Principle of equality of arms

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The principle of equality of arms (also: requirement of equality of arms ) is a procedural principle and belongs to the procedural minimum standard in constitutional democracies.

Germany

In German law, the principle of equality of arms is an expression of the right to be heard in court ( Article 103, Paragraph 1 of the Basic Law) and the related right to guarantee effective legal protection. It applies in civil cases as in criminal , administrative process and in administrative proceedings . The principle of equality of arms is implemented, among other things, by the legal obligation to notify (Germany) .

Civil litigation

In civil proceedings, equality of arms ensures the formal equality of the procedural legal positions of the parties and their material equivalence to be achieved by the judge in terms of procedural equality of opportunity . This is particularly evident in the right to be heard , which was already known in Roman law ( audiatur et altera pars ). Those involved in civil litigation must be able to assert themselves in the process with factual and legal arguments. Therefore, the court may not, for example, affirm the correctness of disputed facts without a sufficient examination. Without such an examination, there is no basis for a decision that satisfies the rule of law .

There is no equality of arms in asymmetrical process situations or with a structural information gap. The constitutional guarantees based on the rule of law , basic judicial rights , judicial guarantee claims and property require the legislature to at least partially amend the Code of Civil Procedure (ZPO). This also includes effective collective legal protection, which enables merchants, consumers and other persons alike to effectively prosecute them. A discharge from the judiciary requires a procedural design that, as in the USA, makes a settlement settlement appear appropriate in the first instance. For this purpose, for example, unlike declaratory actions, performance actions can be linked with one another according to typical considerations. The resolutions of the 72nd German Juristentag in Leipzig 2018 (DJT) are therefore essentially for group payment actions (including group actions or class actions ) and against the model declaratory action from §§ 606 ff. ZPO.

The necessary fair balance between the parties also includes the equal distribution of the risk at the outcome of the proceedings and the cost burden, the duty of the court to treat the parties equally and the duty to conduct negotiations in an equal manner. The court must not apply double standards. Existing structural imbalances should be compensated wherever possible.

In the case of typical evidential imbalances, simplification of substantiation and evidence may be required , including a reversal of the burden of proof for the disadvantaged party. In the case of unilateral naming of witnesses , the principle of equality of arms is implemented by hearing the unprovable other party in accordance with § 141 ZPO , unless a party approval according to. § 448 ZPO comes into question. The extension to cases of need for evidence without an imbalance is not a question of equality of arms (str.).

The situation of the well-to-do and the poor must be largely equalized when realizing legal protection . A party who, according to his or her personal and economic circumstances, is unable to pay the costs of the litigation, only partially or only in installments, will therefore receive legal aid on application ( Section 114 ZPO).

Criminal trial

As one of the sub-characteristics of the fair trial principle, the principle of procedural equality of arms is also recognized in criminal proceedings. It is characterized by the demand for procedural “equality of arms” between the accused and the accused. This includes, for example, equality of knowledge as a sub-case of equality of arms. At his first interrogation, the accused must not only be told which offense he is accused of and which criminal provisions are to be considered, but he must also be instructed about his procedural rights ( Section 136 StPO). According to § 140 StPO a public defender is appointed. Every defense attorney has the right to inspect files ( Section 147 StPO).

However, procedural-specific differences in the distribution of roles between the state law enforcement bodies and defense are inherent in the peculiarity of criminal proceedings . At least, however, "the subject position of the accused and his right to defense must be kept within a procedural framework of reciprocity and participation".

These principles are also to be extended to the relationship between the rights of the accused and the rights of the injured party in criminal proceedings, in particular if the accused is faced with a joint plaintiff in addition to the public prosecutor's office . In the adhesion process , there is also the response to civil law claims for damages. A possible asymmetry can be countered, for example, by an additional defense counsel or longer written submission periods for the defense counsel.

Administrative process

Article 19 (4) of the Basic Law grants effective legal protection against acts of public authority .

The administrative court can enforce procedural equality and fairness through the judicial notification obligation (Germany) acc. Section 86 (3) VwGO, so that even in first-instance proceedings without the obligation to use a lawyer, those involved who are inexperienced in court can present their position unhindered and effectively.

Administrative procedure

An expression of equality of arms in the sense of an equality of knowledge between administration and citizens is in particular the right to inspect files in administrative proceedings ( Section 29 VwVfG). In some federal states, however, there are not insignificant enforcement deficits on the part of the authorities, so that the right of inspection must be sued at the administrative court.

Legal representation also serves to balance a competency gap between competent administrators and citizens, who are generally ignorant of the law. The fees and expenses of a lawyer or other authorized representative are, however, according to Section 80 (1) and (2) VwVfG not at all in the main proceedings and only eligible for reimbursement in the preliminary proceedings if the objection was successful and in the opinion of the authority the involvement of an agent was necessary in the individual case. A restrictive reimbursement practice makes it difficult to achieve equality of arms. If the objection was unsuccessful, reimbursement of the lawyer's fees cannot be claimed, unless the relevant specialist law contains provisions that deviate from general procedural law, such as B. is the case in expropriation proceedings ( Section 121 (1) and (2) BauGB).

