In the legal dispute
xxx
applicant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx
Respondent,
The Social Court of Hildesheim – 33rd Chamber –
decided on February 16, 2011, by xxx:
The applicant is subsequently granted unrestricted legal aid for the proceedings carried out, with the appointment of Mr. Adam, Attorney at Law, Göttingen.
Reasons:
Pursuant to Section 73a Paragraph 1 of the Social Courts Act (SGG) in conjunction with Sections 114 and 115 of the Code of Civil Procedure (ZPO), the applicant is to be granted legal aid because the intended legal defense or pursuit offered sufficient prospects of success and does not appear frivolous. For the granting of legal aid, it is sufficient if the action can be coherently substantiated on the basis of a provisionally defensible and debatable legal position. In the context of the prognostic assessment of the possibilities of success, a subsequent victory need not appear more likely than a defeat (cf. Lower Saxony-Bremen State Social Court, decision of April 10, 2006 – L 9 B 21/06 AS).
At the time when the application for legal aid is ready for a decision, the legal action cannot be denied sufficient prospects of success from the outset.
Furthermore, due to his economic and personal circumstances, the applicant is unable to bear the costs of the litigation from his own income or assets, not even partially or in installments. According to the submitted documents, the applicant's income falls below the threshold specified in the table appended to Section 115 of the German Code of Civil Procedure (ZPO).
Legal aid was to be granted retroactively in the present case because the applicant had done everything reasonably possible to obtain a decision before the proceedings were concluded (see: Leitherer in Meyer-Ladewig/Keller/Leitherer, SGG, § 73a para. 11a). It is necessary that the prerequisites for a positive decision existed before the proceedings were concluded. This requires the submission of a formally correct application along with supporting documents at the time the case was ready for a decision (see: Fischer in Musielak, ZPO, § 119 para. 11). These prerequisites were met in the present case at the time the legal aid application was ready for a decision.
Attorney Adam is to be appointed to represent the plaintiff pursuant to Section 121 Paragraph 2 of the German Code of Civil Procedure (ZPO), as requested, because representation by an attorney appears necessary.
This decision is final and unappealable for the parties involved (§ 127 para. 2 of the Code of Civil Procedure); the public treasury has a right of appeal pursuant to § 127 para. 3 of the Code of Civil Procedure.
