Basic judicial right
As Justice fundamental right is called in German law a fundamental right that individuals a subjective legal position in the event of legal proceedings granted. Fundamental judicial rights thus guarantee the possibility of legal protection and compliance with certain procedural principles. In Art. 19 , para. 4 of the Constitution is the legal guarantee laid down, which allows access to the courts.
Basic judicial rights in the Basic Law
Basic judicial rights in the Basic Law for the Federal Republic of Germany are the prohibition of exceptional courts ( Article 101.1 sentence 1 GG), the right to a legal judge ( Article 101.1 sentence 2 GG), the right to a fair hearing ( Article 101.1 sentence 1 GG) . 103 para. 1 GG), the criminal law prohibition of retroactivity and analogy ( Art. 103 para. 2 GG), the prohibition of double punishment ( ne bis in idem , Art. 103 para. 3 GG) and the legal guarantees in the event of deprivation of liberty ( Art. 104 GG).
Because they are not part of the basic rights section of the constitution, they are actually not basic rights, but rights equal to basic rights . Their violation can be reprimanded with a constitutional complaint to the Federal Constitutional Court ( Art. 93 (1) No. 4a GG).
Carrier and addressee
As with all basic rights, the basic judicial rights also bind all state powers ( Article 1, Paragraph 3, Basic Law). The specialty is that the bearer of the basic judicial rights can be not only citizen, but also the state, as long as it is a party to the proceedings. This is justified with the nature of the judicial process to create equality of arms between the parties .
Demarcation
The independence of the judge (judges are only subject to the law, Art. 97 GG) is related to the basic judicial rights, but does not itself represent a basic right, since the individual involved in the process cannot refer to it directly.
The guarantee of legal recourse is occasionally counted among the basic judicial rights. However, it does not affect the rights in the proceedings, but a right to access to the court, so it precedes the fundamental rights of justice. For the most part, the state is also not seen as a possible bearer of the guarantee of legal recourse.