Litigation

Organization of judicature in Poland

Pursuant to article 10 of the Constitution of the Republic of Poland, judicial power in Poland is exercised by courts and tribunals. Article 175 section 1 provides that the bodies administering justice are the Supreme Court, common courts, administrative courts and military courts.

Pursuant to article 176 of the Constitution of the Republic of Poland, legal proceedings are a two-instance process, in each case a party may seek remedy at law which would lead to re-examination of a case by a court of higher instance.

1. Courts of common law in Poland

The system of common courts in Poland is defined by the act of 27 July 2001 on the system of common courts (Journal of Laws No. 98, item 1070, as amended).

Common courts administer justice outside the competence of administrative courts, military courts and the Supreme Court. So, under the Polish system of organization of judicature there is the presumption of the competence of common courts. In particular, common courts adjudicate in matters involving civil, criminal, commercial, labour and social security law.

The common courts are organized on three levels:

1. District courts – established for one or more districts. In justified cases, more than one district court may be set up for a given district;

2. Regional courts – established for the territorial range of authority of at least two district courts (court region);

3. Appeals courts – established for the territorial range of authority of at least two court regions (appeals area).

2. Military courts in Poland

The system of military courts has been regulated by the act of 21 August 1997 on the system of military courts (Journal of Laws No. 117, item 753, as amended).

The military courts’ mission is to administer justice in the Armed Forces of the Republic of Poland. These are special courts, their competence is in principle limited exclusively to criminal cases and perpetrators who are soldiers.

Among military courts, there are military garrison courts which take a place analogous to district courts among common courts and regional military courts which are equivalent to regional common courts.

3. The Supreme Court

Organization of the Supreme Court is defined by the act of 23 November 2002 on the Supreme Court (Journal of Laws No. 240, item 2052, a amended).

The main objective of activity of the Supreme Court is to ensure conformity with the law and uniformity of judicature of common and military courts.

As a result, the Supreme Court exercises supervision with respect to adjudication and activity of common and military courts, in particular it examines revocations and other appeals against judgements of the above mentioned courts.

The Supreme Court is also authorized to pass resolutions settling the legal issues. The resolutions are not binding but due to the standing of the Supreme Court usually determine the direction for interpreting the law by common courts.

In addition, the Supreme Court is competent to ascertain validity of parliamentary and presidential elections and referenda. It also examines electoral protests.

4. Administrative courts in Poland

The system of administrative courts has been defined in the act of 25 July 2002 on the system of administrative courts (Journal of Laws No. 153, item 1269, as amended).

The mission of administrative courts is to control activities of the public administration (including resolutions of the bodies of self-government and prescriptive acts of local bodies of the government administration).

A specific characteristic of the administrative judiciary is the fact that the control exercised by administrative courts is, in principle, exercised only in respect of conformity of the administrations activity to the law applicable.

The administrative courts are organized on two levels:

1. provincial administrative courts – established for one or more provinces. In the first instance, they hear cases within the competence of administrative courts;

2. Supreme Administrative Court – exercises supervision over activities of provincial administrative courts, in particular it examines appeals against judgments of the above mentioned courts.

5. Tribunals in Poland

There are two tribunals named in the Constitution of the Republic of Poland: Constitutional Tribunal and State Tribunal.

The mission of the Constitutional Tribunal is to examine prescriptive acts paying special attention to their conformity to the Constitution. Rulings of the Tribunal are binding and final. The Tribunal settles also issues concerning jurisdiction between central state bodies.

The State Tribunal examines cases involving violation of the Constitution or laws committed by the persons holding the highest offices in the country.

Legal professions in Poland

The following professional groups engage in providing legal services:

• Advocate

• Legal adviser

• Tax adviser

• Patent agent

• Notary

1. Advocate

In Poland, the exercise of a profession of advocate is governed by regulations of the Act of 26 May 1982 “the Law on legal profession”. The practice of an advocate involves providing legal aid, particularly providing legal advice, giving legal opinions, drawing up drafts of legal documents and appearing before courts and offices. In performing his/her duties, an advocate is subject to the laws only.

An advocate may not practise his/her profession if he/she works under an employment contract.

Advocates are organized into bar associations. The principles of professional ethics of advocates are contained in the Rules of Lawyer’s Ethics and Professional Dignity of 14 December 2011.

2. Legal adviser

Rules of the exercise of a profession of legal adviser are formulated in the Act of 6 July 1982 on legal advisers (Journal of Laws No. 19, item 145, as amended). In the current legal situation, the exercise of a profession of legal adviser consists in providing legal aid, except for appearing in a capacity of defence counsel in criminal proceedings and proceedings involving tax offences. So far, it has been a basic difference between professions of a legal adviser and an advocate.

On 1. July 2015, an amendment to the Code of Criminal Proceedings became effective enabling legal advisers to appear in a capacity of defence counsel in penal proceedings and proceedings under the Fiscal Offences Act provided that they do not work under an employment contract.

Legal advisers are organized into professional self-government – district chambers of legal advisers. Precise standards regulating the exercise of profession are contained in the Code of Legal Adviser’s Ethics of 10 November 2007.

3. Tax adviser

A tax adviser is a natural person entered in the list of tax advisers, that is authorized to provide tax advice. The exercise of a profession of tax adviser has been regulated in the Act of 5 July 1996 on tax consultancy (Journal of Laws No. 102, item 475, as amended).

