Right to be heard

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After Art. 103 para. 1 Basic Law (GG) has in Germany before court everyone is entitled to a fair hearing (lat. Audi alteram partem ). In essence, it means that statements by the disputing parties must not only be heard , but also assessed in terms of content and, if necessary, taken into account when reaching a judgment . The right to be heard is a right that is equal to fundamental rights (not a fundamental right , as can be seen from Article 93, Paragraph 1, No. 4a of the Basic Law) and is at the same time a special form of constitutional rule of law . The right to be heard is achieved through the judicial notification obligation .

Historical roots

The right to be heard is an old criminal procedural right. It goes back to the French Cardinal Jean Lemoine (1250-1313), who justified it theologically with reference to the circumstances of the expulsion of Adam and Eve from Paradise , because God had Adam and Eve before the judgment was issued because of the eating of the forbidden fruit given the opportunity to justify itself (Genesis 3 / 11-13): “And he said: Who told you that you were naked? Have you eaten from the tree from which I commanded you not to eat from it? "Then said Adam:" The woman whom you brought with me gave me from the tree, and I ate. "Then said the Lord God to the woman: "Why did you do that?" The woman said: "The snake deceived me, so that I ate."

General

The Federal Constitutional Court took a position on this in the following decisions:

“The right to a fair hearing guaranteed in Art. 103 (1) GG is a consequence of the rule of law for judicial proceedings. The individual should not be the mere object of the procedure, but should have their say before a decision that affects their rights in order to be able to influence the procedure and its result "

"The Basic Law ensures the right to be heard in judicial proceedings through the basic procedural right of Article 103, Paragraph 1 of the Basic Law. The right to be heard is not only a" procedural original right "of the human being, but also an objective procedural principle that is essential for a constitutional process within the meaning of the Basic Law is constitutive (see BVerfGE 55, 1 <6>). Its constitutional significance is also in the claim to a fair trial according to Art. 6 Para. 1 of the European Convention on Human Rights as well as Art. 47 Para. 2 and Art. 41 Para. 2 lit. a of the European Charter of Fundamental Rights . The individual should not only be the object of the judicial decision, but should also have a say before a decision that affects his rights in order to be able to influence the procedure and its result as a subject ( See BVerfGE 9, 89 <95>). The right to be heard ensures the parties a right to information, expression and consideration, with the result that they are not responsible for their behavior in the process independently and in a situation-specific manner. In particular, it ensures that their statements and motions are heard. "

“ Art. 103 (1) GG is therefore functionally related to the guarantee of legal protection (see BVerfGE 81, 123 <129>). This ensures access to the procedure, while Article 103.1 of the Basic Law aims to ensure that the procedure proceeds appropriately: Whoever arrives formally at the court should also arrive substantially, i.e. really be heard. If a court violates hearing in the course of the proceedings , it thwarts the ability to effectively assert a violation of law in court. "

“According to the constant case law of the Federal Constitutional Court, Article 103, Paragraph 1 of the Basic Law obliges the court to take note of the statements of those involved in the process and to consider them. The requirement of the right to be heard as a fundamental procedural right is intended to ensure that the decision to be made by the specialized courts is free of procedural errors, which are due to failure to take note of and not to take into account the factual presentation of the parties. "

Individual expressions of the right to be heard

General

The right to be heard grants everyone who is involved in judicial proceedings or is otherwise directly affected by them the right to

  • to find out about the subject matter of the proceedings (see also inspection of files ),
  • to be able to express oneself adequately in legal and factual terms at least in writing before a decision is issued and
  • to be taken into account with his submissions in the decision-making process.

It also means that a complainant should gain knowledge of a decision through access.

The right to be heard only guarantees the entitled person the opportunity to express themselves in the proceedings. If he has had this opportunity in individual cases, but has not taken it, the claim is satisfied (summons, written statement). Naturally, the right to be heard does not guarantee that the decision will ultimately be made in accordance with what the person entitled to bring forward. The statements made by those involved are only to be taken into account if they are relevant and relevant.

