Exceptional court

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Exceptional court or court martial is a court that is entrusted with the handling of specific or individually determined cases.

Demarcation

The exceptional courts differ from ordinary jurisdiction , subject-specific special jurisdiction , which is generally assigned a special subject area in compliance with the legal reservation, and constitutional jurisdiction . For specialized jurisdiction or special jurisdiction includes the administrative, financial, working and social dishes ( Art. 95 , para. 1 GG) and the weir judgments or disciplinary jurisdiction ( Art. 96 , para. 2 and para. 4 GG). In addition, courts with special jurisdiction can be established by law within the ordinary jurisdiction ( Article 101, Paragraph 2 of the Basic Law). These include B. Family courts, juvenile courts and chambers for commercial matters at the regional court ( § 93 GVG).

The special courts that existed at the time of the Weimar Constitution no longer allow the Basic Law and the Courts Constitution Act ( Article 101, Paragraph 1, Sentence 1 of the Basic Law, Section 16, Sentence 1 of the GVG).

The Constitutional Convention of Herrenchiemsee understood exceptional courts as courts set up by the government or administration for certain individual cases or groups of individual cases with which there is a risk or suspicion that the court members are selected with a certain tendency. In contrast, there is the " legal judge ", who is determined by abstract form and therefore without regard to the person of the parties involved.

Constitutional assessment

According to the definitions of the Federal Constitutional Court and the Federal Court of Justice , exceptional courts are those courts "which, in deviation from the statutory jurisdiction, are specially formed and are called upon to decide individual specific or individually determined cases". Such a court exists in particular if it were formed ad hoc or ad personam .

According to the views of the Federal Constitutional Court and the Bavarian Constitutional Court , an individual panel of a court can also be an exceptional court if it is assigned a specific individual case or several specific individual cases through the division of business. A criminal court is an exceptional court if it is only used to decide after a criminal offense has been committed for an individual case or for a group of individual cases determined by individual characteristics. However, a court designated for judgment before the offense is committed is also an exceptional court if its jurisdiction is regulated in such a way that one or more individually defined individual cases are removed from general jurisdiction from the outset.

In the opinion of the Bavarian Constitutional Court , the guarantee of the legal judge ("No one may be withdrawn from his legal judge", Article 101, Paragraph 1, Clause 2 of the Basic Law) excludes the prohibition of exceptional courts ("Exceptional courts are inadmissible", ibid., Sentence 1) on the matter one. According to this interpretation, the "legal" judge is the same as whom the European Convention on Human Rights and the International Covenant on Civil and Political Rights call the "law-based court" and whom the Charter of Fundamental Rights of the European Union calls the "court established by law" designated.

The prohibition of exceptional courts is an unconditionally guaranteed right that is subject to a constitutional complaint and is equivalent to fundamental rights ( Art. 93 (1) No. 4a GG, § 13 No. 8a, § 90 BVerfGG ).

international law

The European Convention on Human Rights (Article 6 - Right to a fair trial ) and the International Covenant on Civil and Political Rights place the guarantee of an independent and impartial judge in the direct context of the fact that the claims of every citizen are tried by a "court based on law" become. Likewise, according to the Charter of Fundamental Rights of the European Union ( Art. 47 GRCh) a “court established by law” is a necessary condition for the existence of effective legal remedies. The legal binding of the court organization guarantees the legal binding of the judiciary.

According to the general opinion of the states about the elementary procedural justice of general international law , which is part of federal law according to Art. 25 GG, a court can only be spoken of in a material sense if it is an independent judicial body that is established by law and performs judicial functions in accordance with legal norms within the framework of legally defined competencies according to a legally regulated procedure by judges whose independence and impartiality are guaranteed by law.

The Federal Constitutional Court therefore makes the extradition of a foreigner dependent, among other things, on the extradited person not being brought before an exceptional court in the territory of the requesting state. This principle is expressly standardized, for example, in Article 13 of the extradition treaty between the Federal Republic of Germany and the United States of America of June 20, 1978, which was further intensified by the treaty of October 14, 2003 on mutual assistance in criminal matters.

See also

Individual evidence

  1. ↑ BVerfG, judgment of December 17, 1953 - 1 BvR 335/51 para. 34
  2. ↑ BVerfG, decision of May 9, 1962 - 2 BvL 13/60 para. 53
  3. ↑ Andreas Hänlein: Article 101 (PDF) In: Dieter C. Umbach (Ed.): Basic Law. Staff comment and manual . Müller, Heidelberg 2002, Volume 2, para. 13
  4. ↑ BVerfGE 3 213 Rn 43 ; 8 174 paragraph 19 ; 10 200 Rn 41 ; BGHZ 38 208, 210; BGH NJW 2000, 1580
  5. ↑ a b c d e f Reinhard Böttcher, Peter Riess: The Criminal Procedure Code and the Courts Constitution Act: Grosskommentar. Seventh volume, [sections] 1–198 GVG, EGGVG, GVGVO . 25th, revised edition. Berlin, ISBN 3-89949-039-8 .
  6. ↑ Klaus Stern , Florian Becker : Basic rights comment: The basic rights of the Basic Law with their European references . 2010, Art. 101, Rn. 48
  7. ↑ a b BVerfGE 40 356 Rn 13 ; BayVerfGHE 37 1
  8. ↑ BVerfGE 3 174, 185
  9. ↑ BayVerfGHE 37 1, 2 = NJW 1984 2813
  10. ↑ Klaus Stern , Florian Becker : Basic rights comment: The basic rights of the Basic Law with their European references . 2010, Art. 101, Rn. 48
  11. ↑ Article 14 paragraph 1 sentence 2 IPBPR
  12. ↑ Ulrike Müssig: Legal judge without the rule of law ?: a historical-comparative search for traces: Lecture given to the Berlin Legal Society on February 15, 2006 . De Gruyter Recht, Berlin 2007, ISBN 978-3-89949-404-4 .
  13. ↑ BVerfG, decision of December 1, 2003 - 2 BvR 879/03, no. 30 ff., 33
  14. ↑ BVerfG, decision of November 5, 2003 - 2 BvR 1506/03, no. 76
  15. ^ Matthias Hartwig: International Law Practice of the Federal Republic of Germany in 2003 (PDF). In: ZaöRV , 2005, pp. 741, 758 ff., 763
  16. ↑ extradition agreement between the Federal Republic of Germany and the United States of America (PDF) of June 20, 1978. In: BGBl. , 1980 II p. 647. Website of the hjr-Verlag, accessed on May 15, 2018
  17. ↑ Law of October 26, 2007, Federal Law Gazette II, p. 1618