Sun, Jun. 05, 2005

Introducing Documents

.   In criminal matters, courts may consider documents properly introduced into a trial even if they have not been read into the record but the Supreme Constitutional Court in Karlsruhe established some limits in its ruling of January 25, 2005.

In the matters 2 BvR 656/99, 2 BvR 657/99 and 2 BvR 683/99, it ruled that an appellate court may require detailed information from a party about the use of documentary evidence that the party claims was not properly introduced at trial, under §344 of the Rules of Criminal Procedure, StPO. An appellate court may not require, however, factual information that goes beyond what is relevant for an appeal when such information has no immediate nexus with the introduction of that evidence.

In these three matters, the federal appellate court speculated that the appellant intended to mislead it by not furnishing information on an evidentiary ruling from which the court believed it could infer that the trial court had properly admitted the documentary evidence at issue.

The constitutional judges outlawed this inference as straining evidentiary rules embedded in §261 StPO and the constitutional due process precepts of articles 2(1) and 103 of the German federal constitution, Grundgesetz. A press release of May 25, 2005 by the court summarizes the above ruling at the Javascript link called Pressemitteilungen.

Heir Disinherited

CK - Washington.   Disinheriting a statutory heir is almost impossible under German law unless an heir seeks to kill or assault the testator. A recent decision, case numbers 1 BvR 1644/00 and 1 BvR 188/03, by the Supreme Constitutional Court finetunes the limits.

Generally, if a testator disinherits, or fails to bequeath anything of an estate to, a statutory heir such as a spouse or child, the statutory heir will be entitled to compensation valued at half of the statutory share. The statutory heir acquires that claim as a claim against the heirs proper--such as those named in a will--and the claim is for money, not actual assets, such as real estate, that the heirs proper inherit when the decedent dies. The Civil Code permits a testator to completely disinherit, however, an heir who forms an intent to kill or assault the testator.

In the case at bar, the testator disinherited one of two brothers who suffered from a mental condition, tried to kill the testator before he was disinherited, later killed him out of fear of being sent to a mental ward, and raised a claim for his statutory share against the brother. The court tested the limits of the Civil Code against the constitutional guarantees for the right to inherit in Articles 14(1) and 6(1).

The lower courts had found the plaintiff criminally insane and, thus, incapable of forming an intent to kill his father. The Supreme Court instructed the lower court, however, to re-examine the conditions for disinheriting an heir under §§2303(1), 2333(1) and (2) of the Civil Code also from the perspective of civil competence to form an intent and from the angle of a natural intent.

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