Non liquet

The Latin term non liquet originally comes from the Roman court case and means "it is not clear". Even today, in procedural law , non liquet denotes a situation in the case of problems of evidence in which neither the factual presentation of one side nor the other can be proven.

Consequences of the non-liquet situation of a legal case

The consequences of a non liquet differ depending on the type of procedure:

Civil litigation

In civil proceedings , the decision in the case of a non liquet depends on the (material) burden of proof . The person who, according to the rules of the burden of proof, has to prove the fact in dispute loses the legal dispute because it remains to be proven (usually the claimant).

Criminal trial

In criminal proceedings , a non liquet leads, depending on the stage of the procedure:

in the preliminary investigation to terminate the proceedings against the accused
in the interim proceedings for the refusal to admit the indictment against the accused
in the main trial for the acquittal of the accused .

However, if evidence leaves considerable doubts about the crime or the guilt of the accused, so that both a favorable and an unfavorable conclusion can be drawn, this also leads to acquittal or suspension in criminal proceedings (→ in dubio pro reo ).

Administrative process

In the administrative process , the question of who is responsible for the unprovability of a fact depends on substantive law. In principle, the principle of favorability applies , but the state must always justify an encroachment on fundamental rights .

“Answering the question of who bears the risk of 'non liquet' is part of substantive law and therefore does not depend on the type of legal action that is permitted. In principle, each participant bears the legal disadvantage for the fact that the elements favorable to him cannot be proven (so-called favorability principle or standard favoring principle [...]). By interpreting the substantive norm, it is necessary to determine which distribution arrangement applies to the unwritten norm of the burden of proof contained therein. There is just as little an absolutely valid material principle of the burden of proof in administrative law as in civil law [...]. If the state claims the right to intervene in an area of freedom protected by a negatory fundamental right , it bears the burden of proof for the legal requirements for this encroachment in accordance with the principles on the burden of proof in contestation litigation [...]. Because in the free democracy of the Basic Law , sovereign interference in a basic right requires justification; conversely, the exercise of basic rights does not need to be justified [...]. "

- BVerwG , judgment of May 21, 2008, Az. 6 C 13.07, full text , Rn. 44.

Others

The late Enlightenment Lichtenberg has suggested as an abbreviation for critical- annotating reading : “To use the NL when reading, non liquet. "

Individual evidence

^ Georg Christoph Lichtenberg: J 409. In: Lichtenberg: Writings and letters. Edited by Wolfgang Promies . Volume 1: Sudelbücher I. 3rd edition Hanser, Munich 1980, ISBN 3-446-10800-9 , p. 714.

[1] Georg Christoph Lichtenberg: J 409. In: Lichtenberg: Writings and letters. Edited by Wolfgang Promies . Volume 1: Sudelbücher I. 3rd edition Hanser, Munich 1980, ISBN 3-446-10800-9 , p. 714.