Court procedures must be completed in a reasonable time

Court procedures must be completed in a reasonable time.

Supreme Court Judgment III ZR 376/12 from 14. November 2013 – Inadequate duration of proceedings

GVG § 198 Abs. 1, Abs. 2, Abs. 6 No.. 1, § 201 Abs. 4

a) Whether the duration of court proceedings unreasonably within the meaning of § 198 Abs. 1 Sentence 1 GVG ist, depends on the circumstances of the individual case.

b) Inappropriate within the meaning of § 198 Abs. 1 Sentence 1 GVG is the duration of the procedure then, if a particular on the characteristics of § 198 Abs. 1 Sentence 2 GVG aligned and the discretion of the courts noted when Verfahrensfüh-ment weighing and balancing results of all relevant circumstances of the individual case, that the type of. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG and type. 19 Abs. 4 GG sowie Art. 6 Abs. 1 ECHR following the State's obligation, To bring legal proceedings in a reasonable time to complete, is injured.

c) In assessing the conduct of the court of the constitutional principle of judicial independence must (Art. 97 Abs. 1 GG) not be disregarded. The court must in all cases, adequate preparation- and processing time are available. It needs a margin of discretion, which allows it, to take account of the extent and severity of individual Rechtssa-chen balanced bill and decide, when it can promote wel different schemes at what expense makes sense and what the proceedings shall be required to.

BGH, Judgment of 14. November 2013 – III ZR 376/12 – Higher Regional Court of Celle

 

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The III. Civil Division of the Federal Court dated to the hearing 14. November 2013 by the Vice President silt and the judges Wöstmann, Seiter, Dr. Remmert and rider

hereby:

The revision of the plaintiff against the judgment of the 23. Civil Division of the Higher Regional Court of Celle from 24. October 2012 is rejected.

On appeal by the defendant in the judgment of expense and so far is canceled, than has been recognized to the detriment of the defendant.

In the scope of the waiver, the thing is for a new hearing and decision, also about the cost of the audit law-train, referred back to the Court of Appeal.

By rights

Facts

The applicant against the respondent country is entitled to compensation for intangible disadvantages for the excessive duration of criminal proceedings against him claims.

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In a run against other accused investigations by the public prosecutor H. the applicant was the 4. July 2007 heard as a witness staatsanwaltschaftlich to the question, when he had created a certain expert opinions about age-appropriate housing. The investigating prosecutor said in a note dated 24. October 2007 the “Far-piercing thought”, that the applicant did not tell the truth, and called for this one Bundeszentralregister extract to. In addition, he led, that the applicant on 28. November 2007 was questioned as a witness and a judge sworn in. Whether he has been informed on this occasion on the part of the investigating nationality Advocate, that is being investigated against him for perjury, which is in dispute between the parties.

At the 4. November 2009 the applicant was formally registered as a suspect of a determination of proceedings on suspicion of attempted obstruction of justice and perjury and the Tatvorwürfen belongs. At the 5. Feb-ruar 2010 raised the public prosecutor for the District Court H. . After the applicant by letter of 9. April 2010 issued a comprehensive admis-sung and the prosecutor's office on this 29. April 2010 Had taken position, applied for the defender by letter of 12. More 2010 the granting of a (other) Entering an period until the end of June 2010. The be-announced declaration of defense counsel was not. By order of 23. June 2011, been in force since 1. July 2011, rejected the district court, the commencement of the trial from. In the applicant on 1. September 2011 supplied gange-tions judicial letter, he was informed of the entry into effect of the non-opening decision.

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The Higher Regional Court has sentenced the respondent land under dismiss the remainder, to the plaintiff, an immaterial compensation for over-length of the proceedings in the amount of 3.000 € payable together with interest. At the same time it has allowed the revision “because of the fundamental importance with respect to the requirements on the burden of proof of the plaintiff in criminal proceedings and the question, whether and to what extent errors of law enforcement agencies can affect the amount of compensation to”.

