Institute of Global Law

German Legal News - Judicial System

In an interview with the Frankfurter Allgemeine Zeitung the President of the Federal Constitutional Court, Professor Hans-Jürgen Papier, criticised the European Court of Human Rights in Strasbourg for adjudicating on cases which were already being handled by competent domestic courts (09.12.2004). Professor Papier argued that, rather than becoming involved in the details of specific areas of the law, the Court should concentrate on landmark decisions. The remarks were made in reaction to a recent disagreement between the ECHR and the Court in Karlsruhe on family law.

The Judicial Communications Bill, which will replace the paper files currently used in German courts with electronic files, has been introduced in the Bundestag (04.11.2004). The Federal Government pursued this initiative following assurances that data protection issues could be addressed by means of encryption tools. However, calls for legislation allowing more information about court decisions on the Internet were rejected on the grounds that Internet access was still not widespread and hence large sections of the population would be denied access to the material.

In a move to increase judges’ practical understanding of economic and commercial matters, the state of Rheinland-Pfalz has introduced a requirement on all junior judges to undertake a six-month internship in a company. In order to ensure that judges are given a balanced view of commercial practice, judges will learn about the work of the company from the perspective of both managers and employees (04.10.2004).

The local court (Amtsgericht) in Bonn had to decide whether a lawyer was entitled to charge fees according to a claim based on a typing error. The revenue office in Bonn had billed a citizen for €1,100,017,000 in taxes instead of €17,000. The advocate who successfully clarified the situation took the original figure as the basis for calculating his fee and claimed 2.3 million Euro in fees (for information on the principles of German lawyers’ fees see http://www.brak.de/seiten/pdf/RVG/Grundlagen_englisch.pdf). The court has so far suggested settling the case with a fee of at least €440 (08.10.2004).

The Federal Social Court in Kassel celebrated its 50th anniversary (28.09.2004).Over five decades the court has contributed to the development of social law in the area of social insurance. Since the latest reforms in this part of the law are expected to bring with them a flood of new cases, a new senate will be established shortly.

A number of new laws came into force at the beginning of this month (01.08.2004). These included 30 new training regulations, taxation on Alcopops, new regulations to combat moonlighting and legislation to encourage the generation of energy from biomass. In addition, legal instruments for preventative detention (nachträgliche Sicherungsverwahrung) and custody (Betreungsrecht) were improved.

The Federal Government published an intermediate report on the impact of the “lean bureaucracy” campaign (07.07.2004). The campaign has led to the abolition of 200 outdated or useless statutory norms, among them the 1933 Imperial Concordat Act (Gesetz zur Durchf_hrung des Reichkonkordats, or the Act for the Unwinding Colonial Corporations). In a second step, remaining provisions are to be edited in order to make them easier to understand.

From 19.07.04 the German and the European flags will be displayed on the building of the Federal Constitutional Court. President Hans-Jürgen Papier ordered that the Court, as other constitutional bodies, displayed the flags during daylight hours.

At a conference in Bremerhafen, the regional Ministers of Justice agreed on measures to unify the public law courts system (17.06.2004). The majority of Länder favoured a system, under which administrative, social and tax courts would no longer function as separate branches. In spite of criticism from trade unions and the bar association, these proposals, which require a change in the constitution, will now come before the Federal Parliament (Bundestag).

The Federal Labour Court celebrated its 50th anniversary with a ceremony in Erfurt (11.05.2004). The court was established in 1954 and was initially located in Kassel. In 1999 it became the first federal agency to move entirely to one of the new Länder – the new building is located in Erfurt/Thuringa close to the Dome. Since 1954 the court has delivered 42,600 judgments, the number of senates has increased from two to ten, and the number of judges from just five to 34. Some of the more remarkable cases dealt with by the court include the forced labourer case and (more recently) the case dealing with the status of emergency doctors on stand-by duty. But the court has also dealt with more mundane questions such as whether the employer is entitled to fold a reference or whether a drummer is entitled to a bonus for producing the sound of rain!

