Documents relating to proceedings to be made available in braille except in cases in which their contents may equally be communicated by the party’s attorney

Press Release No. 97/2014 of 31 October 2014

Order of 10 October 2014
1 BvR 856/13

In a decision published today, the Second Chamber of the Federal Constitutional Court’s First Senate decided upon the right of a visually impaired complainant to receive documents relating to a civil-law dispute in braille. It follows from the prohibition of discrimination enshrined in Art. 3 sec. 3 sentence 2 of the Basic Law (Grundgesetz – GG) that visually impaired individuals need to be enabled to participate in social life in the same way as non-handicapped individuals. In cases involving simple matters, an individual who is represented by an attorney may generally be required to rely on his or her attorney to relay information concerning the proceedings. However, the respective court’s obligation of care requires that courts make available documents relating to the proceedings in braille if there is reason to believe that the attorney is not able to communicate their contents in a way that is equal to the client reviewing them him- or herself.

Facts of the Case and Procedural History:

The visually impaired complainant requested the Regional Court (Landgericht) that was hearing his civil-law case on appeal to provide him with the pertinent documents in braille. The court rejected this motion. A complaint the complainant brought before the Federal Court of Justice (Bundesgerichtshof) with the Regional Court’s leave was unsuccessful.

Key Considerations of the Chamber:

1. The prohibition of discrimination enshrined in Art. 3 sec. 3 sentence 2 GG is not limited to requiring state actors to treat handicapped and non-handicapped individuals alike on a legal level. Legislation that negatively affects the situation of handicapped individuals compared to non-handicapped individuals may also constitute discrimination. Therefore, legislature and courts when conceiving and interpreting rules of procedure must ensure that handicapped parties possess the same means of participating in the proceedings as non-handicapped parties.

2. The challenged decisions meet these standards. Therefore, the constitutional complaint is not admitted for decision.

a) Requiring a visually impaired party to rely on his or her attorney to communicate information relating to the proceedings is permissible under Art. 3 sec. 3 sentence 2 GG at least in cases concerning simple matters and in which there is no indication that the attorney might not be able to communicate information in a way that is equal to the client reviewing it him- or herself. Such a restriction is permissible under § 191a sec. 1 of the Law on the Constitution of Courts (Gerichtsverfassungsgesetz) in the version effective until 30 June 2014 and under § 4 sec. 1 of the Ordinance on Accessibility (Zugänglichmachungsverordnung).

According to the Federal Court of Justice, an individual who is represented by an attorney may be precluded from access to documents in braille. This key holding is in accordance with Art. 3 sec. 3 sentence 2 GG. Equal participation in the proceedings does not necessarily imply that visually impaired individuals be made available documents in braille. In cases in which the subject matter is simple and the party is represented by an attorney, it may generally be assumed that the contents of the proceedings will be relayed to the party by his or her attorney without loss of information and without impairing the party’s participation in the proceedings. This holds even more true as it is one of the attorney’s obligations to keep his or her client informed.

Contrary to the judgment of the Federal Court of Justice, however, the courts’ responsibility, arising from Art. 3 sec. 3 sentence 2 GG, to ensure that handicapped individuals dispose of the same means of participation does not end when an individual is represented by an attorney. Courts must also comply with an individual’s request for documents in braille if there is reason to believe that, notwithstanding their simplicity, the document’s contents are not relayed to the individual in a way that is equal to a personal review of the documents. This also adequately serves to enable visually impaired individuals to monitor their legal counsel’s performance. Should counsel not adequately perform his or her duty to keep the client informed, the client may bring this matter before the court and again request that documents be made available in braille; in cases in which there are indications to this effect, the court’s obligation of care requires it to take such measures ex officio.

b) Generally, the decision on whether it is necessary to provide documents in braille pertains to the regular courts and is subject to a limited review by the Federal Constitutional Court only. The decision taken in the case at hand complies with the applicable standards. According to the findings of the Regional Court, the subject matter of the case was sufficiently simple for the attorney to communicate the relevant information to his or her client in an adequate manner. Therefore, the Regional Court and the Federal Court of Justice could assume that they were not required to make the documents relating to the proceedings available to the complainant for his personal review. The Court finds no reason to believe that the client’s counsel did not adequately relay the contents of the documents to him; neither does the client make such a claim. His general assertion of not having been able to monitor the performance of his legal representative does not suffice to raise doubts as to counsel’s actual performance.