In principle, it can be assumed that the courts will take into account the factual submissions of those involved in the process, i.e. H. take note of the arguments and weigh them against each other in their decision. The court does not have to deal with all, but only with the main arguments of the parties involved.

Notice of hearing

From the - more exonerating - point of view of the BVerfG follows (e) from Article 101.1 of the Basic Law the legislator's duty to open up the possibility of a hearing complaint at the specialist court level:

“If the alleged violation of the fundamental procedural right occurs in the last instance provided for in the procedural rules and the error is relevant to the decision, the procedural rules must provide for an independent judicial remedy. Otherwise, observance of the fundamental right under Article 103, Paragraph 1 of the Basic Law would remain unchecked in the specialized courts (...). Accordingly, in the decision of the plenary session from 2003, the Federal Constitutional Court, because it considered the legal protection system for legal protection in the event of violations of the fundamental procedural right under Article 103 (1) of the Basic Law to be inadequate, ordered the legislature to make a new regulation that met the requirements for clarity of legal remedies . The legislature wanted to comply with the law on legal remedies in the event of a violation of the right to be heard (Hearing complaint law), ... "

Administrative procedural law

In administrative procedural law , the right to be heard v. a. to bear in § 108 Abs. 2 VwGO : The judgment may only be based on facts and evidence to which the participants could comment; If necessary, one of the parties to the process has the right to emphasize his right to be heard in the form of a complaint to be heard in accordance with Section 152a VwGO.

Civil procedural law

Opportunity to comment on opposing submissions

"The granting of a fair hearing presupposes that a court decision is based only on facts and evidence on which the parties were able to comment beforehand"

"Pursuant to Section 156 (1) and (2) sentence 1 of the German Code of Civil Procedure , the courts are obliged to reopen the oral hearing ex officio if a violation of the right to be heard is recognizable"

If, in the case of an action for wages for work, the opposing party presents an invoice and proof of assembly on the last day of the submission deadline, which were sent to the defendant after the submission period has expired, the court may not override the defendant's notification that the claim has been fulfilled after the submission period has expired.

Requests for evidence

“In this sense, Article 103, Paragraph 1 of the Basic Law, in conjunction with the principles of the Code of Civil Procedure, requires consideration of substantial requests for evidence. Although grants Art. 103 para. 1 GG no protection against the fact that the court leaves the submissions of the parties on the grounds of formal or substantive law disregarded in whole or in part. Failure to consider an offer of evidence that the specialized courts consider to be significant violates Article 103 (1) of the Basic Law if it is no longer supported by procedural law ( BVerfGE 69, 141 <143 and 143>). "

Notice obligation

“ Art. 103 (1) GG guarantees those involved in the proceedings that they have the opportunity to comment on the underlying facts before a court decision is made and thereby influence the decision-making process of the court. Such an opportunity is not only lacking if a participant has not had a say or if the court bases its decision on facts on which the participants could not comment (see BVerfGE 10, 177 <182 and 182>; BVerfGE 19, 32 <36>, established case-law). Granting the right to be heard in accordance with the constitutional requirement also presupposes that the party involved in the proceedings is able to recognize, by exercising the care required of him, which factual presentation may be relevant for the decision ( cf.BVerfGE 84, 188 <190>). It is true that Article 103, Paragraph 1 of the Basic Law does not result in a general obligation of the judge to ask questions and provide information. A court then violates Article 103, Paragraph 1 of the Basic Law and the requirement of a fair trial if, without prior notice, it makes demands on the presentation of the facts or focuses on legal aspects that even a conscientious and knowledgeable participant in the process cannot accept after the previous course of the proceedings needed to calculate (see BVerfGE 84, 188 <190>; BVerfGE 86, 133 <144 and 144>; BVerfGE 7, 350 <354>). "

Orality principle

The right to be heard can also be met in writing. According to Article 103, Paragraph 1 of the Basic Law, there is no absolute compulsion to hold an oral hearing. When regulating Section 552a ZPO, the legislature permissibly decided to grant the right to be heard in writing (see Section 552a sentence 2 in conjunction with Section 522 (2) sentence 2 ZPO).

