Principle of immediacy
The principle of immediacy is a process maxim that states that the facts relevant to the decision should flow into the judgments of the courts as directly as possible .
Legal situation in Germany
principle
In German law, the principle of immediacy for civil proceedings is codified in § 128 , § 309 and § 355 ZPO , for administrative processes in § 96 and § 101 VwGO and for criminal proceedings in § 244 , § 250 and § 261 StPO .
The principle applies to judicial negotiations and means that the negotiation takes place in direct, direct contact between the court and the parties to the litigation and those involved in the litigation ( oral principle ) at a location specified by the court (this does not have to be the seat of the court) or with the help of technical aids mediated direct visual contact (connection to an electronic conference) takes place. A mere telephone negotiation ( conference call ) is not sufficient.
Civil and administrative jurisdiction
In civil and administrative jurisdiction, the principle of immediacy includes the requirement that the hearing should take place orally ( Section 128 ZPO or Section 101 VwGO) and that the evidence is collected during the hearing itself ( Section 355 ZPO and Section 96 VwGO). The Code of Civil Procedure also contains the stipulation in Section 309 of the ZPO that the judgment can only be made by judges who were present at the hearing. In the case of extensive proceedings, however, it is considered sufficient if the presence relates to the last hearing with the determination of the facts.
Immediacy in criminal proceedings
In criminal proceedings , a distinction is made between formal and material immediacy.
The formal immediacy means that the judges can base their decisions only on the perceptions they made during the main hearing . For this it is necessary that all judges involved in the decision have taken part in the entire main hearing. If it is foreseeable that criminal proceedings will extend over a longer period of time, a substitute judge can be appointed. He takes part in the main hearing and steps in if one of the ordinary judges fails before the end of the trial.
Material immediacy is understood to mean that the most obvious evidence must always be used to prove a fact. For example, hearing a witness is preferable to reading out an interrogation protocol.
The principle of immediacy does not categorically exclude the questioning of a witness who gives evidence of other people's statements ( hearsay witness ), since he too communicates his own perceptions.
Immediate revision
The principle of immediacy does not apply to the auditor , since no more facts are established there. The appeal courts only judge legal issues.
Legal situation in Switzerland
In Switzerland , the Swiss Code of Criminal Procedure, which came into force on January 1, 2011, no longer provides for processes based on the principle of immediacy. The previously existing jury courts were therefore lifted on this date.
literature
- Franz Riklin : The principle of immediacy in Swiss criminal procedure law , in: Journal for the entire criminal law science. Volume 126, 2014, pp. 172-183
- Jocelyne Leblois-Happe: The principle of immediacy in French criminal procedure law , in: Journal for the entire criminal law science. Volume 126, 2014, pp. 184-192
- Lorena Bachmaier Winter: The principle of immediacy in Spanish criminal proceedings , in: Journal for the entire criminal law science. Volume 126, 2014, pp. 193-212
- Daniele Negri: The principle of immediacy in the Italian criminal procedure code: cultural backgrounds, detours of the jurisprudence, constitutional results , in: Journal for the entire criminal law science. Volume 126, 2014, pp. 213-237
Individual evidence
- ^ Witness from hearsay, in: Creifelds, Legal Dictionary, CH Beck, Munich 2011, p. 1445
