Principle of immediacy
Der Principle of immediacy is a central procedural principle in the German legal system, of particular significance in criminal procedure law, but also in civil and administrative procedure law. It states that the deciding court should have the most direct possible contact with the facts relevant to the proceedings, in particular by conducting the taking of evidence itself and directly perceiving the evidence.
Origin and significance
Historical development
The principle of immediacy developed from the idea of a fair and transparent procedure. Its origin and first definition can be traced back to the Age of Enlightenment and the reform process of criminal jurisdiction in the 19th century. Its importance was further strengthened with the introduction of public and oral hearings as well as the overcoming of the inquisitorial process.
Objective
The fundamental principle aims to ensure that the basis for a decision is created by those persons who also render the judgment. The court should therefore be able to form its own, direct impression of the relevant evidence and testimonies. The purpose is to increase the objectivity and correctness of decision-making and to aid in the search for truth.
Implementation in different types of proceedings
Criminal procedure law
In criminal proceedings, the principle of immediacy is enshrined in § 250 of the Code of Criminal Procedure (StPO). According to this principle, witnesses, experts, and other evidence must generally appear personally before the deciding court during the main hearing and be examined. Documents or written records may not replace direct examination, unless the law expressly permits it (e.g., in the case of reading previous statements per § 251, § 252 StPO).
The aim is to give the court the opportunity to assess the credibility of witnesses and the reliability of experts through direct encounter. The principle of confrontation (presence of parties and opportunity to question witnesses) is also encompassed by this.
Civil procedure law
In civil procedure law, the principle of immediacy is mainly reflected in §§ 355 ff. of the Code of Civil Procedure (ZPO). Accordingly, the court responsible for taking evidence is also responsible for the evaluation of evidence. The taking of evidence should, as a rule, be conducted before the deciding court.
However, there are more exceptions to the principle in civil procedure, for example, the court may delegate the taking of evidence to another judge (§ 361 ZPO). The basis for the decision remains the hearing, and the instructing court must still form its own impression of the taking of evidence, for example through records.
Administrative procedure law
In administrative procedure law, the principle of immediacy is not codified to the same extent as in criminal or civil procedure but is also practiced. § 96 of the Administrative Court Rules (VwGO) regulates the taking of evidence before the court. Here, too, the court is expected to take evidence itself. However, there is a wider scope for the written use of witness statements and expert reports.
Substantive requirements and legal consequences
Evidence
The principle obliges the court to take evidence independently and in the presence of the parties involved. The following evidence is particularly affected:
- Witnesses
- Experts
- Inspection
- Documents
Use of evidence
A violation of the principle of immediacy can lead to the inadmissibility of evidence or constitute a procedural error that may result in the success of a legal remedy (e.g., an appeal). For example, if a witness is not heard personally but only a previous written statement is read out, this generally constitutes a breach of the principle.
Exceptions
There are statutory exceptions to the principle:
- Prevention of a witness (e.g., absence due to illness)
- Endangerment of the witness through personal appearance before the court
- Consent of the parties to the reading of documents or records
The acceptance of such exceptions generally requires a legal basis and the exercise of judicial discretion.
Relationship to other procedural principles
Principle of orality
The principle of immediacy is closely linked to the principle of orality (e.g., § 261 StPO, § 128 ZPO). Together, they ensure that the court decides solely on the basis of what is heard in the oral hearing. Information not presented at the hearing may, as a rule, not be considered.
Principle of publicity
The principle of publicity safeguards the transparency of the proceedings. It complements the principle of immediacy by ensuring that the taking of evidence is open to the public, thereby increasing the traceability of judicial decisions.
Criticism and reform discussion
The principle of immediacy is occasionally debated, particularly in the context of increasing digitalization and international cooperation. Modern videoconferencing technologies and the growing mobility of witnesses raise questions as to how far direct contact of the court with the evidence must still be technically and practically guaranteed today.
In particular, the Act to Expand the Possibilities for Video Hearings in Civil Courts (2022) has opened up the possibility for witnesses and parties to be examined via video. There are open points of discussion as to how direct perception of non-verbal communication and the personal impression of the court can be maintained.