However, according to Art. 6 Para. 1 ECHR, in certain cases mentioned there, an oral hearing must take place at any point in the entire procedure. In this case, if the entire process does not involve a single oral hearing, this violates the fundamental right to be heard.

Party presentation, consideration

The Federal Constitutional Court took a position on this in the following decisions:

“The right to a fair hearing guaranteed in Art. 103 (1) GG obliges the court to take note of the statements of those involved in the proceedings and to consider them (…). However, Article 103, Paragraph 1 of the Basic Law is only violated if it is clear in the individual case that the court has not fulfilled this obligation. A violation of Article 103, Paragraph 1 of the Basic Law to be determined by the Federal Constitutional Court exists if, in individual cases, special circumstances make it clear that the actual submissions of one of the parties were either ignored or not considered in the decision. "

Article 103, Paragraph 1 of the Basic Law in conjunction with the principles of the Code of Civil Procedure requires the consideration of substantial submissions and substantial requests for evidence (...). Although granted type 103rd para 1 GG no protection against the fact that the Court's argument leaves the parties on the grounds of formal or substantive law excluded all or part of (...). the right to be heard is violated, however, if the failure to consider lectures or requests for evidence is no longer supported in procedural law. "

- A court that regards undisputed party submissions as controversial and not proven, without this finding support in procedural law, violates the right to be heard by the relevant party.

- "If the court does not deal with the essential core of the factual presentation of a party on a question that is of central importance for the procedure, in the reasons for the decision, this leads to the conclusion that the presentation has not been taken into account, unless it is based on the legal position of the court was insignificant or obviously unsubstantiated. "

Hearing of witnesses

If the order for an advance payment is omitted - even if it is inadvertently - with a deadline set, the hearing of a witness present for whom no advance payment has been made may not be refused because the advance payment has not been made.

There is a violation of the right to be heard if a court of appeal deviates from the first-instance assessment of evidence without a new hearing of witnesses:

"According to § 529 Abs. 1 Nr. 1 ZPO, the appellate court must base its decision on the facts established by the court of first instance, unless specific indications justify doubts about the correctness or completeness of the determinations relevant to the decision and therefore require a new determination According to the jurisprudence of the Federal Court of Justice, this presupposes at least as a rule a renewed hearing. In particular, the appellate court must hear a witness who has already been heard in the first instance again in accordance with Section 398 of the German Code of Civil Procedure (ZPO) if it “appreciates” or “understands or assesses his statement differently "Wants as the lower court. A renewed hearing can" at best "be omitted if the appellate court bases its deviating assessment on circumstances that neither the judgment, the memory or the truthfulness of the witness nor the completeness and contradiction the nature of his statement (...). Also with regard to objective circumstances that can play a role in the assessment of evidence and that have not been taken into account by the first instance, the appellate court may not come to the conclusion that the witness is in a decision-making process without a new hearing of the witness and, in deviation from the lower instance Point has objectively said the untruth due to a lack of judgment, memory or love of truth "

Discussion of an expert opinion

“If a civil court intends to base its decision on an expert opinion, it is part of the constitutional right to be heard to give the parties the opportunity to further explain the expert opinion upon request. In this case, the civil court is denied the possibility of completely ignoring an application for an explanation of the expert's report or simply not complying with it because the report appears convincing to it and does not require further discussion. The possibility of further explanation of the expert opinion to be granted takes into account the crucial importance of the expert opinion for the outcome of the proceedings. In principle, it is up to the court to decide how to bring about the desired explanation; the oral hearing of the expert is only one way, albeit one that seems particularly suitable ”.

