4 ms·

The headline is completely wrong. Bundesgerichtshof is not the German Supreme court. It's the second highest court.

by nn3 8y ago

daurnimator 8y ago
I was curious about this and did a little research. It seems like the higher court (Bundesverfassungsgericht) can't be appealed to for this case; it has authority to rule on the matter, but only as a result of the law being found unconstitutional. Easiest citation for this would be from https://en.wikipedia.org/wiki/Supreme_court#Germany https://en.wikipedia.org/wiki/Supreme_court#Germany > When it comes to civil and criminal cases, the Bundesgerichtshof (Federal Court of Justice) is at the top of the hierarchy of courts.
- nn3 8y ago
  Right and that could happen. It being unlikely doesn't make the other court suddenly supreme. The German press release linked in the article even stated that Springer is considering to appeal to the actual Supreme court.
  - maxnoe 8y ago
    Why not use the correct english terms? Federal Constitutional Court and Federal Court of Justice? There is no "Supreme Court" in Germany.
    - PhantomGremlin 8y ago
      Yes, it's important to understand exactly what court people are referring to. So I strongly agree that "correct" English terms should be used (assuming that the translation is correct; I'm sure that courts in Germany don't really have much reason to care about the translation). But sometimes even using correct English words is not enough. In the USA "Supreme Court" sounds authoritative. And it usually is. Except in New York State. The names of courts in New York state often confuse outsiders. The "New York Supreme Court" is the equivalent of "trial-level court" in most other states. New York State's highest court is the Court of Appeals. https://en.wikipedia.org/wiki/New_York_Supreme_Court https://en.wikipedia.org/wiki/New_York_Supreme_Court
      - jkaplowitz 8y ago
        I think the idea when they named it was that it was the supreme trial court, with jurisdiction to try any type of case, as opposed to other trial courts with restricted jurisdictions. BTW, Maryland also calls their top-level court the Court of Appeals, but does not use the term Supreme Court within their state court system.
- _nalply 8y ago
  > result of the law being found unconstitutional To explain: this means in many cases the Federal Court of Justice is the last court to which can be appealed. Axel Springer has already declared that they will try to appeal, but this will be difficult. To appeal they have to show that their constitutional rights might have been violated. Another note: Then there is the European Court of Human Rights in Strasbourg. In exceptional cases this court can be appealed to, for example if a national court's decision has violated a human right. Germany has ratified the European Human Rights and declared that they accept rulings of the European Court of Human Rights. However it is extremely dubious that a company could ever appeal to this court. (A side note to give an example what this Court decides: A Swiss case has been ruled: A Filipina mother with children in Switzerland divorced from her Swiss father tried to enter Switzerland. The denial was deemed to violate the human right to have a family and Switzerland was ordered to let the woman enter the country.)
  - SiempreViernes 8y ago
    I guess you mean in exceptional cases you can successfully appeal to to the ECHR, or is there some special rules that mean Germans have particularly restricted appeal rights to the ECHR?
    - guitarbill 8y ago
      Axel Springer is a company, not a person or persons. Companies don't have human rights, so they obviously cannot appeal to the ECHR. As for exceptional cases, I think the gist is any case that can involve human rights violations is exceptional, as the majority of cases don't even get into the territory of potentially violating the European Convention on Human Rights.
      - _nalply 8y ago
        It's a bit complicated. In civil law jurisdictions a company can be a «person». As such the company can file complaints or be accused of something. The law defines whether an organisation can be viewed as a person. For example in Switzerland associations are legal persons as long as their organs are operative. Organs of a legal person are for example the board, the general assembly and others. This means, a company can suffer from a violation of protected rights. An example is the right for information (a form of free speech). Whether the ECHR would ever accept or has already accepted a complaint from a company I don't know. After all companies aren't really humans.
- tscs37 8y ago
  IIRC from the german articles, Axel Springer wanted to pull up in front of the federal constitutional court and go for something in the direction of "adblockers prevent free press/journalism".
Tomte 8y ago
There are several branches of the judiciary. Labor courts, administrative courts, social courts, civil courts, criminal courts. All those have their own federal supreme courts, suffix „-gerichtshof“ (the Bundesgerichtshof handles both civil and criminal matters, but shows this split even internally by numbering civil senates with Arabic numerals and criminal senates with Roman numerals). The Bundesverfassungsgericht stands beside all those courts and has jurisdiction over constitutional actions. It is specifically not allowed to second-guess the other courts in material questions, but of course, it gets muddy and the relationship between it and the Bundesgerichtshof can get testy sometimes. While it is not above the other federal supreme courts, its decisions outrank their decisions because the constitution is the highest source of legal rules. It‘s also the only court whose decisions themselves carry the force of law.
- contoraria 8y ago
  > The Bundesverfassungsgericht stands beside all those Good choice of words. They are all called highest courts (höchste Gerichte). The BVerfG concerns only those cases in which a fundamental right (Grundrecht) is concerned, as outlined in what would be called a constitution (even if some would debate that it shouldn't be called, and isn't actually named, "Verfassung"). > It‘s also the only court whose decisions themselves carry the force of law. This is not true. The decisions of higher courts can carry the force of law. At the very least, Proceedings before the BVerfG don't suspend the force of a challenged sentence. Unless you are able to, and the BVerfG willing to admit a breach of fundamental right, the court is rather inconsequential -- if you are even in a position to challenge. I doubt that the judicative making law as if it was the legislative branch, is seen as fundamental breach. The romantic view of the separation of powers does not reflect reality very well. Single sentences of the lowest courts can be seen as laws on an individual basis. Saying they had to follow the law is shifting the goal post to defining what a proper law is (a problem that should be interesting to programmers). By the way, there are also Landesverfassungsgerichte for each member state of the federation. But only the BVerfG has power to demand legislature be changed.

