Die Ausschließung und Ablehnung eines Richters nach §§ 18, 19 BVerfGG in der Rechtsprechung des Bundesverfassungsgerichts

Sections 18 and 19 of the Act on the Federal Constitutional Court differ from each other in their preconditions and legal consequences. The decision about the exclusion of a judge has a declaratory effect, because it takes effect in pursuance of the law. The decision about the challenge of a judge has a constitutive effect. Whilst Section 18 of the Act on the Federal Constitutional Court provides for exclusion without allowing a substitute judge, Section 19 (4) of the Act on the Federal Constitutional Court allows to designate another substitute judge. With this substitution, however, the balanced composition of the respective judicial body is also changed. The exclusion is based on objectifiable facts and processes and thus on general standards. The challenge, by contrast, depends on manifold evaluations – and thus also on subjective elements. In an evaluating manner it is appreciated whether additional elements can be identified in respect of the judge's conduct (»taking all the circumstances into due account«). Strict requirements must be met to challenge a judge on grounds of interest. In a synopsis of Section 19 and the negative catalogue in Section 18 (2) and (3) of the Act on the Federal Constitutional Court, the Federal Constitutional Court has developed strict standards for the application of exclusion and challenge and thus highlighted the independency of constitutional litigation in this respect compared with other judicial rules of procedure. Recent rulings by the Federal Constitutional Court however show that the Federal Constitutional Court now seems to intend to lay down generally strict standards for all judges regardless of the court they work for. Even though the extensive jurisprudence on Sections 18 and 19 of the Act on the Federal Constitutional Court may seem to be casuistic, it can be classified in groups of cases and principally shows a high continuity. The evaluation of jurisprudence demonstrates the judges' conception of themselves at the Federal Constitutional Court which is characterized by high ethos and great independency in order to guarantee the judges' neutrality and to reflect the prominent position of the Federal Constitutional Court. With its differentiated jurisprudence the Federal Constitutional Court prevents a loss of trust and guarantees justice.