Right to a fair trial

The right to a fair trial (“ fair trial ”) is a judicial expression of the rule of law . In Europe, the principle is laid down in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The right to a fair trial is realized, among other things, through the right to an oral hearing and the judicial notification obligation .

General

In German constitutional case law, the validity of a right to a fair (constitutional) trial is affirmed. It is one of the essential principles of a constitutional process and is qualified as a general procedural fundamental right. Its roots are in the rule of law ( Art. 20 , para. 3 GG seen). This in connection with the civil liberties and Art. 1 Abs. 1 GG or (only) in connection with the general liberty according to Art. 2 Abs. 1 GG. Some consider the fairness requirement to be congruent with the legal principle of good faith .

According to the Federal Constitutional Court, the right to a fair trial does not contain any detailed rules or prohibitions; rather, it needs to be made more specific depending on the factual circumstances. A violation of the right to a fair trial only exists if an overall view of the procedural law, including in its interpretation and application by the specialized courts, shows that conclusions that are mandatory under the rule of law have not been drawn or that what is legally indispensable has been disclosed. All those restrictions that are not covered by the more specific procedural guarantees of fundamental rights are to be measured against the general procedural fundamental right of the fair trial.

Part of the right to a fair trial is the acceleration principle, according to which trials must end without unnecessary procedural delays; This principle serves not only to safeguard the rights of those affected by the process, but also to safeguard the proceedings, since "the evidence base can be falsified by the passage of time".

Criminal trial

The principle is particularly important in criminal proceedings . The right to a fair trial is one of the fundamental principles of constitutional criminal proceedings. These include in particular the right to be heard , the independence of the court and effective defense by a lawyer . Individual manifestations in criminal proceedings are the presumption of innocence and the principle of equality of arms between the public prosecutor and the accused. Furthermore:

The usability of unlawfully collected or obtained information must be measured against the right to a fair trial.
The accused must not only be the subject of the trial; Rather, he must be given the opportunity to influence the course and outcome of the proceedings in order to safeguard his rights.
The admission of the accessory prosecution in the StPO does not violate the right to a fair trial.
The use of informers and spies to fight drug crime or terrorism does not violate the right to a fair trial.
The general, but also the special criminal procedural acceleration principle, especially in custody cases . In the event of unnecessary delays, the pre-trial detention must be lifted after a certain period of time; in the event of an unnecessary delay in the criminal proceedings for which the perpetrator is not responsible, part of the pronounced sentence is already assessed as compensation in the judgment "as already enforced" (the so-called `` enforcement solution '' ').

Social court process

“The right to a fair trial derived from Art. 2 Para. 1 GG in conjunction with the rule of law or Art. 6 ECHR is intended to ensure that disputes are negotiated by an independent and impartial court based on law in a fair process, publicly and within a reasonable period of time (see BSG decision of June 18, 2014 - B 10 ÜG 1/14 B - Juris RdNr 22). It is violated if basic legal protection standards, such as the requirement of equality of arms between the parties involved (see ECHR, NJW 1995, 1413 - Dombo Beheer), the prohibition of contradicting behavior or protection against surprise decisions are not observed (see BSG SozR 4-1500 § 118 No. 3 RdNr 16 with further references). "

- BSG , decision of April 20, 2015, Az. B 12 KR 122/14 B, full text , Rn. 11

literature

Luís Greco , Christian Caracas: Internal Investigations and Freedom from Self-incriminations. In: New journal for criminal law . Issue 1, 2015, pp. 7–15.

Individual evidence

↑ ^a ^b ^c ^d ^e ^f BVerfG , decision of 7 December 2011, Az. 2 BvR 2500/09; BVerfGE 130, 1 - Prohibition of exploitation of living space surveillance, Rn. 111 f.
↑ ^a ^b ^c ^d BVerfG, decision of November 5, 2003, Az. 2 BvR 1243/03; BVerfGE 109, 13 - Lockspitzel I, Rn. 67 ff.
↑ VG Köln, judgment of May 10, 2019 - 6 K 693/17 -, nrwe.de , Rn. 26 fmw N.
↑ ^a ^b ^c BVerfG, decision of June 3, 1969, Az. 1 BvL 7/68; BVerfGE 26, 66 , Rn. 22 f.
↑ Since BGH, judgment of March 6, 2008 - 3 StR 376/07; for details: Stefan Biehl: '' The enforcement solution of the BGH - A necessary system change in accordance with the ECHR and the German criminal law and criminal procedure law? '', Schriften zum Strafrecht Vol. 260, Duncker & Humblot, Berlin 2014, ISBN 978- 3-428-84296-4 .

[BVG2011-1] ↑ ^a ^b ^c ^d ^e ^f BVerfG , decision of 7 December 2011, Az. 2 BvR 2500/09; BVerfGE 130, 1 - Prohibition of exploitation of living space surveillance, Rn. 111 f.

[Lockspitzel-2] BVerfG, decision of November 5, 2003, Az. 2 BvR 1243/03; BVerfGE 109, 13 - Lockspitzel I, Rn. 67 ff.

[3] VG Köln, judgment of May 10, 2019 - 6 K 693/17 -, nrwe.de , Rn. 26 fmw N.

[BVG1969-4] BVerfG, decision of June 3, 1969, Az. 1 BvL 7/68; BVerfGE 26, 66 , Rn. 22 f.

[5] Since BGH, judgment of March 6, 2008 - 3 StR 376/07; for details: Stefan Biehl: '' The enforcement solution of the BGH - A necessary system change in accordance with the ECHR and the German criminal law and criminal procedure law? '', Schriften zum Strafrecht Vol. 260, Duncker & Humblot, Berlin 2014, ISBN 978- 3-428-84296-4 .