Definition and Significance of the Gehörsrüge
Die Gehörsrüge is a legal remedy in German procedural law that allows the alleged violation of the constitutionally guaranteed right to be heard in court, pursuant to Article 103 paragraph 1 of the Basic Law (GG), to be challenged. This right ensures that parties in court proceedings are heard on all aspects relevant to the decision, and that their arguments are at least considered and included in the judicial decision.
Thus, the Gehörsrüge serves to allow the right to be heard to be made up for if it was violated in a court decision and a legal disadvantage has resulted.
Statutory Basis of the Gehörsrüge
Civil Procedure Law (§ 321a ZPO)
In civil procedure law, the Gehörsrüge is regulated in § 321a of the Code of Civil Procedure (ZPO). This provision enables a party in the proceedings to assert the violation of its right to be heard when no further legal remedy is permissible against the court decision in question.
Requirements under § 321a ZPO
- There must be a decision in which the court violated the right to be heard.
- No legal remedy or other legal recourse is available against the decision.
- The party must credibly demonstrate that, due to the violation of the right to be heard, an adverse decision was made against them.
Criminal Procedure Law (§ 33a StPO)
In criminal procedure law, the Gehörsrüge is legally regulated by § 33a of the Code of Criminal Procedure (StPO). Here, it functions as a special type of reopening procedure to eliminate a decision-relevant violation of the right to be heard.
Administrative Procedure Law (§ 152a VwGO; § 178a SGG; § 133a FGO)
The Gehörsrüge is also codified in administrative procedure law, social court jurisdiction, and in fiscal court proceedings:
- § 152a Administrative Court Procedure Act (VwGO)
- § 178a Social Court Act (SGG)
- § 133a Fiscal Court Procedure Act (FGO)
These provisions are largely structured in the same way and serve to effectively enforce the constitutional right to be heard within their respective special procedural codes.
Procedural Steps and Submission of the Gehörsrüge
Form and Deadline
The Gehörsrüge must be filed in writing with the court whose decision is being contested. Generally, legal representation is not required. The deadline for lodging the Gehörsrüge is two weeks from the date of becoming aware of the violation of the right to be heard, but at the latest within one year after notification of the decision (§ 321a para. 2 ZPO).
Reasoning and Substantiation
The party lodging the Gehörsrüge must substantiate its submissions and credibly demonstrate that relevant arguments were disregarded or could not be presented in time. It should be specifically explained how the right to be heard was violated and why this violation was relevant to the decision. Simply expressing dissatisfaction with the decision or offering a different legal assessment is not sufficient.
Scope of Review and Possible Court Decisions
Within the context of the Gehörsrüge, the court only examines whether there has been a violation of the right to be heard and if this was relevant to the decision. There is no renewed, complete substantive or legal review of the entire case.
If the court determines that there has been a violation of the right to be heard, the proceedings must be continued to the extent that the right to be heard was violated (§ 321a para. 5 ZPO). The court may then set aside and reissue the decision in question, with the affected party being heard again.
Distinction from Other Legal Remedies
Relationship to the Anhörungsrüge
The term “Anhörungsrüge” is often used synonymously with Gehörsrüge in colloquial language, but in essence refers to the same legal remedy. However, Gehörsrüge in the narrower sense is the term used in the wording of the statute.
Relationship to Other Legal Remedies
According to the wording of the law, the Gehörsrüge is only available when no other legal remedy or recourse (e.g., appeal, revision, complaint) is possible. It is therefore subsidiary.
Relationship to a Constitutional Complaint
The Gehörsrüge must generally be filed before lodging a constitutional complaint due to a violation of the right to be heard, since the constitutional complaint is principally subsidiary and all other available remedies must be exhausted first.
Significance in Jurisprudence and Practice
The Gehörsrüge is an important instrument of legal protection for effectively remedying procedural errors, especially the disregard or omission of a hearing. It contributes to the proper functioning of the judicial system and ensures fair proceedings.
In practice, however, it must be noted that a violation of the right to be heard does not already exist simply because factual submissions are not followed in content or are considered irrelevant to the decision. What is decisive is whether the court’s decision-making process is based on a complete and correct consideration of all submissions and evidence.
Legal Consequences of a Well-founded Gehörsrüge
If the Gehörsrüge is considered justified, the proceedings are reopened to the extent that the right to be heard was violated. The court can then make a substantively new decision after the affected party has been given a hearing. This procedure thus constitutes a legally established mechanism for ensuring legal justice in the course of appeals.
The annulment of a decision as a result of a successful Gehörsrüge means that the proceedings continue before the same court and in the same instance as far as necessary.
Summary and Evaluation
In German law, the Gehörsrüge constitutes a special statutory legal remedy to assert a violation of the right to be heard after the conclusion of the appeals process. It ensures compliance with the constitutionally guaranteed right to be heard, upholds the principle of a fair trial, and closes procedural gaps in the legal protection system. The Gehörsrüge is subject to strict requirements in terms of form, deadline, and reasoning, and is only available where no other remedies exist.