Against this judgment, the appeal of both parties shall. The plaintiff pursued by his revision to payment of equitable compensation of at least 4.000 € directed action request further. The defendant seeks to revision and (with identical content) Cross-appeal, the complete dismissal of the action.

Reasons

The revision of the applicant is unfounded. The revision of the defendant, however, leads to the partial cancellation of the judgment and to return lingerie, the case back to the Court of Appeal.

I.

The revisions are permitted. – 5 -

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In the operative part of the judgment under revision approval without restriction was pronounced. The reasons for this decision can not be taken with the necessary clarity and precision, that the Higher Regional Court allow only limited revision, especially wanted to give the plaintiff an opportunity to review the judgment (vgl. BGH, Judgments 8. More 2012 – XI ZR 261/10, NJW 2012, 2446 Rn. 6; from 26. September 2012 – IV ZR 108/12, VersR 2013, 120 Rn. 7 and from 19. April 2013 – The ZR 113/12, NJW 2013, 1948 Rn. 10). The remainder would be given the (additional) eingeleg-th cross-appeal also to check the judgment for errors of law to the detriment of the defendant, if you wanted to remove a restriction of the statutory authorization for an individual litigant the reasons.

II.

The Court of Appeal has stated in support of his decision essentially:

The relevant period for assessing, whether the run against the plaintiff criminal proceedings had been excessively long, EXTEND from November 2007 until 1. September 2011 (Notice of the occurrence of the legal force of the decision of 23. June 2011). The assessment of the deter-switching prosecutor in the note of 24. October 2007, it was up to the “strong suspicion” an untrue statement before, and the fact, that the law enforcement agency have an excerpt from the Federal Central Register is requested, would have led to, that the applicant had been treated from then on the matter after an accused. Ever since the judicial witnesses genvernehmung from 28. November 2007, in his supposed Unwahrhei– 6 -

ten had been kept in his testimony and after he had been sworn in at the request of the prosecutor present, did he have to assume, that he was being treated as a suspect in an investigation. Investigative acts were from November 2007 before the formal registration as a suspect in November 2009 not done. The procedure was not operated more than two years, so that the applicant for at least 24 Months compensation under § 198 Abs. 1 i.V.m. § 199 GVG entitled. After indictment had from June 2010 been no appreciable tion procedures promote more. It was neither submitted nor recognizable, why the – However, fairly extensive – Procedure had been almost a year not processed with the aim of a decision on the commencement of the trial. Of this was a period of six months must be regarded as unreasonable length of proceedings delayed. After all, that emerges in the context of the overall assessment to be made in conclusion to a responsible end by the authorities of the respondent state delay of two years and six months. On the basis of the standard rate of compensation for moral disadvantages of 1.200 € per year of delay (§ 198 Abs. 2 Sentence 3 GVG) stand the plaintiff a compensation claim in the amount of 3.000 € zu. This amount is not considered, under the circumstances of the individual case to be unfair (§ 198 Abs. 2 Sentence 4 GVG). Culpable violations of the law enforcement agencies against the requirements of the Code of Criminal Procedure – the applicant is despite existing initial suspicion and contrary to § 62 Code of Criminal Procedure was sworn to obtain a truthful statement – justifying th in any case usually no deviation from the in § 198 Abs. 2 Sentence 3 GVG provided package. – 7 -

III. The revision of the defendant

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The revision of the defendant is successful. It leads to the cancellation of the initial judgment and remand the case to the Court of Appeal, has thus far chosen to the detriment of the defendant country.

