Legal protection in the event of lengthy court proceedings and criminal investigations

from Wikipedia, the free encyclopedia
Basic data
Title: Law on legal protection in the event of lengthy court proceedings and criminal investigations
Abbreviation: ÜberlVfRSchG (not official)
Type: Federal Law (Germany)
Scope: Federal Republic of Germany
Issued on the basis of: Art. 74 para. 1 no. 1 GG
Legal matter: Procedural law (Germany)
Issued on: November 24, 2011
( BGBl. I p. 2302 )
Entry into force on: December 3, 2011
GESTA : C052
Weblink: Text of the law
Please note the note on the applicable legal version.

The legal protection over long legal proceedings and criminal investigation is the subject of 2011 introduced the 17th title in the German Judicature Act (GVG), the affected parties in court proceedings and a criminal investigation gives others the right to financial compensation in the event of unreasonable length of proceedings. The regulations, the result of several decisions by the European Court of Human Rights(ECHR) apply to all procedural rules. The main prerequisite is that the duration of legal proceedings or criminal investigations is “unreasonably” long. When this is the case is not defined by law, but must be judged according to the circumstances of the individual case. The provisions grant those involved in proceedings in excessively long proceedings financial compensation, which must be sued in a separate legal process.

The Reich Chamber of Commerce could be requested to accelerate the proceedings by way of the Sollicitatur .

background

Starting position

Legal protection in the case of lengthy court proceedings and criminal investigations concerns cases in which a party has initiated legal proceedings (e.g. sues a claim), but the court does not deal with the matter in a reasonable time or does not make a decision on the matter brings about. Here the need may arise to induce the court to promote the proceedings and to bring about a decision. It is also conceivable that one party (or both) may suffer economic or immaterial damage as a result of the delay in the decision. In this case, the need for compensation arises.

A comparable constellation can result from an excessively long criminal investigation.

Constitutional situation

Article 19 (4) of the Basic Law contains in sentence 1 a guarantee of legal protection . According to this, legal recourse must be open against every violation of the law that can be traced back to public authority. In the opinion of the Federal Constitutional Court ,the principle of the effectiveness of legal protectionalso includes that a final judicial decision must be available in good time and within a reasonable time. Article 19 (4) of the Basic Law contains - also - a structuring mandate for the legislature: It must take this principleinto accountwhen structuring the organization of courts and procedural law. A comparable approach is contained in Article 6, Paragraph 1 of the ECHR , which has the status of a simple law in Germany: According to this, every person has the right to be informed about disputes relating to their civil claims and obligations or about a criminal charge brought against them by a an independent and impartial court based on law shall be given a fair trial, publicly and within a reasonable time.

Legal situation in Germany until 2011

Up until 2011, there was no express provision in the German legal system with which those involved in court or preliminary proceedings could achieve acceleration or compensation. Only indirect or subordinate steps were possible. These included

These possibilities had and still have limited consequences. The inaction and the constitutional complaint are each aimed at the mere judicial determination of inactivity, but do not trigger any direct consequences for the trial court, which delays the legal dispute. The supervisory complaint is also a mere measure of personnel supervision . Official liability claims are subordinate; they usually only follow after the (delayed) exit process has been completed.

In the past few years, the ECHR has criticized the lengthy duration of court proceedings in Germany in several decisions and at the same time criticized the fact that the existing options for defending oneself against lengthy proceedings are ineffective.

Creation of a legal regulation

Following on from this case law, the mandate to the federal legislature responsible according to Art. 74 (1) No. 1 of the Basic Law arose to create a regulation that gives those involved in the process the opportunity to accelerate and, if necessary, obtain compensation.

Conflicting goals in a new regulation

When designing a regulation, the legislature had to take into account the tension between the guarantee of effective legal protection on the one hand and judicial independence, which is also constitutionally anchored ( Art. 97 (1) GG), on the other. In addition to the decision on the matter itself, the judicial independence also applies to all measures preparatory to the decision, including the timing and the order in which pending lawsuits are dealt with. From this it follows that a verifiability of the procedural design must be guaranteed in principle, but on the other hand a regulation of fixed deadlines is not permitted.

