Introduction
Legal context
Draft law
Implications
Comment
Introduction
The German Constitution(1) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (2) guarantee a right to effective legal protection against excessively long judicial proceedings. However, the European Court of Human Rights (ECHR) has recently pointed out that excessively long judicial proceedings constitute a systemic problem in German procedural law,(3) and once again stated that German procedural law does not provide for an effective remedy against excessively long judicial proceedings.(4)
Under the existing law, Section 839(1) of the Civil Code in conjunction with Article 34 of the Constitution (which forms the constitutional basis for the liability of the state for acts by its public servants) provides the only legal basis for a compensation claim for excessively long legal proceedings against the state. However, the obstacles to a successful claim are high. On November 17 2010 the government submitted a draft law with the aim of implementing an effective remedy against excessively long judicial proceedings.(5)
Legal context
The requirements for a successful claim under the existing law were illustrated by a recent Federal Supreme Court decision. In its judgment of November 4 2010(6) the court ruled that a claim for damages based on Section 839(1) would need more than simply an extraordinarily long legal proceeding. According to the court it is pivotal that the duration of the legal proceeding appears unjustifiable even against the preeminent constitutional principle of judicial independence. This would be the case only if – in consideration of all circumstances of the particular case – the judicial conduct would no longer be understandable.(7) The criteria adopted by the court to decide whether legal proceedings lasted unjustifiably long fairly matched those steadily applied by the ECHR to assess the reasonableness of the length of legal proceedings – namely:
- the complexity of the case;
- the conduct of the applicant and the relevant authorities; and
- what was at stake for the applicant in the respective dispute.(8)
However, the court attributed high significance to the principle of judicial independence. It weighed this constitutional principle against the above-mentioned criteria – the longer the duration of the judicial proceedings, the less the constitutional principle of judicial independence is to be taken into account and vice versa.(9) Furthermore, in order to establish a successful claim, a claimant needs to demonstrate that the court, at least to a negligent degree, delayed the proceedings.(10) Finally, a claimant also needs to demonstrate that it suffered a certain or at least an ascertainable loss as a result of the delay.
Taking these obstacles into account, and given that German courts rarely grant compensation for excessively long judicial proceedings on this basis,(11) Section 839(1) in conjunction with Article 34 can hardly be regarded as an effective remedy against excessively long judicial proceedings. This finding is supported by the fact that compensation may be claimed only retrospectively (ie, if a claimant has already suffered a loss due to delayed proceeding). Section 839(1) does not provide for compensation of non-pecuniary damages (save for certain exceptions), nor for any legal means in order to expedite pending legal proceedings.
Draft law
The draft law envisages full compensation for detriments suffered as a result of unreasonably long judicial proceedings, including non-pecuniary damages, and regardless of any culpability on the court's part.(12)
However, the unreasonableness of the length of the legal proceedings will still be determined by considering all circumstances of the particular case (as under the existing provision), notably with regard to the complexity and importance of the case and the conduct of the parties and third parties involved in the legal proceedings.(13)
In order to prevent claimants from abusively taking recourse to this remedy, the draft law provides for certain requirements to be met before this remedy can be invoked. Firstly, a claimant must formally raise an objection to the length of the legal proceedings as soon as there is a concern that the legal proceedings will likely not be completed within a reasonable period of time.(14)
Secondly, a claimant may sue the public authorities for compensation only six months after the objection was raised. At the latest, such action must be filed within six months once the (delayed) judicial proceedings have been completed with final and binding effect.(15)
The draft law is still being discussed in Parliament's lower house. Several legal experts have already rendered their opinion on the draft law. At the next stage, the draft law needs to be accepted by Parliament's lower house and thereafter by the Senate of the Federal Parliament. Finally, it needs to be formally executed by the Federal President before it enters into force.
Implications
After its implementation, the new law (in its current draft version) will apply not only to future legal proceedings, but also to pending and even to already terminated legal proceedings under certain conditions.(16)
Due to the expected complexity of actions for such compensation, the draft law prescribes that such claims are to be filed with the competent higher regional courts.(17) Furthermore, a claimant seeking compensation must be represented by a lawyer.(18)
The claimant must demonstrate that:
- the legal proceedings lasted for an excessively long period;
- it had duly objected to the delay of the legal proceedings; and
- the delay caused it detriment.(19)
As it is usually difficult to demonstrate non-pecuniary damage, the draft law further presumes that such damage is regularly triggered by inappropriately long legal proceedings. The defendant may rebut this assumption.(20) Therefore, in this respect, the draft law provides for a shifting of the burden of proof.