1. Accurate and not disputed by the revision goes the Higher Regional Court assumed, that the procedural and substantive provisions of § § 198-201 GVG after the transitional provision of the kind. 23 Sentence 1 of the law on legal protection over long court proceedings and criminal investigations (ÜGRG) from 24. November 2011 (Gazette. I S. 2302) found on the dispute application. Then apply this annual translated or processes, which at its entry into force on 3. December 2011 (gemäß Art. 24 ÜGRG) were already pending, as well as for completed procedures, the duration of its entry into force at the subject of pending complaints before the European Court of Human Rights (below: ECHR) is or may still be. These conditions are met. The long respected by the plaintiff as inappropriate criminal case was adopted by Decision of the District Court 23. June 2011, been in force since 1. July 2011, terminated and the ÜGRG was thus completed upon entry into force. The six-month, beginning with the announcement of the final national decision deadline for an individual complaint to the ECHR on the type. 35 Abs. 1 ECHR was at the time of entry into force of the new com-pensation Act has not expired. The duration of the procedure would thus still be the subject of a complaint to the ECHR. One caller-tion of the ECHR were not required (Kissel/Mayer, GVG, 7. Ed, § 198 Rn. 57).

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By the 17. February 2012 submitted and the 3. April 2012 fed-set application, the deadline of the Art. 23 Sentence 6 ÜGRG (3. June 2012) maintained.

2. The opinion of the Court of Appeal, that in assessing the appropriateness of the method Un-duration within the meaning of § 198 Abs. 1 Sentence 1 i.V.m. § 199 GVG also consider the period from November 2007 bis November 2009 was einzu-related, met thorough concerns.

a) With quite faulty reasoning, the Court adopted, that the plaintiff since the 24. October 2007, the date of manufacture of the endorsement of the public prosecutor, “treats as Beschuldigter be” was.

aa) Under § 198 Abs. 1 Sentence 1 GVG is adequately compensated, who suffer a disadvantage as a result of inadequate duration of court cases as a method par-ligter. In terms of time, the concept of court proceedings recorded according to the legal definition in § 198 Abs. 6 No.. 1 GVG all methods rensstadien from initiation to the final conclusion. The term “Introduction” meant all shapes, with which a process is started, regardless, whether this or by request or action is brought, as in criminal proceedings, happens on its own initiative (BT-pressure. 17/3802 S. 22; Ott in Steinbeiß-Winkelmann/Ott, Redress for excessively long court proceedings, § 198 GVG Rn. 51, 53 and § 199 GVG Rn. 6; Kissel/Mayer aaO § 198 Rn. 7). § 199 Abs. 1 GVG extends the legal protection for excessive length of proceedings on the criminal investigations. This is initiated, as soon as the prosecution (§ 160 Abs. 1 Code of Criminal Procedure) or an authority or an officer of the Police Service (§ 163 Code of Criminal Procedure) takes a measure, the apparent fact – 9 -

aims, proceed criminally against someone (Meyer-Gossner, Code of Criminal Procedure, 56. Ed, Einl. Rn. 60). In this case, the accused is the one, be waged against the police or judicial inquiries on suspicion of crimes punishable by ren action. The defendants property can be justified only by an act of the competent law enforcement authority, which is regular in the formal institution of judicial. Okay but it is also, if against the person concerned constructive measures to be taken, who recognized the goal, to convict him as the perpetrator of a crime (HK Code of Criminal Procedure-incher, 5. Ed, § 157 Rn. 1 and § 160 Rn. 6; KK-Gries tree, Code of Criminal Procedure, 7. Ed, § 160 Rn. 14; Meyer-Goßner aaO Rn. 76).

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bb) By this standard is on the file against the plaintiff for the first time with the prosecutor from the available 4. November 2009 an investigative proceedings have been initiated on suspicion of attempted obstruction of justice and of the My-Oath. At this time he was registered as a defendant formally to and then consulted on the Tatvorwürfen. In contrast, over, the (mere) Endorsement of the plaintiff, be heard as witnesses by the prosecutor 24. October 2007, there was the “strong suspicion” un-true information, be regarded not as a formal initiation of an investigation, especially in the aftermath no action was taken, aimed recognizable on, to convict the applicant of an offense. The mere requirement of a federal criminal records extract can be viewed as little as such a measure as the request, to hear the plaintiff determination of a judge as a witness.

b) However, the decision of the Higher Regional Court proves even under another aspect as an error of law.

