There is quite some legislative activity impacting litigation at the moment: On Friday, December 2, 2011, the Law on Judicial Remedies in Court Proceedings and Criminal Investigations of Excessive Length (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) has been published in the Federal Gazette and became effective the day after.
By passing this law, Germanyis reacting to several judgments of the European Court of Human Rights. In 125 matters before the ECHR, Germany paid compensation due to excessive length of judicial proceedings, and approx. 80% of all judgments delivered against Germany before the ECHR are due to such violations of the reasonable-time requirement of Article 6 § 1 of the European Convention on Human Rights.
In a decision dated September 2, 2010, Rumpf vs. Germany, the ECHR noted “that from 1959 to 2009 it has delivered judgments in more than forty cases against Germany finding repetitive violations of the Convention on account of the excessive length of civil proceedings. In 2009 alone thirteen such violations of the reasonable-time requirement of Article 6 § 1 of the Convention were found.” Article 6 § 1 of the Convention states that “in the determination of his civil rights and obligations [….], everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
As a result, the Court not only awarded damages to Mr. Rumpf in his individual case, but also heldGermanygenerally had failed “to take measures enabling applicants to claim redress for excessively long civil proceedings at a domestic level.” Germany “must set up without delay, and at the latest within one year of the date on which the judgment becomes final […] an effective domestic remedy or combination of such remedies capable of securing adequate and sufficient redress for excessively long proceedings, in line with the Convention principles as established in the Court’s case-law.”
That is the rather challenging goal set by the ECHR for the Law on Judicial Remedies in Court Proceedings and Criminal Investigations of Excessive Length. The key provisions are to be found in the Court Constitution Act (Gerichtsverfahrensgesetz), which now provides for the domestic remedies of redress that the ECHR insisted upon. It comprises two elements: First, an aggrieved party can file a formal objection regarding the procedural delay or inactivity (Verzögerungsrüge). However, there is no review process by a higher court as a consequence, the objection merely puts on record that the party believes there is an unreasonable and excessive delay, and the party must do so to protect its claim for compenation. Secondly, if this does not remedy the situation, there is compensation. As a general rule, for each year of excessive duration, the aggrieved party shall be entitled to a compensation of EUR 1,200 (EUR one thousand two-hundred), on a no fault basis. The courts have discretion to adjust the amount upwards and downwards, taking into account the specific circumstances of the matter. Also, the aggrieved party does not need to show loss or damages. If a party can, then the court can award a higher compensation.
Clearly, this law is breaking new ground in German law. It creates for the first time a claim for compensation and a complaint procedure. However, it will not address the delays that are due to insufficient funding and staffing of the courts. It will be very interesting to see the how judges react to procedural objections of delay, and to see the first compensation cases coming up for decision – but don’t hold your breath, it will certainly be a couple of years….
One final observation: The ECHR judgments paint a very bleak picture of the efficiency of the German courts. It appears to be in flat contradiction to what I and others have said about the efficiency of the German litigation system. I believe the truth is as follows: On average, we are doing fine. Civil matters before the District Courts (Landgerichte), that is, matters with a value of EUR 10,000 and more, on average are dealt with in just over eight months, and only 13% take longer that one year. But what the German system seems to be bad at is dealing with the outliers – if things go wrong, they appear to go badly wrong, and so far, these freak cases could not be addressed within the system. In addition, these averages are federal averages, and again, as the reform of the appeal process has shown, some federal states are doing significantly better that others.