In the government's view, the obligation to object to the length of legal proceedings will cause the court to take the necessary measures to expedite it. According to the reasoning of the draft law, this applies for two reasons:
- The courts would thereby try to avoid the state being later sued for unjustifiably long legal proceedings; and
- Courts would be interested in expediting the legal proceedings in order not to become themselves subject of the (later) accusation of having delayed the legal proceedings.
By way of this indirect expedition mechanism, the draft law will – according to the government – be suited to meet the requirements established by the European Convention on Human Rights and the ECHR with respect to an effective remedy against excessively long legal proceedings.(21)
Comment
Does the draft law deliver what it promises? It may be considered advantageous that a claimant seeking compensation for excessively long judicial proceedings will no longer be required to demonstrate that the delay was culpably caused by the court. The same applies to the fact that such claim for compensation will also cover non-pecuniary damages without any limitations, and that there will be a (rebuttable) assumption that non-pecuniary damages were triggered by the delay.
Rather, the true question is whether the problem of excessively long judicial proceedings has been properly addressed by the draft law. The implementation of an indirect expedition mechanism does not get to the root of the problem – namely, to enable a claimant to invoke directly a remedy in order to expedite the pending legal proceedings. The draft law is based on the assumption that courts will themselves take all necessary steps in order to expedite legal proceedings after an objection has been raised. However, it is doubtful whether a court which remains inactive (for whatever reason) will do so.
This could instead be achieved through the implementation of a (direct) complaint which may be filed with the next higher instance court (ie, the appellate court) during the actual legal proceedings, rather than awaiting its completion and then initiating a new lawsuit. The appellate court could then, by way of a resolution, set a deadline for the originating court within which the delayed judicial act (eg, retaining an expert in order to obtain an expert opinion) or any other act suitable to expedite the legal proceeding is to be performed. Such direct complaint would, in the truest sense of the word, constitute a remedy against excessively long legal proceedings. This idea was already proposed by the government in 2005.(22) Unfortunately, the proposal was not pursued further.
For further information on this topic please contact Stefan Gentzsch or Nils Hala at Clifford Chance LLP by telephone (+49 69 7199 01), fax (49 69 1799 4000) or email ([email protected] or [email protected]).
Endnotes
(1) Principle of due course of law ex Article 20(3) of the Constitution in conjunction with Article 2(1).
(2) Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
(3) ECHR, Rumpf judgment of September 2 2010 (46344/06), published on HUDOC database: www.cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en, §§ 53, 70.
(4) For example, ECHR Sürmeli judgment of June 8 2006 (75529/01), published on HUDOC database: www.cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en, § 115; Bähnk judgment of October 9 2008 (10732/05), published on HUDOC database, §§ 40, 47; Rumpf, § 53.
(5) "Gesetzesentwurf der Bundesregierung – Entwurf eines Gesetzes über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren", BT-Drucks, 17/3802, published on www.drucksachen.bundestag.de/drucksachen/index.php
(6) Supreme Court judgment of November 4 2010 (III ZR 32/10), published in NJW 2011, pp1072-1076.
(7) Supreme Court judgment of November 4 2010, published on juris, § 14.
(8) For example, ECHR Rumpf, § 41.
(9) Supreme Court judgment of November 4 2010, §§ 11, 12, 14.
(10) Supreme Court judgment of November 2010 4, §§ 15, 17.
(12) Article 1 (Section 198(1), (2) Judicature Act) of the draft law; draft law – reasons, p19.
(13) Article 1 (Section 198(1) Judicature Act) of the draft law.
(14) Article 1 (Section 198(3) Judicature Act) of the draft law.
(15) Article 1 (Section 198(5) Judicature Act) of the draft law.
(16) Article 22 of the draft law.
(17) Article 1 (Section 201(1) Judicature Act) of the draft law; draft law – reasons, p25.
(18) Article 1 (Section 201(2) Judicature Act) of the draft law, in conjunction with Section 78(1) of the Code of Civil Procedure.
(19) cf Article 1 (Section 201(2) Judicature Act) of the draft law; draft law – reasons, p25.
(20) Article 1 (Section 198(2) Judicature Act) of the draft law, draft law – reasons, p19.
(21) Draft law – reasons, pp19-20.
(22) "Gesetzentwurf der Bundesregierung – Entwurf eines Gesetzes über die Rechtsbehelfe bei Verletzung des Rechts auf ein zügiges Verfahren (Untätigkeitsbeschwerdengesetz)": www.gesmat.bundesgerichtshof.de/gesetzesmaterialien/15_wp/untaetigkeitsbeschwerde/untaetig-index.htm