Special Courts

Special courts

Definition and significance

The term Special courts refers in German law to courts that, contrary to the general judicial organization, are established ad hoc or retroactively for certain cases or groups of persons. The creation of special courts is generally prohibited in the German legal system and contradicts the principle of the statutory judge. This serves to protect fundamental rule-of-law principles such as legitimate expectations, the predictability of judicial decisions, and the separation of powers.

Historical development

Origin of the prohibition of special courts

The prohibition of special courts was established as a reaction to abuses in earlier eras, particularly during the Nazi era and the Weimar Republic. Special courts often served as political tools for the persecution of dissidents and for enforcing political interests outside the regular legal order.

Constitutional anchoring

The experiences with political special courts, such as the People’s Courts or Special Courts during the Third Reich, led after 1945 to the explicit anchoring of the prohibition of special courts in the Basic Law. The aim was to sustainably safeguard rule-of-law procedures and to prevent arbitrary political influence by the judiciary.

Legal foundations

Art. 101 para. 1 sentence 1 GG – Prohibition of special courts

The prohibition of special courts is expressly regulated in Article 101 paragraph 1 sentence 1 of the Basic Law (GG) as follows:

“Special courts are not permitted. No one may be removed from their lawful judge.”

This constitutional principle not only prohibits the creation of special courts, but also guarantees the right to the lawful judge (see also: Principle of the statutory judge).

Distinction from special tribunals

A distinction must be made between the terms Special courts und special tribunals. From the 19th century onwards, special tribunals for specific subject matters or groups of people were created in various states (e.g., military courts, disciplinary courts). While special courts are established on a case-by-case basis and usually legitimated retroactively, special tribunals are permanent institutions with defined areas of jurisdiction. Strict conditions also apply to special tribunals: they may not override or impermissibly restrict regular jurisdictions.

Statutory implementation

The Basic Law is supplemented by numerous statutory provisions that regulate the establishment and jurisdiction of courts in accordance with the requirements of Art. 101 GG. These include, in particular, the Courts Constitution Act (GVG), the Code of Criminal Procedure, and administrative procedure law.

Lawful judge and its significance

The principle of the statutory judge (Art. 101 para. 1 sentence 2 GG), in connection with the prohibition of special courts, means that it must be determined in advance, generally and abstractly, which judge or which court is responsible for which case. A subsequent assignment or alteration to the detriment of individual parties is thus inadmissible.

Criteria for the statutory judge

The following criteria must generally be fulfilled:

• Jurisdiction must be determined before the dispute arises (prior determination).
• The allocation of cases is carried out abstractly and in advance, for example through case allocation plans.
• No case-by-case arrangements: If the assignment of a case to a judge or court is subsequently based on special circumstances, this usually constitutes an impermissible special court.

Distinction: State security panels and special divisions

Certain divisions or panels, such as state security divisions at higher regional courts or divisions for state security offenses, are not special courts within the meaning of the Basic Law, provided they operate on generally applicable statutory bases and within the framework of the regular judicial organization. Their existence is covered by judicial jurisdiction and work distribution within existing courts.

Significance for legal protection

The prohibition of special courts is of great importance for access to legal protection. It guarantees

• guarantee of access to courts (Art. 19 para. 4 GG)
• Predictability of jurisdiction
• Creation of trust in the decentralization and neutrality of the judiciary

Direct or de facto special courts, for example through circumvention in the case allocation plan, can be challenged before the Federal Constitutional Court by means of a constitutional complaint.

International perspective

Comparable guarantees against special courts exist in international law and in the law of other countries. At the European level, the European Convention on Human Rights (ECHR), in particular Art. 6 ECHR (“Right to a fair trial”), provides protective instruments against arbitrary justice and requires decisions by a generally competent, legally established court.

Critique and discussion

Practical challenges

In practice, organizational changes in courts or unexpected personnel shortages may give rise to discussion as to whether the principle of the statutory judge and the prohibition of special courts are sufficiently observed, for example in the case of emergency courts or ad hoc panels in disaster situations.

Procedural oversight

The Federal Constitutional Court has confirmed and interpreted the prohibition of special courts in numerous decisions. The decisive factor is always adherence to the abstract and general predetermination of jurisdiction and the avoidance of personal or material special courts without statutory legitimization.

Summary

Special courts are prohibited under the German Basic Law (Art. 101 para. 1 sentence 1 GG). The goal is to protect against arbitrary jurisdiction and to strengthen confidence in the rule of law. The principle of the statutory judge requires that the jurisdiction of courts is predictable and generally regulated. Special courts, which are created or staffed retroactively for individual cases, undermine this principle and are to be regarded as inadmissible.

