Publication of court decisions

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This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

The publication of court decisions concerns the publication of court decisions , be it in full (in Germany: with tenor , facts and reasons for the decision ) or more or less abridged and edited by the respective publisher. The decision is often preceded by a guiding principle ; sometimes only the guiding principle is published.

The publication practice in the various national legal systems differs considerably in terms of type, scope and access channels. The same applies to the underlying legal regulations. In many countries , for example, court decisions are exempt from copyright protection so that they can be freely distributed.

In principle, the greatest possible publicity of court decisions is required in case law and legal literature as well as in public debate. All judgments of interest to the public (and other forms of decisions, e.g. court decisions ) should be published. In recent times, it has been increasingly pointed out that publication on the Internet would best meet this disclosure requirement.

Court decisions are usually published in:

  • legal and other specialist journals,
  • collections of decisions published by the courts or private publishers ,
  • in the trade press, hardly in the daily press,
  • in paid internet databases ,
  • in free internet databases and on websites .

Only a small part of the total court decisions are actually published, with big differences depending on the court.

Germany

history

The emergence of judicial collections of decisions - a prerequisite for modern publications - is fed by two historical sources: the obligation to give reasons for judicial decisions and the keeping of court books.

Written reasons for judgments - initially only in the lower instance and not intended for the litigation parties or even the public, but for the higher instance in appeal proceedings - have only existed since modern times. In Germany, the obligation to give reasons is found for the first time in the Württemberg land law of 1610.

Court books ( city ​​books , jury books) with the listing of the parties to a dispute and the verdict have been around since the 13th century. For a long time, they were only used for internal court and archival purposes.

Both lines of development gradually merged. In Prussia, for example, the general obligation to give reasons without exception was introduced in 1831. and from 1837 published there on official order and editorially edited the decisions of the Royal Secret Higher Tribunal intended for the public . The Supreme Court and the Federal Court led from the start intended for the public collections of the most important for legal practice decisions: Decisions of the Supreme Court in civil matters (RGC) and decisions of the Supreme Court in criminal matters (RGSt) since 1879 with 173 or 77 volumes until 1945 and Decisions of the Federal Court of Justice in Civil Matters (BGHZ) and decisions of the Federal Court of Justice in Criminal Matters (BGHSt) since 1951. Other courts also keep their own collections of decisions or enable other publication.

Legal position

In 1997 the Federal Administrative Court stated that by virtue of federal constitutional law , all courts […] have the task of making the decisions of their tribunals accessible to the public. In this respect, the publication of court decisions is a public task. It covers all decisions that the public has or can have an interest in publishing.

As a justification it says there: This obligation follows from the rule of law including the obligation to grant justice, the democracy requirement and also from the principle of the separation of powers: Court decisions specify the provisions of the law; they also train the law (see also Section 132 (4 ) GVG ). For this reason alone, the publication of court decisions has a significance comparable to the promulgation of legal norms. In an increasingly complex legal system, citizens must be able to reliably find out what rights they have and what duties are incumbent on them; the possibilities and prospects of individual legal protection must be approximately predictable for him. This is not possible without sufficient publicity in case law. Justice in a democratic constitutional state and especially in an information society must - like the other state powers - also face public criticism. It is not only a question of the fact that a certain development of the jurisprudence can be questioned as a mistake in public. The relevant decisions must also be accessible to the citizen so that he is in a position at all to be able to influence a legal development that is questionable in his opinion with the aim of a (legal) change. The principle of democracy as well as the principle of mutual inhibition of violence, which is inherent in the principle of the separation of powers, require that an impetus for a parliamentary correction of the results with which the judiciary contributes to legal development must also be possible via the formation of public opinion. Last but not least, it also helps the administration of justice for the task of further developing the law if the publication of court decisions enables a professional discussion.

Publication Practice

In an article on LexisNexis Germany in JurPC in 2005 it was stated that the publication density in Germany is very low. Reference is made there to the investigation by Walker 1998 (see web links) for the period from 1987 to 1993. According to this, the share of published judgments in all cases settled was around 0.5%. There are big differences between the instances. While z. B. Local courts very rarely publish decisions, a 1994 study by the Federal Constitutional Court found a rate of 30%. This is likely to have increased significantly due to the free internet publication on the court's website, although it should be noted that the court's decisions are only posted there in a - unsubstantiated - selection.

