Charge (law)

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Under a summons (depending on the legal area and official practice also subpoena ; outdated also citation ; in ancient Rome : Latin in ius vocatio ) one understands in law the request to appear in person before a government agency ( authority or in court ). In the context of judicial summons, the change to a different date is referred to as reloading , the cancellation of the cargo is referred to as unloading . The term notice of subpoena is factually correct only for subpoenas that establish a (compulsorily enforceable) legal obligation to appear.

General

Authorities or courts can not solely to decide file location (ie administrative acts issued or court judgments cases) but may or may even Participants listen . This right to be heard arises from Article 103, Paragraph 1 of the Basic Law and is a right that is equal to fundamental rights . This right is granted with a summons. The decision based on the file situation is exceptionally possible in administrative , court and other proceedings if they are to be concluded with a legally binding decision , but the presence of the parties is not required to determine the facts relevant to the decision (e.g. in the pension proceedings ), the parties involved despite proper The summons have not appeared ( default judgment ) or have waived their presence, for example in the case of a decision by court order . The decision is then based on the facts known from the written procedural files, without further ascertaining or discussing this through a personal hearing, investigation or oral hearing between the parties involved.

Criminal trial

In the case of a current investigation, it often happens that suspects in a police accused interrogators are preloaded. In contrast to an interrogation with the public prosecutor or an investigating judge, this appointment is not mandatory. If the summoned person stays away, a forced presentation by the police is not permitted under German law, unless a judicial decision has been made.

The charge for the trial is the request of the court to the clearly identified by location and time trial to appear. The summons is not tied to any particular form , but is usually made in writing in German ( Section 184 of the GVG ). In other cases (e.g. in the case of a police summons in accordance with Section 25 of the Federal Police Act ), a summons can also be made orally. A summons can be made under the threat that in the event of failure, a demonstration will take place ( Section 133 (2 ) StPO ).

The summoning of the accused to the main hearing is provided for in § 216 StPO. It also contains the warning that in the event of his unexcused absence, there is a risk of arrest or presentation ( Section 230 (2) of the Code of Criminal Procedure). The decision to open the main proceedings must also be served on the defendant at the latest with the summons ( Section 215 of the Code of Criminal Procedure). Also, witnesses and experts are obliged to charge in front of the prosecutor to appear and cause to testify or her opinion to refund ( § 161a para. 1 StPO). The summons for the purpose of confrontation with a witness takes place in accordance with § 133 StPO. Special provisions on the notification of the absent defendant are contained in Section 287 of the Code of Criminal Procedure and Section 288 of the Code of Criminal Procedure, a legal person or association of persons, Section 444 (2) of the Code of Criminal Procedure. The notice period between the delivery of the summons and the day of the main hearing must be at least one week ( Section 217, Paragraph 1 of the Code of Criminal Procedure), in the accelerated procedure only 24 hours ( Section 418, Section 2 of the Code of Criminal Procedure).

Since August 2017, witnesses have also been obliged under Section 163 (1) of the Code of Criminal Procedure to appear before the public prosecutor's investigators when summoned and to give evidence if the summons is based on an order from the public prosecutor's office. However, if there is no mandate from the public prosecutor, there is no obligation for witnesses to appear before the police.

The summons to commence the sentence in accordance with Section 27 of the Penal Enforcement Code is an invitation to the convicted person to present himself to the prison within a period of time , unless an immediate commencement of the sentence is required. In this way, persons sentenced to a prison term who are not already in custody are requested by the public prosecutor, as the competent enforcement authority , to arrive at the respective penal institution on a certain date . If the convicted person presents himself in this way to commence the sentence, this usually has the consequence that he can immediately benefit from certain relaxation measures (for example, placement in an open prison ). If, on the other hand, the summons to commence the sentence is not followed, an arrest warrant is usually issued against the person. The police then look for her and , if successful, arrest her and take her to the prison.

Civil litigation

In civil proceedings, the summons is an ex officio formal request to appear at a court hearing ( Section 214 ZPO ); In the legal process, it must contain the request to appoint a lawyer ( Section 215 (2) ZPO). The court should order the personal appearance of both parties if this appears necessary to clarify the facts ( Section 141 (1) ZPO). The party is to be notified of the summons himself, even if he has appointed an authorized representative ( Section 141 (2) ZPO). According to Section 217 of the German Code of Civil Procedure (ZPO), the notice period for legal proceedings is at least one week, and in other proceedings at least three days. If the court determines an earlier first court date ( Section 272 (2) ZPO), the action will be served at the same time as the summons ( Section 274 (2) ZPO). The summons to the oral hearing must provide information about the consequences of missing the appointment (§ § 330 ZPO to § 331a ZPO). The instruction must include the legal consequences of Section 91 ZPO and Section 708 No. 2 ZPO (Section 215 (1) ZPO). A witness is summoned in accordance with § 377 ZPO. The summons must be served on the parties themselves, even if they have appointed an agent ( Section 141 (2) ZPO). The charge is determined by the following the determination of the court hearing branch to cause (§ 274. 1 ZPO), which also applies to the charge of witnesses ( § 377 Abs. 1 ZPO). If no service is ordered, the summons can be issued by the local court without any special form ( Section 497 (1) ZPO).