Legislative process

In the spring of 2010, the then Federal Minister of Justice, Justice Minister Leutheusser-Schnarrenberger, presented a draft law aimed at improving legal protection in the event of lengthy court proceedings. On September 3, 2010, the federal government forwarded the draft of a law on legal protection in the event of lengthy court proceedings and criminal investigation proceedings in accordance with Article 76 (2) sentence 1 of the Basic Law to the Bundesrat . Legal Committee, Finance Committee and Committee for Internal Affairs generally welcomed the draft law in their statements and also proposed various changes to the draft. In its meeting on October 15, 2010, the Federal Council issued an opinion on the draft pursuant to Article 76 (2) sentence 2 of the Basic Law.

The Federal Government then introduced the draft law to the Bundestag , which on January 20, 2011, referred it to the Legal Affairs Committee and the Interior Committee. The Legal Affairs Committee held a public hearing on March 23, 2011. Both committees discussed the draft law on May 25, 2011 and September 28, 2011; There were also several amendments ( 17 (6) 80 , 17 (6) 100 ) in the Legal Affairs Committee . The Legal Affairs Committee recommended with the votes of the CDU / CSU, FDP and SPD against the votes of the Die Linke faction, with the Bündnis 90 / Die Grünen faction abstaining , to adopt the draft law with amendments.

On September 29, 2011, the Bundestag finally dealt with the draft law in the second and third readings and adopted both the draft law with the amendments recommended by the Legal Committee and the resolution recommended by the Legal Committee.

The Federal Council voted at its 888th meeting on 14 October 2011 on the (requiring approval) Act. The Federal Council has therefore not followed a recommendation by the Legal Affairs Committee to call the Mediation Committee . The Legal Affairs Committee had criticized that the draft law had not taken into account essential demands of the Bundesrat. The reversal of the burden of proof in Section 198 (2) sentence 1 GVG should be deleted. In addition, it should only be possible to bring an action for compensation after the ongoing proceedings have been concluded (and not six months after the complaint has been filed) in order to avoid further delays in the ongoing proceedings. Preview of the Federal Council of October 11, 2011 of its 888th session. ( Memento of October 14, 2011 in the Internet Archive ) The law was issued on November 24, 2011 and announced in the Federal Law Gazette on December 2, 2011.

structure

Legal protection in the case of lengthy court proceedings and criminal investigation proceedings is regulated across all jurisdictions in §§ 198 ff. GVG. It applies - in part through reference norms ( Section 173 VwGO, Section 9 ArbGG, Section 202 SGG) - in all procedural rules.

Regulation content

The law provides for a combination of preventive legal protection (notice of delay) and compensatory legal protection (claim for compensation). The latter builds on the former. The right to compensation regulated in Section 198 (1) sentence 1 GVG is of central importance :

Anyone who suffers a disadvantage as a party to the proceedings as a result of inadequate duration of legal proceedings will be adequately compensated.

On the other hand, an action to determine the unreasonable duration is inadmissible. The appropriateness of the duration of the proceedings depends on the circumstances of the individual case, in particular on the difficulty and importance of the proceedings and on the behavior of those involved in the proceedings and third parties.

scope of application

Objective scope

According to the legal definition of Section 198 (6) No. 1 GVG, the legal protection provisions apply to every judicial procedure from initiation to final conclusion, including a procedure for granting provisional legal protection and for the approval of legal aid or legal aid.

The provisions therefore apply to

  • Main proceedings
  • Legal aid applications
  • Basic cost decisions
  • Cost fixing procedure,
  • Requests for additional cargo ,
  • Rejection requests,
  • Requests for compensation or remuneration from experts, witnesses, etc.
  • Requests for suspension, rest, separation or association,
  • independent evidence preservation procedure
  • Requests to correct the judgment or the facts of the case and
  • Reminder procedure .

However, insolvency proceedings after they have been opened are excluded .

Temporal scope

All stages of the procedure are recorded, from collection to entry into legal force. The (delayed) registration of the complaint can also be promoted with the notice of delay. The period between the announcement of the decision and the withdrawal in writing or the delivery of the decision is also recorded.

