Remonstration in addition to the challenge of the violation of the right to a hearing in court?

After the Act to challenge the violation of the right to a hearing in court came into force on 9th December 09 (Federal Law Gazette I, p. 3220 et seq.) the legal situation seems clear: There is no unwritten informal legal remedy of remonstration against court decisions at final instance any more. The challenge of the violation of the right to a hearing in court gives you only the basic right to a fair hearing (Article 103 paragraph 1 GG).

However, not all the courts share this view. For example, the 11th Senate of the higher administrative court Lüneburg believes that you can also rely on the challenge of the violation of the right to a hearing in court to invoke the “severe violation of basic procedural rights that can otherwise only be challenged by an appeal to the constitutional court" (decision of 8th February 2006-11 LA 82 / 05). The higher administrative court Lüneburg included explicitly Article 3 paragraph 1 GG to these "basic procedural rights"

A clear and unambiguous precedent of the German Supreme Constitutional Court is still missing.

Therefore, Guber | PUBLIC LAW recommends, until further notice ,to rely on the challenge of the violation of the right to a hearing in court to claim not only a violation of the basic right to a fair hearing, but also violations of other basic procedural rights (as defined by decision of the higher administrative court Lüneburg).