Mutual legal assistance treaty
Legal assistance is the legal term for making a single, specific judicial act by a court other than the court which is basically concerned with the case, for example, the examination of a outward living witness by a judge in whose jurisdiction the witness. This must be an official act that can make even the requesting court, the transfer takes place, however, for reasons of expediency on the requested judge. It should be noted that all courts are required in the area of their jurisdiction for legal assistance. A refusal of assistance is only possible if the required official act according to the law of the court would be inadmissible ( § 158 of the Judicature Act ( GVG ) ).
Be distinguished from the assistance in this is a request for assistance of a public authority to another authority or a court.
A distinction is made here between national legal assistance, to systematically Article 35 of the Basic Law is one, and the international legal assistance.
Special rules on domestic legal assistance can be found for example in § 156 GVG § 158 GVG § 13 ArbGG, § 14 Code of Administrative Procedure, § 13 and § 5 FGO SGG.
International Legal Assistance
Under International legal assistance is to understand that assistance will be provided by foreign authorities, in particular courts and consulates. International assistance is given mainly due to mutual international treaties on legal assistance and extradition, but also may be vertragslos ( " courtesy ", "mutual legal assistance" ). Basis for international legal assistance in civil and commercial matters, among others, the Hague Service Convention and the Hague Evidence Convention; in criminal extradition and mutual legal assistance treaties. The provision of legal assistance in criminal matters without basis in international law (so-called ex gratia legal assistance) is carried out in Germany under the Act on International Mutual Assistance in Criminal Matters (IRG ).
In the international legal assistance in criminal matters, a distinction is made between
- Extradition to the requesting State (large legal assistance) and
- The execution of all other acts of law enforcement for a foreign state, such as service of judicial communications, interviewing witnesses or purchase and delivery of evidence (small legal assistance).
The extradition process is a formal process in which a person of the State in which he resides, to be spent in the requesting State to be put on trial or serving a sentence imposed already.
Subject of little legal assistance are effecting deliveries, the hearing of witnesses and the collection of evidence through searches, the seizure and delivery of certificates ( in particular commercial documents ) and information (eg bank information ) substantially.
Mutual legal assistance shall not be reimbursed by the judiciary ( judicial legal assistance). Legal assistance may be given in proceedings in respect of acts which are punishable under the national law of the requesting Party or the requested Party considers a breach of legislation by administrative authorities, whose decisions can be appealed in particular in criminal court of competent jurisdiction (Article 1 IV 2 ZP- EuRhÜbk ) ( administrative law help).
A transmission of requests is usually through diplomatic channels, since the path from one judge to another is limited. International legal assistance requires that the so-called public policy is adhered to, which means that they can only be provided if it does not contradict the principles of the domestic legal system. This results, for example for Germany from § 30 IRG.