In-camera process
An in-camera procedure ( lat . In camera for in the chamber , ie “secret”) is a special intermediate procedure in the administrative process under German law . Denied the supreme supervisory authority in an administrative court proceedings after due discretion submit documents of confidentiality reasons , can - at the request of an interested party and the Court of the merits provided that the withheld documents for relevant to the decision considered - in in camera according to § 99 Code of Administrative Procedure , the legality the reluctance to be checked by the “specialist senates for in-camera proceedings” ( Section 189 VwGO) set up specifically at the higher administrative courts and at the Federal Administrative Court . The blocked documents are to be presented to the specialist senates in full and without blackening, which complies with the rule of law. The documents presented will not be disclosed or made accessible to the public or those involved in the dispute, not even to the court of the main issue. They remain in the specialist senate, ie "in the chamber". In the in-camera procedure, it is determined whether the authority is entitled to keep the documents secret.
Current legal situation
According to Section 99 (1) Sentence 1 VwGO, authorities are generally obliged to submit documents or files, to transmit electronic documents and to provide information to the administrative courts . These findings - obtained by the court on application or ex officio ( Section 86 VwGO) - become accessible to the opposing party, as he has a right to inspect files ( Section 100 VwGO). In addition, such information can also become generally public, since according to § 55 VwGO i. V. m. § 169 GVG the court hearing is generally public.
However, if disclosure would be detrimental to the welfare of the federal government or a state or if the processes must be kept secret according to a law or their nature, the responsible supreme supervisory authority can submit documents or files, transmit the electronic documents and issue them refuse to provide information in accordance with Section 99 (1) sentence 2 VwGO. At the request of one of the parties involved, the specialist senate decides according to § 189 VwGO of the Federal Administrative Court or a higher administrative court according to § 99 para. 2 VwGO on whether the refusal to provide information is lawful. The highest supervisory authority has to submit the refused information at the request of this panel. The in-camera procedure is subject to the rules of confidentiality . The reasons for the decision must also not reveal the type and content of the information kept secret.
A corresponding procedure is provided for in Section 86 of the Financial Court Regulations for the financial process. There is no in-camera procedure in criminal proceedings.
development
The in-camera procedure was only introduced by the law on the adjustment of the right to appeal in the administrative process of December 20, 2001 ( BGBl. 2001 I p. 3987 ). The court was able to decide beforehand whether the refusing authority had made sufficiently credible that the legal requirements for refusal were met. However, it was not able to inspect the refused documents for assessment, since according to the old legal situation the information would have been considered to have been introduced into the process and thus also become known to the plaintiff.
While in-camera proceedings were not uncommon internationally (cf. for example proceedings under the Freedom of Information Act in the USA or the “Huberschwiller” case law of the State Council in France ), German case law and legislation shied away from this for decades.
In 1999 the Federal Constitutional Court ruled in the context of a constitutional complaint that Section 99 (1) sentence 2 in conjunction with V. m. Paragraph 2 sentence 1 VwGO old version is incompatible with the guarantee of legal recourse in Article 19 Paragraph 4 of the Basic Law , insofar as it excludes the submission of files in those cases in which the granting of effective legal protection depends on knowledge of the administrative processes. It also made it clear that the restriction of the parties' right to inspect files pursuant to Section 100 (1) VwGO with regard to the information to be disclosed only for the decisive panel was compatible with the right to be heard under Article 103 (1) of the Basic Law (which also includes inspection of files) if the effective legal protection required by Art. 19 Para. 4 of the Basic Law can only be enabled through this restriction .
Individual evidence
- ^ A b Elisabeth Buchberger: Judicial legal protection against intelligence activities . In: Jan-Hendrik Dietrich et al. (Ed.): Intelligence services in the democratic constitutional state . tape 1 . Mohr Siebeck, Tübingen 2018, ISBN 978-3-16-155923-5 , p. 107–124 , on the in-camera procedure, pages 116–120 .
literature
- Elisabeth Buchberger: Legal protection against intelligence activities . In: Jan-Hendrik Dietrich et al. (Ed.): Intelligence services in the democratic constitutional state . tape 1 . Mohr Siebeck, Tübingen 2018, ISBN 978-3-16-155923-5 , p. 107–124 , on the in-camera procedure, pages 116–120 .
- Sven Schüly: The “in-camera” procedure of the administrative court code . With special consideration of the area of tension between effective legal protection and confidentiality (= Nomos Universitätsschriften. Recht . Volume 489 ). Baden-Baden, Nomos 2006, ISBN 3-8329-2164-8 .
- Hans von Egidy: Duties to submit documents and interests in secrecy in the administrative process in Germany and France. Nomos, Baden-Baden 2005, ISBN 3-8329-1209-6 (also: Munich, University and Paris, Université de Paris II, Panthéon-Assas, dissertation, 2004).