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aa) In criminal cases begins in accordance with § 198 Abs. 1 GVG period to be assessed for defendants not already with the introduction of an investigative procedure, but – the formal introduction regularly below – seriously only with the opening of the accusation or the person with a debilitating investigative measure (BT-pressure. 17/3802 S. 24; Kissel/ Mayer aaO § 198 Rn. 13; Ott aaO § 199 GVG Rn. 6; vgl. Constitutional Court also, NJW 1993, 3254, 3256; Meyer-Ladewig, EMRK, 3. Ed, Art. 6 Rn. 196 to each type. 6 Abs. 1 Sentence 1 EMRK).

bb) Contrary to the opinion of the Court of Appeal, the applicant had therefore, because supposed Un-truths to his statement he was held as part of its examination of witnesses, and he was sworn in at the request of the public prosecutor, not assume, that he would now be treated as a working person wanted for trial in an investigation; fortiori herein may not “official notification” be seen the initiation of a criminal investigation.

For Provision is usual Vernehmungsbehelfe, which are solely responsible for testing the credibility and refresh the memory of witnesses of importance (Meyer-Goßner aaO § 69 Rn. 7). Under § 59 Abs. 1 Code of Criminal Procedure can be performed the swearing, if it is deemed by the court under whose discretion due to the crucial importance of the testimony or to bring about a true statement for required. The-submitted with the application for neither swearing nor the swearing even the (implication) Message or even an indication, that against the witness because of the specific suspected of an offense is determined. This is not therefore be assessed differently, because outside the main stand trial in the preparatory process, the swearing in of a witness only when – 11 -

Presence of other – presently not given – Requirements (Imminent danger; expected preventing the appearance in the main trial treatment, vgl. § 62 Code of Criminal Procedure) is permitted. The fact, that the examination of a witness in violation of criminal procedural rules occurs, can not lead to a change in the thrust of this process such, that the hearing is to be evaluated now as a measure against an accused.

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That the plaintiff by any other concrete measure of the prosecution, taken because of a suspicion against him, seriously impaired was (e.g.. Warrant, Arrest, Durchsuchungs- or loading seizure arrangement), has not found the Court of Appeal.

c) The defendant has the argument of the plaintiff, in connection with the judicial examination of 28. November 2007 it had been informed by the deter-switching Attorney, against him Ermittlungsverfah-tion is being waged on suspicion of perjury, denied. Since the Higher Regional Court, the accuracy of those claims – that could be both for the initiation of an investigation and for the revelation of the initiation of importance – expressly left open, is in the revision-judicial review in favor of the revision of the defendant to in Ar-len, that the prosecutor has not done such a statement.

3. As far as the Court of Appeal adopted, that the District Court's decision on the commencement of the trial (§§ 199 ff StPO) delayed by six months was adopted, considers this legal examination also not stood, because for this judgment it essential circumstances have remained unconsidered. – 12 -

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a) Whether the duration of court proceedings unreasonably within the meaning of § 198 Abs. 1 Sentence 1 GVG ist, depends on the circumstances of the individual case, especially after the difficulty and importance of the process and the behavior of the parties and third parties. § 198 Abs. 1 Sentence 2 GVG identifies the circumstances, which are particularly important for evaluating the appropriateness, example only (“especially”) and without a trailing character (BT-pressure. 17/3702 S. 18). Another important criterion for assessing the 'reasonable time' is the process management by the court, the taking into account of the courts get-the scope of action to in § 198 Abs. 1 Sentence 2 GVG listed criteria must be set in relation (vgl. BVerwG, Judgments in each case from 11. July 2013 – 5 C 23.12 D, BeckRS 2013, 55758 Rn. 40 f und 5 C 27.12 D, BeckRS 2013, 56027 Rn. 32 f; Ott aaO § 198 GVG Rn. 128).