Further literature and case law

• Basic Law for the Federal Republic of Germany, Art. 101
• Courts Constitution Act (GVG)
• Decisions of the Federal Constitutional Court (BVerfGE)
• Dreher, Heinrich: “The statutory judge”, in: Handbook of Constitutional Law
• Papier, Hans-Jürgen: “On the sense and nonsense of the distinction between special and exceptional courts”, NJW 2003, 1054 f.

See also:

• Statutory judge
• Judicial organization
• Rule of law principle
• European Convention on Human Rights

Category: German procedural law | Judicial organization | Fundamental rights

Frequently asked questions

What is the significance of special courts in the German justice system?

Special courts are prohibited under Article 101 paragraph 1 sentence 1 of the Basic Law (GG). With this provision, the legislator has enshrined a central principle of the rule of law: no one should be deprived of their statutory judge, meaning that, for every legal case, it must be determined in advance which court has jurisdiction. The prohibition of special courts primarily serves to protect citizens from arbitrary jurisdiction and ensures that decisions are made by independent courts determined in advance. This upholds the objectivity and impartiality of judicial decisions and prevents politically motivated influence on the judiciary. Special courts are particularly associated with the arbitrary justice of authoritarian systems, such as the special tribunals of National Socialism, and are to be permanently excluded in a democratic rule-of-law state.

When does a violation of the prohibition of special courts occur?

A violation of the prohibition of special courts occurs when a court is established or used that is specifically set up, retroactively, to decide on a particular individual case or for a certain group of people, and thus does not act within the regular appeals process or in accordance with pre-existing statutory regulations. Even if an existing court is retrospectively deprived of or assigned competencies to influence a specific case, this may constitute a violation. What is decisive is that the “statutory judge” must be responsible according to general rules—that is, regardless of the individual case. The principle of predictability of jurisdiction is essential: it must not be created or manipulated ad hoc.

How does a special court differ from a specialized court?

A specialized court is a regularly established court with a particular subject-matter jurisdiction, for example, labor courts, administrative courts, or social courts, whose jurisdiction is based on specific legal foundations and was created for certain types of disputes. They are part of the regular court organization. A special court, on the other hand, is an arbitrarily established court created outside of this system for a special case or a group of persons, or which unlawfully receives decision-making powers without a general legal basis existing in advance. While specialized courts are permissible and necessary for the differentiated fulfillment of judicial tasks, special courts are prohibited for reasons of the rule of law.

Who monitors compliance with the prohibition of special courts?

Responsibility for monitoring compliance primarily lies with the Federal Constitutional Court. Anyone who considers themselves deprived of their right to the statutory judge can lodge a constitutional complaint against judicial decisions. In addition, all state authorities and courts themselves are obliged to observe the prohibition of special courts and to interpret and apply the rules of jurisdiction accordingly. European case law and international human rights treaties, such as the European Convention on Human Rights (ECHR), also contain similar provisions to ensure the independence and predictability of the judiciary.

Can special tribunals be permissible in exceptional states of emergency?

Even in exceptional or emergency situations, such as those arising from internal unrest or martial law, the prohibition of special courts largely remains in effect. The Basic Law does not provide for exceptions to the prohibition in such cases. Special provisions for states of emergency, such as in cases of defense, concern the organization and jurisdiction of existing courts, but not the creation of arbitrary special courts. Courts may only act on the basis of existing laws and pre-established jurisdictions, even then. Any deviation from this would constitute a fundamental interference with the rule-of-law principle and cannot be legitimized by ordinary law.

What historical examples of special courts have there been in Germany?

Historically, special courts are particularly associated with the special tribunals of the German Empire during wartime and above all with the notorious People’s Courts and the special tribunals of National Socialism. These courts often had no statutory appeal process, operated outside the codified procedural law, and were subject to massive political influence. Experiences with these special courts were instrumental, after the end of World War II, in the clear anchoring of the prohibition in the German Constitution to ensure that arbitrariness, misuse of justice, and political persecution are prevented in the future.

What legal consequences does the establishment of a special court have?

The establishment or invocation of a special court is unlawful under the Basic Law and has significant legal consequences. Procedural acts and judgments of special courts are generally void. Lawful procedures required by the rule of law cannot be replaced by them, and affected parties are entitled to a retrial and review of their cases before the competent statutory judge. Responsible public officials may also be criminally liable, for example for perversion of justice (§ 339 StGB) or breach of official duty. In addition, there is the option of pursuing constitutional legal actions with a prospect of success.