Special regulations

Special regulation for criminal proceedings

For criminal proceedings, there have already been different ways of compensating for an excessively long duration of both the investigation and the main proceedings that is contrary to the rule of law. Such compensation can take place, for example, by taking into account the delay in the sentencing process or even by terminating the proceedings . Such consideration of an excessively long duration of the proceedings should be regarded as “sufficient reparation in another way” within the meaning of Section 198 (2) sentence 2 GVG (Section 199 (3) GVG).

Special regulation for proceedings before the Federal Constitutional Court

Article 2 of the law on legal protection in the event of lengthy court proceedings and criminal investigation proceedings contains several changes to the Federal Constitutional Court Act . For proceedings before the Federal Constitutional Court , the delay complaint ( Sections 97a ff. BVerfGG) is a new type of procedure. On the basis of this delay complaint, a decision will be made on compensation and redress for inappropriately long proceedings ( Section 97b (1) sentence 1 BVerfGG ). Thefiling of a complaint aboutdelay also requires a notice of delay (Section 97b (1) sentence 2 BVerfGG). A Board of Appeal with four constitutional judges is responsible for deciding on the delay complaint ( Section 97c (1) BVerfGG ).

In the history of the Federal Constitutional Court, there has so far only been one successful delay complaint: in the case there, the Federal Constitutional Court was unable to clarify for five years whether the First or Second Senate is responsible for the constitutional complaint, so that the complainant was awarded € 3,000 in compensation. An additional official liability suit before the Karlsruhe Regional Court ended in a settlement in which the court undertook to pay the complainant a further EUR 2,500.

Inappropriate duration of proceedings

The concept of “inadequate duration” is central to the claim for compensation. The inadequate duration is not only a basic requirement for the compensation claim, but also the basis for the specific amount of the compensation claim.

The law does not contain any legal definition or specific timeframes for “inadequate duration”; In Section 198 (1) sentence 2 of the GVG, it only offers individual criteria such as the actual or legal difficulty of the matter, the significance of the proceedings, the conduct of those involved in the proceedings and the conduct of third parties. It is recognized in case law that there are no fixed (time) limits, but that each procedure must be considered individually; however, individual decisions are assumed to be inadequate if the court has been inactive for 12 months. In the concrete assessment, the question of whether an expert opinion has to be obtained or otherwise extensive evidence also plays a role. Also an additional expenditure of time for the judge's endeavor to end the main proceedings by way of settlement. It is controversial whether the judicial decisions in the main proceedings may also make sense.

Overall, the case law on this issue is still inconsistent three years after the law came into force.

Compensation claim

If legal proceedings or criminal investigations take an inappropriately long time, the party involved will be “adequately compensated”.

requirements

From a procedural point of view, this presupposes that the person concerned has lodged a complaint about delay in the main proceedings. It is not a remedy , but merely a suggestion to speed up the process. The complaint of delay is to be addressed to the court that deals with the main proceedings (delaying), but not to the court that later has to rule on compensation.

Legal consequence: compensation

Inadequate duration of proceedings leads to a right to adequate compensation. Here, immaterial and material damage is to be compensated.

Immaterial damage

Section 198 (2) sentence 1 GVG irrefutably presumes that an inappropriately long duration of the proceedings leads to non-material damage. According to the will of the legislature, this applies regardless of whether the person who invokes the delay has won in the main proceedings or not: even those who lose have a right to know where they stand in a reasonable time.

According to Section 198 (2) sentence 3 GVG, the non-pecuniary damage is compensated with 1,200 euros for each year of delay. If the amount according to sentence 3 is unreasonable in the circumstances of the individual case, the court can set a higher or lower amount. For periods of less than a year, billing can be carried out on a monthly, weekly or daily basis. The claim for compensation is not limited to the object value of the main proceedings, i.e. H. the amount of compensation does not depend on the amount in dispute in the main proceedings.

Material damage

If tangible material damage has arisen beyond this, it can also be replaced. This applies, for example, to travel expenses.

Action for compensation

The claim for compensation is not to be asserted in the main proceedings, but with an independent action for compensation (Section 201 GVG). The respective higher court is responsible for this, regardless of whether the delayed initial proceedings were first or second instance proceedings.

The action for compensation can be brought at the earliest six months after the complaint of delay has been filed and no later than six months after the main proceedings have been settled ( Section 198 (5) sentence 2 GVG).