Tax advisers are organized into professional self-government (the National Chamber of Tax Advisers). Precise principles of the exercise of profession are laid down in the Standards of Tax Advisers’ Ethics of 11 February 2014.

4. Patent agent

The exercise of a profession of patent agent in Poland is regulated by the Act of 11 April 2001 on patent agents (Journal of Laws No. 49, item 509, as amended).The profession of patent agent consists in providing assistance in matters of industrial property, in particular in respect of obtaining, retaining, exercising and asserting rights concerning objects of industrial property and combating unfair competition.

Patent agents are organized into the Polish Chamber of Patent Agents. Deontological rules of the profession are contained in the Principles of Patent Agent’s Professional Ethics of 15 November 2002.

5. Notary

Notaries practise their profession under the Act of 14 February 1991 the law on notaries (Journal of Laws No. 22, item 91, as amended).

A notary conducts notarial transactions, that is such transactions as should be conducted in such form considering requirements of the law or will of the parties. Notarial transactions conducted in conformity with the procedure are in the nature of an official document.

While a notarial transaction is conducted a fee is paid which represents remuneration of the notary limited by maximum rates of the notarial fee corresponding to a given transaction.

A notary may run one office only. Several notaries may run one office within the framework of a civil law or professional partnership.

Precise principles of practising the profession of notary are contained in the Code of Professional Ethics of Notaries of 12 December 1997.

The Polish criminal proceedings

Under the Polish legal system, the criminal law procedure is governed by regulations of the Act of 6 June 1997 the Code of penal proceedings (Journal of Laws No. 89, item 555, as amended).

Objectives of penal proceedings

The basic objective of penal proceedings is to uncover and bring a perpetrator of a crime to justice and to ensure that an innocent person does not bear responsibility. The rules of penal proceedings are to ensure that punishments and punitive measures are properly applied in order to combat crime, prevent it and strengthen the law and principles of social coexistence.

Stages of penal proceedings

Penal proceedings are made up of the phase of preparatory proceedings and the phase of court proceedings.

In the preparatory phase of penal proceedings it is being established whether a crime has been committed and action is taken to uncover and if need be catch a perpetrator. Moreover, circumstance of a case are being clarified and evidence is collected which will be used in court proceedings.

Penal proceedings in the judicial phase begin as soon as an indictment is brought by a prosecutor. In court proceedings, the body conducting a case is the court. A prosecutor becomes a party to the proceedings whose task is to prove that the other party (the accused) has committed a criminal act. Court proceedings is ended with passing a judgment. A judgment of the court of first instance may be referred to the court of higher instance by lodging an appeal. A judgment of the court of second instance is a legally valid judgment and can no more be invalidated. Extraordinary means of challenge include cassation which is filed with the Supreme Court.

Costs in criminal cases

The principles of incurring legal costs are laid down in the Act of 23 June 1973 on feel in criminal cases and in a directive of the Minister of Justice of 28 May 2003 on an amount of a flat-rate equivalent of expenses in cases based on private accusation (Journal of Laws of 13 June 2003).

Obligatory assistance of an advocate/legal adviser in penal proceedings

The code of penal proceedings requires representation by a professional attorney when performing the following actions:

• bringing a subsidiary indictment, pursuant to article 55 § 2 of the Code of Penal Proceedings [CPP];

• lodging an appeal against a judgment of a district court, pursuant to article 446 § 1 of the CPP;

• appealing to the court of cassation, pursuant to article 526 § 2 of the CPP;

• filing an application for instituting a trial de novo, pursuant to article 545 § 2 of the CPP.

Competence of a law court

In penal proceedings in the first instance, there is a rule that a district court is ruling. A regional court in the first instance is ruling in cases concerning crimes provided for in the penal code and other special Acts. A court of appeals examines appeals against rulings issued in the first instance by a regional court. The Supreme Court examines cassations and appeals referred to in the Act.

Civil proceedings in Poland

Under the Polish legal system, cases involving civil, family law, labour and social insurance law, and other cases provided for by special regulations are examined and decided in accordance with the rules established in the Act the Code of Civil Procedure of 17 November 1964.

Types of civil proceedings

The court civil proceedings are divided into:

• fact-finding proceedings;

• proceedings to secure claims;

• enforcement proceedings.

In fact-finding proceedings, there are two procedures for examining civil cases: legal proceedings and non-litigious proceedings.

Legal proceedings are characterized by existence of opposing interests of two parties in the proceedings, i.e. a plaintiff and a defendant. A lawsuit begins with an action being brought by which a plaintiff may request that a consideration be adjudged, a legal relation be established or formed. Rulings settling a dispute about essential factors are issued in the form of verdicts or payment orders while rulings in the course of legal proceedings refer to procedural or incidental issues.

The Code of Civil Procedure also provides for some types of separate proceedings for specified types of cases. These are, inter alia, proceedings in matrimonial causes, in cases involving relations between parents and children, cases in the area of labour and social insurance law, protection of competition, cases concerning recognition of a model contract as unlawful, in the area of regulation of power industry, telecommunications, postal service or railway transport as well as enforcement, admonition and summary proceedings.

