Definition and significance of submitting objects and documents
Die Submission of objects and documents is a central concept in German law, especially in civil procedure law, criminal procedure law, and administrative law. It encompasses the obligation or authority to make objects (things) or documents (instruments) relevant to evidence accessible to a court, an authority, or a third party in order to clarify facts. The rules on submission are designed as an essential element of the law of evidence and serve the purpose of establishing the truth in judicial as well as extrajudicial proceedings.
Legal basis for the submission of objects and documents
Civil Procedure Law
In civil proceedings, in particular Sections 142, 421 et seq. of the German Code of Civil Procedure (ZPO) govern the obligations to submit:
- Section 142 ZPO grants the court the authority to order a party or a third party to submit documents or objects if these are relevant for the decision.
- Sections 421 et seq. ZPO regulate party and third-party disclosure as well as the obligation to submit documents in the context of documentary evidence.
In addition, contractual or statutory surrender obligations exist, such as those arising from the law of agency without commission or based on information obligations under individual contractual relationships.
Criminal Procedure Law
In criminal proceedings, in particular Sections 94 et seq. of the German Code of Criminal Procedure (StPO) are relevant.
- Section 94 StPO regulates the securing and seizure of objects as evidence.
- Section 95 StPO obliges any person to surrender such objects upon order of the investigative authorities.
- Section 98 StPO contains regulations regarding judicial seizure orders for special protection of objects or documents.
Administrative Law
In administrative proceedings, the obligation to submit objects and documents may arise based on the Administrative Procedure Act (VwVfG), state laws or special statutory provisions. Authorities regularly request documents to substantiate facts or to comply with cooperation obligations.
Areas of application for the duty to submit
Judicial proceedings (civil and criminal process)
In judicial proceedings, the submission of objects and documents primarily serves the taking of evidence. The party or the third party who is in possession of the evidence-relevant object or document can be required by court order to surrender it. Refusal to comply with a court order to submit may lead to disadvantages in evidence and, if applicable, coercive measures.
Extrajudicial and administrative proceedings
In extrajudicial and administrative matters, the submission of objects or documents enables authorities and institutions to examine possible prerequisites for claims or official requirements, such as in tax law, social law or application procedures.
Coercive measures
Submission by force can be achieved through enforcement measures, coercive fines, or—in criminal proceedings—by seizure. The limits of compulsory submission are particularly defined by fundamental rights such as the general right of personality, confidentiality for certain professional secrets (e.g., physicians, legal advisers), and the right to informational self-determination.
Procedural and substantive aspects of submission
Involved parties and obligated persons
The obligation to submit may be imposed on:
- Parties to the proceedings (e.g., plaintiffs, defendants, applicants)
- Third parties (e.g., banks, employers)
- Authorities (within the framework of administrative assistance or cooperation obligations)
An obligation does not apply if there are legally established rights to refuse to give evidence or to submit documents.
Limits of the obligation to submit
Limitations exist in particular for:
- Protection of professional secrets (“right to refuse testimony” pursuant to Sections 52 et seq. StPO or Section 383 ZPO)
- Privilege against self-incrimination
- Personal rights and data protection
- Trade and business secrets
Courts must examine the existence of such rights taking into account the competing interests (interest in evidence vs. interest in protection).
Rights and legal remedies
An appeal can generally be filed against an order to submit, depending on the field of law (e.g., complaint in civil proceedings or remedies in criminal proceedings). The decision on the lawfulness of the obligation to surrender is made by the competent court.
Consequences of failure to submit
If a party or a third party refuses submission without legally recognized grounds, the court may, pursuant to Section 427 ZPO, regard the alleged content of the document or object as admitted or— in criminal proceedings— consider the proof established, provided there are no other contrary circumstances. Additionally, coercive measures such as fines, coercive detention or—in criminal proceedings—search and seizure may be ordered.
Significance of submission for the taking of evidence
The submission of objects and documents is a fundamental pillar of the taking of evidence. It enables the direct verification of factual claims and serves to objectify the outcome of the proceedings. Documentary evidence and physical inspection are central means of evidence in German procedural law. The duty to submit guarantees access to these means of evidence and is indispensable for a fair, rule-of-law procedure.
