Judge's reservation

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The judge's reservation is a statutory provision of jurisdiction , according to which only one judge is responsible for certain state measures and decisions. These norms of jurisdiction can be found in constitutional law (in Germany: Art. 13 , Art. 104 Basic Law ), and in particular in criminal procedure law (in Germany: various norms of the Code of Criminal Procedure ) and in federal and state police law , but also in other areas of law (e.g. B. voluntary jurisdiction, care law, immigration law). According to this, especially serious or abuse-prone interventions in the legal interests of an individual are dependent on a court order or authorization. This concerns, for example, house searches, deprivation of liberty, physical interventions, telephone surveillance , the so-called large eavesdropping or, in some cases, DNS analyzes .

The judge's reservation breaks the responsibility of the executive authority for the first access, with the result that the administration (police, public prosecutor and other authorities) may only act after a judicial authorization. The idea behind this is that in these cases the mostly unannounced interventions would regularly create a fait accompli, so that subsequent judicial protection would come too late and the guarantee of legal recourse would be void. Certain provisions of Eilzuständigkeit ensure again that in exceptional cases - especially in the case of imminent danger - the authorities at least allowed a preliminary procedure (so-called risk delegations.).

The regulations on judicial reservations and their exceptions are designed very differently in individual cases, even within the respective legal areas. In many cases the judge at the local court - especially the so-called investigating judge - is responsible for the decision.

The practice of judicial activity based on judicial reservations is often viewed critically, especially in criminal procedural law. For example, actual legal investigations into telephone surveillance show that in a number of cases the decisions are not drawn up very thoroughly. This has led to the suspicion that judges may order or approve serious encroachments on fundamental rights after a rather superficial examination - although this should not be the case according to the sense of the judge's reservation.

literature

  • Malte Rabe von Kühlewein: The judge's reservation in police and criminal procedure law . Frankfurt a. M. 2001.
  • Hans-Jörg Albrecht, Claudia Dorsch, Christiane Krüpe: Legal reality and efficiency of the surveillance of telecommunications according to §§ 100a, 100b StPO and other covert investigative measures . Freiburg im Br. 2003.
  • Otto Backes , Christoph Gusy , with the assistance of Maik-Carsten Begemann, Siiri Doka and Anja Finke: Who controls the telephone monitoring? - An empirical study on the judge's reservation in telephone surveillance . Peter Lang Verlag, Frankfurt am Main 2003, ISBN 978-3-631-51279-1 .
  • Jakob Pichon, Neverending Story: News about the judge's reservation for blood withdrawals (§ 81a Abs. 2 StPO) , HRRS 11/2011, 472 [1]
  • Claudia Talaska: The judge's reservation in criminal procedural law - a useful element of the protection of fundamental rights? Hamburg 2007.