The right to be heard in criminal proceedings

• Applicant: Professor Dr. Erol Pohlreich
• Subject Area: Criminal Law
• Term: from 2014 to 2017
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 263942923

The applicant plans to examine the constitutional requirements that result from the right to be heard in criminal proceedings on the basis of three problems that each cover one aspect of this fundamental right. Starting from these problems, he aims to classify and critically analyse the constitutional standards set by the Federal Constitutional Court and to develop them further where necessary. One of these problems is that secret methods of investigation are spreading progressively in criminal proceedings and that, under certain conditions, authorities can keep information secret although this information is relevant in a trial. This raises the question of how to fairly balance the authorities' interests of keeping information secret and the accused's right to information which derives from the right to be heard. Another problem concerns the question of the constitutional requirements resulting from the right to be heard when dealing with evidentiary motions. The third problem concerns the courts' obligation to motivate their decisions. This obligation is rooted in the constitutional right to be heard and aims at allowing the parties to assess whether their arguments have been taken into account. The applicant wants to examine the scope of this obligation, given that, according to the current jurisprudence of the Federal Court of Justice and the Federal Constitutional Court, in criminal proceedings the final appeals courts are exempt from the obligation to motivate their decisions if they dismiss an appeal as clearly unfounded. Methodologically, the applicant wishes to analyse the current jurisprudence of the Federal Constitutional Court concerning the problems mentioned above under the aspects of self-consistency and conformity with the standards set by the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. Hence, he aims at developing a consistent theory on the constitutional right to be heard, especially clearer criteria for the assessment of its violation in criminal proceedings, and criminal procedure law as well as concrete results in the particular problematic areas mentioned above. Where means of legal dogmatics prove to be insufficient, proposals de lege ferenda shall be developed.

• DFG Programme: Research Grants