Most important points

• The objection to a hearing is a procedural legal remedy pursuant to Section 321a ZPO that can be asserted if a court has violated a party’s right to be heard.

• It enables the internal review of a court decision by the same court without the need for another court or a new appeal procedure.

• The prerequisite is that the court has not taken note of a party’s submissions that are relevant to the decision or has not taken them into account in its decision.

• The complaint must be submitted in writing within two weeks of becoming aware of the decision. Restitutio in integrum is possible under the conditions of Sections 233 et seq. ZPO are possible.

• The objection to a hearing has no suspensive effect, but can lead to the contested decision being amended or set aside if the objection is well-founded.

Purpose and legal background

The right to be heard is a legal remedy that takes into account the constitutional right to be heard (Art. 103 (1) GG). It was introduced by the law on the introduction of the right to be heard of December 9, 2004 in order to strengthen legal protection in cases in which a court decision has been made in violation of this fundamental right.

This was the legislator’s response to the case law of the Federal Constitutional Court, according to which a violation of the right to be heard should not only be correctable in the context of a constitutional complaint, but also at the level of ordinary law. Since then, courts have been able to review their own decisions on complaint if such a violation of the right to be heard is asserted.

The hearing appeal is not a “classic” legal remedy, but an extraordinary procedure for self-correction.

Requirements and procedure

The objection to a hearing is directed against a court decision in which a violation of the right to be heard is objected to. It is regulated in the rules of procedure, in particular in:

• § Section 321a ZPO (civil proceedings),

• § Section 33a StPO (criminal proceedings),

• § Section 152a VwGO, Section 178a FGO, Section 133a SGG, Section 44a ArbGG (administrative, financial, social and labor court proceedings).

The following applies in civil proceedings:

• Admissibility: The complaint is only admissible if no other legal remedy (e.g. appeal, revision) or legal remedy is available and the proceedings have already been concluded.

• Form and deadline: The complaint must be submitted in writing, stating reasons, and within two weeks of becoming aware of the violation of the right to be heard.

• Content: Statement as to which arguments relevant to the decision were not taken note of or not considered.

• Decision: The court examines whether there has actually been a violation of the right to be heard. If this is the case and the violation was relevant to the decision, the decision will be overturned or amended. Otherwise, the complaint is rejected.

Application examples and practical significance

The objection to being heard is particularly relevant if a party has made a statement in the proceedings but the court has not included this submission in its considerations. Examples are

• Pleadings were overlooked or their content ignored,

• Requests (e.g. for the taking of evidence) were ignored without justification,

• the court made a decision before the deadline set for comments had expired.

The complaint offers the affected party the opportunity to react to a possible wrong decision within the judicial process without having to go straight to the Federal Constitutional Court. This is particularly important in the appeal process if the appeal has been rejected as inadmissible by order (e.g. complaint against denial of leave to appeal) and an appeal or complaint is no longer open.

At the same time, the objection to a hearing is not an instrument for re-examining the content of the proceedings – new factual submissions are generally inadmissible in the context of the objection. It is not an “extended appeal”, but purely an instrument for correcting procedural errors.

Relationship to the constitutional complaint and legal consequences

The objection to being heard must always be raised before a constitutional complaint. The Federal Constitutional Court has consistently held that before a constitutional complaint is lodged against a decision in which a violation of the right to be heard is asserted, the right to be heard must be used first – insofar as this is provided for by law.

If a well-founded complaint is successfully lodged, the court shall set aside the contested decision or amend it accordingly. A further appeal against the decision on the complaint itself is not admissible.

The risk of abuse is low, as high demands are placed on the reasoning. At the same time, the objection to a hearing is of considerable importance in legal practice – especially in cases where a surprising judgment is issued or a central argument was not mentioned in the judgment.