Case of the Day: In re Frau R

The case of the day, courtesy of Peter Bert of Taylor Wessing, is In re Frau R (German Fed. Constitutional Ct. 2015). Yes, I know that’s not the proper form for citing German cases, but it will have to do. Frau R., a Romanian national, sued a Romanian widow for a share of her dead husband’s estate on the grounds that the widow and her husband had adopted her. The widow denied the adoption, and so Frau R. sought recognition, in Germany, of the Romanian adoption. The lower court that heard the case failed to request the record of the adoption from the Romanian court under Council Regulation (EC) No 1206/2001, the EU regulation on judicial assistance, even though Frau R. had presented a letter from the Romanian authorities indicating that they would be receptive to a request from the German court. On appeal, the Federal Constitutional Court held that the lower court had violated Frau R.’s constitutional right to effective judicial protection.

Peter has a good explanation of the case at Dispute Resolution Germany, his excellent blog. I have little to add about the case itself, though I think it is an excellent illustration of the civilian way of looking at things. In Germany it is the court’s obligation to obtain the relevant evidence, and so when the court fails to do so, the litigant is deprived of her constitutional right to the protection of the courts, because it is the court that has failed. Things are different in the common law world, where in general the burden of obtaining the relevant evidence falls on the party. In his post, Peter points out that the court’s burden to obtain evidence is especially heavy in family law cases and perhaps less heavy in civil or commercial cases, but he nevertheless expects that the same outcome could obtain in cases where, for example, the court fails to make a request under the Hague Evidence Convention on the motion of a party. That is an almost inconceivable result, at least in constitutional terms, in the United States, where we do not think there is a constitutional right to pretrial discovery. So there is no small irony in this result.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

2 thoughts on “Case of the Day: In re Frau R

  1. When I first read Ted’s comment, I took issue with the statement that in “Germany, it is the court’s obligation to obtain the relevant evidence”, as it struck me too far-reaching: German procedural law places the burden of offering the evidence on the parties. The duty to establish facts ex officio is an exemption; the most relevant application being in family law matters. On the other hand, the parties can only “offer” evidence, as the German technical term Beweisangebot nicely illustrates. It is for the judges to accept that offer: They control whether witnesses or experts that have been offered will actually be heard, and if so, which ones. Parties are free to introduce documents that they have in their possession into the proceedings, but access to documents they do not have in their possession again is controlled by the Courts, and so is the decision whether to seek judicial assistance, be it with respect to witnesses or documents abroad. So with that in mind, Ted may have overstated things only slightly.

    1. Peter, I accept your charitable amendment to my reading of German law! A more precise statement would have focused on the power to gather documents not in the parties’ possession.

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