Request for evidence

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In German law, an application for evidence is an application to the court to collect specific evidence .

Criminal trial

General

In criminal proceedings , the taking of evidence is regulated in § 244 StPO . According to this provision, the court ex officio collects all evidence necessary to clarify the facts ( investigative principle , Section 244 (2) StPO). In addition, the parties involved ( defendant , defense counsel , public prosecutor's office , co-plaintiff , private plaintiff, adhesion plaintiff, legal guardians and legal representatives) can also submit evidence. An application for evidence made in the main hearing may only be rejected if there is a reason for rejection provided for in the law.

Special features apply before the criminal judge at the local court in accelerated proceedings ( Section 420 (4) StPO), in proceedings after an objection to a penalty order ( Section 411 (2) sentence 2 StPO) and in private litigation ( Section 384 (3) StPO): In these In cases, the court determines the scope of the taking of evidence without being bound by requests for evidence. Only the official duty to provide information must also be observed in these proceedings and may require that an application for evidence be investigated.

An application for evidence is only available if a specific evidence (example: the fact that the defendant was not at the scene of the crime, but in his parents' apartment at the time of the crime) and specific evidence (example: parents questioning as a witness) is named.

An application for evidence must be made orally at the main hearing and justified. It must be included in the minutes of the main negotiation . The ordering of a written application is only permissible under strict conditions to prevent mass abusive applications for evidence ( Section 257a StPO). It only applies to the future. A defendant who is released from the obligation to be present in accordance with Section 233 of the Code of Criminal Procedure can also submit requests for evidence in the previous judicial interrogation. They must be brought up at the main hearing and are deemed to have been made there.

A written application is not required. However, it is possible to submit the request for evidence in addition to the reading out as an attachment to the minutes. It is also harmless if the chairman reads out a written evidence request. It is crucial that those involved in the proceedings can take note of its content. Apart from that, before the start of the main hearing, applications for evidence according to Section 219 of the Code of Criminal Procedure can be submitted in writing or for the minutes of the office, the content of which must correspond to an application for evidence made during the main hearing, but are only aimed at summoning a witness or expert. They must not be rejected as being true.

Rejection of requests for evidence

Reasons for rejection

An application for evidence must be rejected if the requested gathering of evidence is inadmissible ( prohibition of evidence ). This is the case if the evidence is inadmissible (example: if a witness in the main hearing legitimately refuses to testify, the record of an earlier examination of the witness may not be read out, § 252 StPO) or if no evidence is taken on the subject may (example: legal questions are to be answered by the court and cannot be the subject of any evidence).

Otherwise, a request for evidence can, but does not have to be, rejected in the following cases:

  • The gathering of evidence is superfluous because it is obvious. A distinction is made here between general facts, i.e. facts that everyone knows, and judicial facts, i.e. facts that are known to the court. Example of facts with general knowledge: That the sun has not yet set on June 20th at 8:00 pm, that Berlin is the German capital, etc. According to the case law of the Federal Court of Justice , the Holocaust is also a general fact . Example of judicial facts: That the suspect's suspended sentence has been revoked in other proceedings, that a previous co-defendant did not appeal his conviction, etc. An application for evidence can also be rejected on the grounds of obviousness if the opposite of the alleged fact is obvious (Example: a request for evidence to obtain an expert opinion on the existence of magical powers can be rejected because the non-existence of magical powers is evident).
  • The fact that is to be proven is irrelevant to the decision. A distinction is made between insignificance for legal reasons and insignificance for actual reasons. For legal reasons, a fact is irrelevant if it does not play a role either for the question of whether a criminal offense has been fulfilled or for the legal consequences of the offense (Example: If the accused is accused of bodily harm, the nationality or religion of the victim is excluded legal reasons irrelevant). For factual reasons, a fact is irrelevant if it can play a role in the assessment of the evidence, but would not change the outcome of the assessment of the evidence because the court does not draw the conclusion that the applicant wants to draw from the fact (example: Dem The accused is accused of beating his girlfriend. The prosecutor requests the questioning of a former girlfriend of the accused, who is to testify that she was also previously beaten by the accused. The court can deny this request because it is irrelevant on factual grounds. The court does not have to (but can) use the fact that the defendant previously hit his former girlfriend as an indication to clarify the question of whether the defendant also beat his current girlfriend.).
  • The fact that is to be proven has already been proven (example: the public prosecutor's office names another witness, although the court considers the defendant to be convicted based on the testimony heard). However, it is not a reason for rejection if, in the opinion of the court, the opposite of the fact to be proven has already been proven (example: the court may not reject the accused's request for evidence to be questioned by a witness on the grounds that the accusation witnesses have already proven the accused's perpetration ). In this respect, the prohibition of anticipating the assessment of evidence applies.
  • The evidence is completely unsuitable (example: interrogation of a blind person about the color of a car). According to the case law, the polygraph is completely unsuitable evidence. When assessing whether a piece of evidence is completely unsuitable, however, the assessment of the evidence must not be anticipated. (Example: The court may not reject the application to question a witness on the grounds that it considers the witness to be untrustworthy. Whether the witness is credible or not can only be determined after his or her questioning.)
  • The evidence is inaccessible (example: reading out a document of which it is not known where it is; examination of a witness whose address is not known). Before the court rejects an application for evidence for this reason, it must take reasonable steps to obtain the evidence.
  • The application for evidence is made for the purpose of delaying the process . This reason for rejection only applies if the delay in the process is the sole purpose of the request for evidence; it must be excluded that the requested gathering of evidence can contribute to establishing the truth. The court can set a deadline for the defendant, until the expiry of which evidence must be submitted. If the accused does not submit an application for evidence until after this period has expired and the time limit is not exceeded in a comprehensible and substantiated manner, the court may assume that the application for evidence has been submitted.
  • The fact to be proven and exonerating the accused is treated as if it were true ( assumption of truth ). Example: The homeless person charged with stealing food relies on the fact that he has not eaten in the three days prior to the crime in order to receive a lighter sentence and names a large number of witnesses. The court can refuse the application for the hearing of the witnesses if it believes that the statement is true. The rejection of an application for evidence because of the allegation of truth is tied to the following conditions: Only significant facts may be assumed to be true, the allegation of truth must not conflict with the court's duty to investigate the facts ex officio (which is why not all relieving allegations of the accused are simply believed may be), the allegation must also be adhered to in the judgment . If an application for evidence is rejected because it is assumed to be true, the judgment may neither declare the fact assumed to be true to be meaningless nor make statements that contradict the fact assumed to be true.
  • The application for questioning of an expert can be rejected if the court itself has the necessary expertise (example: a court itself usually has the necessary expertise to assess the credibility of an adult and sane witness ) ( Section 244 (4) sentence 1 StPO). There are, however, some exceptions to this, for example in the case of a medical expert under Section 246a of the Code of Criminal Procedure, if the order to place the accused in a psychiatric hospital, in preventive detention or in a rehab facility comes into consideration. An expert is then to be heard about the defendant's condition and treatment prospects. Sections 80a, 81 StPO and Section 73 JGG regulate further exceptions .
  • The application for the hearing of another expert can be rejected if - apart from certain exceptions - the opposite of the fact to be proven has already been proven by the earlier expert report.
  • The application for evidence to take an inspection or to summon a witness living abroad can be rejected if the court does not consider the taking of evidence to be necessary (Section 244 (5) of the Code of Criminal Procedure). In this respect, however, the court's duty to investigate the facts ex officio must always be observed.

Particularities in the presence of evidence

In the case of evidence that is present, i.e. witnesses and experts who have been summoned and also appeared by the defendant or the public prosecutor, and other available evidence, the possibility for the court to reject its use is made more difficult ( Section 245 (2) StPO). The request for evidence must be rejected if the taking of evidence is inadmissible. Otherwise it may only be rejected if the fact that is to be proven has already been proven or is evident (here it is not enough that the opposite of the fact to be proven is evident), if there is no connection between it and the subject of the judgment, if the evidence is completely unsuitable or if the application is made to defer proceedings. By providing evidence themselves, the accused and the public prosecutor can force the court to take evidence that it could otherwise refuse under certain circumstances under Section 244 of the Code of Criminal Procedure. The regulation only applies to witnesses and experts if they are properly summoned. While the public prosecutor's office can summon witnesses and experts as well as the court informally (i.e. with a simple letter or verbally), the accused must make a summons according to § 38 StPO by means of a bailiff . The mere fact that a witness or expert is present does not make it a present evidence within the meaning of § 245 Abs. 2 StPO.

Form of rejection

The form of rejection of an application for evidence is based on Section 244 (6) of the Code of Criminal Procedure. Accordingly, an application for evidence may only be made through a court order (i.e. not through a decision of the chairman alone), which must be announced before the end of the taking of evidence. The decision must clearly justify why the application for evidence was rejected. The court may not change the reasons in the judgment or add further reasons for rejection. Such statements in the judgment are meaningless. In the judgment, the court may not contradict the decision with which the application for evidence was rejected (example: if an application for evidence was rejected because the fact to be proven is irrelevant, the court may not consider the fact relevant, but by others Denote evidence refuted). Such contradictions can lead to the reversal of the judgment.

Since a change in the law made in 2017, the chairman has the right to set a deadline for submitting evidence requests after the ex officio proceedings have been completed. Requests for evidence made after this period has expired can also be decided in the judgment itself, unless it has been shown that it was impossible to submit the request for evidence earlier.