The headline is completely wrong. Bundesgerichtshof is not the German Supreme court. It's the second highest court.

by nn3 8y ago

The headline is completely wrong. Bundesgerichtshof is not the German Supreme court. It's the second highest court.

I was curious about this and did a little research. It seems like the higher court (Bundesverfassungsgericht) can't be appealed to for this case; it has authority to rule on the matter, but only as a result of the law being found unconstitutional. Easiest citation for this would be from https://en.wikipedia.org/wiki/Supreme_court#Germany https://en.wikipedia.org/wiki/Supreme_court#Germany > When it comes to civil and criminal cases, the Bundesgerichtshof (Federal Court of Justice) is at the top of the hierarchy of courts.

nn3 8y ago
Right and that could happen. It being unlikely doesn't make the other court suddenly supreme. The German press release linked in the article even stated that Springer is considering to appeal to the actual Supreme court.
- maxnoe 8y ago
  Why not use the correct english terms? Federal Constitutional Court and Federal Court of Justice? There is no "Supreme Court" in Germany.
  - PhantomGremlin 8y ago
    Yes, it's important to understand exactly what court people are referring to. So I strongly agree that "correct" English terms should be used (assuming that the translation is correct; I'm sure that courts in Germany don't really have much reason to care about the translation). But sometimes even using correct English words is not enough. In the USA "Supreme Court" sounds authoritative. And it usually is. Except in New York State. The names of courts in New York state often confuse outsiders. The "New York Supreme Court" is the equivalent of "trial-level court" in most other states. New York State's highest court is the Court of Appeals. https://en.wikipedia.org/wiki/New_York_Supreme_Court https://en.wikipedia.org/wiki/New_York_Supreme_Court
    - jkaplowitz 8y ago
      I think the idea when they named it was that it was the supreme trial court, with jurisdiction to try any type of case, as opposed to other trial courts with restricted jurisdictions. BTW, Maryland also calls their top-level court the Court of Appeals, but does not use the term Supreme Court within their state court system.
_nalply 8y ago
> result of the law being found unconstitutional To explain: this means in many cases the Federal Court of Justice is the last court to which can be appealed. Axel Springer has already declared that they will try to appeal, but this will be difficult. To appeal they have to show that their constitutional rights might have been violated. Another note: Then there is the European Court of Human Rights in Strasbourg. In exceptional cases this court can be appealed to, for example if a national court's decision has violated a human right. Germany has ratified the European Human Rights and declared that they accept rulings of the European Court of Human Rights. However it is extremely dubious that a company could ever appeal to this court. (A side note to give an example what this Court decides: A Swiss case has been ruled: A Filipina mother with children in Switzerland divorced from her Swiss father tried to enter Switzerland. The denial was deemed to violate the human right to have a family and Switzerland was ordered to let the woman enter the country.)
- SiempreViernes 8y ago
  I guess you mean in exceptional cases you can successfully appeal to to the ECHR, or is there some special rules that mean Germans have particularly restricted appeal rights to the ECHR?
  - guitarbill 8y ago