Non-litigious proceedings may relate to strictly specified matters such as entry in the National Court Register, ascertainment of rights to inheritance or distribution of inheritance, presumption of death, legal incapacitation, establishment of guardianship, division of real estate, dissolution of co-ownership or ascertainment of acquisitive prescription of property. Proceedings of this type are instituted at the request of a petitioner or ex officio, are attended by a petitioner and participants and is ended by a ruling issued in the form of a decision.

Means of appeal

Means of appeal under the Polish civil procedure are:

• a complaint – as a principle, the right to complain may be exercised against a decision of a court of first instance ending proceedings in a case and against other decisions provided for in the Act; a complaint may be lodged with the Supreme Court against a decision of a court of second instance dismissing cassation appeal and against petition for ascertainment of unlawfulness of a legally valid ruling;

• an appeal – may be lodged with a court of second instance against a verdict of a court of first instance;

• cassation appeal – after specific conditions are met, it may be lodged with the Supreme Court against a legally valid verdict of a court of second instance or a ruling concerning dismissal of an action or discontinuation of proceedings ending proceedings in a case, the entities entitled to lodge a cassation appeal are the Attorney General or Ombudsman.

Costs in civil proceedings

Precise regulations concerning court fees paid in civil proceedings, rules and method of collecting them, rules of exemption from court fees can be found in the Act of 28 July 2005 on court fees in civil cases.

Obligatory assistance of an advocate / a legal adviser

Pursuant to article 871 of the Code of Civil Procedure, obligatory representation of the parties by advocates or legal advisers in civil proceedings also applies to proceedings before the Supreme Court and in case of other actions connected with legal proceedings before the Supreme Court but taken before a court of lower instance.

Material jurisdiction

As a principle, legal cases are examined in the first instance by district courts. Regional courts have jurisdiction, inter alia, in cases involving property where the value of subject matter of litigation exceeds PLN 75 thousand (except for certain types of cases enumerated in article 17 section 4 of the Code of Civil Procedure but also in cases concerning non-proprietary rights, press law, copyrights and industrial property rights as well as matters in the area of prevention and combating unfair competition.

Administrative proceedings in Poland

The Polish Act on administrative procedure of 14 June 1960 lays down the rules of proceedings before the bodies of public administration (or other competent state authorities), inter alia in individual cases settled by administrative decision.

Moreover, it contains provisions relating to proceedings in cases involving controversy between agencies of local government units and government administration bodies concerning their competence, in cases involving controversy between public administration bodies and other entities, proceedings in cases concerning the issue of certificates by public administration bodies and in cases concerning complaints and petitions.

General administrative proceedings may end with the issue of an administrative decision, ruling or reaching a settlement.

An administrative act deciding a case as to the essence or in another way ending proceedings in a given instance is an administrative decision. Recognition of a given act as an administrative decision is independent of how such act is named by an administration body (e.g. permit, licence, writ, interdiction etc.)

Administrative decision are controlled in the administrative course of instances, i.e. an appeal against a decision given by a body of first instance may be lodged which is addressed to the same body. It may revise its decision and give a new one, and if it does not do it, refers the appeal to a competent body of second instance which as a principle is an administrative body of higher level. This body gives a ruling in the form of a decision which may uphold or overrule the decision challenged or discontinue appeal proceedings.

By way of exception, appeals against administrative decisions may be examined by common courts, e.g. in some cases concerning social insurance, protection competition and consumers or cases involving vital records.

Other means of appeal are a complaint against a decision given by a body of first instance and also a motion for re-examination of a case by the minister or self-government appeals court.

The Polish administrative procedure provides also for extraordinary means of appeal which are aimed at overturning a final administrative decision if special conditions are met. The aforementioned means include resumption of proceedings, ascertainment of invalidity or expiration of a decision.

Court and administrative proceedings

Control on activities of public administration bodies, including control on administrative acts published by these bodies and other actions in respect of their legality is within the competence of administrative courts.

A legal instrument establishing the rules of court and administrative proceedings is the Act of 30 August 2002 the Law on proceedings before administrative courts.

Administrative courts examine complaints about administrative decisions and rulings given in the course of administrative proceedings, about resolutions or acts of units of local government, acts of supervision of a unit of local government as well as complaints about inactivity of an administration body.

Administrative courts in Poland also decide disputes over the competence between bodies of local government units and between self-government appeals courts as well as disputes concerning competence between bodies of local government units and bodies of government administration and between self-government appeals courts and bodies of government administration.

Court and administrative proceedings are instituted as a result of a complaint or petition being filed (when the Act so provides) and are ended with a ruling issued in the form of a verdict substantially settling the case or a decision about matters of procedure.

Costs of proceedings

The costs of proceedings are court fees (i.e. initial fee, office fees, reimbursement of expenses) as well as costs of journeys to the court of a party and an attorney as well as an equivalent of remuneration lost as a result of appearance in court. The rules of charging court costs have been established in chapter 2 of the Act Law on proceedings before administrative courts.

The amount of initial fee is dependent on the type of case and value of an object of appeal. The rules and amount of initial fees charged in court and administrative cases were established in the Regulation of the Council of Ministers of 16 December 2003 on the amount and detailed rules of charging initial fee in proceedings before administrative courts (Journal of Laws of 2003, No. 221, item 2193, as amended). Another relevant legal instrument is the Regulation of the Council of Ministers of 16 December 2003 on the amount of office fees charged in court and administrative cases.