According to § 200 GVG, the correct respondent is the Federal Republic of Germany for delays in the federal courts, in all other cases it is the respective federal state. Special features apply to procedural delays at joint courts: The decisive factor here is, in principle, the country against whose administrative actions the later compensation plaintiff had defended in the main proceedings.

Whether the amount of the compensation requested is to be quantified in the claim for compensation is disputed in the case law.

Evaluation of the Bundestag

Following a recommendation by the Bundestag, the federal government carried out an evaluation two years after the law came into force. The evaluation report covers the period from the entry into force of the law to December 31, 2013.

The data collected for the evaluation period show that excessively long proceedings are primarily a problem of social justice . Here, 50 percent more complaints about delay have been filed and three times more compensation claims have been brought than in all other jurisdictions combined. However, the success rates of the compensation claims were low; the same applies to the compensation paid:

For the period from December 2011 to December 2013, the following values ​​result:

jurisdiction Compensation claims
success rate
Compensation
sum (rounded if necessary)
Civil jurisdiction 30.68% € 54,400
Criminal jurisdiction 44.44% € 7,400
Administrative jurisdiction 58.06% € 20,243
Financial jurisdiction 15.38% 4,300 €
Social justice 13.23% € 96,260

In the labor courts, only a compensation action was decided; she was successful.

Evaluation and criticism

The ECHR sees the procedure according to §§ 198 ff. GVG as an effective complaint i. S. d. Art. 13 ECHR and since the entry into force of the provisions only allows individual complaints in exceptional cases (see, for example, No. 62198/11 ) due to excessive procedural time.

In the legal literature, the rules of § 198 ff. GVG are sometimes criticized as inadequate. The point of contact for the criticism is primarily the vagueness of the concept of inadequate duration.

In a statement from March 2014, the Federal Bar Association criticized ambiguities in the legal consequences, particularly in the relationship between compensation and reparation in other ways.

The distribution of responsibilities among all jurisdictions is criticized. It leads to the fact that the highest court case law on §§ 198 ff. GVG develops "only cumbersome and not completely homogeneous".

The Federation of German Social Judges criticizes legal protection in excessively long court proceedings in a variety of ways:

  • The compensation procedures create an additional burden for the courts. In 2013 alone, 166 compensation claims were filed with the State Social Court of North Rhine-Westphalia . As a result, proceedings are not processed faster, but rather even more slowly, because judges' posts have to be used to process the compensation claims, which are then missing elsewhere.
  • Because not only the main proceedings, but also ancillary claims such as For example, judicial refusals or complaints from the hearing can be the subject of an action for compensation, many compensation proceedings can fall on one main proceedings.
  • The compensation procedure itself can also be the subject of a compensation claim; there is the threat of an endless, never-ending chain of compensation procedures.
  • Although the legislature has decided that the compensation procedure is generally chargeable in all jurisdictions and is dependent on the payment of an advance payment, the specific implementation of this regulation in the individual jurisdictions is partly unclear. In particular, the question arises of how to proceed if the advance on costs is not paid in proceedings that are not civil court proceedings, because there are no corresponding regulations.

Among other things, the introduction of compulsory lawyers for compensation proceedings in social justice is called for.