    Axel Springer is a company, not a person or persons. Companies don't have human rights, so they obviously cannot appeal to the ECHR. As for exceptional cases, I think the gist is any case that can involve human rights violations is exceptional, as the majority of cases don't even get into the territory of potentially violating the European Convention on Human Rights.
    - _nalply 8y ago
      It's a bit complicated. In civil law jurisdictions a company can be a «person». As such the company can file complaints or be accused of something. The law defines whether an organisation can be viewed as a person. For example in Switzerland associations are legal persons as long as their organs are operative. Organs of a legal person are for example the board, the general assembly and others. This means, a company can suffer from a violation of protected rights. An example is the right for information (a form of free speech). Whether the ECHR would ever accept or has already accepted a complaint from a company I don't know. After all companies aren't really humans.
tscs37 8y ago
IIRC from the german articles, Axel Springer wanted to pull up in front of the federal constitutional court and go for something in the direction of "adblockers prevent free press/journalism".

Tomte 8y ago

There are several branches of the judiciary. Labor courts, administrative courts, social courts, civil courts, criminal courts. All those have their own federal supreme courts, suffix „-gerichtshof“ (the Bundesgerichtshof handles both civil and criminal matters, but shows this split even internally by numbering civil senates with Arabic numerals and criminal senates with Roman numerals). The Bundesverfassungsgericht stands beside all those courts and has jurisdiction over constitutional actions. It is specifically not allowed to second-guess the other courts in material questions, but of course, it gets muddy and the relationship between it and the Bundesgerichtshof can get testy sometimes. While it is not above the other federal supreme courts, its decisions outrank their decisions because the constitution is the highest source of legal rules. It‘s also the only court whose decisions themselves carry the force of law.

contoraria 8y ago
> The Bundesverfassungsgericht stands beside all those Good choice of words. They are all called highest courts (höchste Gerichte). The BVerfG concerns only those cases in which a fundamental right (Grundrecht) is concerned, as outlined in what would be called a constitution (even if some would debate that it shouldn't be called, and isn't actually named, "Verfassung"). > It‘s also the only court whose decisions themselves carry the force of law. This is not true. The decisions of higher courts can carry the force of law. At the very least, Proceedings before the BVerfG don't suspend the force of a challenged sentence. Unless you are able to, and the BVerfG willing to admit a breach of fundamental right, the court is rather inconsequential -- if you are even in a position to challenge. I doubt that the judicative making law as if it was the legislative branch, is seen as fundamental breach. The romantic view of the separation of powers does not reflect reality very well. Single sentences of the lowest courts can be seen as laws on an individual basis. Saying they had to follow the law is shifting the goal post to defining what a proper law is (a problem that should be interesting to programmers). By the way, there are also Landesverfassungsgerichte for each member state of the federation. But only the BVerfG has power to demand legislature be changed.