Request for a judicial decision
In the broader sense, an application for a court decision is any expressly expressed suggestion to a court to make a specific decision or to clarify a situation.
In the narrower sense, in Germany it is a formal legal remedy in the form of an application that leads to a decision by a court. It is mostly directed against official measures and serves to implement the guarantee of legal recourse under Article 19 (4) of the Basic Law ; the ordinary courts are usually responsible. The structure of the legal remedy is regulated differently in each individual case.
Criminal and administrative fine proceedings, execution of sentences
An application for a judicial decision by the investigating judge ( Sections 162 , 169 of the Code of Criminal Procedure ) is made against investigative measures by the criminal prosecution authorities ( public prosecutor's office , criminal police ) . The Code of Criminal Procedure only expressly regulates seizure ( Section 98 (2) sentence 1 StPO) and covert investigative measures ( Section 101 (7) sentence 2 StPO), but Section 98 (2) sentence 1 StPO applies to other investigative measures applied analogously . The decision of the investigating judge is generally subject to the complaint (restricted according to §§ 305 , 304 Abs. 4 and 5 StPO). Against security measures such as pre-trial detention ( §§ 117 , 119a StPO) and interim accommodation ( § 126a Code of Criminal Procedure) or seizure to secure the recovery / demilitarization and assets arrest ( §§ 111j et seq. CCP) is request possible for a court decision. Against further measures, the request for a court decision is more closely related to the appeal against court measures; this concerns, for example, the refusal to inspect files ( Sections 147 , 406e , 478 StPO) and measures in the event of the accused's failure to appear ( Section 163a StPO) or witnesses or experts ( Section 161a StPO).
The application for a court decision by the local court against measures by the administrative authority ( Section 62 OWiG ) is also modeled on the criminal procedural complaint in regulatory offense law. It must therefore be submitted to the administrative authority, which has to forward it in the event of no remedy (analogous application of Section 306 of the Code of Criminal Procedure). As a rule, it is unlimited and cannot be challenged; Exceptions: a two-week period must be observed in the case of reinstatement ( Section 52 OWiG) or the rejection of the objection ( Section 69 OWiG); In the case of subsequent orders for confiscation ( Section 100 OWiG), cost matters ( Section 108 OWiG) and compensation matters ( Section 110 OWiG), an immediate complaint is made .
An application for a judicial decision by the Penal Enforcement Chamber at the regional court is made against measures in the area of the execution of sentences or the execution of custodial measures ( § 109 StVollzG ). The decision may be appealed to the Higher Regional Court ( § 116 StVollzG, § 121 GVG ).
In Austria is against staatsanwaltschaftliche investigation and coercive opposition ( § 106 CCP ), against criminal actions, the administration legal measures complaint ( Art 130th para 1. 2 B-VG given); in Switzerland generally the complaint ( Art. 393 StPO ).
Voluntary Jurisdiction Procedure
In proceedings under voluntary jurisdiction, there is an application for a court decision as a legal remedy, for example in matters relating to notary fees ( Section 127 GNotKG , on the regional court), in civil status matters ( Sections 48 , 49 PStG , on the district court) or in company law (Sections 98, 132, 142 , 260 AktG , here against private measures, to the district court).
Appeal of judicial administrative files
In addition, an application for a court decision to the Higher Regional Court has been submitted against measures by the judicial or enforcement authorities ( judicial administrative files ) (§§ 23 ff. EGGVG ). It is a secondary catch-all offense ( Section 23 (3) EGGVG). The application deadline is one month ( Section 26 EGGVG) or one year in the event of inactivity ( Section 27 EGGVG). Under certain circumstances, a complaint precedes the administrative procedure ( Section 24 (2) EGGVG, e.g. according to Sections 25, 39, 49, 55, 63 BZRG ). An appeal on points of law to the Federal Court of Justice is admissible against the decision of the Higher Regional Court ( § 29 EGGVG, § 133 GVG).
More cases
Building land
Administrative acts in accordance with the Building Code can be contested by applying to the Regional Court for a court decision by the Chamber for Building Land Matters ( Section 217 of the Building Code). The higher regional courts ( § 229 BauGB) decide on appeals and complaints against the regional court judgments , and the Federal Court of Justice ( § 230 BauGB) on revisions .
Defense complaints and disciplinary law
A soldier can apply for a decision by the troop service court if his (further) complaint has not been successful ( Section 17 WBO , also in conjunction with Section 42 WDO ). A legal complaint against the decision of the troop service court is submitted to the Federal Administrative Court upon admission ( Section 22a WBO). For disciplinary law see also § 112 WDO, also §§ 62, 63 BDG .
Data protection law
If a data protection supervisory authority considers an adequacy decision by the European Commission (Art. 45 GDPR ), a decision on the recognition of standard protection clauses (Art. 46 (2) GDPR) or the general validity of approved rules of conduct (Art. 40 (9) GDPR) to be unlawful , the supervisory authority must suspend its proceedings and submit an application for a judicial decision to the Federal Administrative Court ( Section 21 BDSG ).
Individual evidence
- ^ Deutsches Rechts-Lexikon , Volume 1, 2nd edition 1992, p. 222
- ↑ Bernd Heinrich, Tobias Reinbacher: Legal protection against coercive measures (as of October 1, 2019)
- ↑ cf. ECLI : AT: VFGH : 2015: G233.2014
