Subject: Fastening of procedures before administrative courts and possible tensions with fundamental rights
Klaus Lernhart, Werner Heermann
1. The proportion and the number of cases in the administrative courts who have been waiting longer than the time limits set down by the European Court on Human Rights.
It has to be mentioned in advance, that administrative justice in Germany is executed by three separate branches of courts: the general administrative courts with three instances (GAC), the social administrative courts with also three instances (SAC), and the financial administrative courts with two instances (FAC). Furthermore the following remarks do not refer to provisional proceedings but only to main proceedings on respective actions.
There are no exact countrywide statistics available as to the proportion and number of cases, the proceedings of which were not completed within the time limits set by the Court (ECHR), particularly no statistics with the distinction between “simple”, “regular” and “complex” cases seem to exist. However it is known that the first and second instance courts established in the different federal states (Laender) show a considerable variety of time needed to deal with cases. In some states the time limits of the ECHR are likely to be observed, in others the general rule of settling a case by judgement within one year per instance, e.g., is not met to a certain extent.
As an average of the last five years the cases were settled by the GAC in first and second instance each within 1 year to an extent of 50 %. The length of proceedings of the third instance (Federal Administrative Court) did averagely not exceed 11 months.
The cases with the SAC were averagely settled in first and second instance within 1 year to an extent of 55 %. The proceedings of the third instance lasted 1 year to an extent of 65 %, the rest was settled within 2 years.
The FAC settled cases in first instance within 1 year to an extent of 50 %, in second (and last) instance within 1 year to an extent of 25 %, within 2 years of 70 %.
The causes of delay
2. Is the number of cases judged by the administrative courts increasing each year ? If, yes what is the evolution during the past years? For the first instance, the courts of appeal, the supreme court?
The number of cases judged by GAC has been declining continuously during the last 10 years, up to 40 % with all three instances.
The development with the SAC at the same time showed an increase of up to 33 % (first instance), 22 % in second instance and 15 % in third instance.
The FAC had a decline of about 20 % in first instance whereas the figures of the second (and last) instance remained roughly the same during the last decade.
3. Lack of resources at the courts, shortage of judges.
3.1. What is the number of the administrative judges in your country and the number of cases registered each year?
a) Number of administrative judges: overall 4157 (31.12.2008), including 1928 with GAC, 1635 with SAC, and 595 with FAC.
b) The number of cases registered each year (from 1997 to 2007) developed even more drastically than the number of cases judged (see above 2.), into the same direction:
with the GAC from 215000 to 124000 (first instance), from 34300 to 18200 (second instance), and from 4100 to 2000 (third instance);
with the SAC from 260700 to 349300 (first instance), from 22900 to 29300 (second instance), and from 2300 to 2700 (third instance);
with the FAC from 72500 to 47300 (first instance) and from 3400 to 3300 (second instance)
3.2. The number of judges is increasing or not ?
The number has been adjusted parallel to the development of incoming cases, i.e. reduced with the GAC and FAC, and increased with the SAC.
3.3. Is there inadequate support staff? The judges have assistants or not?
a) Support staff seems to be adequate in number and competence.
b) The judges have assistants with completed juridical education only in the last instance courts.
3.4. Are judges obliged to deal with things that are not really judicial matters, and that other personnel could do instead?
Except for the president, the vice-president and partially the presiding judges of a chamber judges are not obliged to deal with such non judicial matters, but are at times voluntarily engaged in some fields of court administration (like press officer, training representative, IT specialist).
4. An uneven geographical distribution of courts within the country
In your country do some courts have too much workload and others not, due to demographical changes or other evolutions?
See above 2. And 3.1; a substantial difference of workload does exist mainly between the GAC and FAC on one hand and the SAC on the other. SAC have far more cases pending per judge.
Besides there are partially different workloads resulting from the different number of judges appointed by the ministries of the federal states (Laender), to whom the lower instance courts belong. The reason is primarily a financial one, there are different budget means available.
Demographic changes are not the reason for disproportional workload.
5. The organisation of the courts
5.1. The proportion of single judges and collegial judges. Is judging in chambers at first instance regarding as a source of delay? (It has been judged as a source of delay by the Court on Human Rights).
Example : Administrative justice in France was originally exclusively
organised in colleges. But the intervention of single judges is increasing
more and more. These single judges can perhaps work faster, but are they as
independent as collegial judges ? Some of these single judges decide without
an hearing. Are the reflections about this subject similar in the different
The question arises mainly for the first instance and mainly for the GAC, because the SAC have to decide by one professional and two lay judges, and the FAC as a rule by a chamber of three professional judges.
According to the German Law on Administrative Court Procedure (LACP) a single judge may decide instead of the chamber
in procedural matters of minor importance (e.g. after withdrawal of the action, acknowledgement of the claim, costs),
b) if the parties agree with a single judge decision, or
c) if the chamber assigns the case to the reporting judge (after hearing the parties, but not necessarily with their consent) to decide as single judge.
Assigning a case to the reporting judge without the consent of the parties is admissible according to Art. 6 Para. 1 LACP, restricted to first instance proceedings, only if the case does not display any particular complication of a factual or legal nature and if it is not of general importance.
