Германияның Жоғарғы Әділет Саты (Bundesgerichtshof)

Highest court in the system of ordinary jurisdiction in Germany

The Federal Court of Justice (Bundesgerichtshof , BGH (Bundesgerichtshof)) is the highest court of civil and criminal jurisdiction in Germany. Its primary responsibility is the final appellate review of decisions by lower courts for errors of law. While, legally, a decision by the Federal Court of Justice is only binding with respect to the individual case in which it enters, de facto the court's interpretation of the law is followed by lower courts with almost no exception. Decisions handed down by the Federal Court of Justice can only be vacated by the Federal Constitutional Court for violating a provision of the German constitution, the Basic Law. In addition to the court's appellate duties, a few judges of the Federal Court of Justice act as investigating judges in criminal investigations led by the Public Prosecutor General for a small number of exceptional offenses (such as crimes against humanity and the formation of terrorist organisations). As such, they are responsible for issuing search and arrest warrants, among other things. The German legal order has different supreme courts for the different branches of its judiciary. The four sister supreme courts of the Federal Court of Justice are the Federal Administrative Court (for administrative matters), the Federal Fiscal Court (for tax matters), the Federal Labor Court (for matters of labour law), and the Federal Social Court (for social security matters). The seat of the Federal Court of Justice is in Karlsruhe, Baden Württemberg. Two criminal divisions of the court are based in Leipzig, Saxony.

The Reichskammergericht, which was established in 1495 as the highest court of the Holy Roman Empire, is often viewed as the institutional origin of supreme court jurisprudence in Germany. The court arose out of an attempt by the Imperial Estates to counter the influence of the Emperor, which led to the somewhat unusual circumstance of the coexistence of two supreme courts with concurrent jurisdiction over most matters. The emperor's own Aulic Council (Reichshofrat) in Vienna had sole jurisdiction over criminal cases, however. As the Empire was dissolved in 1806, so were the two supreme courts. What ensued was a prolonged period of judicial independence of the dozens of newly sovereign German states within the German Confederation. In the states of central and northern Germany, this changed following the foundation of the North German Confederation, where the Leipzig based Bundesoberhandelsgericht commenced operation in August 1870. In the beginning, the court's supreme appellate jurisdiction was largely limited to trade law matters, but after the southern German states joined the Confederation in November 1870 to form the German Empire, the court—now known as Reichsoberhandelsgericht—received jurisdiction over various additional areas of civil law. In 1879, the Reichsoberhandelsgericht was replaced with the Reichsgericht. Also located in Leipzig, the Reichsgericht enjoyed far broader supreme appellate jurisdiction than its predecessors, encompassing all civil and criminal matters arising in the Empire. The enactment of a unified Imperial Penal Code in 1872 added to the significance of the court. In the wake of Germany's defeat in World War II, the Reichsgericht, like all German courts, was closed, and its administration subsequently dismantled, by proclamation of General Eisenhower of the United States Army on 18 April 1945. In the British occupation zone, the Supreme Court for the British Zone (Oberster Gerichtshof für die Britische Zone) came into operation in 1948. The court was tasked with ensuring the uniform jurisprudence within the zone; to that end, its scope of jurisdiction and its procedural rules largely followed the example of the Reichsgericht. The foundation of the Bizonal Economic Council by the British and the Americans also led to the establishment of a German High Court for the Combined Economic Area (Deutsches Obergericht für das Vereinigte Wirtschaftsgebiet) with supreme appellate jurisdiction over matters of the public and private economic law created through Bizonal legislation.

The Federal Court of Justice is housed in five buildings on park like premises in the centre of Karlsruhe, Herrenstraße 45 a. The main building is the Hereditary Grand Ducal Palace (Erbgrossherzogliches Palais) built in 1891 to 1897 by Josef Durm. During WWII its dome was destroyed and the mansard floor caught fire. In the 1990s the Federal Prosecutor General's Office was separated off of the Federal Court of Justice and housed in a new building in Brauerstrasse. Judges of the Federal Court of Justice also have to be 35 years of age or older.