Incorrect application of § 321a ZPO (hearing complaint)

As simple legal warranties can extend beyond the right to be heard in the Rules of Procedure on the specific constitutionally guaranteed level of access to justice, does not represent a violation of basic legal provisions inevitably also a violation of Art. 103 1 para. Basic Law. "However, bids Art. 103 para. 1 GG that both the normative design of procedural law and the judicial procedure in individual cases open up a degree of legal hearing that is appropriate to the requirement of effective legal protection following the rule of law in civil disputes , and that the parties involved have the opportunity there to assert oneself in the process with factual and legal arguments (...). The violation of a corresponding procedural provision therefore also constitutes a violation of Article 103 (1) of the Basic Law if the court misjudged the meaning or scope of the right to be heard when interpreting or applying the procedural provision. "

FamFG

"For the court, Article 103, Paragraph 1 of the Basic Law gives rise to the obligation to check whether the parties involved in the proceedings were granted a fair hearing before issuing a decision (...). What is decisive for this duty of the court is the idea that those involved in the proceedings must have the opportunity to influence the decision-making process of the court. The right to be heard requires that the court making the decision takes note of the statements of those involved in the proceedings and takes them into account. "

The person concerned must be informed and heard prior to the decision of a supervisory court regarding a compulsory presentation and investigation to establish supervision.

Criminal procedural law

principle

In criminal law , the right to be heard affects a large number of paragraphs:

Opinion from the other side

“The right to be heard is therefore regularly violated if the court does not give a party to the proceedings, before it makes an unfavorable decision, to comment on the opinion of the opposing party in the proceedings (...). This applies - even if the hearing violation according to the case law of the Federal Constitutional Court leads to the annulment of the decision only under the condition that it is based on the violation (...) - in principle regardless of whether, under the given circumstances, it can be assumed that a possible counter-opinion has an impact on the outcome of the decision, or not. Because the fundamental right to a fair hearing serves not only to guarantee factual decisions, but also to preserve the subject position of those involved in judicial proceedings. "

Appeal

Disregard of the right to be heard violates the person concerned in his general freedom of action according to Article 2, Paragraph 1 of the Basic Law in conjunction with the rule of law according to Article 20, Paragraph 3 of the Basic Law.

Normal remedy

Violations of the right to be heard can be asserted using normal legal means.

Notice of hearing

If there is no legal remedy, a hearing complaint can be filed with the court of origin ( iudex a quo ) . If the violation of the right to be heard is not remedied, a constitutional complaint can be lodged .

Constitutional complaint

A constitutional complaint will not be accepted for decision in accordance with Section 93a (2 ) BVerfGG if it has no prospect of success. It is inadmissible if the legal process has not been exhausted ( Section 90 (2) sentence 1 BVerfGG).

“Before filing a constitutional complaint, legal recourse must usually be exhausted ( Section 90 (2) sentence 1 BVerfGG). Insofar as it is admissible, this also includes the hearing complaint "" If the constitutional complaint ... invokes a violation of the right to be heard, a hearing complaint to the specialized court is also part of the legal process, on the exhaustion of which the admissibility of a constitutional complaint usually depends is (...). This applies to the constitutional complaint as a whole, not just to the complaint of violation of the right to be heard ”.

“For the raising of the complaint, it is irrelevant whether the complainant expressly complains of the violation of his right to be heard, citing Article 103 (1) of the Basic Law. Because the obligation to exhaust the legal process before filing a constitutional complaint also includes the raising of an admissible and not completely hopeless complaint from the outset, regardless of whether the complainant wants to assert a hearing violation. The only decisive factor is whether, from an objective point of view, it would have been possible to correct the other fundamental rights violations that he complained about by raising a complaint about the hearing. "

However, a violation of the right to be heard can only result in the decision being reversed if it is based on the violation.

A mere perpetual hearing impairment does not constitute an independent violation of Article 103.1 of the Basic Law; "A secondary hearing objection is constitutionally not required - also from the point of view of effective legal protection." " Art. 103, Paragraph 1 of the Basic Law does not result in a claim that the court follows a specific legal opinion."

