DECISION
L 8 AY 28/19 B
S 42 AY 2/19 ER Social Court Hildesheim
In the appeal proceedings
xxx,
– Applicant and complainant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen, Legal Department,
Hiroshimaplatz 1 – 4, 37083 Göttingen
– Respondent –
Legal representative:
xxx,
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on September 3, 2019 in Celle through Judges xxx, xxx and xxx:
Upon the applicant's appeal, the decision of the Hildesheim Social Court of 29 January 2019 is overturned.
The applicant is granted legal aid for the first-instance proceedings, with the appointment of attorney Adam, Göttingen. Payment in installments is not ordered.
Costs of the appeal proceedings are not to be reimbursed.
REASONS:
The appeal against the Social Court's (SG) decision denying legal aid was filed in due form and time, because, contrary to Section 173 of the Social Courts Act (SGG), the appeal period is one year due to the lack of instructions on legal remedies (Section 66 Paragraph 2 Sentence 1 SGG). Contrary to the Social Court's (SG) assertions, the appeal is admissible pursuant to Section 172 Paragraph 3 No. 2b SGG, because, in the main proceedings, leave to appeal does not require leave to appeal pursuant to Sections 143 and 144 Paragraph 1 Sentence 1 No. 1 SGG. In this respect, the Senate refers to the decision issued today in the appeal proceedings concerning the granting of preliminary legal protection (- L 8 AY 27/19 B ER - ).
The appeal is well-founded. The Social Court wrongly rejected the application for legal aid to conduct the expedited proceedings.
Pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO), a party who, according to their personal and economic circumstances, cannot afford the costs of litigation, can only afford them in part or in installments, receives legal aid upon application if the intended legal action or defense offers sufficient prospects of success and does not appear frivolous.
Based on these criteria, the urgent application filed in January 2019 seeking the granting of full basic benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) had sufficient prospects of success. The legal action was also not frivolous. A summary review of the facts and the law revealed that essential prerequisites for a restriction of benefits under Section 1a Paragraph 4 Sentence 2 of the AsylbLG had not yet been conclusively clarified, such as the continued validity of the international protection granted to the applicant in Greece (cf. Section 1a Paragraph 4 Sentence 2 of the AsylbLG, last sentence) and the question of the reasonableness of returning to Greece. Finally, the Senate has not yet definitively answered the question of the constitutionality of Section 1a Paragraph 4 Sentence 2 of the AsylbLG in conjunction with Section 1a Paragraph 2 of the AsylbLG.
The applicant cannot reasonably be expected to bear the costs of the proceedings as a recipient of benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The appointment of the lawyer is based on Section 121 Paragraph 2 of the German Code of Civil Procedure.
Costs of the appeal proceedings are not to be reimbursed, § 127 para. 4 of the Code of Civil Procedure.