The judges of the Federal Court of Justice are selected by an electoral committee (Richterwahlausschuss) consisting of the Ministers of Justice of the 16 German [[States of Germany and of 16 representatives appointed by the German federal parliament, the Bundestag. In practice, the Bundestag usually appoints some of its own members (and occasionally former members) to the committee. Nominations for new judicial appointments can be made by the Federal Minister of Justice or members of the electoral committee. The electoral committee's meetings are non public and the committee's vote is done by secret ballot. To be elected, a candidate needs a simple majority of the votes. Elected candidates are appointed by the Federal President of Germany (Bundespräsident). as of 2023, the Federal Court of Justice has 153 judges. The number of authorised judgeships at the Federal Court of Justice is set by the Bundestag as part of the annual Federal Budget Act. The federal government has a constitutional duty to ensure the adequate staffing of the Federal Court of Justice and its sister supreme courts.

As judges for life, judges of the Federal Court of Justice must retire upon reaching the retirement age. The retirement age is between 65 and 67 years, depending on the year of birth.

The criminal divisions of the Federal Court of Justice primarily deal with appeals on points of law (Revision). In Germany, criminal cases involving lesser offenses are decided in the first instance by a district court (Amtsgericht), while more serious offenses are initially decided by panels of regional courts (Landgerichte) or, in few cases, higher regional courts (Oberlandesgerichte). Criminal cases originating in a regional or higher regional court can subsequently be appealed to the Federal Court of Justice on points of law. Unlike in civil cases, no grant of leave is required to appeal. An appeal can be brought by the defendant or the public prosecutor's office. In some trials, the public prosecutor is joined by one or more private accessory prosecutors (Nebenkläger), which is a role that can be assumed by the victims of a number of serious offenses such as murder or sexual abuse, or by individuals whose children, parents, siblings, spouses or life partners were killed through an unlawful act. Private accessory prosecutors also have a right to initiate an appeal to the Federal Court of Justice, although their ability to appeal is somewhat more limited. As in civil matters, appeals on points of law in criminal matters may allege procedural defects or an incorrect understanding of the law that led to the trial court's decision, and—again as in civil cases—the Federal Court of Justice itself does not receive additional evidence, nor does it hear witnesses. Instead, it conducts its review of the lower court's decision based on the briefs submitted by counsel and the record of lower court proceedings. In some instances where the five judges of the panel unanimously find that a criminal appeal is inadmissible or has no chance of success, they can dismiss it without oral argument. Unlike in civil matters, a panel can also unanimously decide in favour of a defendant without oral argument. In other cases, oral argument is held. To the extent the appeal on points of law is deemed justified, the Federal Court of Justice vacates the contested judgement and sends the matter back to the regional or higher regional court, respectively. In general, vacating a judgement does not mean setting aside the trial court's factual findings. However, the Federal Court of Justice quashes factual findings insofar as they are affected by the violation of law by virtue of which the judgment is vacated. Therefore, a grave procedural defect may lead to an entirely new trial; on the other hand, if a trial court improperly did not find a particular offense on the basis of an incorrect understanding of its legal requirements, the factual findings may be left in place entirely, and the trial court, as the basis for its new judgement, may only have to take additional evidence pertaining to the (previously misunderstood) requirements of said offense. In a minority of cases, the Federal Court of Justice can also decide a case on the merits without sending it back. This can occur, for instance, when a trial court has made a finding about the defendant's actions pertaining to an offense committed by someone else and has determined on that basis that the defendant is guilty of aiding the third party in committing the offense; if the Federal Court of Justice later deems the defendant's actions—as found by the trial court—insufficient to justify a conviction as an aider, the Federal Court of Justice may acquit the defendant.

Two judges of the Federal Court of Justice (plus four judges acting as their deputies) serve as the investigating judges (Ermittlungsrichter) of the court. In the German criminal law system, investigating judges are responsible for deciding on arrests, provisional placements, seizures, searches, and other measures in relation to a criminal investigation. The jurisdiction of the investigating judges of the Federal Court of Justice is limited to investigations for a small subset of crimes, such as war crimes, crimes against humanity, high treason and the formation of terrorist organisations, where the Public Prosecutor General (Generalbundesanwalt) leads the investigation. The Public Prosecutor General may also take over an investigation of various more ordinary offenses (including murder, manslaughter and abduction) under certain circumstances (for instance where the offence is capable of undermining the continued existence or security of the Federal Republic of Germany) and when it deems the crime to be of "special significance". In such cases as well, the investigating judges of the Federal Court of Justice have jurisdiction.