Obligatory assistance of an advocate/a legal adviser

Pursuant to the provisions of the Act Law on proceedings before administrative courts [LPAC], a party must be represented by an advocate or a legal adviser in the following cases: preparation and lodging of a cassation appeal against judgment of a provincial administrative court with the Supreme Administrative Court (article 175 § 1 of the LPAC), lodging a complaint with the Supreme Administrative Court against a decision to dismiss a cassation appeal (article 194 § 4 of the LPAC) as well as lodging a petition for resumption of proceeding with the Supreme Administrative Court (article 276 of the LPAC).

Judicature in Germany

The structural organization of the judicature in the Federal Republic of Germany is indirectly regulated in Art. 95 section 1 of the Basic Law for the Federal Republic Germany (GG). According to Art. 95 section 1 GG: „for the areas of common, administrative, financial, employment and social law the Federation establishes as highest courts the Federal Supreme Court, the Federal Administrative Court, the Federal Finance Court, the Federal Employment Court and the Federal Social Court. According to this, in Germany there is a differentiation into five jurisdictions, namely the common, administrative, financial, employment and social jurisdiction.

1. Common Jurisdiction:

According to § 13 of the courts constitution act (GVG), common courts shall have jurisdiction over civil disputes, family matters and non-contentious matters (civil matters) as well as criminal matters for which neither the competence of administrative authorities nor the jurisdiction of the Administrative Courts has been established and for which no special courts have been created or permitted by provisions of federal law.

According to § 13 GVG, in front of common courts all civil disputes are adjudicated, that means disputes between persons who are standing in a horizontal relationship, for example two citizens or private law corporations.

In addition, common courts have jurisdiction in non-contentious matters. This especially includes matters concerning the land and mortgage register, registry affairs, support cases, inheritance as well as matters concerning the marital status.

Finally, under the terms of § 13 GVG the common courts rule in criminal matters, which means that the criminal justice is an exclusive competence of the common courts.

The common jurisdiction is organized in four stages. In Art 95 section 1 GG, the Basic Law names the Federal Supreme Court (BGH) as the highest court of the Federal State for the area of common judicature. The further courts in the area of common judicature are defined in § 12 GVG. It says:“ common jurisdiction shall be exercised by Local Courts (Amtsgerichte), Regional Courts (Landgerichte), Higher Regional Courts (Oberlandesgerichte) and by the Federal Court of Justice (Bundesgerichtshof, the highest federal court in the area of ordinary jurisdiction).“

Criminal and civil jurisdiction starts in first instance before a local or regional Court whereas proceedings in non-contentious matters are instituted in first instance always in front of a Local Court.

2. Administrative Jurisdiction:

In administrative jurisdiction, public law disputes are adjudicated. According to § 40 of the Code of Administrative Court Procedure (VwGO) administrative procedures include public law conflicts which are not reserved for social or financial jurisdiction.

The most important tasks of administrative jurisdiction include matters concerning passports, foreigners, asylums, sponsorships for construction and housing benefits, police and administrative law, schools, universities and assessments, commerce and restaurants, clerks and judges, as well as building regulations and municipal tax matters.

The administrative jurisdiction is organized in three stages. In Art 95 section 1, the Basic Law for the Federal Republic of Germany names the Federal Administrative Court (BVerwG) as the highest court of the country in the area of administrative jurisdiction. The further courts in the area of administrative jurisdiction are referred to in § 2 VwGO and includet the Higher Administrative Courts (Oberverwaltungsgerichte) and Administrative Courts (Verwaltungsgerichte).

In first instance, the administrative courts decide, whereas the higher administrative courts adjudicate in matters of appeal and the Federal Administrative Court in appeal on points of law.

3. Financial Jurisdiction:

In financial jurisdiction procedures, it comes to a decision in public-law disputes. According to § 33 Tax Court Code (FGO) financial jurisdiction is particularly competent for actions in public-law disputes concerning conflicts about taxes, child benefits and customs.

The financial jurisdiction is organized in two stages. The court of highest instance is the Federal Financial Court. The further courts in this area result from § 2 FGO. According to this provision, along with the Federal Financial Court there are the finance courts.

In first instance, financial courts decide whereas the Federal Financial Court decides on appeals concerning points of law.

4. Employment Jurisdiction:

According to §§ 2, 2a and 3 Employment Court Act (ArbGG) civil disputes between parties of collective agreements or between employees and employers out of the employment contract as well as disputes out of directly connected legal relationships come before employment courts. Furthermore, the employment courts decide in matters of labor management regulations and employee participation.

The employment jurisdiction is organized in three stages. In Article 95 section 1, the Basic Law for the Federal Republic Germany enumerates the Federal Employment Court (BAG) as the highest court of the Republic in the area of employment jurisdiction. The further courts in the area of employment jurisdiction are named in § 1 ArbGG. According to this provision, in addition to the Federal Employment Court the are the Higher Employment Courts (LAG) and Employment Courts (ArbG).

In first instance, the employment courts decide, the higher employment courts have jurisdiction over appeals and the Federal Employment Court on appeals on points of law.

5. Social Jurisdiction:

In the area of social jurisdiction, the courts adjudicate public-law disputes in the area of social security law. According to § 51 of the Social Court Act (SGG), among the duties of social jurisdiction there are basically disputes in matters of social insurance, employment promotion, compensation and assistance for war victims as well as panel doctor law.