literature

Overall representations
  • Peter Link, Tomas van Dorp: Legal protection in case of lengthy court proceedings . Beck, Munich 2012, ISBN 978-3-406-63633-2
  • Martin Marx, Werner Roderfeld: Legal protection in excessively long court and investigation proceedings . Nomos, Baden-Baden 2013, ISBN 978-3-8329-7805-1
Legislative process
  • Stephan Beukelmann, law on legal protection in the event of excessively long proceedings. In: NJW-Spezial , 2010, Issue 20, pp. 632–633.
  • Franz Josef Düwell , draft law on legal protection in long court proceedings . In: Fachanwalt Arbeitsrecht (FA), 2010, pp. 202–205.
  • Thomas Hildebrandt, Natalie Klara Kaestner, judge and referee liability due to lengthy proceedings . In: Construction Law (BauR) , ISSN  0340-7489 , 2010, pp. 2017–2024.
  • Annemarie Matusche-Beckmann, Patrizia Kumpf, legal protection in excessively long court proceedings - after a long journey to the goal? In: Zeitschrift für Zivilprozess (ZZP), ISSN  0342-3468 , 124 (2011), pp. 173-189.
  • Christine Steinbeiß-Winkelmann, legal protection over long trial. To the new draft law of the federal government. In: Journal for Legal Policy (ZRP), ISSN  0514-6496 , 2010, issue 7, pp. 205–209.
Notice of delay
  • Christoph Althammer, Daniel Schäuble, Effective legal protection in the event of excessively long proceedings - The new law from a civil law perspective . In: Neue Juristische Wochenschrift (NJW), 2012, Issue 1/2, pp. 1–7.
  • Thomas Böcker, New legal protection against the excessively long duration of tax court proceedings . In: German Tax Law (DStR), 2011, Issue 46, pp. 2173–2178.
  • Detlef Burhoff: Delays in proceedings, lengthy court proceedings and complaints about delay - the new regulations in the GVG , Criminal Law Report (StRR) 2012, 4 ( online ).
  • Christian Gercke, Julius Heinisch: Effects of the notice of delay on criminal proceedings , in: Neue Zeitschrift für Strafrecht (NStZ), 2012, issue 6, pp. 300–305.
  • Robert Magnus: The new law on legal protection in the event of lengthy court proceedings and criminal investigations . In: Zeitschrift für Zivilprozess , 2012, Issue 1, pp. 75–91.
  • Wolf-Rüdiger Schenke : Legal protection in the event of lengthy administrative proceedings . In: Neue Zeitschrift für Verwaltungsrecht (NVwZ), 2012, Issue 5, pp. 257–265.
  • Bernhard Joachim Scholz: Legal protection against excessively long proceedings . In: Die Sozialgerichtsbarkeit (SGb) 2012, pp. 19–24.
  • Ulrich Sommer : The complaint about the delay: »In search of lost time« . In: Der Strafverteidiger (StV), 2012, Issue 2, pp. 107–112.
  • Rüdiger Zuck : Legal protection in the case of lengthy court proceedings before the BVerfG . In: Neue Zeitschrift für Verwaltungsrecht (NVwZ), 2012, Issue 5, pp. 265–270.
Compensation claim and action
  • Annette Guckelberger : The new state liability claim for compensation for lengthy court proceedings . In: Public Administration (DÖV), 2012, Issue 8, pp. 289–298.
  • Manfred Heine: Excessively long court proceedings - The compensation claim according to § 198 GVG . In: Monthly for German Law (MDR), 2012, Issue 6, pp. 327–332.