A general definition, when a process takes a disproportionately long, is not possible and would fall at the diversity of procedures and procedural situations in the field of general jurisdiction. With the decision of the legislature, that the appropriateness of the length of proceedings in the circumstances of the individual case depends (§ 198 Abs. 1 Sentence 2 GVG), was deliberately refrained from introducing certain limits for the duration of different types of processes. The focus on the individual case, it is clear from the wording of the law, is confirmed by the legislative history (to Steinbeiß-Winkelmann ibid introduction Rn. 236 ff) and comply with the legal materials clearly expressed will of the legislature (BT-pressure. 17/3802 S. 18). The absence of generally applicable timelines closes it out regularly, the reasonableness of a period solely on the basis of statistical – 13 -

To determine average values (vgl. BVerwG aaO 5 C 23.12 D Rn. 28 ff und 5 C 27/12 D Rn. 20 ff; see also BSG, Judgment of 21. February 2013 – B 10 ÜG 1/12 KL, juris Rn. 25 ff to the special case of the method of non-approval of symptoms after the SGG: statistical figures as “useful scale”). Nor is an evidence criterion in considering, that a certain process time taken for itself without further investigation would have to be classified as inappropriate (vgl. Ott aaO § 198 GVG Rn. 88).

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Fixed time specifications can also be the law of the ECtHR on Art. 6 Abs. 1 Sentence 1 ECHR are not taken (see also the overview in Meyer-Ladewig ibid type. 6 Rn. 199 ff, Production: Rn. 207 f). The Federal Constitutional Court has set no fixed time limits and assesses the question, from when a process takes a disproportionately long, always according to the particular circumstances of each case (vgl. Constitutional Court, NJW 1997, 2811, 2812; Decision of 22. August 2013 – 1 BvR 1067/12, juris Rn. 30, 32 mwN).

b) Inappropriate within the meaning of § 198 Abs. 1 Sentence 1 GVG is the procedural delay then, if a particular on the characteristics of § 198 Abs. 1 Sentence 2 GVG aligned and the discretion of the courts noted when process control weighing and balancing results of all relevant circumstances of the individual case, that the type of. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG and type. 19 Abs. 4 GG sowie Art. 6 Abs. 1 ECHR following obligation of the State, To bring legal proceedings in a reasonable time to complete, is injured (vgl. BVerwG aaO 5 C 23.12 D Rn. 37 and 5 C 27.12 D Rn. 29).

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The indefinite legal concept of “unreasonable length of court proceedings” (§ 198 Abs. 1 Sentence 1 GVG) and it fills characteristics within the meaning of § 198 Abs. 1 Sentence 2 GVG must be qualified by resorting to the principles, by the ECtHR to type. 6 Abs. 1 Sentence 1 ECHR and the Federal Constitutional Court on the right to effective legal (Art. 19 Abs. 4 GG) and Justice warranty (Art. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG) have developed, especially as this established case-law to the legislature in the text version of § 198 Abs. 1 GVG modeled dien-te (vgl. BT-pressure. 17/3802 S. 18; BVerwG aaO 5 C 23.12 D Rn. 38 and 5 C 27.12 D Rn. 30).

Reference point for assessing the adequacy than maßgebli-cher period, the total duration of the procedure, as § 198 Abs. 6 No.. 1 GVG de-fined (vgl. Ott aaO § 198 GVG Rn. 78). This has the consequence, that delays, which occurred at a stage of the proceedings or in individual process sections, not necessarily bring about the inadequacy of the procedure duration. It is rather as part of the final Ge-samtabwägung to check, if the delays were compensated in a later stage of the procedure (vgl. BVerwG aaO 5 C 23.12 D Rn. 44; Ott aaO § 198 GVG Rn. 79, 100 f). Here ge assumed to be in the view, that the duty of the Court, sustainably to seek a promotion and termination of proceedings, compacted with increasing procedural delay to (vgl. only Senate judgment of 4. November 2010 – III ZR 32/10, BGHZ 187, 286 Rn. 11 mwN).