Social jurisdiction is organized in three stages. In Article 95 section 1, GG for the Federal Republic of Germany names the Federal Social Court (BSG) as the highest court of the Republic in the area of social security law. The other courts in this area are those named in § 2 SGG. This provision states that in addition to the Federal Social Court there are the Higher Social Courts (LSG) and Social Courts (SG).

In first instance, the social courts are competent to decide, whereas the higher social courts decide in matters of appeals and the Federal Social Court decides on appeals on points of law.

Legal professions in Germany

The following legal professions provide legal services in Germany:

• Advocate (Rechtsanwalt)

• Patent Agent (Patentanwalt)

• Notary (Notar)

• Tax Adviser (Steuerberater)

• Auditor ( Wirtschaftsprüfer)
• Legal Adviser (Rechtsdienstleister)

1. Advocate

The profession of an advocate in Germany is governed by the Federal Rules of the Bar (BRAO). The act defines the requirements for the admission as an advocate, rights and obligations of advocates and rules concerning the professional co-operation of advocates. The legal profession as advocate belongs to the liberal professions and the professional representative bodies are organized in Chambers.

The practice of advocates involves counseling of clients in legal issues, representation before courts and public authorities and drafting of contracts and other legal documents.

In the exercise of their professions, lawyers are subject to the above mentioned legal framework and the Rules of Lawyer’s Ethics.

To become an advocate, at first the Law studies must be completed. Then the two years lasting legal traineeship serves the further education and gives an insight in different legal professions. After passing the second state exam, an applicant may apply for admission as an advocate.

2. Patent Agent

The education to become a patent lawyer is governed by the Law on Patent Agents, by the law on Patent Agents Training and by the Patent Agents Examination Regulations. Patent agents represent parties in the area of intellectual property protection, for example the protection through patents, utility models and trademarks. They represent parties before the patent and trademark offices and the competent courts. They only have a limited capability of filing applications, that is the reason why they often work together with advocates.

The completion of a natural scientific or technical study is mandatory to become a patent agent. After that a training in the area of protection of industrial property and the passing of the Patent Agents Exam is necessary to become a patent agent.

A patent agent practises a liberal profession, the representative bodies are organized in Chambers.

3. Notary

The Federal Notaries Code regulates inter alia the position, requirements for the admission to the profession, rights and obligations of notaries and organization and tasks of the Notary Chambers. Notaries are responsible for the authentication and certification of legal transactions, facts, evidences and signatures.

A notary practises a liberal profession and the representation is organized in Notary Chambers. To be able to perform as a notary an applicant must, similar to advocates, have passed the second state exam. The Judicial Administration of the federal states carries out the public appointment. In Germany, it is possible in some federal states that advocates are appointed as notaries and are able to practise both professions.

4. Tax Adviser

A tax adviser gives advice on fiscal and economic questions and represents parties in finance court proceedings. The legal provisions for the exercise of this occupation can be found in the Tax Consultants Act. A part of the education is economics or law studies or a commercial training with subsequent practical training. With the tax advisor exam applicants complete their education.

Tax Advisor is a liberal profession and the professional representation is organized in Chambers.

5. Auditor

An auditor is responsible for the examination of the proper bookkeeping and annual balance sheet of enterprises. The Rules on auditors contain the legal framework of this profession.

A condition for the exercise of the profession is the completion of an university study, perennial professional experience and the passing of a state exam. The profession is also a liberal profession and the representation is organized in Chambers.

6. Legal Adviser

The provision of extrajudicial legal services is in Germany governed by the rules of the Legal Services Act. The act regulates how legal services can be provided and who is allowed to provide them. The act divides between registered (advocates, competent organizations) and non-registered (state authorities, consumer protection) persons. The qualified persons are entered in the register for legal advisers. Persons are able to register when they have specialized knowledge and can therefore provide legal advice, for example in foreign law.

Criminal Procedural Law in Germany

The procedural law in criminal cases is laid down in Germany in the German Code of Criminal Procedure (StPO) of 07.04.1987. Some fundamental principles of the criminal procedure are the principle of public prosecution, principle of legality as well as the principle of charge and investigation.

Objectives of the criminal procedure

The objectives of the criminal procedure include the identification of the material truth in order to fulfill justice, determination and enforcement of the right of the state to inflict punishment, guarantee of a constitutional procedure and the re-establishment of peace under law and guarantee of legal certainty.

Course of the criminal procedure

The procedure in first instance divides into:

• preliminary proceedings/investigation proceedings

• interlocutory proceedings/opening proceedings und

• main proceedings.

The criminal procedure is initiated through the official capacity of the police or prosecutor by filing of a criminal charge or a request for criminal prosecution. During the preliminary proceedings the circumstances of the case are assessed, evidence is gathered and the public prosecutor’s office makes the decision to bring in an action if sufficient suspicion exists. In the subsequent proceedings, a prosecutor represents the state as an accuser.

In the interlocutory proceedings, the competent court decides if it opens the main proceedings because of sufficient suspicion or if it stops the proceedings temporarily.

In the main proceedings, the competent court verifies the merit of the accusations and therefore if a perpetrator is guilty. At this stage of the proceedings, the actual trial takes course, to which witnesses are called and evidence is documented. A perpetrator must have the opportunity to make a statement after every collection of evidence. At the end of the actual trial, the court retires for consultation. The judgment is read out orally and must be justified.