Literature and Further Links
- Zöller, Code of Civil Procedure Commentary, § 321a ZPO
- Musielak/Voit, ZPO Commentary, § 321a
- BVerfG, Established jurisprudence on the right to be heard (Art. 103 para. 1 GG)
- <a href="https://www.gesetze-im-internet.de/zpo/321a.html”>Text of the law § 321a ZPO
- Article 103 GG – Right to be heard
- <a href="https://www.gesetze-im-internet.de/vwgo/152a.html”>§ 152a VwGO Gehörsrüge
Note: This article is designed for inclusion in a legal encyclopedia and does not constitute legal advice for individual cases.
Frequently Asked Questions
What requirements must be met to file a Gehörsrüge?
For a Gehörsrüge to be validly raised, the court must have violated the constitutionally guaranteed right to be heard (Art. 103 para. 1 GG). The party must set out in a substantiated manner that a violation of the right to be heard, relevant to the decision, exists—for example, because the court disregarded or wrongly failed to consider factual submissions or requests for evidence. The Gehörsrüge must be lodged pursuant to § 321a ZPO or the respective analogous provisions within two weeks from becoming aware of the violation. A judgment must already have been delivered, i.e., the decision must be final or no longer subject to appeal. In addition, no further legal remedy or other legal recourse must be available to assert the violation otherwise. The formal requirements include precise identification of the contested decision, an exact description of the violation of the right to be heard, and its decisive relevance.
At what stage of the proceedings can a Gehörsrüge be filed?
The Gehörsrüge is generally intended to assert a violation of the right to be heard after the appeals process has been exhausted, when no further legal remedy is available. It can only be filed against a final court decision. For example, a Gehörsrüge is permissible after conclusion of appeal or revision proceedings and the exclusion of other ordinary or extraordinary legal remedies, such as an application for reopening or correction of the judgment. It is not a universal remedy within ongoing appeals, but a specific extraordinary legal remedy mainly used to restore the right to be heard after the conclusion of the appeals process.
Who is entitled to file a Gehörsrüge?
In principle, any party to the relevant proceedings whose right to be heard has been violated is entitled to file a Gehörsrüge. This may include claimants and defendants as well as other participants in the proceedings, such as third-party intervenors. Persons for whom the decision produces immediate legal effects may also be entitled to file a Gehörsrüge. The prerequisite is always a substantial impact by the specific violation of the right to be heard. Furthermore, the party must be potentially affected in its own rights by the decision and must either have been unsuccessful or been unable or excluded from asserting its right to be heard before the decision.
What deadline must be observed when filing a Gehörsrüge?
Pursuant to § 321a para. 2 ZPO, the Gehörsrüge must be filed within a mandatory deadline of two weeks after being informed of the violation of the right to be heard. This deadline normally begins with the service, but at the latest with notification of the relevant court decision. The deadline cannot be extended. If the party misses the deadline, the Gehörsrüge is inadmissible and the proceedings will not be reopened. Special care is required when calculating the deadline, as mistakes can lead to the final forfeiture of the legal remedy.
What contents must a Gehörsrüge necessarily include?
The Gehörsrüge must include at least the following components: (1) Specification of the challenged decision or judgment. (2) Precise presentation of the actual circumstances from which the violation of the right to be heard arises, in particular, that and why submissions relevant to the decision were not considered. (3) A substantiated account of the causal link between the omission and the decision, i.e., why a different decision would have been possible had the right to be heard been granted. (4) Precise identification of the right alleged to have been violated. The formal requirements are strict and often result in inadmissibility of the Gehörsrüge if incomplete.
What are the legal consequences of a successful Gehörsrüge?
If a Gehörsrüge is granted, the court orders, pursuant to § 321a para. 5 ZPO, that the original proceedings be continued. In this case, the case is returned to the stage at which the right to be heard was violated. The previous decision can be set aside and the proceedings continued, taking into account the arguments of the party. This gives the affected party the opportunity to introduce submissions not previously considered or adequately assessed and to influence the course and outcome of the proceedings. The decision on costs follows the general principles, with the losing party typically bearing the costs.
Can the Gehörsrüge be filed again if a further violation of the right to be heard occurs during the decision on the first Gehörsrüge?
If the right to be heard of a party is violated again in the decision on a Gehörsrüge, another Gehörsrüge can be filed. This is termed a “double Gehörsrüge.” This too must be lodged within the prescribed deadline after becoming aware of the renewed violation. The prerequisite, however, is that the new Gehörsrüge does not rely on the same facts as the first, but concerns a new, independent violation. This also applies to the formal and substantive requirements, which must be fully observed again.