Anonymization

Decision prints issued by the courts or self-published are usually anonymized and neutralized, i. H. essentially the names of those involved in the proceedings have been made unrecognizable. This is done for reasons of data protection and other rights worthy of protection. The Federal Administrative Court also assumes anonymization and neutralization in its decision mentioned.

In 2004, Knerr expressed doubts about the procedural principle of public disclosure against the prevailing opinion.

copyright

According to § 5 Abs. 1 UrhG on official works , decisions and officially drafted guidelines do not enjoy copyright protection.

Regarding the officially drafted guiding principles, the Federal Court of Justice stated: A guiding principle is to be regarded as officially drafted within the meaning of Section 5 (1) UrhG if it has been formulated by a member of the panel with his approval and has been made available to the public. It is irrelevant whether there is an official obligation to draft guidelines. The only decisive factor is whether the content of the pronouncement is recognizably attributable to the court, i.e. whether it originates from the public authority.

According to the prevailing opinion, decision databases of courts are not official works. Whether they are subject to database protection according to §§ 87a ff. UrhG (see also database work ) is controversial. According to the decision of the Federal Court of Justice in the case of the "Saxon tendering service", databases can also be official within the meaning of § 5 UrhG. The usual wording Any form of commercial use requires the prior consent of the court and is therefore condemned by critics as a property right notoriety.

Making decisions

Private individuals who are not involved in the process can receive anonymized and neutralized decision prints. While in the past the calculation was usually done page by page (0.50 euros per page), a flat fee (often in the amount of 12.50 euros) per decision is now becoming the norm. In view of the very hesitant attitude towards decisions on the Internet, critics consider this cost structure to be prohibitive.

Older decisions published in specialist journals or decision collections can be viewed free of charge in libraries and reproduced at the usual cost of copying.

If a court refuses to provide a decision, there is a judicial administrative act in the area of civil law , against which action can be taken in accordance with § 23 EGGVG .

Usually require courts to specify the reference number when requesting decisions.

Image example of an anonymized decision print (temporary injunction)

  • Temporary 1.png
  • Temporary2.png

Important collections of decisions in the German language area

year from tape
RGZ RGSt RAG PrOVG RVA RFH StGH SZ KH RG UBI
1880 1 1 6th in RGZ 18th 2 5 6th
1890 24 20th 19th 28 11 9 16
1900 45 33 36 37 nF 1 11 26th
1910 72 43 55 47 nF 11 15th 36
1920 97 54 75 11 2 2 SSt 1 VfSlg 2 46
1930 127 63 5 85 26th 26th 127 12 10 nF 9 56
1940 162 (−172) 74 (−77) 22 (−27) 105 (−106) 46 (−51) 48 (−54) 66
BGHZ BGHSt BAGE BVerwGE BSGE BFHE BVerfGE SZ SSt VfSlg UBI
1950 1 1 55 23 21st 15th 76
1960 31 13 8th 10 11 70 10 33 31 25th 86
1970 53 23 22nd 35 30th 97 27 43 41 35 96
1980 76 29 32 59 49 129 53 53 51 45 106
1990 110 37 64 84 66 159 81 63 61 55 116
2000 143 45 93 110 85 191 101 73 63 65 126
2010 183 54 133 136 105 228 125 2010 2010 75 136
systematically
LM , BGHR AP , EzA Buchholz Socr BFH-N NBVerfG