All divisions of the court are at liberty to deviate from their own prior jurisprudence at any time. However, when a panel wishes to deviate from the jurisprudence of one or more other divisions, it must submit a request to those divisions (Divergenzvorlage), asking them whether they stand by their prior decision(s). If any of the divisions do, and if the requesting panel still intends to deviate, it must refer the issue to a Grand Panel. In cases of disagreement between civil divisions, the ultimate arbiter is the Grand Panel for Civil Matters (Großer Senat für Zivilsachen), a special panel of the court composed of the presiding judges of each of the 13 civil divisions and the president of the court; in cases of disagreement between criminal divisions, the issue is referred to the Grand Panel for Criminal Matters (Großer Senat für Strafsachen), which is made up of two representatives from each of the six criminal divisions and the president of the court. If a difference of opinion arises between a criminal and a civil division, the dispute must be resolved by the Joint Grand Panels (Vereinigte Große Senate), which consists of all the members of the Civil and the Criminal Grand Panel. If any division of the Federal Court of Justice intends to deviate from a decision by one or more divisions of any other German supreme court (i. e. the Federal Administrative Court, the Federal Fiscal Court, the Federal Labour Court, or the Federal Social Court), it must refer the issue to the Joint Panel (Gemeinsamer Senat). The Joint Panel is composed of the presidents of all supreme courts (permanent members) and two judges from each of the divisions involved in the disagreement (ad hoc members). In practice, the Divergenzvorlage instrument is used only sparsely. In 2021, not a single question was put before the Grand Panel for Criminal Matters (2020: 2). Between 1951 and 2009, only 36 decisions were issued by the Grand Panel for Civil Matters.

In all civil cases heard by the Federal Court of Justice, the parties need to be represented by an attorney who has been specifically admitted to the bar at the Federal Court of Justice (Rechtsanwalt beim Bundesgerichtshof). This admission is the only 'special' admission within the German court system; ordinarily in Germany, an attorney admitted to the bar may practice before any court. Conversely, within the German court system an attorney at the Federal Court of Justice is only allowed to practice before the Federal Court of Justice, other federal courts of last instance, the Joint Senate of the Supreme Courts of the Federation and the Federal Constitutional Court—but not before any of the lower courts. Admission to the bar at the Federal Court of Justice is highly selective; as of June 2022, only 38 attorneys are so admitted. Candidates for admission are nominated by an electoral committee (consisting of judges, members of the ordinary bar, and other members of the bar at the Federal Court of Justice) and are then chosen and appointed by the Federal Minister of Justice. The requirement for a representative specifically admitted to the Federal Court of Justice does not apply in criminal cases. Here, representation by any lawyer admitted to the bar in Germany is sufficient.

The Federal Court of Justice, like all German courts of ordinary jurisdiction, is barred from determining that a law or any part of a law violates the German constitution (the Basic Law). If the Federal Court of Justice arrives at the conclusion that a provision is unconstitutional and if the court's desired decision of the case depends on that determination, the court must stay the proceedings and must first obtain a decision from the Federal Constitutional Court (Bundesverfassungsgericht) on the provision's constitutionality. As is the case with all decisions of ordinary courts in Germany, every decision by the Federal Court of Justice may also itself be the subject of a constitutional complaint (Verfassungsbeschwerde) to the Federal Constitutional Court. However, while any party may lodge such a complaint if they feel that a decision by the Federal Court of Justice infringes their constitutional rights, the constitutional complaint has no suspensive effect. Therefore, if, say, a defendant's appeal on points of law in a criminal case has been dismissed by the Federal Court of Justice, their conviction will enter into force even if the defendant now asks the Constitutional Court to overturn the Federal Court of Justice's decision on constitutional grounds.

If a decision by the Federal Court of Justice depends on the interpretation of the laws of the European Union, it must stay the proceedings and seek a preliminary ruling from the Court of Justice of the European Union (CJEU) before rendering a final decision in the case. This duty does not arise in situations where the law of the European Union, as interpreted by the CJEU in prior decisions, is sufficiently clear (acte clair doctrine). In 2022, eleven requests for preliminary ruling were submitted by the Federal Court of Justice to the CJEU. This formula, which had also been used by the Bundesoberhandelsgericht/Reichsoberhandelsgericht and the Reichsgerichtshof and whose origins can be traced back to the 14th century, is used only by the Federal Labour Court and the Federal Court of Justice, but no other court in the German judicial system.