The proportion of decisions taken by single judges (first instance GAC) may averagely amount to 75 %, with a wide range of variation (estimated from 40 to 90 %, dependant on the individual to some extent discretionary practice of the chamber and the specific subjects to deal with).
The desirable proportion of single judge to chamber decisions has been discussed in Germany ever since the single judge for GAC has been introduced more than 20 years ago. Many colleagues emphasize the necessity of setting guidelines by decisions of the chamber, especially in complex cases, and of leaving only more or less routine cases to the single judge. The dangers of single judge decisions hardly result from an illegal practice of not orally hearing the parties, which would violate Art. 6 ECHR, but from a lack of profound judicial discussion within the chamber and of minor authority and persuasiveness of the reasoning for the parties. This has to be taken seriously particularly in systems (like the German) with limitations for the right to appeal. Although also single judges principally act in full independence, decisions by the chamber may rather enhance independence and courageous responsibility in important cases and besides have an anti-corruption effect because of the mutual control. Therefore the proportion should be well balanced corresponding to the specific subjects a chamber has to deal with, and likewise to the persons acting.
Doubtless single judge decisions may be faster and use the available man (and woman) power economically. Yet with regard to the undeniable and indispensable values of chamber decisions in certain cases it is not justified to blame them generally as a source of delay. Altogether the aforementioned mixed system of chamber and single judge decisions can be considered as an adequate and successful compromise between accuracy, acceleration, and acceptance of administrative jurisdiction.
5.2. Is there a specialisation of courts or of judges in your country ? Is it a way of avoiding delays?
Yes, we have 5 branches of jurisdiction in Germany (ordinary courts = civil and penal courts, labour courts and the above mentioned three administrative courts GAC, SAC, and FAC). Additionally also within the three administrative court branches mostly a specialisation takes place by charging chambers with specific subjects they have exclusively to deal with.
Specialisation certainly contributes to avoiding delays, at least with bigger courts. However, the smaller a court is the more the advantages of specialisation will be diminished because of the numerous subjects, so that a regional competence of chambers may be at least equally effective because of the higher acquaintance of judges with special local conditions.
6. Inadequate procedural rules.
6.1. Are the procedural rules themselves creating delays, for instance by giving the parties too much time to answer?
6.2. Oral hearings - Are the proceedings in the administrative courts mainly in writing (percentage)? If there are possibilities for oral hearings, are these hearings, in your opinion, too many or too few? Has your country been criticized by the European Court of Human Rights for not holding oral hearings? What is happening in oral hearings (are they preponderantly devoted to take evidence (witnesses and experts) or to the question of law?
A final oral hearing is mandatory unless the parties renounce it. Several oral hearings as to one case are the exception. In certain cases, however, it is promising at an early stage of the proceedings to summon the parties to a preliminary hearing before the reporting judge in order to reach an amicable court settlement. Even if the attempt to settle the case amicably fails the early discussion of factual and legal difficulties contributes to clarify the matter in dispute and at least prepares a final oral hearing before the chamber or the single judge.
There has been no criticism by the ECHR.
Taking evidence in oral hearings does not happen often. Oral hearings are mainly devoted to discuss factual and legal questions with the parties.
6.3. In order to accelerate proceedings, do you think that the using of witnesses and experts ought to be encouraged? Are witnesses heard by the courts themselves or by the administration during the previous administrative procedure? Does the court nominate experts of its own or does he usually just refer to the expertises ordered by the administration? Which kind of experts does the administration use (civil servants who are employees of the administration or independent experts)? Which kind of experts are nominated by the court? Who has to cover the costs of all these experts? Are there rulings concerning recovery of these costs if the administration or the party wins the case? Can such costs be covered for parties who enjoy themselves of legal aid.
Examining witnesses and experts is basically not a discretionary decision because of the inquisitorial principle applicable in administrative court proceedings. If necessary for establishing the legally relevant facts the court has to take the appropriate evidence. The court is empowered to nominate experts, but normally it does not because expertise delivered by the administration is sufficient. This way of getting evidence is mostly accepted by the parties because they do not have to pay for that expertise when losing the lawsuit.
The administration uses both civil servants of other administrative bodies with special expertise or independent experts. The court may acquire an official statement of an administrative boy or charge independent experts. The costs are to be paid by the losing party. In case a party has been granted legal aid the costs of experts are included even if the party loses.
6.4. Appeal - Is leave to appeal required to enable a court of appeal to consider a case? If not, do you think there ought to be?
Yes, leave to appeal is required.
This limitation aims rightly at the reduction of higher instance proceedings in order to allow the higher courts to concentrate on cases that deserve a full review. Therefore an effective filter between court instances is useful in order to eliminate cases of typically minor importance.
6.5. What kinds of restrictions of judicial review are existing : a./ between the challenged decision of the administration and the first level of administrative jurisdiction? b./ between the different levels of the lawsuit within the administrative justice?
a) As a rule an objection procedure within the administration has to be accomplished before an action is admissible.
b) Leave to appeal is granted if
serious doubts regarding the lawfulness of the first instance judgement exist,
the case is of general importance,
the challenged judgement deviates from decisions of higher courts, or
the challenged judgement may be based on a procedural deficiency.
