Legal assistance

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Mutual legal assistance is the legal term for the performance of an individual, specific judicial act by a court other than the court that is basically dealing with the case, for example the questioning of a witness who lives abroad by a judge in whose judicial district the witness lives. This must be an official act which the requesting court can also perform, but which is transferred to the requested judge for reasons of expediency. It should be noted here that all courts are obliged to provide legal assistance in the area of ​​their jurisdiction. A refusal of mutual assistance is only possible if the required official act would be inadmissible under the law of the requested court ( Section 158 of the Courts Constitution Act (GVG)).

This must be distinguished from administrative assistance , which is a request for assistance from one authority to another authority or a court.

A distinction must be made here between domestic legal assistance, which systematically belongs to Article 35 of the Basic Law , and international legal assistance.

Special regulations on domestic legal assistance can be found, for example, in Sections 156, 158 GVG, Section 13 ArbGG , Section 14 VwGO , Section 13 FGO and Section 5 SGG .

International legal assistance

International legal assistance means that assistance is provided by foreign authorities, in particular courts and consulates . International mutual legal assistance is primarily granted on the basis of mutual international agreements on mutual legal assistance and extradition , but it can also be provided without a contract (“ Courtoisie ”, “ mutual legal assistance ”). The basis for international mutual legal assistance in civil and commercial matters are, among others, the Hague Service Convention and the Hague Convention on the Taking of Evidence ; in criminal law extradition and mutual assistance contracts. Legal assistance in criminal matters without an international legal basis (so-called goodwill legal assistance) is granted in Germany in accordance with the Law on International Mutual Legal Assistance in Criminal Matters (IRG).

In international mutual legal assistance in criminal matters, a distinction is made between

  • the delivery to the requesting state ( large legal assistance ), and
  • carrying out all other criminal prosecution acts for a foreign state, such as the delivery of judicial notices, questioning witnesses or obtaining and handing over evidence ( minor legal assistance ).

The extradition procedure is a formal procedure in which a person is to be taken from the state in which he is staying to the requesting state in order to be brought to justice there or to serve a sentence that has already been imposed .

The subject matter of the minor legal assistance is essentially bringing about deliveries, questioning witnesses and obtaining evidence through searches , securing and surrendering documents (especially business documents) and information (e.g. bank information).

Legal assistance is generally provided by the judicial authorities (judicial legal assistance). Mutual assistance can also be provided in proceedings in relation to acts which, according to the domestic law of the requesting contracting party or the requested contracting party, are punished as violations of legal provisions by administrative authorities, against whose decision a court competent, in particular in criminal matters, can be appealed (Art. 1 IV 2. ZP-EuRhÜbk) (administrative legal assistance).

The requests are usually transmitted through diplomatic channels, as the route from court to court is only possible to a limited extent. International mutual legal assistance presupposes that the so-called public policy is observed, which means that it can only be provided if it does not contradict the principles of the domestic legal order. For Germany, for example, this results from Section 30 IRG.

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