Web links

Individual evidence

  1. BVerfG, decision of March 27, 1980, Az. 2 BvR 316/80, and judgment of May 16, 1995, Az. 1 BvR 1087/91.
  2. See in particular the “pilot judgment” of the fifth section of the European Court of Human Rights of July 6, 2010 in the case R. v. Germany - 46344/06 - (unofficial German translation) , ( English version ), as well as the associated press release by the Chancellor dated September 2, 2010, First pilot judgment in proceedings against Germany: the excessive length of the proceedings before German courts is a structural problem (accessed on October 6, 2011).
  3. Convictions for lengthy court proceedings against the Federal Republic of Germany before the European Court of Human Rights. Elaboration of the scientific services of the German Bundestag
  4. BVerwG, judgment of February 8, 1973, Az. I WB 228.72.
  5. Draft " Law on legal protection in the case of lengthy court proceedings and criminal investigations "
  6. Press release: More legal protection in the case of excessively long processes. (No longer available online.) Federal Ministry of Justice, April 8, 2010, archived from the original on July 20, 2012 ; accessed on February 22, 2016 .
  7. BR printed matter 540/10.
  8. BR-printed matter 540/1/10 of 5 October of 2010.
  9. BT printed matter 17/3802 of November 17, 2010 (PDF; 811 kB).
  10. BT plenary minutes 17/84 of January 20, 2011, 9494 C.
  11. ^ Committee on Legal Affairs - Wednesday, March 23, 2011, 3 p.m. - lengthy court proceedings. Public hearing materials and comments on March 23, 2011. (No longer available online.) Archived from the original on July 27, 2013 ; accessed on February 22, 2016 .
  12. Bundestag printed matter 17/7217 of September 28, 2011 (PDF; 607 kB).
  13. cf. Also press release of the CDU / CSU parliamentary group from September 28, 2011, We create legal protection against excessively long proceedings in courts , accessed on September 28, 2011.
  14. Bundestag printed matter 17/7217 from September 28, 2011 (PDF; 607 kB), recommendation for resolution No. 1.
  15. Bundestag printed matter 17/7217 of September 28, 2011 (PDF; 607 kB), recommendation no. 2, which, among other things, provides for an evaluation of the application of the law two years after its entry into force.
  16. Decision of the Federal Council. (PDF; 9.4 kB) Printed matter 587/11. October 14, 2011, accessed February 22, 2016 .
  17. Recommendations of the committees on item 8 of the 888th meeting of the Federal Council on October 14, 2011. (PDF; 44.2 kB) (BR-Drucks 587/1/11). Retrieved February 22, 2016 .
  18. BGH, judgment of January 23, 2014, Az. III ZR 37/13.
  19. ^ BGH, judgment of December 5, 2013, Az. III ZR 73/13
  20. This was initially controversial in jurisprudence and literature; some courts had refused to include reminders in the scope of § 198 GVG (most recently LSG North Rhine-Westphalia from October 16, 2014, Az. L 11 SF 671/14 EK). The inclusion has been clarified by the court since the BSG of July 10, 2014 (B 10 ÜG 8/13 R).
  21. BSG, judgment of February 21, 2013, Az. B 10 ÜG 1/12 KL
  22. For the current composition of the Board of Appeal, see the plenary decision of November 24, 2015. (PDF; 6.4 kB) Federal Constitutional Court, accessed on February 14, 2016 .
  23. BVerfG, decision of August 20, 2015, AZ Vz 11/14
  24. Federal Constitutional Court: Silence in the Name of the People: Supreme German Judge in the Dock - Frankfurter Rundschau
  25. ZB LSG Hamburg, October 30, 2014, Az. L 1 SF 16/13 ESV.
  26. Bundestag printed matter 17/3802 of November 17, 2010 (PDF; 811 kB), AI5, p. 16 r. Sp.
  27. ^ S. Reasons for the law, BT-Drs. 17/3802, p. 20.
  28. BSG, judgment of February 12, 2015, Az. B 10 ÜG 11/13 R.
  29. BVerwG, judgment of July 12, 2013, Az. 5 C 23.12 D; 5 C 27.12 D; Press release No. 49/2013.
  30. BFH, judgment of April 17, 2013, XK 3/12.
  31. For compulsory figures: LSG Sachsen-Anhalt, judgment of December 18, 2014, Az. L 10 SF 11/14 EK; Thüringer OVG, judgment of January 8, 2014, Az. 2 SO 182/12; OLG Hamm, judgment of May 7, 2014, Az. I-11 EK 22/13; against compulsory figures LSG Berlin-Brandenburg, judgment of June 25, 2014, Az. L 38 SF 304/13 EK AS; LSG Baden-Württemberg, judgment of May 27, 2014, Az. L 2 SF 3228/13 EK.
  32. BT printed matter 18/2950 of October 17, 2014 (PDF; 589 kB).
  33. Steffen Roller: Legal protection in excessively long proceedings - an interim balance . DRiZ 2015, p. 67.
  34. a b Steffen Roller: Legal protection in excessively long proceedings - an interim balance . DRiZ 2015, p. 68.
  35. Christofer Lenz, Roland Hansel: Federal Constitutional Court Act, Commentary, 1st edition Munich 2013, ISBN 978-3-8329-5369-0 , § 97a No. 18th
  36. Federal Bar Association, Opinion 2014/11 , pp. 13 f, 17.
  37. ^ Opinion of the BDS on the evaluation of the law on legal protection in the case of excessively long court proceedings and criminal investigations in labor and social justice ( Memento of December 22, 2017 in the Internet Archive ), see also: Opinion of the chairman of the 11th Senate of the State Social Court of North Rhine-Westphalia from February 18, 2014 for the evaluation of the law on legal protection in the event of lengthy court proceedings and criminal investigation proceedings (ÜGG) ( Memento from December 22, 2017 in the Internet Archive )