It must be requested and reasoned by a lawyer. In the last instance the scope of review is limited to legal questions and the violation of federal law.
6.6. What changes in procedural rules may, in your opinion, help accelerating procedures? In particular, what could be a court’s reaction if witnesses (also those who live abroad) do not appear before court or if experts are in delay to deliver their expertise.
The appearing of witnesses is no problem. There are no special means if experts are in delay, but the court can withdraw the order in severe cases, and can threat never to charge this expert again.
7. Goals set up by the Government or administrative authorities or stated by law
7.1. Has your government set up specific goals for how fast the administrative cases should be dealt with (before the administration and before administrative jurisdiction)?
Not in general, but see below 7.2
7.2. Are there time limit rules laid down by law for certain cases? Could you enumerate the subjects ? The custody of mentally ill, children, drug or alcohol misuses, immigration cases...
a) For the administration sometimes deadlines apply for releasing requested administrative acts, such as building permissions.
b) Deviant from the rule that an action is only admissible after an objection procedure has been accomplished, an action before the administrative court becomes admissible after three months of administrative inactivity unless there are justified reasons for the delay of the requested administrative measure (Art. 75 LACP).
c) In asylum cases (provisional proceedings) a time limit of one week for the court decision applies.
7.3. If yes, what happens when the time limits are not followed?
a): Mostly no further legal consequences, but rather disciplinary ones within the administration.
In some cases of requested permissions principally needed approvals of municipal authorities are considered to be obtained by law after a deadline for refusing the approval has expired.
b): See above.
c): No direct consequences (see below 9.4)
The possible tensions with fundamental rights.
This part of the topic can be connected to the aforementioned general issues of CJ-S-JUD, “The balance between independence and effectiveness” and “The responsibilities of judges in the terms of the independence of judges”. In some countries, the government has taken measures in order to accelerate the procedures, which interferes with the independence of judges.
8. A new system of remuneration partly based on individual salaries for judges : look further questions number 11 to 13.
9. The matter of the responsibilities of the president of the court (or other entities within the courts).
9.1. What may or must they do in order to fasten procedures?
a) Direct interference as to individual cases is principally forbidden. But usually there are reporting duties of the judges to the president as to cases pending longer than a certain space of time (e.g. 2 years). The reasons of the delay have to be stated.
b) Furthermore the elected body competent for the apportionment of incoming cases to the individual chambers (court presidential council to whom the president of the court belongs as the presiding member) may change the rules of apportionment with regard to incoming cases and additionally transfer pending cases to other chambers in order to reduce severe backlogs and to avoid new ones.
Besides the council usually takes into account the individual skills and abilities of judges when assigning them to the chambers.
9.2. Is it possible, in your country, that the president of the court can remove a case from a judge that is dealing with the case too slowly?
9.3. If yes, can this be done without interference with the independence of the judge?
9.4. What happens when a case has been unduly delayed – will there be disciplinary measures against a judge who is responsible for the delay? Can the judge be prosecuted?
Example : The Swedish government laid a proposition to the Parliament with a law “Declaration of priority of cases in court”. An applicant should be able to turn to the court and ask for priority if his case has been unduly delayed. Then the president of the court can decide that a certain case should be dealt with priority and the judge in question must follow this decision. If he does not there can be disciplinary actions against the judge.
Disciplinary measures may be taken in severe cases, practically they are not or extremely rarely applied. The reporting duties (see above 9.1a), consideration of delays in appraisals of judges, and social influence within the chamber are principally regarded as appropriate and sufficient.
10. Is there a legal remedies against delays in the sense of article 13 EMRK in the respective national procedural laws (see the ECHR’s cases Kudla/Poland and Sürmely/Germany). What kind of legal remedies do we find to be compatible/incompatible with the independence of judges?
a) A remedy against court inactivity has been discussed, but not introduced because little practical use was expected on one hand and further absorption of manpower without real acceleration of the proceedings was feared on the other.
b) Only appeal to a higher court seems to be compatible with independence of judges.
Judges remunerations and its evolution in the new economical context
11. Could you describe the system of the judges remunerations in your country, and give some information about the level of their remunerations?
The remuneration is ruled by law and follows the rank of the judge and the age.
Examples: R 1 =1st instance judge to R 10= president of a Federal Court
R2= 2nd instance judge or 1st instance presiding judge
and so on.
R1 basic salary first grade: 3416 € gross
R 2 basic salary last grade: 6033 € gross
The judges have to pay the normal income tax. They do not have to pay for pension fund and they get health care support, which means: They must care about health insurance themselves and get back a percentage (depending on the social situation like number of children, at least 50 %) of their expenses.
12. Is there an evolution now because of the economical crisis? Laws or other texts had been adopted recently or are in discussion in your country?
As a long term measure a (compulsory) postponement of pension age up to 67 years is discussed, as a short term measure a voluntary one - for judges up to 68 years along with 10 % increase of salary.
13. Do you think that "bonus systems" and “individual subjective salaries” must be regarded as incompatible with the judges independence?