Significance in case law
The case law attaches great importance to the principle of immediacy. Especially in criminal proceedings, a violation is often rated as a significant procedural error. However, in applying the principle, it must always be examined whether the prerequisites for a permissible exception are met and whether the court’s decision ultimately rests on the violation.
International context
The principle is also found at the European level, for example in Article 6 of the European Convention on Human Rights (ECHR), according to which the right to a fair trial also includes the direct judicial perception of evidence. International comparisons show varying forms of the principle of immediacy.
Summary
The principle of immediacy is a fundamental element of procedural fairness. Its objective is to ensure a well-founded and transparent decision-making process by granting the deciding court the closest possible contact with the relevant facts of evidence. While the core idea applies to all essential types of proceedings, there are different forms and statutorily permitted exceptions depending on the type and stage of proceedings.
Frequently Asked Questions
How does the principle of immediacy affect the taking of evidence in criminal proceedings?
The principle of immediacy requires that the court generally conducts the taking of evidence itself during the main hearing and in the presence of those involved. As a result, judges may only form their judgment based on evidence that has been gathered before them directly, i.e., directly. In particular, evidence should not merely be introduced from files, records, or written statements of third parties, but witnesses, for example, should be heard in person and documents presented directly. This enables the court to have its own perception of the evidence, especially regarding the credibility of witnesses and authenticity of exhibits. Compliance with the principle of immediacy is of essential importance in German criminal procedure law (§ 250 StPO) to safeguard the search for truth and ensure a fair process.
What exceptions to the principle of immediacy are permitted in civil proceedings?
In German civil procedure, there are a number of exceptions where direct contact of the judge with the evidence is not strictly required. In particular, § 371a ZPO allows for the use of previously recorded witness statements, for example, if a witness is deceased, ill, or cannot be found. Further exceptions exist in the use of documents or written expert reports, whose submission and evaluation do not necessarily require personal examination of the author or expert. The court practice must always weigh up, when applying these exceptions, whether a departure from the principle of immediacy is compatible in the specific case with the right to be heard and effective truth-finding.
What is the role of the principle of immediacy in administrative proceedings?
The principle of immediacy is also embedded in administrative proceedings, especially before administrative courts (§ 96 VwGO). Courts should generally rely only on the evidence taken during the oral hearing for their decision. This principle promotes the transparency of the process and enables parties to monitor the evaluation of evidence. However, even in administrative proceedings, exceptions may be made, for example, if a party agrees that a piece of evidence—such as a written expert opinion or a document—may be used, or if the court considers it necessary to have a witness examined through legal assistance. Observing the principle of immediacy here fundamentally serves the objectivity and traceability of judicial decisions.
How is the principle of immediacy handled in the event of a change in the composition of the bench?
If a change in the composition of the bench occurs during a main hearing, such as a change of judge, this poses significant problems regarding the principle of immediacy. The new member of the bench has not directly witnessed the evidence previously taken. In German criminal proceedings, it is therefore provided (§ 261 in conjunction with §§ 226, 229 StPO) that, in such cases, all evidence taken without the new judge being present must generally be repeated; otherwise, the judgment would be subject to appeal. This repetition ensures that all judges base their conviction on the direct impression of the taking of evidence and that the principle of immediacy is maintained.
What is the significance of the principle of immediacy for the finding of judgments?
Observance of the principle of immediacy is essential for proper and lawful judgment-finding. The court should reach its decisions based on facts it has directly perceived and examined itself. Direct perception enables the court, especially when evaluating personal evidence such as witness or defendant examinations, to consider non-verbal communication, demeanor, and credibility. The judgment is thus based not merely on hearsay or written documents, but on an independent judicial conviction. Disregarding this principle can lead to serious mistakes in judgment-finding and thus to the overturning of the judgment.
How does the relationship between the principle of immediacy and the principle of orality work?
The principle of immediacy is closely linked to the principle of orality, according to which proceedings should generally be conducted orally and publicly. While the principle of orality requires that the essential procedural acts are performed orally and in the presence of all parties involved, the principle of immediacy adds the requirement that the deciding court must also directly perceive the evidence. Both principles serve transparency, the promotion of the right to be heard, and the verifiability of the proceedings, but are distinguishable. The principle of immediacy specifically concerns the taking of evidence, while the principle of orality establishes a broader framework.
