Definition and significance of the extraordinary complaint
Die Extraordinary Complaint is a legal remedy that is applied in various judicial proceedings, especially under German law. It allows judicial decisions to be challenged when regular remedies such as appeal, revision, or complaint are either excluded or already exhausted. The extraordinary complaint serves as protection against serious procedural violations and infringements of the right to be heard or fundamental rights.
Legal foundations of the extraordinary complaint
Statutory Foundations
Under German procedural law, the extraordinary complaint is not an original, statutorily codified remedy. Rather, it is an extraordinary legal remedy that has arisen through case law and is recognized in individual cases. The extraordinary complaint is based in particular on:
- Art. 103 para. 1 Basic Law (right to be heard in court)
- Section 321a German Code of Civil Procedure (ZPO) – Restoration of the right to be heard
- Section 33a German Code of Criminal Procedure (StPO) – Restoration of the right to be heard
- Analogous application of Sections 578 et seq. ZPO to non-judicial decisions
The German legal system does not contain an explicit regulation for the extraordinary complaint. However, it is occasionally permitted by court rulings.
Historical Development
The extraordinary complaint developed from the need to correct obvious and serious procedural defects when the normal instances have been exhausted or when other remedies are not available. In practice, such complaints were especially allowed in cases of violations of the right to be heard or fundamental rights.
Requirements for the extraordinary complaint
General Requirements
For the extraordinary complaint to be admissible, the following requirements must generally be met:
- No ordinary legal remedy available: There is no longer any possibility to challenge the decision through ordinary means.
- Serious procedural error: The decision is based on a significant violation of procedural fundamental rights, particularly Article 103 para. 1 Basic Law (right to be heard) or another constitutional fundamental right.
- Fundamental significance or risk of recurrence: The error must be of fundamental significance, or there is a risk of recurrence in future comparable proceedings.
- Immediate and serious impairment: The decision must seriously impair the legally protected positions of the affected person.
No suspensive effect
The extraordinary complaint does not have a suspensive effect. This means the challenged decision remains effective – unlike with some remedies – until a decision is made on the extraordinary complaint.
Areas of Application
Civil Law
In civil proceedings, according to Section 321a ZPO (restoration of the right to be heard), an independent complaint is available in the event of a violation of the right to be heard. In addition, the extraordinary complaint can be admissible by analogy against final judicial decisions if a particularly serious procedural error exists and no other legal remedy is available.
Criminal Law
In criminal proceedings, Section 33a StPO provides a comparable remedy for the restoration of the right to be heard. In cases of serious violations of fundamental rights, an extraordinary complaint may be considered under certain circumstances.
Administrative Law
In administrative procedural law, an extraordinary complaint may be permissible, for example, if a court has massively violated the right to be heard and no ordinary remedies exist.
Labor Law, Social Law, Family Law
In other areas of law, such as labor law, social law, or family law, the extraordinary complaint may also be relevant in cases of corresponding serious procedural violations, but always under very strict requirements.
Distinction from other legal remedies
Ordinary legal remedies
Unlike appeal, revision, or complaint, the extraordinary complaint is not a legally defined remedy and applies only to exceptional situations where ordinary legal remedies fail.
Reopening of proceedings
The reopening procedure (Sections 578 et seq. ZPO, Sections 359 et seq. StPO) serves to vacate final judgments if certain grounds for reopening are present, but is independent in substantive and procedural law and differs from the extraordinary complaint.
Remonstrative petition (Gegenvorstellung)
The remonstrative petition is an informal legal remedy against judicial and administrative decisions with the aim of obtaining a review or change. However – unlike the extraordinary complaint – it cannot lead to judicial review, but is directed to the deciding court or authority itself.
Procedure and Decision
Filing
The extraordinary complaint is generally filed in writing directly with the court that issued the decision, unless there are specific procedural requirements.
Review and decision-making competence
The court dealing with the extraordinary complaint examines the requirements both formally and materially. If it is determined that there is indeed a significant procedural violation, the court has the option to overturn or correct the contested decision.