Against the judgment of a district court in first instance the legal actions of appeal and appeal on points of law are possible. Whereas with an appeal a second instance of assessment of the merits of the case takes place, with an appeal on points of law only the wrong application of material law and procedural law can be criticized.

Costs of the proceedings

According to § 465 stop, a defendant has to bear the costs of the proceedings if he has been sentenced. Part of the costs are the costs of advocates and those of other parties to the proceedings as well as costs of authorized experts. In the case of a verdict of not guilty, the public purse pays for the costs.

Legal representation by an advocate

An assigned counsel is appointed by the court in cases of so called mandatory defence. The legislator assumes in these cases that perpetrators are not able to defend themselves. According to § 140 StPO the assistance of an advocate is necessary if

1.  the main hearing in first instance is held at the Higher Regional Court or at the Regional Court;

2.  the accused is charged with a felony;

3.  the proceedings may result in an order prohibiting the pursuit of an occupation;

4.  remand detention pursuant to Sections 112 or 112a or provisional placement pursuant to Section 126a or Section 275a subsection (6) is executed against the accused;

5.  the accused has been in an institution for at least three months based on judicial order or with the approval of the judge and will not be released from such institution at least two weeks prior to commencement of the main hearing;

6.  placement of the accused pursuant to Section 81 is being considered for the purpose of preparing an opinion on his mental condition;

7.  proceedings for preventive detention are conducted;

8.  the previous defense counsel is excluded from participation in the proceedings by a decision;

9.  an attorney has been assigned to the aggrieved person pursuant to Sections 397a and 406g subsections (3) and (4).

In other cases, the presiding judge shall appoint defense counsel upon application or ex officio if the assistance of a defense counsel appears necessary because of the seriousness of an offence, or because of the difficult factual or legal situation, or if it is evident that the accused cannot defend himself.

Civil procedure in Germany

The German civil procedure is mainly regulated in the code of civil procedure (ZPO). In a civil procedure a decision over civil law claims is made. The code of civil procedure determines the course of the proceeding in first instance and in the proceedings concerning appeals and appeals on points of law. In some areas of private law, for instance in employment law and family law matters, there exist rules of practice established in separate acts.

Types of civil procedure

The following types of civil procedure exist in the German legal system:

• Examination proceedings

• Writ-of-payment proceedings

• Interim measures

• Independent evidence collecting procedure

• Documents, bills of exchange and cheques procedure

• Proceedings for preparation of enforcement

• Enforcement proceedings

In examination proceedings, the court takes a binding decision in a legal dispute based on substantive law. To be able to be a party to a legal dispute, certain procedural requirements must be fulfilled. They include the capacity to sue and to be sued and the entitlement to take legal actions. The procedure starts with the filing of an action. Contrary to the criminal procedure, in civil proceedings the parties determine the subject matter of litigation and which evidence are to be submitted. Furthermore, they have the possibility to influence the course of the proceedings and are able to end the proceedings through a settlement and not only through a judgment.

Means of appeal

The following means of appeal may be available in the German civil procedure:

appeal: an appeal can be lodged against judgments in first instance. A certain amount in dispute has to be reached and the court of first instance has granted leave of appeal. The court of first instance admits an appeal if legal matter is of fundamental significance or wherever the further development of the law or the interests in ensuring uniform adjudication require a decision to be given by the court of appeal and the judgment does not adversely affect the party by an amount higher than EUR 600. The appeal must be based on the claim that the ruling was made in violation of the law.

appeal on points of law: the appeal on points of law can be lodged against judgments of the court of second instance. It can only take place, if the court of second instance has approved it in the judgment or by the court of appeal as a result of a complaint filed against the non-admission. The appeal on points of law must be admitted if legal matter is of fundamental significance or wherever the further development of the law or the interests in ensuring uniform adjudication require a decision to be given by the court of appeal.

complaint: a complaint may be filed against rulings of the court. Complaints are differentiated between a simple and immediate complaint and a complaint on points of law.

Costs

During the examination proceedings also the question about which party has to bear which part of the costs is answered. In the cost fixing proceedings, the court determines the exact amount of the costs. The parties can also come to a settlement on points of costs. Details concerning calculation of court costs, down payments as well as means of appeal are regulated by the Law on Court Costs (GKG).

Legal representation in civil procedures

According to § 78 ZPO, the parties to disputes before the regional courts (Landgerichte, LG) and the higher regional courts (Oberlandesgerichte, OLG) must be represented by an advocate. In proceedings before the Federal Court of Justice (Bundesgerichtshof, BGH), the parties to a dispute must be represented by an attorney admitted to appear before the said court.

Administrative procedure in Germany

The Administrative Procedure Act of the Republic (VwVfG) contains the regulations on administrative procedure. Due to the federal organization of the German state also the federal states have partially their own acts on administrative procedures, but mostly they adopt the rules of the national law. The financial and social administrations have their own rules of procedure.

The rules of administrative procedure are applied if the action of public bodies is directed towards implementation of law in specific factual circumstances.

The actions include the enactment of administrative acts, general administrative acts and the conclusion of public law contracts. An administrative act is every directive, decision or other measure of administrative nature taken to regulate specific actual situation in the area of public law aimed at producing direct legal effects. A general administrative act regulates specific actual situation, but is directed towards an undefined group of people. The most common form of an administrative act is an administrative decision. Instead of issuing an administrative act, a public body may conclude a public law contract with the entity to whom otherwise an administrative act would be directed.

