Article 19 IV of the German Constituion ("Basic Law") states that recourse to the judiciary is open to any person who claims that his/her rights were violated by public authority.

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Article 19 IV of the German Constituion ("Basic Law") states that recourse to the judiciary is open to any person who claims that his/her rights were violated by public authority.

This fundamental constitutional principle which is concretized by § 40 of the regulations governing the administrative courts (Verwaltungsgerichtsordnung). In case fundamental rights have been violated by a public authority, anybody may appeal to the Federal Constitutional Court (article 93 I Nr. 4a of the Basic Law) [link: GERM_Basic_Law.art.93] and any person has the right to appeal to the ordinary courts (Ordentliche Gerichte) for civil and penal matters.

Presumption of innocence is the foundation of the whole criminal procedure in Germany even though it is not mentioned by the Constitution: as long as a person is not convicted by a court he/she must be considered innocent. According to article 103 of the Basic law everyone is entitled to a hearing in the courts in accordance with the law and an act can be punished only if it constituted a criminal offence under the law before the act was committed and no one may be punished for the same act more than once under general criminal. To investigate crimes the police and the prosecution have to obey the rules laid out in the Code of Criminal Procedure (Strafprozessordnung).

Everybody has the right to defense, and the court will appoint a counsel (Pflichtverteidiger) for people who can not afford a lawyer. If the defendant chooses a lawyer whom is not appointed by the court, s/he may apply for legal aid. The official language used by the courts is German, and all documents must be translated into German. If one of the parties - particularly the defendant - can not speak or understand German s/he has the right to an interpreter who is paid by the State, but if the defendant has caused additional expenditures s/he will have to pay for them.

Article 3 III of the Basic Law states that no one may be disadvantaged or favored because of his/her sex, parentage, race, language, homeland and origin, faith, religious or political opinions, but an exception to this rule is specified by article 16a IV, which states that refugees may be deported if the courts regard their claim to stay as obviously unfounded. An asylum seeker in the accelerated ("fast-track") process whose application for asylum has been rejected as manifestly unfounded is provided with a government-funded local lawyer to discuss the possibility of an appeal. In most cases, legal aid is granted only if the lawyer is locally based, which can prove difficult for applicants detained in a part of the country distant from where their lawyer is located. Moreover, the compensation offered to lawyers is not substantial. In some cases NGOs, church groups, UNHCR and others provide legal representation. A crucial moment from the legal point of view is the airport asylum procedure: asylum seekers who arrive in Germany by plane have to stay at the airport while awaiting a decision on their application. In many airports asylum seekers didn't have the chance to have a personal interview with the decision-maker, and legal advice is provided only after the asylum seeker’s application has been rejected

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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