Legal judge
The right to a legal judge (more precisely: a legally determined judge) is a basic judicial right that stipulates that it must be determined in advance which court and which judge is responsible for legal disputes and processes.
Germany
The right to a legal judge in Germany is regulated in Article 101, Paragraph 1, Clause 2 of the Basic Law (GG) and in Section 16 of the Courts Constitution Act (GVG). It means that everyone is entitled to a pre-determined and subsequently verifiable determination of which judge is responsible for which case. This is to prevent that, contrary to the statutory reservation set up special courts influence the outcome of a specific procedure take (§ 101 para. 1 sentence 1 GG).
The local and factual jurisdiction of the courts is regulated in the Courts Constitution Act or the Code of Criminal Procedure or the Code of Civil Procedure. The distribution of the business between the panels is regulated according to § 21e GVG the business allocation plan established by the Presidium . The distribution within the panel of judges is regulated according to § 21g GVG, the professional judges belonging to the panel . When a decision is taken by the court without jurisdiction or incompetent Chamber in a court, they may violate the right to a lawful judge and has a cast objection or a Besetzungsrüge usually with the revision or the immediate appeal to appeal.
Article 101.1 sentence 2 of the Basic Law can also be violated by the fact that the senate of a higher federal court disregards the obligation to submit a submission to the Grand Senate , even if the Grand Senate only has to decide on a specific legal issue. This only applies if the non-submission is arbitrary, but not if it is just legally erroneous. Arbitrariness based on objective criteria occurs when procedural errors "are no longer understandable if the ideas that dominate the Basic Law are properly assessed and the conclusion that they are based on irrelevant considerations" is therefore imposed. This is assumed if an obviously relevant norm is not taken into account or the content of a norm is blatantly misinterpreted. Even if a court does not submit a legal question to the Federal Constitutional Court (BVerfG) for a decision contrary to a statutory provision , Article 101, Paragraph 1, Sentence 2 of the Basic Law can be violated. Since the Court of Justice of the European Union (ECJ) in Luxembourg is the legal judge within the meaning of Article 101.1 sentence 2 of the Basic Law, a court of last instance violates this guarantee if it fulfills its obligation to appeal to the ECJ by means of preliminary ruling proceedings pursuant to Art. Art. 267 (3) TFEU does not comply. The Federal Constitutional Court only checks whether the rejection of a submission no longer appears understandable and is obviously untenable; a stricter standard than arbitrary control is not required by Article 101.1 sentence 2 of the Basic Law.
Incidentally, a legal judge can only be an impartial, impartial judge ( Art. 97 (1) GG). The legal judge must be an uninvolved third party. For certain reasons, a judge is therefore excluded from the office of judge by law . These reasons are to be considered ex officio in the procedure. If there is concern about bias , a corresponding rejection request is required.
Austria
In Austria , the right to a legal judge is anchored in Art. 83 (2) and 87 (3) B-VG .
Switzerland
In Switzerland, too, it follows from Article 29 of the Federal Constitution and the European Convention on Human Rights (ECHR) that the right to a legal judge exists. However, the Federal Supreme Court and the general practice are of the opinion that the Swiss system of assigning judges according to the business burden is permissible. This approach is "pragmatic" and useful for the administration of justice. In Switzerland, the Federal Administrative Court at most takes on the role of role model , which tries to control the tension between the business burden and specialist knowledge of individual judges on the one hand and the right to legal judges on the other with allocation software (the judges are then allocated "through the computer", which means that there is no influence) to exclude the allocation).
Europe
The European Convention on Human Rights (ECHR) grants the right to a legal judge in Article 6, Paragraph 1, Clause 1 of the ECHR. According to this, every person has the right to have any disputes relating to their civil claims and obligations or any criminal charge brought against them to an independent and impartial court based on the law, in a fair trial, publicly and within a reasonable time.
According to Article 47, Paragraph 2 of the European Charter of Fundamental Rights (GRCH), every person has the right to have their case heard by an independent, impartial court established beforehand by law in a fair process, publicly and within a reasonable period of time.
Historical
National Socialism
Under National Socialism, the right to the statutory judge with express and special courts such as the People's Court was suspended. Appeals or revisions were out of the question in these rapid courts, which passed numerous death sentences.
Weimar Republic
The Weimar Republic was also not entirely free from assigning a certain judge in certain proceedings, although Article 105 of the Weimar Constitution clearly provided for the right to a legal judge.
Cabinet Justice
The historical background of the right to the legal judge is the cabinet justice of absolutist times. At that time, the monarch, as the supreme court lord, was able to appoint or replace a competent judge on an ad hoc basis, or to take the matter over and decide himself and in this way influence the outcome of the proceedings.
Individual evidence
- ↑ BVerfG decision of May 11, 1965 - 2 BvR 259/63 para. 15 printed: NJW 1965 p. 1323 and 1324
- ↑ BVerfGE 4, 1, 7 - binding by a legal instance.
- ^ Kissel, GVG, 5th edition 2008, RN 52
- ↑ BVerfG, NJW 2018, 686
- ↑ BVerfG: 1 BvR 1631/08 . ( bundesverfassungsgericht.de ).
- ↑ BVerfG, decision of October 22, 1986 - 2 BvR 197/83, BVerfGE 73, 339 (366 ff.) = EuGRZ 1987, 10 (17 ff.) - Solange lI decision; Decision of May 31, 1990-2 BvL 12/88 u. a., BVerfGE 82, 159 (194 ff.) = EuGRZ 1990, 377 (387 f.) - Special tax for sales funds
- ↑ Ingo Kraft: The Influence of Art. 6 ECHR on the German Administrative Jurisdiction EuGRZ 2014, pp. 666–675
- ^ Kissel, GVG, 5th edition 2008, RN 31
- ↑ cf. on this, the order for reference VG Wiesbaden, order of March 28, 2019 - 6 K 1016/15
- ↑ Markus Sehl: Submission from Wiesbaden to the ECJ: VG judge doubts the independence of his court LTO , May 9, 2019