Application for a preliminary injunction

In the event of a violation of the right to be heard, an application for a temporary injunction in accordance with Section 32 (1) BVerfGG can also be considered.

"According to Section 32 (1) BVerfGG, the Federal Constitutional Court can provisionally regulate a situation in the event of a dispute by means of an interim order if this is urgently required to ward off serious disadvantages, to prevent threatening violence or for another important reason for the common good. The reasons are which are presented for the unconstitutionality of the act of sovereignty attacked are generally disregarded, unless the main request to be pursued, in this case the constitutional complaint, proves from the outset to be inadmissible or obviously unfounded (...; established case-law). In the case of an open outcome of the main proceedings, the consequences that would arise if the interim order were not issued but the constitutional complaint later succeeded must be weighed against the disadvantages that would arise if the coveted interim order were issued, but the constitutional complaint was not successful would be (...; established case-law). Because of de For the mostly far-reaching consequences that an interim order in a constitutional court procedure triggers, a strict standard must be applied when examining the requirements of Section 32 (1) BVerfGG (...; established case-law). In the course of the weighing of consequences required under Section 32 (1) of the BVerfGG, the Federal Constitutional Court generally bases its decision on the findings and assessments of facts in the challenged decisions (...).

See also

Individual evidence

  1. ↑ a b c BVerfG, decision of October 26, 2011, Az. 2 BvR 320/11, full text , Rn. 47 f.
  2. ↑ a b c d BVerfG, decision of January 18, 2011, Az. 1 BvR 2441/10, full text , Rn. 10 ff.
  3. ↑ a b c BVerfG, decision of April 30, 2003, Az. 1 PBvU 1/02, full text Rn. 38 ff. = BVerfGE 107, 395 .
  4. ↑ a b c BVerfG, decision of April 8, 2004, Az. 2 BvR 743/03, full text , Rn. 11.
  5. ↑ Federal Law Gazette 2004 I p. 3220
  6. ↑ BVerfG, decision of March 16, 2011, Az. 1 BvR 2398/10, full text Rn. 9
  7. ↑ a b c BVerfG, decision of November 26, 2008, Az. 1 BvR 3135/07, full text , Rn. 10 ff.
  8. ↑ BVerfG, decision of February 15, 2011, Az. 1 BvR 980/10, full text , Rn. 1 - 22.
  9. ↑ a b BVerfG, decision of December 8, 2011, Az. 1 BvR 2514/11, full text Rn. 26th
  10. ↑ BVerfG, decision of February 13, 2019, Az. 2 BvR 633/16, [1]
  11. ↑ BVerfG, decision of May 19, 1992, Az. 1 BvR 986/91, BVerfGE 86, 133 .
  12. ↑ BVerfG, decision of September 14, 2010, Az. 2 BvR 2638/09, full text , Rn. 14th
  13. ↑ BVerfg, decision of May 14, 2007, Az. 1 BvR 2485/06, full text , Rn. 1 - 33.
  14. ↑ BVerfG, decision of March 14, 2007, Az. 1 BvR 2748/06, full text Rn. 8th.
  15. ↑ a b c BVerfG, decision of October 26, 2010, Az. 1 BvR 2538/10, full text , Rn. 18, 30 f.
  16. ↑ BVerfG, decision of June 6, 2011, Az. 2 BvR 2076/08, full text , Rn. 3.
  17. ↑ BVerfG, decision of January 12, 2000, Az. 1 BvR 1621/99, full text .
  18. ↑ a b BVerfG, decision of December 14, 2011, Az. 2 BvR 68/11, full text , Rn. 8 f.
  19. ↑ BVerfG, decision of December 6, 2011, Az. 1 BvR 1681/11, full text , Rn. 3.
  20. ↑ BVerfG, decision of August 9, 2011, Az. 2 BvR 280/11, full text , Rn. 7th
  21. ↑ a b BVerfG, decision of July 20, 2011, Az. 1 BvR 3269/10, full text Rn. 3.