DECISION
In the legal dispute
xxx,
– Plaintiff –
against
The State of Lower Saxony, represented by xxx,
– Defendant –
Regarding compensation for the unreasonable length of court proceedings,
here: the proceedings under file numbers S 38 AS 853/10 and S 33 AS 1035/10 of the Hildesheim Social Court
The 10th Senate of the Lower Saxony-Bremen State Social Court decided on April 28, 2016 in Celle through its judges xxx and xxx and its female judge xxx:
Upon his application, the plaintiff is granted legal aid without participation in installments for the legal proceedings from the date of filing the lawsuit, and attorney Adam, Göttingen, is appointed as his counsel.
The district of Göttingen is joined to the proceedings pursuant to Section 75 Paragraph 2 of the Social Court Act (SGG), because the decision in the present legal dispute can only be made uniformly with effect also towards the joined party.
REASONS
The plaintiff's application for legal aid should be granted.
Pursuant to Section 73a Paragraph 1 of the Social Court Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), legal aid can only be granted if the intended legal action has a sufficient prospect of success. Success of the legal proceedings need not already be certain. Rather, it is sufficient if, taking into account the current state of the facts and the legal arguments and the defensible legal opinions, success is not remote. This requirement is met.
The plaintiff's claim for compensation for non-material damages due to the excessive length of the legal proceedings under file number S 33 AS 1035/10 (SG Hildesheim) to the extent asserted in the statement of claim in conjunction with the written submission of October 22, 2015, appears quite conceivable.
The defendant rightly does not dispute that the aforementioned legal proceedings were unreasonably long within the meaning of Section 198 of the Courts Constitution Act (GVG). Because a delay in the proceedings did not already exist when the Act on Legal Protection in Cases of Excessively Long Court Proceedings and Criminal Investigations (ÜGG) entered into force on December 3, 2011, the requirements of the transitional provision in sentences 2 and 3 of Article 23 ÜGG are not met. An immediate objection within the meaning of Article 23, sentence 2 ÜGG was not required, so that a delayed objection in this sense does not automatically preclude considering the duration of the proceedings before the objection when determining the overall duration of the proceedings. Furthermore, it is not apparent that the plaintiff deliberately raised the objection of April 18, 2013, at a late stage in order to obtain the highest possible compensation (prohibition of "endure and liquidate").
Contrary to the defendant's assertion, it is not established that the plaintiff can no longer assert the claim for compensation under Section 33 of the German Social Code, Book II (SGB II). While it appears possible that a statutory transfer of the claim to the joined district of Göttingen, as the current provider of benefits under SGB II for the plaintiff, has occurred, it is certainly at least open to discussion. There is no higher court ruling on this matter to date. According to Section 33, sentence 1, last clause of the SGB II, a prerequisite for the statutory transfer of the claim is that the SGB II benefits would not have been necessary – or would have been necessary to a lesser extent – had the other party made timely payments. This, in turn, presupposes that the payments under Section 198, paragraph 3 of the Courts Constitution Act (GVG) would have led to a reduction in the SGB II entitlement had they been made on time. In this respect, the person seeking assistance is initially required by Section 9, paragraph 1 of the SGB II to utilize their own income. According to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), all income in money or in kind should be comprehensively covered, with the exception of the amounts mentioned in Sections 11a and 11b of the SGB II.
In the present case, Section 11a Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) is more relevant. According to this provision, benefits provided under public law for an expressly stated purpose are only to be considered as income to the extent that the benefits under the SGB II serve the same purpose in the individual case. It appears beyond doubt that the disputed benefits under Section 198 Paragraph 3 of the Courts Constitution Act (GVG) are those to be provided under public law.
The idea that such benefits are intended to serve an explicit purpose within the meaning of Section 11a Paragraph 2 No. 1 of the German Social Code, Book II (SGB II), does not seem entirely unreasonable. Benefits under Section 198 Paragraph 3 of the Courts Constitution Act (GVG) serve to compensate for the violation of the right to a speedy trial; in this respect, the law presumes the occurrence of non-material damage, which can only consist of the impairment or partial loss of quality of life. The purpose of the benefit under Section 198 Paragraph 3 of the GVG is therefore to enable the person whose rights have been violated to improve their quality of life by providing them with funds, thereby compensating for the deficiency as far as possible. This purpose could not be achieved by using the money to cover living expenses, so it is unlikely that the benefit under Section 198 Paragraph 3 of the GVG and the benefits under the SGB II intended for ongoing living expenses share the same purpose.
In any case, this view is apparently seriously held (see Söhngen in: SchlegelNoelzke, jurisPK-SGB II, 4th ed. 2015, § 11a para. 38). The opposing view in the decision of the Lower Saxony-Bremen State Social Court of November 19, 2015 (Case No.: L 15 SF 23/15 EK AS PKH), cited by the defendant, contains no compelling arguments – at least not on this point. While the Federal Social Court has occasionally (see, for example, judgment of March 23, 2010, Case No.: B 8 SO 17/09 R, SozR 4-3500 § 82 No. 6) raised the question, in the context of examining the possible purpose of a benefit, of whether the granting of the benefit is linked to the expectation of a specific use of the benefit, this does not apply here. On the other hand, the Federal Social Court (see judgment of December 11, 2007, file no.: B 8/9b SO 20/06 R, SozR 4-3500 § 90 No. 1) has also considered state blind person's allowance to be earmarked within the meaning of Section 83 Paragraph 1 of the German Social Code, Book XII (SGB XII), even though no specific expectation of use is associated with this benefit. While the blind person's allowance is intended to compensate for the additional expenses caused by blindness, whether a concrete, quantifiable additional need exists in the amount of the benefit and whether the blind person uses it to cover this additional need is neither a prerequisite for entitlement nor is it even examined. The same applies to the bridging allowance under Section 51 Paragraph 1 of the Prison Act (StVollzG), which the Federal Social Court has also considered to be earmarked (see judgment of October 28, 2014, Case No.: B 14 AS 36/13 R, Case No.: SozR 4-4200 § 37 No. 7), but which, according to Section 51 Paragraph 2 Sentence 2 of the Prison Act, is only exceptionally subject to review of its use, and even then, the law does not prescribe its use for the intended purpose. Apparently, there is not yet a conclusive and established body of case law regarding the requirements for earmarking.
According to his statement regarding his personal and economic circumstances, the plaintiff is also unable to cover the costs associated with the litigation from his own resources.
Regardless of how the question of the transfer of claims under Section 33 of the German Social Code, Book II (SGB II) is to be answered in the present case, the decision must in any event also have binding effects on the benefit provider, which therefore had to be joined as a party pursuant to Section 75 Paragraph 2 of the German Social Courts Act (SGG).
This decision is not subject to appeal, § 177 SGG.