Individual evidence

  1. ^ Heinrich Gehrke: The private law decision-making literature in Germany. Frankfurt am Main 1974, p. 28.
  2. ^ Circular rescript of May 24, 1831, Yearbook for Prussian Legislation 37 (1831), 344.
  3. ↑ BVerwG, judgment of February 26, 1997 , Az. 6 C 3.96, full text.
  4. ^ BGH, judgment of November 21, 1991 , Az. 1 ZR 190/89, full text.
  5. ^ BGH, ruling of September 28, 2008, Az. I ZR 261/03 "Saxon tendering service"
  6. ↑ alex.onb.ac.at/ogh.htm
  7. ↑ alex.onb.ac.at/rgr.htm
  8. ↑ servat.unibe.ch/dfr/dfr_bge00.html
  9. ↑ List of the 75 decisions published in the appendix of RGZ :
    RGZ Lammers / Simons date Register
    number    		 object
    102, 415 1, A III 16 1921-07-12 St. 5/21 Braunschweig. Term of election of the national assembly
    102, 425 1, A III 13 1921-07-12 St. 4/21 Bremen. Committees of inquiry of the citizenship
    104, 423 1, A III 7 1922-01-12 2/21 Württemberg. Parliamentary committees of inquiry
    106, 426 1, AI 6 1923-06-15 10/22 State Treaty on State Railways. Resignation to the national service
    107, 1 * 1, AI 2 1923-06-30 4/21 Expropriation for imperial railways in Prussia
    107, 17 * 1, A III 4 1923-09-29 3/22 Saxony. State Audit Office
    108, 426 1, AI 5 1924-07-12 6/22 Saxony. Free travel for the synodals on the Reichsbahn
    109.1 * 1, AI 7 1924-09-27 1/23 Classification of the state railway officials taken over
    109, 17 * 1, AI 3 1924-10-18 5/23 Licensing of railways
    109, 30 * 1, AI 8 1924-10-18 4/23 Seniority of the Reichseisenbahn officials
    111, 1 * 1, A III 1 1924-05-10 5/22 Prussian Nobility Act of June 23, 1920
    111, 21 * 1, A II 4 1925-10-10 2/25 Interim disposal
    112, 1 * 1, A III 2 1925-11-21 3/25 Issuing emergency ordinances in Prussia
    112, 13 * 1, AI 12 1925-11-21 1/25 Reich waterways. Dams of the empire
    112, 21 * 1, A II 2 1925-06-29 7/23 State treaties. Clausula rebus sic stantibus
    112, 33 * 1, AI 11 1925-12-12 3/24 Reich waterway administration
    113, 1 * 1, A II 6 1926-06-05 4/25 Mecklenburg-Strelitz. Its quality as "land"
    114, 1 * 1, A II 7 1926-10-16 4/25 Mecklenburg. Monastery and estate assets
    114, 7 * 1, AI 14 1926-10-16 2/26 Joint academy. Art. 174 RVerf.
    115, 1 * 1, AI 9 1926-11-20 1/26 Railway officials. State Treaty of April 30, 1920 (?)
    116, 1 * 1, AI 10 1927-05-07 3/26 German State Railroad Company. Board of Directors
    116, 18 * 1, A II 1 1927-06-18 7/25 Sinking of the Danube
    116, 45 * 1, A III 15 1927-06-18 1/27 Braunschweig. Parliamentary committees of inquiry
    118, 1 * 1, A III 5 1927-10-15 4/26 Appreciation of state services to the churches
    118, 22 * 1, A III 20 1927-12-17 6/27 Mecklenburg-Strelitz. Suffrage
    118, 41 * 1, AI 1 1927-10-15 3/27 Bremen customs exclusion areas
    120, 1 * 1, AI 16 1927-12-03 5/26 Saxony. Old retirees
    120, 19 * 1, A III 11 1928-05-12 3/28 Jurisdiction of the State Court
    121, 1 * 1, A II 3 1928-06-09 5/25 Pollution of the Weser water
    121, 8 * 1, A III 6 1928-07-07 4/28 Party ability
    121, 13 * 1, A III 3 1928-07-09 9 and 11/27 Emergency Ordinance Law. Municipal body. Flag compulsion
    122, 1 * 1, A II 5 1928-07-07 2/25 Sovereign rights in the Bay of Lübeck
    122, 17 * 1, AI 19 1928-11-17 4/27 Beer tax community. Invalidity of an imperial law
    123, 1 * 2, A III 10 1929-01-19 6/28 Bavarian State Court
    123, 13 * 2, A III 11 1929-03-22 13/28 Saxony. State election