Due to the attachment of the statutory right to compensation in accordance with § 198 GVG conventions to the injury- and constitutional norms (Art. 6 Abs. 1 EMRK, Art. 2 Abs. 1 i.V.m. Art. 20 Abs. 3 GG and type. 19 – 15 -

Abs. 4 GG) is made clear, that the stress caused by the length of proceedings must reach a certain severity. It is not any deviation from an optimal method of management. Rather, the length of proceedings must exceed a limit, that are no longer justified, taking into account offsetting legal interests for the person concerned to be factually or disproportionately represents (vgl. Constitutional Court, NVwZ 2013, 789, 791 f; BVerwG aaO 5 C 23.12 D Rn. 39 and 5 C 27.12 D Rn. 31; see also BSG loc. 26: “significantly exceeded the outermost limit of the Reasonable”).

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c) As already stated, is an important criterion for assessing the reasonableness of the length of court proceedings, the process execution by the court. It should be examined, whether delays, associated with the procedure rensführung related, is objectively justified in the light of the court can assume the margin of discretion. It can not be considered in isolation for the process control. You must be much more to in § 198 Abs. 1 Sentence 2 GVG listed criteria are set in relation. Decisive, whether the court has lived up straight in relation to those facial points the requirements of a reasonable time in any case justifiable manner, the output court the property- could assess and legal in his view ex ante (vgl. BVerwG aaO 5 C 23.12 D Rn. 41 and 5 C 27.12 D Rn. 33).

In assessing the conduct of the court of constitutional law principle of judicial independence must (Art. 97 Abs. 1 GG) not remain un-considered. As the swift settlement of a lawsuit is not an end in itself and the rule of law, the principle the full actual and legal review of the dispute by this beru-

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requires Fene court (Division's decision of 4. November 2010 AAO Rn. 14), must the court in all cases, adequate preparation- and processing time are available. It needs a margin of discretion, which allows it, to take account of the extent and severity of individual Rechtssa-chen balanced bill and decide, when it can promote the ease with which the method makes sense and what procedural steps are required to. Only when the procedure renslaufzeit in balance with the other criteria within the meaning of § 198 Abs. 1 Sentence 2 GVG is objectively no longer be justified even taking into account that discretion, is an unreasonable length of proceedings before (vgl. Division's decision of 4. November 2010 AAO Rn. 14; BSG aaO Rn. 27; BVerwG aaO 5 C 23.12 D Rn. 42 and 5 C 27.12 D Rn. 34; Ott aaO § 198 GVG Rn. 81, 127 f; Stahnecker, Compensation for extra-long court proceedings, Rn. 97).

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d) The review of process management in the output process is in principle for the trial judge, decides on the compensation action. In the subsumption of the facts established under the indeterminate legal concept of reasonableness of a period, the Revisionsge report to respect the tatrichterlichen discretion and is limited in its examination shall, whether misunderstood the legal framework, Have been violated laws of thought or general empirical propositions and whether all taken into account for the assessment essentially circumstances and appropriately weighed (vgl. Division's decision of 4. November 2010 AAO Rn. 18; Musielak / Ball, ZPO, 10. Ed, § 546 Rn. 12). – 17 -

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In consideration of this standard of review, and the previously erörter th principles, the opinion of the Court of Appeal proves, the ge-richtliche procedure had since June 2010 been six months inappropriate delayed, as an error of law, as the court, as the appeal to be right-anstandet, not all of the balancing decision in accordance with § 198 Abs. 1 GVG has recognized the relevant circumstances.

