional law experts consider this procedure as unconstitutional. The Second Senate of the FCC, in its judgment of 19 June 2012, decided that the election of constitutional judges by the special committee for the election of FCC judges in the BT is not unconstitutional. In this paper, the author considers whether the procedure for election of judges to the FCC meets the requirements of democratic legitimacy of the constitutional authority.

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