Summary:

I.
The applicant had been placed under provisional legal custodianship by way of a preliminary injunction in December 2010. In June 2011 the custodian applied for an extension of the provisional legal custodianship for six months. By order of that day, the Local Court (Amtsgericht) granted the application without prior hearing of the applicant. Upon a second application by the legal custodian in August 2011, the Local Court extended the provisional legal custodianship until 31 October 2011. Again it did not grant the applicant a prior hearing. By 31 October 2011 the provisional legal custodianship ended through effluxion of time.

Thereupon the applicant lodged a complaint with the Local Court, applying for a declaration that the August 2011 court order extending the legal custodianship had violated her rights. The Local Court did not grant the relief sought. After hearing the applicant face-to-face, the Regional Court, as court of appeal, rejected the complaint. The Regional Court (Landgericht) held that, as the provisional legal custodianship had ended, the applicant lacked a continued recognised legal interest in obtaining a declaratory finding of a violation of her rights (Fortsetzungsfeststellungsinteresse). In her constitutional complaint, the applicant claims that the guarantee of effective legal protection (Article 19.4 in conjunction with Article 3.1 of the Basic Law) and her right to be heard in court (Article 103.1 of the Basic Law) have been violated.

II.

The Federal Constitutional Court held that the applicant’s general right of personality and her right to be heard had been violated.

The decision is based on the following considerations:

1. The challenged court order that extended the legal custodianship under which the applicant had been placed violates her general right of personality and her right to be heard in court.

a) The right to a free and self-determined development of one’s personality guarantees everyone an autonomous area of private life in which one can develop and safeguard one’s individuality. Placing someone under legal custodianship by court order interferes with this right to develop oneself freely by shaping one’s future autonomously, because, with regard to decisions in the life of the person concerned, such an order assigns powers in legal and factual matters – powers that at the minimum amount to co-decision – (rechtliche und tatsächliche Mitverfügungsgewalt) to third parties.

Such interference can only be justified if the competent court has duly investigated and established the facts of the case and can therefore assume that the requirements for establishing or extending legal custodianship are indeed met. One of the pivotal requirements under constitutional law is to observe the right to be heard in court (Article 103.1 of the Basic Law). As a rule, a hearing in the form of a face-to-face hearing of the person concerned is indispensable if placing someone under legal custodianship, as the potential interferences with the general right of personality that custodianship entails are serious. A face-to-face hearing may only be dispensed with temporarily – in cases of both urgency and immediate danger; in such cases, the hearing must be held as soon as possible after the danger is over.

Due to the close relationship between the general right of personality and the right to be heard in court, which in the context of legal custodianship proceedings is designed as a right to be heard personally, ordering legal custodianship without hearing the person concerned does not only constitute a violation of the right under Art. 103.1 of the Basic Law, but, at the same time, a violation of the general right of personality. Therefore, a subsequent hearing cannot retroactively remedy such a violation; such a result is only possible for the future.

b) The Local Court did not personally hear the applicant any time. On the contrary, as in the decision on the first extension of legal custodianship, the Local Court ordered the second extension, which is challenged in the present case, without even informing the applicant. There was no personal hearing afterwards, either. The applicant also did not waive her right to a hearing: Such a finding neither follows from the facts of the case, nor can it be based on statutory law.

It was not possible to remedy the violations of the right to be heard in court in the course of the complaint proceedings aimed at a declaratory finding of the violations. Failure to hear the person concerned in legal custodianship proceedings results in the ordering of legal custodianship being illegal. A subsequent hearing by the court cannot retroactively remedy the court’s previous failure to hear the person concerned.

2. The Regional Court’s order violates the applicant’s right to effective legal protection by denying the existence of a continued recognised legal interest in obtaining a declaratory finding that the Local Court had violated her right to be heard in court. Article 19.4 of the Basic Law requires of the appellate courts not to render ineffective the legal remedies provided by the different codes of procedure. Under this requirement, legal protection can be made dependent on the existence of a recognised legal interest in bringing an action. However, in cases of serious interferences with fundamental rights such a recognised legal interest in bringing an action must be found to exist where, while the challenged sovereign act no longer has legal effects and therefore the person concerned is no longer directly adversely affected by it, the person concerned was not able to obtain effective legal protection before. In its order of 3 May 2012, the Regional Court, by denying that the applicant had a recognised legal interest in a declaratory finding of a violation, failed to meet these requirements.