The Court of Appeal is limited to the determination, that since June 2010 a significant promotion methods have not been held and the method content essentially consists of two requests by the applicant on 27. September und 31. October 2010 and a (judicial) Memo from February 2011 there, near the place, that entering an plaintiff's will no longer take place. In the on the features of § 198 Abs. 1 Sentence 2 GVG aligned weighing and balancing of all essential circumstances of the individual case, however, would have the Court of Appeal – taking account of the legal scope of action – still need to include more aspects.

aa) It lacks a more detailed discussion of the difficulty of the procedure, which resulted in particular from the, that it had an above-average extent for a amtsgerichtli different schemes (five volumes of documents and four in some cases very extensive special issues), an equally wide parallel proceedings against third parties (Yeah: 5524 Js 46572/07) was evaluated and the decision on the commencement of the trial necessitated a complex evi-dence evaluating numerous indications. – 18 -

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bb) As regards the conduct of the plaintiff, the court would have had to include in its consideration, that by letter of 2. February 2011 the (incorrect) Created the impression, his counsel Concerning operative for additional information, in a (other) written opinion would then be processed. The fact that the criminal case the plaintiff, particularly in per-sonal and professional terms disproportionately burdened, is not apparent. As the district court pointed out in the opening negative decision in, was the initial suspicion of a criminal act rightly; the court had only doubts about the conviction probability within the meaning of § 203 Code of Criminal Procedure. As to the applicant the threatened loss off the medical argued with reference to the Code of Conduct for Doctors, were confined his remarks on formulaic and bland phrases.

cc) Finally, there remains undiscussed, that the District Court as evidenced by the cited by the Oberlandesgericht note the outcome of the aforementioned pa-rallelverfahrens 5524 Js 46572/07 has not objectionably <Atn> tet, the written reasons for the judgment of the district court Hi. from 15. February 2011, from which were essential considerations in favor of the plaintiff, to include in its own evaluation of the evidence.

4. The revision of the defendant accordingly leads to the cancellation of the contested judgment, has thus far chosen to the detriment of the defendant. In the scope of the waiver, the matter is referred back to the Court of Appeal for the new negotiation and decision. Lack decision-making stage is not possible the Senate its own decision (§ 563 Abs. 1 Sentence 1, Abs. 3, § 562 Abs. 1 ZPO). – 19 -

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For further proceedings, the Senate makes the following: Applies in the compensation process – as elsewhere in the Civil Procedure – the Beibringungs-principle. The compensation plaintiff must recite the facts and, where appropriate, to prove, reasons on which it considers an unreasonable length of the main proceedings. It is irrelevant, whether it is in the main proceedings is a civil litigation or a criminal. Not unlike the official liability process, the applicant must name the specific judicial actions or omissions, who had an avoidable delay the dispute resulted from his point of view. A mere reference to the documents before the Court is not sufficient for a conclusive action forward from. In court organizational shortcomings and deficits, as well as other circumstances, which lie in the area of ​​Justice and are beyond the insight of the plaintiff, contrast is made by the court administration need for explanation (vgl. BT- Pressure. 17/3802 S. 25; Kissel/ Mayer aaO § 198 Rn. 39; Ott aaO § 198 GVG Rn. 244; see also judgment of the Senate 11. January 2007 – III ZR 302/05, BGHZ 170, 260 Rn. 22).

IV. The revision of the plaintiff

The appeal is unfounded. The judgment under appeal holds the attacks of the revision was.

1. As far as the applicant complains, the Court of Appeal had in assessing the unreasonable length of proceedings the period from late April 2010 until 1. September 2011 underlying need to put, shows the revision no circum-stances on, which would have to hire additional to the detriment of the defendant country in the final Ge-samtabwägung with the result, that the – 20 -

Court of Appeal on the already established a six month period to a delay in the proceedings of a further ten months would have been obliged. Regardless, is how to estimate the duration of the investigation, includes the assessment of the Court of Appeal in accordance with section III. 3 d aspects shown no error of law to the detriment of the plaintiff.

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Since the decision of the District Court of 23. June 2011 at the 1. July 2011 was formally legally, was the subsequent period up to 1. Septem-ber 2011 (The plaintiff being notified about the admission of res judicata) irrelevant to the question of compensation anyway (§ 198 Abs. 6 No.. 1 GVG).