These regulations serve the purpose of maintaining law and ensuring effectiveness of administration. By precise determination of the rules of procedure activity of the administration is predictable and offers possibilities of legal protection to each citizen. The administration often has a certain extent of discretion over decision-making.

In order to achieve the abovementioned goals, the act on administrative procedure contains regulations concerning the field of application, territorial competence, electronic communication, administrative cooperation, European cooperation administrative of administration bodies as well as general regulations concerning the administrative procedure, administrative acts, regulations on special types of procedure or pro bono activities.

The principal rules of administrative procedure include the principle of clarity of the form and course of the procedure, the requirement of objectivity and neutrality, obligation to hear a person concerned, duties to inform and advise, justification of decisions and the principle of carryin on an action ex officio.

Administrative decisions are controlled by the administrative courts. The legal and administrative proceedings start at the stage of the so called opposition proceedings. At first, the public administration body who has given a decision has the possibility of reviewing it, and then the body of higher instance decides in the opposition proceedings (in the narrow sense). Only after these preliminary proceedings it is possible to bring an action to the competent administrative court. Precise rules are set out in the act on administrative courts (VwGO).

The interested party is entitled to different types of action. The action for annulment aims at the annulment of an administrative decision detrimental to the applicant. With a writ of mandamus the applicant demands that an administrative act favorable to him be issued. The application for a declaration is an action with which the existence or non-existence of a legal relationship or the invalidity of an administrative decision can be determined by a court. A general action for performance is aimed at obligating an administration body to perform a specific factual act. The action for failure to act is brought when an administration body has not decided on an application in due course. In addition the act contains regulations on interim legal protection aimed at protecting citizens against long court procedures. Against decisions of the administrative courts an applicant is entitled to legal remedies in the form of appeal, appeal on points of law and review.

Costs of the proceedings

In case an objection is allowed, an applicant shall be reimbursed by a public administration body who issued the overruled administrative for the costs of preliminary proceedings in the form of expenses suitable and necessary for an applicant to defend his rights. If the objection is overruled the party who made the objection shall be obligated to reimburse the public administration body who issued the said administrative act for the necessary expenses incurred.

In the court proceedings, the losing party bears a part the costs of the proceedings. If a party partly wins and partly loses the case, the costs cancel each so both parties have to bear half of the court costs. One of the parties may be obligated to cover all costs if the other party loses in very small part.

Obligatory assistance of an advocate before the administrative courts

Before the Federal Administrative Court and the Higher Administrative Court the parties must be represented by an advocate, except for proceedings concerning exemption from court costs. legal aid proceedings. Before the other administrative courts, the parties can pursue a lawsuit independently.

Organisation of judiciary in France

French common courts have jurisdiction to resolve disputes between natural parsons and to punish offenders in accordance with the provisions of the penal act.

The common judiciary includes civil and criminal courts. Civil courts resolve disputes but do not inflict punishments (e.g. cases related to lease, divorces, consumer disputes, etc). Criminal courts judge persons suspected of committing an offence (driving without a driving license, theft, murder).

Some cases are adjudicated by special courts.

There are also administrative courts.

You will find more details on the organisation of the judiciary in France under the link below:

http://www.justice.gouv.fr/organisation-de-la-justice-10031/lordre-judiciaire-10033/

Legal professions in France

Advocates

Advocates in France have a status of court officials, and the profession of an advocate is a freelance and independent one. The status of advocates results, in particular, from Act No. 71-1130 of 31 December 1971 on certain judicial and legal professions and from Decree No. 91-1197 of 27 November 1991 governing the profession of an advocate. Act No. 90-1259 of 31 December 1990, amending the Act of 1971, and the secondary legislation created a new advocate profession, combining the professions of an advocate and legal adviser.

In its everyday work, an advocate fulfils two functions: advisory and defence functions.

In accordance with Article 4 (1) of the Act of 31 December 1971, advocates were granted almost the exclusive right to support and represent the parties, submit applications and act on their behalf before courts and other judicial or disciplinary authorities of all types.

There is no nationwide association for this profession. Advocates make up 161 continental and oversees bar chambers at regional courts. Each chamber is chaired by a president and managed by an advocates’ council, which deals with all matters related to the pursuance of the profession and controls the fulfilment of the obligations by advocates and ensures protection of the advocates’ rights.

The National Council of Bar Chambers (Conseil national des barreaux: CNB), created under the Act of 31 December 1990 (Article 15), is a public-benefit institution with legal personality whose task is to represent advocates before public authorities in order to ensure harmonisation and unification of the rules of procedure and practices used in the profession.

The National Bar Chamber has its website which guarantees a common and free access to information on the organisation of the profession, current matters regarding the profession and to the catalogue of all advocates registered in French chambers. The majority of large chambers have their own and free websites, the addresses of which are listed in the catalogue of chambers available at CNB’s website.

Advocates at the State Council and Court of Cassation make up a separate professional group. They include ministerial officials, appointed by the Minister of Justice, who have the monopoly to represent before supreme courts if required. Their status mainly results from the Regulation of 10 September 1817 establishing the bar chamber at the State Council and Court of Cassation, from Decree No. 91-1125 of 28 October 1991 on the conditions of access to the profession, and from Decree No. 2002-76 of 11 January 2002 on disciplinary matters of pursuance of the profession.

