DECISION
L 10 SF 23/24 EK AS
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
State of Lower Saxony, represented by the Celle Public Prosecutor's Office,
Schloßplatz 2,
29221 Celle
– Defendant –
The 10th Senate of the Lower Saxony-Bremen State Social Court decided on August 22, 2024 in Celle through the presiding judge of the State Social Court xxx, the judge of the State Social Court xxx and the judge of the State Social Court xxx:
The plaintiff is granted legal aid for the conduct of the legal proceedings from the date of application, and attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen, is appointed to represent him. Payment in installments is not ordered.
The decision is final and cannot be appealed by the parties involved in the proceedings.
REASONS
The plaintiff, born in 1962, who is currently receiving benefits under the German Social Code, Book Two (SGB II) and is suing in the main proceedings for compensation for the excessive length of the proceedings before the Social Court (SG) Hildesheim under file number S 36 AS 1541/19, is entitled to legal aid for the conduct of the legal proceedings pursuant to Section 73a of the Social Courts Act in conjunction with Section 114 of the Code of Civil Procedure (ZPO).
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 may be granted if the intended legal action has a sufficient prospect of success. Sufficient prospects of success in this sense do not require that, in the necessarily prognostic assessment of the possibility of success, a later victory already appears more likely than a defeat. Rather, it suffices for the granting of legal aid if the legal action can be coherently justified on the basis of a provisionally defensible and debatable legal position, and if, in factual terms, there is a good possibility of presenting evidence (B. Schmidt in Meyer-Ladewig et al., SGG, 14th ed., marginal note 7a to Section 73a). For constitutional reasons alone, an overly lenient examination is required when assessing the prospects of success. Article 3 paragraph 1, Article 20 paragraph 3 and Article 19 paragraph 4 of the Basic Law mandate extensive equality between persons with and without means with regard to their respective opportunities to avail themselves of effective legal protection (Federal Constitutional Court in its established case law, see, for example, decision of March 24, 2011, file no.: 1 BvR 2493/10, ZfSH/SGB 2011, 475 et seq.; decision of April 26, 1988, file no.: 1 BvL 84/86, BVerfGE 78, 104; see also Gaier, NJW 2013, 2871 et seq.; Schweigler, SGb 2017, 314 et seq.). In particular, the guarantee of legal recourse under Article 19 Paragraph 4 of the Basic Law (GG) against sovereign actions of social welfare agencies would be violated if the clarification of legally and factually relevant doubts, which can only be expected as a result of judicial proceedings, were shifted into the legal aid application procedure by means of an overly simplistic prognosis of the outcome. Legal aid may therefore only be denied on the grounds of insufficient prospects of success if success on the merits, if not entirely impossible, is at least completely improbable (cf. Federal Constitutional Court, decision of April 7, 2000, file no.: 1 BvR 81/00, NJW 2000, 1936 et seq., regarding the granting of legal aid in cases of unresolved legal issues).
Based on the preliminary assessment possible in legal aid proceedings, the action appears to have sufficient prospects of success in the aforementioned sense. The applicant is likely entitled to compensation in an amount yet to be determined pursuant to Section 198 of the Courts Constitution Act (GVG) due to the unreasonable length of the original proceedings S 36 AS 1541/219.
According to Section 198 Paragraph 1 of the Courts Constitution Act (GVG), anyone who suffers a disadvantage as a party to court proceedings due to an unreasonable length of proceedings shall be appropriately compensated (Sentence 1). The reasonableness of the length of the proceedings depends on the circumstances of the individual case, in particular on the complexity and importance of the proceedings and on the conduct of the parties to the proceedings and third parties (Sentence 2).
The appropriateness assessment is carried out in three steps (see Federal Social Court).<BSG> , Judgment of 3 September 2014, B 10 ÜG 12/13 R, published in juris, para. 29 ff.):
The starting point and first step of the appropriateness assessment is the determination of the total duration of the court proceedings as defined in Section 198 Paragraph 6 No. 1 of the Courts Constitution Act (GVG), from the initiation of the proceedings in the first instance until the service of the final legally binding decision (see Federal Social Court, judgment of February 12, 2015, B 10 ÜG 7/14 R, published in juris, para. 26).
In a second step, the course of the proceedings must be measured – on a month-by-month basis – against the criteria specified in Section 198 Paragraph 1 Sentence 2 of the Courts Constitution Act (GVG). It should be noted that the compensation court is not required to review the procedural conduct of the court of first instance for its correctness, but only for its defensibility (Federal Court of Justice (BGH), judgment of February 12, 2015, III ZR 141/14, published in juris, para. 26; judgment of March 13, 2014, III ZR 91/13, published in juris, para. 34; similarly, Federal Social Court (BSG), judgment of September 3, 2014, B 10 ÜG 2/13 R, published in juris, para. 43). If the duration of the proceedings is based on reasonable active procedural management (e.g., time for obtaining information, witness statements, expert opinions, and files), this does not usually make the duration of the proceedings unreasonable.