    124, 1 * 2, A III 12 1929-03-22 7/28 Württemberg suffrage
    124, 19 * 2, A III 1 1929-03-23 8/28 Emergency Ordinance Law. Approval of the state parliament
    124, 40 * 2, A III 15 1929-03-23 5/28 Waldeck
    125, 1 * 2, A III 2 1929-07-13 5 and 7/29 Emergency Ordinance Law
    126, 1 * 2, A III 3 1929-10-23 19/29 Interim disposal
    126, 9 * 2, A III 8 1929-12-11 19/28 Prussia. Right of self-government. Umgemeindungen
    126, 14 * 2, A III 7 1929-12-11 9, 11, 14, 15,
    16 and 18/29    		 Prussia. Right of self-government. Incorporations
    126, 25 * 2, AI 3 1929-12-13 Tgb. 35/28 Bavarian disciplinary proceedings
    127, 1 * 2, A III 4 1929-12-19 19/29 Officials and referendums
    127, 25 * 2, AI 1 1929-12-09 3/29 Reich supervision. title
    127, 49 * 4, A III 24 1930-02-19 8/29 Mecklenburg-Strelitz State Councilors
    128, 1 * 4, A III 1 1930-02-17 12/28 Prussia. Suffrage
    128, 16 * 2, A III 13 1929-12-07 13/27 Braunschweig. State and Church
    128, 46 * 4, A III 16 1930-02-18 10/29 Württemberg government. Dispute your order
    129, 1 * 4, A III 8 1930-06-24 2/29 Expert authority of the parliamentary groups
    129, 9 * 4, AI 4 1930-07-11 5/30 School prayers
    129, 28 * 4, AI 3a 1930-07-18 7/30 Interim disposal
    130, 1 * 4, AI 3b 1930-11-21 7/30 Objections to the rapporteur's decisions
    130, 3 * 4, A III 10 1930-11-21 2/30 Public corporations may be a party to their membership
    130, 11 * 4, A III 4 1930-11-21 21/29 Prussian provincial election law
    131, 1 * 4, AI 1 1930-11-25 11/28 Board member of the Deutsche Reichsbahn-Gesellschaft
    132, 1 * 4, A III 23 1931-04-24 4/30 Lübeck Citizenship Election Act
    133, 1 * 4, A III 25 1931-04-28 16/30 Schaumburg-Lippe. Emergency Ordinance Law
    133, 15 * 4, A III 21 1931-04-28 14/30 Stop. Incorporation. Suffrage
    133, 29 * 4, A III 11 1931-06-13 12/30 and 1/31 Commercial tax liability of lawyers
    134, 1 * 5, AI 1 1931-10-24 18/30 De-registration from religious education
    134, 12 * 5, A III 16 1931-12-05 11 and 13/31 Mecklenburg-Strelitz. Incorporation
    134, 26 * 5, A III 8 1931-12-05 17/30 Saxony. Municipal tax emergency ordinance
    135, 1 * 5, A III 1 1932-02-12 12/31 Prussia. Right of the minority in the state parliament to convene
    135, 30 * 5, A III 3 1932-03-15 10/31 Prussia. Ordinance law. State Election Act
    137, 1 * 5, A III 13 1932-06-18 1/30 Lip. Acquisition of business shares
    137.5 * 5, A III 12 1932-06-21 2/32 Hesse. Ministry of Commerce
    137, 17 * 5, A III 4 1932-06-20 10/31 Prussian savings regulation. Civil servant rights
    137, 47 * 5, A III 2 1932-06-21 9/31 Prussian Police Administration Act
    137, 65 * 5, AI 2 1932-07-25 15/32 Prussia. Appointment of a Reich Commissioner
    138, 1 * 5, AI 3 1932-10-25 15, 16, 17
    and 19/32    		 Prussia. Appointment of a Reich Commissioner
    138, 43 * 6, A III 2 1932-10-24 14/31 Württemberg. Municipal suffrage
    139, 1 * 6, A III 4 1932-11-10 13/32 Braunschweig. Quorum of the state parliament
    139, 7 * 6, A III 5 1932-12-20 20/32 Prussia. Convocation of the state parliament
    139, 17 * 6, A III 8 1932-12-20 39/32 Prussia. Election of the Prime Minister

literature

  • Detlev Fischer: Official guidelines and collections of decisions - An overview based on the development in the area of ​​ordinary jurisdiction. In: Legal Training. 1995, pp. 654-657.

Web links