Concept and significance of the principle of investigation (Untersuchungsgrundsatz)
Der Principle of investigation (Untersuchungsgrundsatz) refers in procedural law to the principle that the deciding court or competent authority is obliged to independently, comprehensively, and ex officio establish the facts essential for the decision. It is the opposite of the so-called principle of submission (Beibringungsgrundsatz), under which the parties are responsible for establishing the facts of the case. The principle of investigation, also known as the duty of official inquiry (Amtsermittlungsgrundsatz), is firmly anchored in various codes of procedure and applies in particular in public law, administrative procedures, social procedures, and, to some extent, criminal proceedings.
Legal bases of the principle of investigation
Administrative procedure
In administrative proceedings, the principle of investigation is mainly regulated in Section 24 of the Administrative Procedure Act (VwVfG). According to this provision, the authority must establish ex officio the facts material to the decision. The parties involved are obliged to cooperate, but the authority is not limited to the information provided by them.
Court proceedings in administrative law
The principle of investigation also applies before administrative courts (see Section 86 VwGO). Unlike in civil proceedings, the court is not bound by the parties’ submissions but investigates the facts relevant to the decision on its own initiative. This applies in particular to questions of fact, whereas in applying substantive law a comprehensive official investigation is generally not required.
Social administrative procedures and social jurisdiction
In social law, the principle of investigation is laid down in Section 20 of Book Ten of the Social Code (SGB X) for administrative proceedings and in Section 103 of the Social Court Act (SGG) for social court proceedings. This means that both social service providers and social courts are obliged to clarify the facts independently, without relying solely on the submissions of the parties involved.
Criminal proceedings
In criminal proceedings, the principle of investigation applies during the preliminary investigation and the main trial. Law enforcement authorities (Section 160 StPO) and the court (Section 244 (2) StPO) are required to establish both incriminating and exonerating circumstances ex officio. The obligation to objectively clarify the facts is also essential for safeguarding the rights of the accused and for the principle of a fair trial.
Procedural counter-concepts
In civil proceedings, the principle of investigation is contrasted by the principle of submission (§§ 138, 139 ZPO), according to which the parties must name and present all facts and evidence, while the court decides primarily on the basis of these party submissions.
Areas of application and scope
Public and private procedural areas
The principle of investigation is particularly characteristic of proceedings in which the interests of the general public or vulnerable persons take priority, such as in administrative law, social law, criminal law, and to some extent tax law. The reason for this lies in the structural superiority of the state and the principle of substantive justice, according to which facts essential to the decision must be fully clarified.
Scope of the duty of official investigation
The principle of investigation obliges the deciding body to investigate the facts on its own initiative, regardless of formal applications by the parties. This includes consulting files, obtaining information, hearing witnesses and experts, as well as conducting site visits and other types of evidence collection. The parties’ duty to cooperate exists alongside this, but does not relieve the authority of the obligation to comprehensively clarify the facts.
Limits of the principle of investigation
The duty to clarify the facts is limited by procedural fundamental rights and procedural principles, such as the right to be heard (Art. 103 GG), protection against self-incrimination, adherence to the parties’ right to be heard, and procedural equality of arms. Furthermore, the official investigation is limited to facts material to the decision; superfluous or irrelevant investigations are not required.
Differences in the principle of investigation depending on the type of procedure
Administrative procedure
In administrative proceedings, the authority is largely free to determine which investigations it undertakes. It may use existing files and identify new evidence, but is obliged to clarify all facts relevant to the decision. The cooperation of the parties can contribute to effective clarification of the facts, but is not a mandatory prerequisite for reaching a decision.
Social procedures
In social procedures, the principle of investigation may be applied with particular intensity because the parties involved—often socially disadvantaged persons—require special protection. The social authority and the social court have an enhanced duty to clarify the facts, especially if, for example, the affected person is unable to participate sufficiently due to illness or social disadvantage.
Criminal proceedings
In criminal proceedings, the principle of investigation is a specific expression of the requirements of the rule of law. During the investigation (prosecutor, police) and the main hearing (court), there is an obligation to establish both exonerating and incriminating facts. This is intended to prevent an accused from being convicted solely on the basis of incomplete or biased findings.
Differences from the principle of submission (Beibringungsgrundsatz)
In civil proceedings, the parties control the process, so the court is usually bound by the parties’ submissions and does not conduct its own investigations. Only in cases of violations of procedural duties and in strictly limited exceptional cases can the court act on its own initiative.
Legal consequences of a violation of the principle of investigation
A violation of the principle of investigation can render a decision unlawful and, as a procedural error, is generally subject to appeal using the appropriate legal remedies. For example, in administrative proceedings, a breach of the official investigation duty can be asserted as an absolute ground for revision (Section 138 No. 3 VwGO). In criminal proceedings, an inadequate collection of evidence can also lead to a successful appeal in accordance with Section 337 StPO. In social proceedings, insufficient clarification is likewise subject to challenge (Section 162 SGG).
Relationship to duties of cooperation and to a fair trial
The principle of investigation does not relieve the parties of their duty to cooperate, for example, by presenting facts or submitting documents. Nevertheless, the investigating authority—especially in social and administrative law—must not neglect its duty to clarify the facts if the parties fail to cooperate sufficiently. However, the right to a fair trial and procedural fundamental rights limit the extent of official investigations.
Significance in case law and practice
The significance of the principle of investigation is reflected in the highest court decisions, which expressly highlight the duty of official investigation as an essential element of substantive justice. It serves to protect the parties from unlawful or insufficiently investigated decisions and is a key expression of the duty of impartiality incumbent upon judges and authorities.