Austria

Since the entry into force of the European Convention on Human Rights in Austria on September 3, 1958, the rights under Article 6 ECHR have been directly applicable fundamental rights there . The Austrian Constitutional Court and the European Court of Human Rights decide on the compatibility of simple law with the ECHR . Equality of arms in criminal proceedings is also discussed in the legal literature.

Switzerland

According to Art. 29 and Art. 30 of the Swiss Federal Constitution , procedural guarantees also include the right to a fair trial and equality of arms. The Swiss Federal Supreme Court interprets the content and scope of these rights on a case-by-case basis.

Europe

In the member states of the Council of Europe , the principle of equality of arms follows from Article 6, Paragraph 1 of the European Convention on Human Rights (ECHR), the right to a fair trial . National law is to be interpreted in the light of the ECHR, so that the ECHR de facto takes precedence over national law.

International right

The principle of equality of arms is anchored in Article 8 of the American Convention on Human Rights (Right to a fair Trial), which applies to Central and South America, and Article 14 of the International Covenant on Civil and Political Rights , which has been ratified by most countries in the world .

Individual evidence

  1. ↑ BVerfG, decision of February 21, 2001 - 2 BvR 140/00
  2. ↑ BVerfGE 52, 131, 156 f.
  3. ^ Zöller, Commentary on the ZPO, 28th edition 2010, marginal number 102 of the introduction, with further references
  4. ↑ cf. BVerfGE 54, 277 <291>; 55, 1 <5 and 5>; 60, 305 <310>; 74, 220 <224>; 74, 228 <233>; 81, 123 <129>; 84, 188 <189 and 189>; 85, 337 <345>; 86, 133 <144 ff.>
  5. ↑ BVerfGE 91, 176 <181>
  6. ↑ The ownership of shares has a double guarantee of ownership and effective legal protection.
  7. ↑ Collective legal protection. Retrieved April 17, 2019 .
  8. ↑ With further details and current developments: Retrieved October 21, 2018 .
  9. ↑ For more details see Martin Weimann: Collective Legal Protection: A Memorandum of Practice , De Gruyter, 2018, ISBN 9783110609172 .
  10. ^ Resolutions of the 72nd German Jurists Conference 2018 in Leipzig (DJT). Retrieved October 21, 2018 .
  11. ^ BAGE 87, 40
  12. ↑ BVerfGE 52, 144; 74, 94
  13. ↑ BVerfGE 55, 94; 69, 140
  14. ↑ BVerfGE 52, 156
  15. ↑ BGH NJW 2000, 143 [145]
  16. ↑ BVerfGE 89, 214; 115, 51
  17. ↑ BVerfGE 52, 145 ff; BGHZ 159, 253 f
  18. ↑ BGH MDR 2006, 285
  19. ↑ BAG NJW 2007, 2427; different view: Noethen, NJW 2008, 334
  20. ↑ z. B. BVerfGE 81, 356
  21. ↑ BVerfGE 110, 226 (253 f.); 38, 105 (111)
  22. ↑ BVerfGE 63, 45 (67)
  23. ↑ Christoph Safferling : The role of the victim in criminal proceedings - paradigm shift in national and international law? Inaugural lecture Marburg April 24, 2009
  24. ↑ Matthias Jahn: Written statement on the draft laws for a 2nd Victims Rights Reform Act , May 13, 2009
  25. ↑ Procedural principles OVG of the State of North Rhine-Westphalia, 2015
  26. ↑ Johannes Bohl: The lawyer's "eternal struggle" to inspect files ( memento of the original from March 5, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. NVwZ 2005, 133 @1@ 2Template: Webachiv / IABot / www.ra-bohl.de
  27. ↑ VG Göttingen, judgment of February 11, 2009 - Az. 1 A 393/06
  28. ↑ The reimbursement of costs and fees in administrative and administrative litigation proceedings 1997
  29. ↑ BVerwG, judgment of February 17, 2005 - 7 C 14.04
  30. ↑ Finding of December 13, 2012 - G137 / 11 on Section 52 Paragraph 1 StPO
  31. ↑ Finding of May 10, 2015 - G 180 / 2014-30 on Section 126 Paragraph 4 Sentence 3 StPO
  32. ↑ Complaint No. 8658/79, judgment of May 6, 1985 ( Memento of the original of January 16, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Bönisch against Austria on the principle of equality of arms as part of fair criminal proceedings  @1@ 2Template: Webachiv / IABot / www.eugrz.info
  33. ↑ Manuela Bauer: Exploitation prohibitions to guarantee equality of arms Verlag Österreich, 2015. ISBN 978-3-7046-6715-1
  34. ↑ Federal Constitution of the Swiss Confederation of April 18, 1999, as of June 14, 2015
  35. ↑ Andreas Donatsch: The official expert and the private expert in the Zurich criminal process ( Memento of the original from March 4, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (without year) @1@ 2Template: Webachiv / IABot / www.rwi.uzh.ch
  36. ↑ Judgment of October 28, 2009, 8C 216/2009 on the obligation to examine and evaluate evidence by a social insurance agency
  37. ↑ Judgment of February 26, 2001, 127 I 73 on expert evidence in criminal proceedings
  38. ↑ ECHR, NJW 1995, 1413, 1414 - Dombo Beheer BV
  39. ^ American Convention on Human Rights
  40. ^ Rainer Hofmann : The right to a fair trial (no year)