Summary and legal policy classification
The submission of objects and documents is an indispensable tool for finding the truth in judicial and administrative proceedings. The legal framework balances the interest in effective evidence gathering with the protection of important individual interests, such as confidentiality or data protection requirements. Rule-of-law principles, in particular the right to be heard and to a fair trial, fundamentally shape the scope and boundaries of the submission obligation.
Frequently Asked Questions
When is a party required to submit objects or documents?
A party is generally obliged to submit objects or documents when the court orders them to do so pursuant to Section 142 ZPO (Code of Civil Procedure). The precondition for such an order is that the object or document to be submitted is likely to be relevant in the dispute, that is, it must have evidentiary relevance for the decision in the matter. The duty to submit may arise at the suggestion of the opposing side or ex officio. In addition, pursuant to Section 421 ZPO, a party who relies on a document or whose content is referenced by the opposing party may be required to submit it. If the party does not (properly) comply with this court order, negative consequences such as a shift in the burden of proof or the so-called evidence of suppression of a document may apply. In such cases, it is often assumed to the detriment of the defaulting party that the opponent’s account is accurate.
What legal obstacles must be considered when submitting evidence?
The order to submit objects or documents is constrained by various legal obstacles. In particular, interests worthy of protection of the submitting party, such as confidentiality interests, professional practice rights, or data protection rights, must be taken into account. According to Section 142(2) ZPO, submission may be refused if the obligated party is legally obliged to confidentiality, a right to refuse exists, or overriding worthy reasons speak against submission. This includes, among others, the right to refuse testimony (for example, by lawyers, physicians), the right to informational self-determination, as well as the protection of trade and business secrets.
What sanctions are possible if the obligation to submit is not met?
If a party unjustifiably fails to fulfill their obligation to submit, the court may, pursuant to Section 427 ZPO, be convinced that the assertions of the party bearing the burden of proof are correct (so-called evidence of suppression of a document). The court may also impose coercive fines in accordance with Section 142(1) ZPO, if a court order is not voluntarily followed. Additionally, failure to submit may result in disadvantages for the defaulting party during the evaluation of evidence under Section 286 ZPO. In exceptional cases, this may even lead to a reversal of the burden of proof.
How is a court order to submit issued?
The court order is usually issued in the context of an order for evidence or a specific order to submit. The court specifies which particular object or document is to be submitted and may set a deadline for submission. The order must be clearly formulated so that the party can unmistakably recognize the obligation and its scope. It is necessary that the affected party be put in a position to comply with their duty or, if necessary, to timely raise objections to the order, for example, by objecting to the order or invoking a right to refuse submission.
Can third parties also be required to submit objects or documents?
Yes, under Section 142(1) ZPO, the court may also require third parties who are not parties to the dispute themselves to submit, provided they are in possession of the relevant object or document. The legal prerequisites and protective provisions regarding possible rights of refusal apply analogously. In such cases, particular care must be taken to weigh any legitimate interests of the third party. Here, too, in the event of refusal, a coercive fine may be imposed on third parties. A right to demand submission from third parties exists in criminal proceedings pursuant to Section 95 StPO, in administrative proceedings pursuant to Section 99 VwGO.
How should doubts regarding the authenticity or unaltered status of submitted documents be handled?
If there are doubts as to the authenticity of a submitted document, the party concerned can expressly raise an objection to the document (§ 440 ZPO). The court will examine authenticity in a separate evidentiary procedure, for example by obtaining a handwriting expert opinion. In the case of absence of alterations—such as in the event of subsequent changes—evidence can also be taken. The burden of alleging and the burden of proof are determined by general procedural rules. The party relying on the authenticity bears the burden of proof.
What role does the duty to submit play in preliminary injunction proceedings?
Also in preliminary injunction proceedings (particularly attachment and preliminary injunction proceedings pursuant to Sections 916 et seq. ZPO), the court may order the submission of documents or objects if this is necessary to substantiate a claim or fact. However, in time-sensitive proceedings, the accelerated process must be taken into account, so that less stringent requirements generally apply to substantiation compared to full proof in the main proceedings. The applicant must particularly substantiate the urgency and relevance of the object or document to be submitted.