Since the issuance of the Regulation of 10 July 1914, the number of law offices at the State Council has been constant and accounted for sixty. However, the decree of 22 April 2009 enables the Minister of Justice to set up, by virtue of a regulation, new law offices at the State Council and Court of Cassation, having in mind the correct management of the judicature, especially in connection with the growing number of lawsuits resolved by the said authorities.

The advocates at the Council make up a separate chamber chaired by the president, together with a council composed of 11 members. The body fulfils disciplinary and representative functions.

Legal advisers/corporate lawyers

The profession of a legal adviser was combined with the profession of an advocate pursuant to Act No. 90-1259 of 31 December 1990.

Lawyers employed at enterprises are not subject to any special professional regulations.

Notaries

Notaries are state and ministerial officials appointed by the Minister of Justice. However, they have a status of a freelance profession. The profession of a notary public is governed, in particular, by the Act of 25 ventôse of XI, Regulation No. 45-2590 of 2 November 1945 and Decree No. 45-0117 of 19 December 1945 on the organisation of notaries, Decree No. 73-609 of 5 July 1973 on professional education and conditions of access to notaries and Decree No. 78-262 of 8 March 1978 on notary’s rates.

Notaries are associated in notarial chambers at the departmental level and in regional councils in charge of control and discipline of notaries in their districts. The representative body at the national level is the Supreme Notarial Council.

In addition to the representation before public authorities, the Supreme Notarial Council prevents and resolves professional disputes between notaries who do not belong to the same regional council. The Supreme Notarial Council has a free website which describes the main characteristics of the profession and contains a catalogue of notaries from departmental and regional councils.

Notaries are authorised to issue official documents provided with an enforcement clause, without the court issuing a decision.

Notaries’ task is also to provide advice to private individuals and enterprises in connection with preparation of official documents. They may also intervene in matters regarding property management.

Criminal procedure

In France, a criminal procedure involves two parties: Prosecutor’s Office serving the public interest and the accused of committing an offence or crime.

From the legal point of view, the aggrieved party is not a party to a criminal procedure. However, he/she may demand compensation for losses in the course of a civil procedure instituted thereby. Civil procedure may take place simultaneously with a criminal procedure.

The goal of a criminal procedure is to establish:

1) whether the accused is guilty of the acts he/she is accused of. Thus, it must be established whether the person committed an act constituting an offence;

2) the penalty which will be imposed for the crime.

Criminal procedure is preceded by investigation (conducted usually by the Police or gendarme) or court inquiry (conducted by an examining magistrate).

The regulations regarding the criminal procedure determine the measures which may be used by the investigators and the conditions of using the same. The higher the punishment threatening for the committed offence, the larger the extent to which investigators may apply measures restricting the individual’s liberty: arrest, search, phone tapping, etc.

Criminal procedure determines formal and substantive issues which must be observed during the investigation, uncovering and prosecuting offences, with respect to evidence and judgment. It also governs the possibility to appeal from court decisions.

Criminal procedure, constituting the centre of democratic guarantees, is one of the basic components on which the implementation of the principle of the state of law depends. It protects an individual towards institutions dealing with crime prevention.

The European Court of Human Rights is exceptionally vigilant in this respect and without hesitation imposes penalties on the states not adhering to the rules.

Civil procedure

A civil procedure in France is a set of standards governing the procedure before civil courts. It also includes all formal requirements which must be met to file a civil claim.

A civil procedure determines the requirements that must be met for a plaintiff to bring an action to a common law court in civil, commercial and social matters.

Among people who are not lawyers, the term procedure arouses associations with formalities that must be fulfilled in order to gain a random result. For a lawyer, this word has a more precise meaning: from the technical point of view, a procedure covers a number of activities or formalities the fulfilment of which will enable the court to resolve a legal problem.

A claim is served by a court bailiff or filed jointly by the parties.

Claim examination: the judge examines the claim on admissibility, if the petition is complete, and the compliance with the adversarial rule.

Trial: interviewing the parties or their lawyers.

Court’s decision: deliberations, pronouncement of the verdict.

Administrative procedure

The administrative procedure in France is divided into two types: non-litigious administrative procedure and litigious administrative procedure.

The former one governs non-litigious relations (i.e. out of courts), the latter one is used for litigious relations before administrative courts.

A procedure before an administrative court is characterised by three fundamental features.

Like the procedure before a common law court, it is open. This means that each of the parties has the right to know the arguments and evidence presented by the other. The participants’ rights and judge’s obligations result from the principle of openness. In no case may the judge rely his/her decision on the evidence which is not known by the parties.

The procedure is also inquisitorial: the judge examines the case ex officio. He/she is the one to provide individual documents to the parties to the dispute. He/she may also demand the parties to present certain evidence or documents (e.g. application to administrative bodies for presentation of the reasons of an administrative decision). The inquisitorial nature of the procedure is justified by the lack of balance between the parties to the administrative procedure.

Finally, the procedure has a written form. The parties may present their demands and arguments solely in writing. This rule makes the administrative procedure less flexible but warrants a greater safety of legal acts. Therefore, advocates rarely act before administrative courts.

Recently, oral procedure has been increasingly more common before administrative courts, especially as there are increasingly more cases. In some procedures where an administrative court makes a decision in urgent matters (e.g. regarding deportation of illegal immigrants), the parties may present new information at the trial which they have not specified in writing.