Legal consequences of incorrect rejection

If the court wrongly rejects an application for evidence, this can justify the appeal under Section 337 of the Code of Criminal Procedure if - as is usually the case - it cannot be ruled out that the court would have reached a different conclusion if it had granted the application for evidence. The appellate court may not exchange the reason for the rejection, i.e. in the event of an incorrect rejection of the application for evidence, it may reject the appeal on the grounds that the application for evidence could have been rejected for another reason.

Conditional Requests for Evidence

A special feature are conditional requests for evidence, i.e. requests for evidence that are made in the event that a certain condition occurs. One differentiates:

  • Auxiliary evidence request: evidence that is linked to a main request (example: the defense attorney requests acquittal and, in the event that the defendant should not be acquitted, questioning of further witnesses). Such requests for evidence are only made in the plea, i.e. after the taking of evidence has ended . If they are rejected, this only happens through the judgment. Due to the delay in the process, however, an auxiliary evidence application must not be rejected only in the judgment, so that the applicant has the opportunity to dispel the allegation of the delay in the process. As an exception, the auxiliary evidence request may only be rejected in the judgment because of delay in proceedings if the court has given the accused a deadline for submitting evidence and has pointed out that failure to comply with the deadline may result in rejection because of delay in proceedings.
  • Contingent evidence request: This is filed in the event that the court accepts a certain element of the reasoning of the judgment that is significant from the applicant's point of view. Example: In the event that the court believes that the homeless person charged with shoplifting acted out of starvation, the public prosecutor requests the questioning of a witness who is supposed to testify that the defendant received a meal in a soup kitchen immediately before the crime.
  • Process-related request for evidence: It is made in the event that a certain litigation situation occurs. Example: The defense attorney names a further witness in the event that the witness initially named by him cannot be summoned because his whereabouts are unknown.

Differentiation from the request for evidence

A distinction must be made between the request for evidence, the so-called request for evidence, which does not mention a specific subject of evidence or any specific evidence (example: a request is made to question a certain witness to clarify the details of the course of the crime), and the suggestion of evidence (example: it is requested that the The court should ask the police whether other police officers have observed the event and then summon them as witnesses). Such requests are not evidence. They can always be refused if the court's duty to inform does not require them to be investigated.

Legal policy

In October 2019, the responsible minister Christine Lambrecht presented key points on her agenda. In the course of the planned reform of the Code of Criminal Procedure, it should no longer be possible in future to unnecessarily delay proceedings, for example by repeatedly filing an application for evidence. The rights of those affected would not be curtailed.

Civil litigation

The right to apply for evidence is not regulated by law in civil proceedings. One therefore falls back on the ideas of § 244 StPO, as far as they are applicable in civil proceedings. In civil proceedings, taking evidence on indisputable facts is superfluous and even inadmissible. As a rule, requests for evidence - unlike in criminal proceedings - are not made in the oral hearing , but in preparatory written pleadings ( Section 129 ZPO ).

Since the facts of the case are not clarified ex officio in civil proceedings , applications that do not name a specific subject of evidence but amount to investigation by the court (so-called investigation evidence ) are inadmissible.

Requests for evidence do not need to be formally rejected. Their rejection is simply the fact that the court issues a judgment without investigating them. In practice, the most important reason not to pursue a petition for evidence is that the evidence presented is irrelevant . Example: The plaintiff demands compensation from the defendant because he claims to have been beaten by the defendant and names a witness for this. The defendant denies this and invokes the statute of limitations . If the court considers the statute of limitations objection to be well founded, it is irrelevant whether the defendant has beaten the plaintiff. The witness named for this is no longer heard.

literature

  • Vierhaus, Hans-Peter: Right of Evidence in Administrative Processes, Munich 2011, Verlag CH Beck, ISBN 978-3-406-62025-6 .
  • Hamm / Hassemer / Pauly. Right to apply for evidence. Series of publications: Praxis der Strafverteidigung, Vol. 22nd 2nd, revised and expanded edition, Heidelberg 2007
  • Herdegen in: Karlsruhe Commentary on the Code of Criminal Procedure , 5th edition 1999, § 244
  • Greger in: Zöller, Zivilprozessordnung , 25th edition 2005, before § 284 margin numbers 8a -13b

Individual evidence

  1. Meyer-Goßner / Schmitt, StPO, § 233 Rn. 22nd
  2. Bernd Heinrich , Tobias Reinbacher: Right to request evidence and rejection of the request for evidence University of Tübingen, as of April 1, 2018
  3. a b BGH, decision of May 9, 2007, Az. 1 StR 32/07, BGHSt 51, 333ff.
  4. Dominik Waszczynski: The rejection of requests for evidence according to § 245 Abs. 2 StPO and the self-loading right of the accused ZJS 2010, p. 318-324
  5. Christian Rath, "Not only Sunday speeches " LTO of October 10, 2019