Consequences of granting the complaint
If the extraordinary complaint is granted, the challenged decision is set aside and, if applicable, the proceedings are reinstated to the stage before the procedural error.
Legal consequences and effect
The extraordinary complaint is not an ordinary, legally guaranteed remedy. Its legal consequences are therefore limited to the correction of obvious, fundamental procedural errors. It serves to ensure the right to be heard and the observance of constitutional and procedural principles in court proceedings.
Criticism and significance in case law
The admissibility and scope of the extraordinary complaint are evaluated differently in literature and practice. Its actual practical significance is low due to strict admissibility requirements, but it remains of essential importance as a last resort in serious exceptional cases for the legal protection of the parties involved.
Summary
Die Extraordinary Complaint is an exceptionally recognized, not expressly legally regulated remedy used to correct serious judicial errors after the exhaustion of regular legal remedies. It serves particularly to protect against serious violations of fundamental procedural principles but remains an exception and is subject to strict requirements. The extraordinary complaint is therefore an important instrument for safeguarding the right to be heard and ensuring procedural fairness in rare exceptional cases.
Frequently Asked Questions
Who is entitled to lodge an extraordinary complaint?
An extraordinary complaint may, in principle, only be lodged by parties involved in the previous proceedings or their legal representatives, provided that they are adversely affected by the challenged decision. The scope of entitlement to lodge a complaint is determined by the relevant procedural rules and may vary depending on the branch of the court. In some cases, such as a constitutional complaint, third parties may also lodge a complaint under certain conditions if they claim to have had their own rights violated. In addition, representation by a lawyer is mandatory in certain instances, so that, in such cases, the complaint may only be submitted by a legally qualified attorney.
What deadlines apply for filing an extraordinary complaint?
The deadlines for filing an extraordinary complaint are determined by the respective procedural provisions and may vary greatly depending on the field of law. Generally, extraordinary remedies are often subject to time limits, with the exact deadline regularly specified in the law. In many cases, the deadline is two weeks or one month after service of the decision. If the complainant misses this deadline, the extraordinary complaint is generally inadmissible, unless the law provides for reinstatement in certain cases. Particular care must therefore be taken with regard to the calculation of deadlines and the reliable service of the decision.
In which proceedings is an extraordinary complaint admissible?
The extraordinary complaint is generally admissible when ordinary legal remedies are no longer available or must, for particular reasons, be exhausted. It is typically applicable in proceedings in which fundamental legal errors, such as violations of the right to be heard or infringements of procedural fundamental rights, are asserted. For example, it may be permissible under certain conditions in civil, criminal, or constitutional proceedings. Careful examination of the relevant procedural rules is essential, as admissibility often depends on special statutory requirements.
What must an extraordinary complaint necessarily contain?
The extraordinary complaint must include the designation of the challenged decision, a precise account of the actual and legal grounds for the complaint, a detailed reasoning—especially concerning the respective legal infringement—as well as, if applicable, the designation of evidence. Furthermore, information about the entitlement to lodge the complaint, compliance with deadlines, and the competent court must be provided. Depending on the procedural rules, formal requirements such as submission in writing, the complainant’s or representative’s original signature, and the attachment of certain documents (e.g., a copy of the challenged decision) may be mandatory.
What effect does the filing of an extraordinary complaint have on the enforcement of the contested decision?
Filing an extraordinary complaint generally does not have suspensive effect, unless expressly provided by law or the competent court orders a suspension of enforcement in a particular case. In practice, this means that the challenged decision can initially be enforced even though the complaint has been filed. However, upon application by the complainant, it is possible to request a preliminary order to suspend enforcement provided there are serious reasons for such a measure. This is subject to the court’s decision on a case-by-case basis.
How is a decision made on an extraordinary complaint and what legal consequences are possible?
The extraordinary complaint is decided by the next higher court or decision-making body as determined by the relevant procedural rules. The court examines, in particular, whether the formal and substantive requirements of the complaint are met. If the complaint is successful, the contested decision can be revoked, amended, or remanded to the previous instance for a new decision. If, on the other hand, the complaint is unfounded or inadmissible, it will be dismissed. The decision is usually final and regularly not subject to further appeal.