Other areas of law

Other areas of law also know the cargo. According to Section 33 of the FamFG , the court can order a person involved to appear in person at an appointment and hear him or her if this appears pertinent to clarify the matter. The notary has to invite the applicant and the other parties involved to a hearing ( Section 365 (1) FamFG). In social justice , the presiding judge can order the personal appearance of a party to the oral hearing and summon witnesses and experts ( Section 111 SGG ). In administrative jurisdiction , the parties involved are to be summoned with a notice period of at least two weeks, and before the Federal Administrative Court of at least four weeks, as soon as the date for the oral hearing has been set ( Section 102 (1) VwGO ). The charge of all Works members including any replacement members with simultaneous release of the agenda is an essential requirement for the proper realization of a council decision. If a works council member is unable to attend the meeting, a substitute member must be invited ( Section 25 (1) sentence 2 BetrVG ). According to § 802f ZPO, the bailiff invites the debtor to his business premises in order to take the property information .

Authorities

In the formal administrative procedure , the authorities must give those involved the opportunity to express their views before a decision is made ( Section 66 (1) VwVfG ). Authorities decide after an oral hearing what the parties are to be summoned to in writing within a reasonable period of time. In the summons, it must be pointed out that if one of the parties is absent, negotiations and decisions can be made without them ( Section 67 (1) VwVfG). The authorities decide, considering the overall result of the procedure, whereby the administrative acts that conclude the formal procedure are to be issued in writing, justified in writing and sent to the parties involved ( Section 69 (1) VwVfG).

delivery

The delivery of a summons is always required ( § 217 StPO, § 214 ZPO, § 56 VwGO, § 53 FGO or § 63 SGG) and is the responsibility of the office of the summoning court. The notice period begins with the delivery of the summons and ends on the day before the date of the main hearing.

Contumac decision

The Kontumaz decision is a court decision issued against a party who has not appeared ( Latin in contumaciam ). In the absence of the accused at the trial of a criminal trial but a criminal judgment may be issued ( § 232 Code of Criminal Procedure). However, this provision restricts the Kontumaz decision to certain penalties (in the case of a fine of up to 180 daily rates , warning with reservation of punishment , driving ban , confiscation , destruction or rendering unusable in accordance with Section 442 (1) StPO, alone or in parallel). Even if the defendant z. B. deliberately causes his incapacity to stand trial , this circumstance does not prevent the continuation of the main hearing ( Section 231a StPO). The prerequisites for a criminal judgment do not change, however, the principle in dubio pro reo remains decisive.

In civil proceedings, the court issues a contumazial decision ( Latin: declaratio contumaciae ) if it convicts a party to the proceedings who did not appear at the oral hearing in spite of a proper summons (the Contumax ) without further hearing on the matter in accordance with the application (contumazial proceedings). A default judgment is issued against the defaulting defendant, which is based on the actual oral submissions of the plaintiff as admitted ( § 331 ZPO). If, on the other hand, the plaintiff does not appear at the hearing, his complaint will be dismissed ( Section 330 ZPO). A default judgment is therefore issued under simplified conditions, in particular without taking evidence of disputed facts.

International

In accordance with Art. 201 of the Swiss Code of Criminal Procedure, summonses from the public prosecutor, criminal offense authorities and courts are issued in writing. Anyone summoned by a criminal authority must obey the summons (Art. 205 StPO-CH). The police can summon in the preliminary proceedings, there is an obligation to appear, because otherwise the public prosecutor's office may give orders (Art. 206 StPO-CH). According to the Swiss Federal Law on International Private Law (IPRG), a party must be “properly invited” (Art. 27, Para. 2a IPRG). For this purpose, summons to initiate the proceedings must be properly served on the defendant who has not entered into a legal dispute , and access must be given in good time so that the party can defend itself.

In Austria , the summons according to § 131 ÖZPO represents an “invitation to appear at the court hearing (“ Tagsatzung ”), summons are to be served on the parties when an appointment is set by the court according to § 89 ÖZPO. They are also to be sent to the legal representative (Section 93 ÖZPO).

Individual evidence

  1. ↑ A notification is always an administrative act, which is not a legally non-binding request
  2. ↑ Specialized information on disability pension , German Federal Pension Insurance
  3. ↑ Klaus Lüderssen / Peter Riess, The Criminal Procedure Code and the Courts Constitution Act , Volume 3, 1987, p. 13
  4. ↑ BAG, judgment of January 18, 2006, Az.:7 ABR 25/05
  5. ^ Meyers Großes Konversations-Lexikon, Volume 11, Leipzig 1907, pp. 447–448
  6. ↑ Brockhaus' Kleines Konversations-Lexikon, fifth edition, Volume 1, Leipzig 1911, p. 1003