15 September 2010
The Federal Cabinet has decided on a proposal for remedies against excessively long court proceedings (and preliminary investigation by public prosecution) on August 18, 2010. The citizen shall have the right to claim damages, if court proceedings, including court proceedings before the tax courts, are excessively long.
Proceedings before the tax courts take quite a long time. While the average court proceeding before the civil courts takes 4.5 months, a citizen has regularly to face 18 months before the tax courts. More than 16 percent of all tax court proceedings even take longer than three years.
The proposal provides for the compensation of all financial losses which result from the inappropriate long court proceedings. For immaterial damages the proposal currently contains a lump-sum remedy in the amount of 1,200 Euro per year of the delay. If this amount is inappropriate, the court may grant a higher or a lower amount.
Complaint of Delay
Prior to filing the compensation claim, the citizen must file a complaint of delay vis-à-vis the tax court, which, according to the citizen, is working too slowly. If the complaint is justified, this gives the judges the chance to take appropriate steps to expedite the proceedings.
Claim to the Federal Tax Court
The compensation claim can be brought to the Federal Tax Court no sooner than six months after the complaint of delay.
Up to now no Special Rule
Up to now German law does not provide for special remedies for excessively long court proceedings. The “inactivity claim” before the local tax courts laid out in Section 46 of the German Tax Court Code (FGO, Finanzgerichtsordnung) only offers the chance to accelerate an excessively long administrative proceeding before the tax authorities.
Hitherto, citizens could file a disciplinary complaint or in exceptional cases appeal to the German Federal Constitutional Court. The general claim for government liabilities pursuant to Section 839 German Civil Code (BGB, Bürgerliches Gesetzbuch) in conjunction with Article 34 of the German Constitution (GG, Grundgesetz) is often not very helpful because it only covers culpable delay.
However, everyone is entitled to a proceeding within an appropriate time frame. This right is on the one hand laid down in the German Constitution (Article 19 (4) GG). On the other hand, this right is set forth in the European Human Rights Convention (Article 6 (1), Article 13 EHRC). Four out of five decisions of the European Convention of Human Rights deal with excessively long court proceedings. Therefore, a provision in this matter is overdue.
Status of the Legislative Procedure
Meanwhile the proposal has been transferred to the Federal Council of Germany (Bundesrat) on September 3, 2010 (BR-Drs. 540/10). It can be assumed that the Federal Council of Germany will decide on the proposal in one of the next sessions. After this, the proposal will be forwarded to the German Parliament (Bundestag) for the readings, which are necessary in the legislative process.
If you would like more information about the foregoing, please contact the authors of this Legal Update,
at +49 69 79 41 1311 and
at +49 69 79 41 1591.
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