Only a comprehensive evaluation and weighing of all individual circumstances in a third step, based on this foundation, determines whether the length of the proceedings has significantly exceeded the absolute limit of what is reasonable and therefore violated the right to legal protection within a reasonable time. In this context, the Federal Social Court (BSG) and, following it, the Senate, consistently grant the courts of first instance a preparation and deliberation period of up to 12 months per instance, which in itself does not yet lead to an unreasonable length of proceedings, so that "inactive periods" are harmless in this respect (for more details, see BSG, Judgment of September 3, 2014, B 10 ÜG 2/13 R, published in juris, para. 43 et seq.). The right to legal protection within a reasonable time does not, in fact, entail a right to immediate judicial consideration of every request for legal protection and its immediate resolution. For understandable reasons related to public personnel management, it is sometimes unavoidable from an organizational standpoint within the court system to assign a relatively large number of cases to judges or panels. Simultaneously conducting in-depth reviews of all cases pending before a court or assigned to a panel or judge is therefore simply not possible for practical reasons and is not required by Article 20 Paragraph 3 of the German Basic Law (GG) or Article 6 Paragraph 1 Sentence 1 of the European Convention on Human Rights (ECHR). Depending on the importance and time-sensitive nature of the legal remedy sought, the complexity of the dispute, and the conduct of the party seeking legal protection, certain waiting periods are reasonable. In principle, every court must be provided with sufficient time for preparation and processing. Courts are also entitled – while observing the principle of effective legal protection – to group individual (older and more recent) proceedings into specific categories based on factual, legal, personal, or organizational connections, or to consider the decision on a particular factual or legal issue more urgent than the decision on other issues, even if such prioritization of individual proceedings leads to a longer duration for other proceedings (see Federal Social Court, Judgment of September 3, 2014, B 10 ÜG 2/13 R, cited in Juris para. 44). A procedural duration of up to twelve months per instance is therefore generally considered reasonable, even if it cannot be justified by specific procedural steps. This period does not necessarily have to, and generally will not, fall entirely immediately following the filing of the complaint or the appeal, during which the court typically arranges for an exchange of written submissions and obtains relevant case documents. The preparation and deliberation period can also be at the end of the respective instance and be divided into several sections not exceeding a total of twelve months.
Based on the above principles, the initial proceedings have an unreasonable length of time, which the parties agree on – with only minor differences in the calculation of the period.
The total duration of the initial proceedings extended from the filing of the lawsuit in November 2019 until the service of the judgment of November 23, 2023, on January 27, 2024. The lawsuit thus lasted a total of 51 months. This period was only partially occupied by objectively justified procedural acts, a fact which is also undisputed between the parties.
It should be taken into account that the smallest relevant unit of time is always the month (BSG, judgments of 3 September 2014, B 10 ÜG 12/13 R, para. 29, B 10 ÜG 9/13 R, para. 25, B 10 ÜG 2/13, para. 24, each cited according to juris) within the meaning of the calendar month (BSG, judgment of 12 February 2015, B 10 ÜG 11/13 R, 2nd principle and para. 34).
The defendant state's reasoning as to why the plaintiff should nevertheless only be entitled to a determination of the excessive length in accordance with Section 198 Paragraph 2 in conjunction with Paragraph 4 of the Courts Constitution Act (GVG) is not convincing.
The claim asserted by the plaintiff, which was ultimately granted by the Social Court, is undoubtedly a basic income support claim within the meaning of the German Social Code, Book II (SGB II) – namely, a portion of the housing costs. The plaintiff – this was also undisputed between the parties in the initial proceedings – repaired the shed located on his property, which he uses for storage, using his own funds. The housing costs had also been recognized as reasonable by the responsible benefits agency. Against this background, the sum of €211.51, which the plaintiff would have advanced, is of considerable significance. Neither the defendant job center nor the Social Court disputed that this constitutes a basic income support need. Therefore, differentiating between more or less urgent housing needs, as the defendant state appears to be attempting, finds no support in the law, at least as far as can be seen. Furthermore, the plaintiff had already advanced the disputed sum – and was therefore missing from his basic social security-related, and thus subsistence-guaranteed, "budget". The defendant state seems to be overlooking this.
The question of whether the lump sum under Section 198 Paragraph 2 Sentence 3 of the Courts Constitution Act (GVG) might be reduced will have to be examined in the legal proceedings. Even if the lump sum were to be reduced, the claim for compensation would still remain. However, when examining whether and to what extent the lump sum should be reduced, the fact that this is a claim under basic income support law would again have to be taken into account. In this respect, it will have to be examined whether, specifically for recipients of basic income support, the burden of uncertainty regarding the outcome of the proceedings, which is intended to be compensated as non-material damage by the provisions of Section 198 GVG, constitutes a particularly high burden in the sense of non-material damage.
The Senate has taken note of the defendant state's reference to the plaintiff's pre-trial conduct. However, the question also arises whether the Social Court – given the lengthy nature of the legal proceedings – was not obligated to forward the plaintiff's case itself to the Higher Social Court, which it deemed competent.
This decision is not subject to appeal, § 177 SGG.
