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Germany: Courts’ Obligation to Accommodate Disability at Oral Argument Must Be Balanced Against Other Principles

(Jan. 16, 2019) In an order published on January 3, 2019, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) declined to hear a case in which the complainant requested that oral arguments be conducted in a way to accommodate his Asperger’s syndrome. The Court held that the decision of the regional social court (Landessozialgericht) denying his request did not constitute discrimination because of a disability. (BVerfG, Nov. 27, 2018, Docket No. 1 BvR 957/18, ECLI:DE:BVerfG:2018:rk20181127.1bvr095718, BVerfG website; GRUNDGESETZ [GG] [BASIC LAW], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, art. 3, para. 3, sentence 2, German Laws Online website.)


The complainant had asked the regional social court to allow him to join the oral proceedings from his home computer, in a manner similar to a chat in an online forum. The Federal Constitutional Court reiterated that all courts are obligated by article 3, paragraph 3 of the German Basic Law, the country’s Constitution, not only to offer nondiscriminatory treatment to people with and without disabilities, but also to apply the procedural rules in such a way that ensures effective access to justice for persons with disabilities on an equal basis with others. (BVerfG, at 3.) However, the Court held that his request to participate from his home computer was not supported by article 3, paragraph 3 of the Basic Law. (Id. at 4.) In the opinion of the Court, the complainant could have appointed a representative to participate in the oral proceedings. (Id. at 5.) Even though courts are obligated to take health concerns of the parties into account so that they may participate in person, this right is not unrestricted. It must be balanced against the constitutional principles of transparency, immediacy, and administering justice within a reasonable period for all litigants. In the case at issue, the Court concluded that accommodating the wishes of the complainant would conflict with the aforementioned principles. (Id. at 7.) Appointing a representative would have safeguarded the rights of the complainant while at the same time safeguarding the constitutional principles and balancing rights and principles appropriately. (Id. at 8.)