The German Bar Association has criticised recently discussed plans to abolish special labour courts (05.03.2004). Chairman Hein Josef Willemsen maintains that even well-trained private lawyers could only cope with the special demands of labour law after a longer period of training. Labour law, he said, was characterised by a complicated relationship between statutory norms and individual and collective contracts and precedents, as well as considerable interconnection with social law. He maintained that the highly professional labour courts had so far proved a great advantage for Germany as a business location and should be preserved.

The President of the German Bar Association, Hartmut Kilger, proposed that more experienced barristers should become judges at the federal courts (20.04.2004). Kilger argued that barristers’ experience in alternative dispute resolution might prove an especially good qualification in comparison with other judges, who only have experience of litigious disputes.

The Federal Supreme Court has lodged a complaint against tabloid newspaper “BILD” with the German Press Council (02.02.2004). The newspaper used headlines such as “scandal judges” and “pigsty jurisprudence” when reporting on the release of a rapist. It also used a picture of the judges, which made them look like criminals. This is the first time that such a complaint has been made by a court; judges feel that this kind of journalism is no longer protected by the freedom of the press.

31 January 2003 was the last working day of the Federal Disciplinary Court (Bundesdisziplinargericht) in Frankfurt. Founded in 1967, the Court was responsible for disciplinary cases against federal civil servants but, following the unification of disciplinary law in the Länder and at federal level, this responsibility will now fall to the administrative courts in the Länder (05.01.04).

The President of the Federal Labour Court, Wißmann, does not support the idea of merging different branches of jurisdiction. In reply to proposals for a reorganisation of the judicial system, Wißmann said that any merger might decrease the efficiency developed through highly specialized judges (01.12.2003).

The states of Baden-Württemberg and Saxony have suggested the introduction of court fees in social court trials (07.10.2003). In a debate of the Federal Assembly (Bundesrat), Baden-Württemberg proposed to have unsuccessful claimants pay court fees of €150 for first, €225 for the second and €300 for the third instance decisions.

The practical training of the legal professions in the Saarland has been reshaped by new legislation, which places more emphasis on the training of lawyers (06.10.2003). Traditionally, the programmes in German law faculties concentrate on the role model of the judge. Now key qualifications such as mediation, rhetoric and communication are meant to target more important skills of future practicing lawyers.

The German Judges Association (Deutscher Richterbund) released a draft proposal for a modification of the right to instruct state attorneys. Thus far, Ministers of Justice are entitled to give instructions on legal and factual matters. The German Judges Association identifies the independence of state attorneys as a factor in stopping speculations about privileges of certain suspects. Politicians, however, seem to remain reluctant to give up rights of supervision.

The presidents of the 28 regional bar associations in Germany confirmed Bernhard Dombek as president of the German Bar Association for another 4-year term in office. Dombek said that he is going to focus on smaller law firms during his next term (22.09.2003).

The German Judges Association heavily criticised the overall policy approach of the federal government as well as that of the states (15.09.2003). Wolfgang Arenhövel, the Secretary General of the organisation, said at the annual meeting in Dresden that a convincing strategy is necessary – instead of an uncoordinated search for opportunities to save money. Besides that, the states did not carry their share in possible reforms. Politicians risked economic damage by downsizing the judiciary.

At a summit of commissioners dealing with files of the former intelligence service of the GDR in Brandenburg (17.06.2003), several participants complained about insufficient rehabilitation of victims of the SED regime. The states of Thüringen, Sachsen and Sachsen-Anhalt launched an initiative aiming for a prolonged deadline for applications concerning rehabilitation.

The ministers of justice of Bayern, Hesse and Brandenburg presented a draft bill aiming at judicial acceleration (22.05.2003). Key elements are a more efficient recording of evidence, especially for witnesses in private law disputes, and the modification of appeals in criminal law.