Equal treatment in the wrong
The term equal treatment in the wrong denotes a certain legal argumentation : Someone, invoking the principle of equality , demands to be treated in the same way as someone else who has been treated unlawfully . Most of the time, this line of reasoning aims at someone demanding a certain state benefit on the grounds that someone else has also received this benefit, albeit wrongly. Occasionally, that is omission of a state intervention requires the grounds to be someone else, this intervention - also not done - albeit wrongly.
Another case study is when a citizen receives a fine and argues that another citizen did not receive one but acted just as illegally. An example from the case law of the Federal Administrative Court : A professional soldier , contrary to the relevant legal provisions, had procured stationery and information signs. He had appealed against the disciplinary measure imposed on him on the grounds that he had “found” this illegal practice.
Legal situation in Germany
According to the established case law of the German Federal Administrative Court, there is no right to equal treatment in the case of injustice. In particular, the principle of equal treatment in Article 3 (1) of the Basic Law does not grant any entitlement to equal treatment in the case of injustice; the public authority is simply prohibited from proceeding arbitrarily and without a system in the case of measures that interfere with the rights of those affected (in the specific case a construction law removal order ).
If the state administration has a margin of discretion or a margin of assessment, the principle of equality extends to the so - called self - commitment of the administration . An authority must therefore, insofar as an administrative practice has developed, actually treat the same cases in the same legal manner. A general change in administrative practice remains possible. If, however, the administrative practice practiced by the authority is unlawful, then due to the authority's obligation to apply the law correctly , which follows from Article 20.3 of the Basic Law, equal treatment in the wrong is not lawful and the authority is not bound. Citizens can never successfully plead that other cases have also been unlawful.
Legal situation in Liechtenstein
Unlawful equal treatment (equal treatment in the wrong) “ is tied to strict requirements according to the case law of the State Court of Justice (StGH 1997/12, LES 1999, 1 ff.) And must generally be denied (StGH 1998/68, recital 3.3). “Among other things, this is in stark contrast to the democratically legitimized interests in the regularity of norms and decisions. " Basically, the principle of equality according to Art. 31 Para. 1 LV only conveys a right to equal treatment within the law and no right to violation ". The StGH also states that the interest in unlawful equal treatment can only prevail if the competent authorities have indicated that they would not be willing to return to the legal path in the future either.
Legal situation in Switzerland
According to the case law of the Swiss Federal Supreme Court, there is basically no right to equal treatment in the case of injustice. If, however, an authority deviates from the law in constant practice and indicates that it will not make decisions in accordance with the law in the future either, the citizen can demand that he be treated equally, i. H. also to be benefited illegally.
Related principles
- tu quoque : The rejection of an argument based on the behavior of the person making the argument.
Individual evidence
- ↑ a b BVerwG, judgment of July 21, 1994, Az. 2 WD 6/94, full text = BVerwGE 103, 143-148.
- ↑ BVerwG, judgment of June 6, 1975, Az. II C 68.73, full text = BVerwGE 47, 330–379.
- ↑ BVerwG, decision of April 22, 1995, Az. 4 B 55/95, full text = BRS 57 No. 248 (1995).
- ↑ Liechtenstein State Court in StGH 2008, 129.
- ↑ StGH 2008, 129. The StGH cites: Andreas Kley : Grundriss des Liechtensteinischen Verwaltungsrechts , LPS Volume 23, Vaduz 1998, 209; Hugo Vogt: The prohibition of arbitrariness and the principle of equality in the case law of the Liechtenstein State Court of Justice , LPS Volume 44, Schaan 2008, 233 f.
- ↑ The StGH cites as a reference: Andreas Kley: Grundriss des Liechtensteinischen Verwaltungsrechts , LPS Volume 23, Vaduz 1998, 210.
- ↑ Federal Supreme Court, BGE 115 Ia 81.