Summary
The principle of investigation is a fundamental concept particularly in public law, social law, and criminal proceedings. It obliges authorities and courts to ascertain the facts essential to the decision independently and comprehensively ex officio. Its scope, significance, and limits vary depending on the type of procedure. Observance of the principle of investigation is a vital prerequisite for decisions that are fair, lawful, and oriented toward substantive justice. If this principle is violated, decisions can be challenged by appropriate legal remedies.
Frequently asked questions
What is the significance of the principle of investigation in administrative proceedings?
The principle of investigation, also known as the duty of official inquiry, plays a central role in administrative proceedings as it imposes an obligation on the authority to independently, fully, and ex officio clarify the facts. This fundamentally distinguishes administrative proceedings from civil proceedings, which follow the principle of submission and require the parties themselves to present and prove the facts. Under Section 24 VwVfG, the authority is not bound by the statements of the parties, but must determine the relevant facts independently that are necessary for a lawful decision. It can utilize any suitable evidence, such as witnesses, documents, expert opinions, or even site inspections. The significance of the principle of investigation is particularly pronounced in proceedings involving significant discretion or indeterminate legal terms, where comprehensive fact-finding is essential for a lawful decision.
In which types of proceedings does the principle of investigation apply, and are there exceptions?
The principle of investigation generally applies to all administrative procedures governed by the Administrative Procedure Act (VwVfG) or by corresponding state laws. It is especially relevant to individual decisions, such as the granting of permits, issuance of administrative acts, or during hearings. However, there are also exceptions or limitations: for example, in certain formal administrative procedures, the principle may be restricted by special laws, such as in planning approval procedures or specific disciplinary proceedings. Furthermore, it does not apply to procedures where the legislature expressly prescribes the principle of submission, as in civil proceedings or, to some extent, in criminal proceedings, although they have their own investigative principles. Additionally, in mass proceedings, such as the assessment of broadcasting fees, the principle of investigation may be relaxed due to considerations of practicality.
How far does the authority’s duty to investigate extend under the principle of investigation?
The authority’s duty to investigate fundamentally extends as far as necessary to establish the facts material to the decision. This means that the authority must ex officio consider all circumstances essential for the decision. The authority determines the scope and method of investigation independently and is not bound by the petitions or submissions of the parties. However, there is no obligation to investigate ‘into the blue’; indications or objections from the parties must provide substantial reasons for further investigation. The authority must also weigh when, in view of the factual and legal situation, the facts can be regarded as sufficiently clarified. In cases of obvious lack of evidence or a lack of cooperation by the parties, the principle of investigation may be limited, with the cooperation duties of certain participants, such as in social or tax law, providing a practical limit to investigations.
What role do the parties play in the context of the principle of investigation?
Although the principle of investigation places primary responsibility for clarifying the facts with the authority, the parties are by no means irrelevant. They have the right to participate in the proceedings, provide their account of the facts, submit evidence, and comment on existing findings. Under Section 26 VwVfG, they may be asked by the authority to cooperate, for example by submitting documents. In special situations, such as tax or social law proceedings, there are explicit cooperation obligations for the parties. If they do not fulfill these obligations, the authority may decide on the basis of the case file, which may be detrimental to the party, effectively limiting the principle of investigation without formally repealing it.
How is compliance with the principle of investigation reviewed and what are the consequences of violations?
Compliance with the principle of investigation is reviewed within the scope of judicial administrative protection. The administrative court examines whether the authority has properly and adequately clarified the facts material to the decision. A breach of the principle of investigation constitutes a procedural error (Section 46 VwVfG), which can in principle render the administrative act unlawful if it cannot be excluded that the decision was based on this error. In judicial proceedings, however, the court is not bound by the preliminary investigations of the original authority, but can and must itself independently and comprehensively clarify the facts according to Section 86 VwGO. In cases of serious investigative deficiencies, this can lead to the annulment and remittal of the case to the original authority if the court cannot or does not want to clarify the facts itself.
Are there differences in the principle of investigation between administrative procedure and administrative litigation?
Yes, there are differences in the design and handling of the principle of investigation between administrative procedures undertaken by authorities and administrative court proceedings. While Section 24 VwVfG codifies the principle of investigation for the authority procedure, proceedings before administrative courts are governed by Section 86 VwGO, which describes the court’s duties to ascertain the facts. The court is also generally obliged to comprehensively investigate the facts and is not bound to the party’s submissions, but—unlike the authority—can also take evidence ex officio even if the parties do not request it. A key distinction is that in judicial proceedings, the cooperation obligations of the parties play a greater role, and the court may decide on the record in case of insufficient cooperation.
How does the principle of investigation relate to other procedural principles, such as the principle of submission (Beibringungsgrundsatz)?
The principle of investigation contrasts with the principle of submission, which applies in civil proceedings and to some extent in criminal proceedings. Under the principle of investigation, the authority or court investigates the facts independently and regardless of the parties’ submissions, while under the principle of submission, the parties are responsible for presenting the facts and submitting evidence. The principle of investigation is always accompanied by other principles, such as the right to be heard, the principle of fairness, and the principle of proportionality, which are intended to ensure that the investigations are appropriate and take into account the rights of the parties. The distinction becomes particularly relevant in mixed proceedings or in special procedural situations when, for example, the parties’ duties to cooperate must be weighed against the authority’s duty to investigate.
