Neutrality of the court

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The neutrality of the court is an imperative of the rule of law . Neutrality in the sense of the separation of powers presupposes

  • that courts are sharply separated from legislation and administration.
  • Another prerequisite is that the judges involved are neutral and impartial. The basic condition of impartiality is the judge's personal and factual independence and his or her commitment to the law ( Art. 97 (1) GG , Section 1 GVG , Section 25 DRiG ).
  • According to the established case law of the Federal Constitutional Court, it must be ensured that the judge is an uninvolved third party; The person seeking justice may not stand before a judge who is not uninvolved because of close relatives, friendship or enmity, or with regard to other legal or personal relationships with a party involved in the proceedings and who lacks the necessary neutrality and distance.

Therefore the possibility of exclusion (excluded judge) or rejection (due to bias) is one of the neutrality requirements of the court. Corresponding regulations can be found in the court regulations z. B. § 41 ZPO , § 22 StPO . The principle can also be found in the case law of the European Court of Justice (ECJ).

The principle of the neutrality of the court in democracies with separation of powers is differently pronounced around the world.

Individual evidence

  1. ↑ BVerfGE 3, 377 = NJW 1954, 833, st. Rspr., Cf. BVerfGE 48, 300 = NJW 1978, 1795.
  2. ↑ BVerfGE 21, 139 = NJW 1967, 1123.
  3. ↑ ECHR, Pullar case, RJD 1996-III, 783 (794), §§ 36 ff.
  4. ↑ EKMR, E. 7428/76 (X. against Austria), DR 13, 36 (38 f.)

literature

  • Klaus Schlaich: Neutrality as a constitutional principle. Mainly in constitutional and state church law . In: Tübingen jurisprudential treatises . tape 34 . Mohr, Tübingen 1972, ISBN 978-3-16-634072-2 (XVIII, 298 pages. TübRA 34).
  • Oleg Jur'ewitsch Schirinsky: The implementation of the procedural guarantees from Art. 6 ECHR in the Russian legal system. (PDF) In: Jur. Diss. Heinrich Heine University Düsseldorf. December 12, 2006, p. 235 , accessed on November 16, 2009 (neutrality of the court in European law).

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