2. Without success remains the objection of the plaintiff, the Court of Appeal would have the rule set for the assessment of compensation for moral disadvantages (§ 198 Abs. 2 Sentence 3 GVG) in accordance with § 198 Abs. 2 Sentence 4 GVG um 50 % need to increase.

§ 198 Abs. 2 Sentence 3 GVG provides for assessment of the amount of compensation for intangible disadvantages of a flat rate fee of 1.200 € for each year of delay before. If this amount is based on the circumstances of the individual case unreasonably, the court may set a higher or lower amount (§ 198 Abs. 2 Sentence 4 GVG). With the flat rate, waiving any-case-related evidence should a dispute concerning the amount of compensation, which would mean an additional burden on the courts, be avoided. At the same time this allows for a swift settlement of claims for compensation in the interests of those affected (Stahnecker aaO Rn. 146; vgl. BT also pressure. 17/3802 S. 20). With a view to a Procedural-

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simplification promoting the legislative objective is held the trial judge only under special circumstances, of the normalized flat rate from low-keitserwägungen (§ 198 Abs. 2 Sentence 4 GVG) departing. This is in particular to think of cases, where the delay for continuance of a free-deprivation of liberty or a serious violation of privacy has led (vgl. Tavern, NVwZ 2012, 257, 262; Stahnecker aaO Rn. 148; see also supra § Ott 198 GVG Rn. 227 ae). Such circumstances make the revision was not submitted. You are not otherwise apparent. The threat of loss in medical exam-tion approval is made by the plaintiff without reasonable actual background in the room.

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If the applicant considers, culpable procedural violations of law enforcement agencies (here: in connection with his swearing) would justify an increase in the standard amount, he can not identify an error of law. The legislature is assumed, that § 198 GVG a “state tort law claim sui generis” normiert, granted to compensate for the disadvantages, the “by the duration of the procedure” caused in the area of ​​responsibility of undrawn entity (BT-pressure. 17/3802 S. 19). Basis of liability for the compensation claim be-cause undue length of proceedings is only the violation of the right of a party to proceedings on decision of a court case within a reasonable time (vgl. BSG aaO Rn. 25). On the question, whether the judge or any other member of the administration of justice has acted in breach of duty or culpable, it comes – unlike the public liability – not to (vgl. BT-pressure. 17/3802 S. 19; Ott aaO § 198 GVG Rn. 3, 95, 126). Accordingly – 22 -

in the context of equity decision in accordance with § 198 Abs. 2 Sentence 4 GVG not already therefore a departure from the rule set in favor of the person concerned born th, because the competent authorities and courts are undermined further procedural error in addition to the Verfahrensverzö-delay.

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It follows that the decision of the Higher Regional Court, of the control amount of § 198 Abs. 2 Sentence 3 GVG not deviate, fared no error of law.

3. Contrary to the contention of the plaintiff, it is not objectionable by law, that the Court of Appeal the plaintiff a portion of the costs corresponding to its lower lying quota pursuant to § 92 Abs. 1 Sentence 1 Code of Civil Procedure has imposed.

The costs are made in the compensation process in principle in accordance with § 201 Abs. 2 Sentence 1 GVG i.V.m. §§ 91 ff ZPO. When a demanding compensation but not or does not exist in the claimed amount, but nevertheless in accordance with § 198 Abs. 4 GVG finding an inappropri-priate length of proceedings in the operative part of the judgment, decides the compensation court at its discretion on costs (vgl. Althammer/Schäuble, NJW 2012, 1, 6; Ott aaO § 201 GVG Rn. 26 f; Stahnecker aaO Rn. 180). Such a special constellation is not the case here, because the Court of Appeal, although awarded the applicant a lower compensation than requested, However, no determination under § 198 Abs. 4 GVG has pronounced. Equitable basis in accordance with § 201 Abs. 4 GVG, as she hires the revision, thus were not ver-occasioned.

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The revision of the plaintiff is dismissed after all.

Lower court:

OLG Celle, Decision of 24.10.2012 – 23 SchH 3/12 -

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