Legal aid in Germany is "embedded in the court system and is seen as a part of this".

Germany Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...

was the first country to provide free

legal aid Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to co ...

representation for the poor in 1919, and represents the archetype of the so-called judicare system.

Legal aid in civil and other non-criminal cases

Legal aid Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to co ...

can be provided in

civil Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit * Civil affairs *Civil and political rights *Civil disobedience *Civil engineering *Civil (journalism), a platform for independent journalism *Civilian, someone not a membe ...

(which includes

family law Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations. Overview Subjects that commonly fall under a nation's body of family law include: * Marriage, ...

administrative Administration may refer to: Management of organizations * Management, the act of directing people towards accomplishing a goal ** Administrative Assistant, traditionally known as a Secretary, or also known as an administrative officer, administ ...

labour Labour or labor may refer to: * Childbirth, the delivery of a baby * Labour (human activity), or work ** Manual labour, physical work ** Wage labour, a socioeconomic relationship between a worker and an employer ** Organized labour and the labour ...

social welfare Welfare, or commonly social welfare, is a type of government support intended to ensure that members of a society can meet Basic needs, basic human needs such as food and shelter. Social security may either be synonymous with welfare, or refe ...

and even

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...

al disputes before courts if a party is not in a position to pay court and counsel fees. Legal aid is provided by exemption from

court costs Court costs (also called law costs in English procedure) are the costs of handling a case, which, depending on legal rules, may or may not include the costs of the various parties in a lawsuit in addition to the costs of the court itself. In the ...

and payment of counsel fees from the

state budget A government budget is a document prepared by the government and/or other political entity presenting its anticipated tax revenues (Inheritance tax, income tax, corporation tax, import taxes) and proposed spending/expenditure (Healthcare, Educat ...

upon decision by the court. The amount provided in legal aid cases paid to the

lawyer A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solic ...

is regulated in a statutory fee schedule, but considerably lower than counsel could normally claim according to the regular fee table from a client who is not entitled to legal aid. The German Code of Civil Procedure provided a subsection entitled "the right of the poor" (in

German German(s) may refer to: * Germany (of or related to) **Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **Ger ...

: ''Armenrecht'') to which on 1 January 1980 was added the first German law of the

public funding A subsidy or government incentive is a form of financial aid or support extended to an economic sector (business, or individual) generally with the aim of promoting economic and social policy. Although commonly extended from the government, the ter ...

for the coverage of legal expenses related the access to the judicial protection and the conducting of the process. The granting of legal aid by the court requires that the applicant proves that (a) the

claimant A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...

is economically not able to bear the costs of the procedures, (b) the

lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

has a reasonable prospects of success, and (c) the

cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a p ...

is not frivolous. The application for legal aid is typically lodged together with the draft of the complaint with the bench of the competent

court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...

. This has the advantage that the legal aid applicant is provisionally relieved of the payment of the court costs while the bench not only reviews the applicant's economic status but also determines the

merits of the case In law, merits are the inherent rights and wrongs of a legal case, absent of any emotional or technical bias. The evidence is applied solely to cases decided on its merits, and any procedural matters are discounted. The term comes from Old French ...

, i.e., as to whether the lawsuit appears to have reasonable prospect of success, based merely on the facts and arguments as presented in the draft complaint. Thus, a summary review of the

is carried out by the court. Only if all conditions are met and legal aid thus granted will the court communicate the complaint to the other party and the judicial dispute thereby commences with the costs borne by the court. However, the litigant seeking legal aid can also lodge effectively the complaint together with auxiliary legal aid request but without making the pendency of the case dependent on the court granting legal aid; or the litigant requests legal aid support at a later stage but before completion of the case procedures. In the latter

scenario In the performing arts, a scenario (, ; ; ) is a synoptical collage of an event or series of actions and events. In the ''commedia dell'arte'', it was an outline of entrances, exits, and action describing the plot of a play, and was literally pi ...

s, if legal aid is rejected by the court the

litigant - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

, who sought legal aid, will bear the counsel and court fees if the lawsuit is unsuccessful (or will bear the costs partially if the suit is partially successful). Defence cases are treated equivalently. The German judicare system leads to the review of legal aid cases on indigence and their merits first by the lawyers in

private practice Private practice may refer to: *Private sector practice **Practice of law In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiati ...

, then the courts, while averting dependence on external legal aid institutions removed from the judicial process. Another element of strength lies in the system's low cost. Altogether smaller amounts of state budgets are provided for legal aid

per capita ''Per capita'' is a Latin phrase literally meaning "by heads" or "for each head", and idiomatically used to mean "per person". The term is used in a wide variety of social sciences and statistical research contexts, including government statistic ...

compared with other

European countries The list below includes all entities falling even partially under any of the various common definitions of Europe, geographical or political. Fifty generally recognised sovereign states, Kosovo with limited, but substantial, international reco ...

. To secure receiving their fees through legal aid, lawyers' drafted briefs must have arguable merit thereby ensuring the high quality of representation of indigents. The substandard performance of lawyers is therefore not an option. The German model is also considered to put the indigent litigant on genuine equality with a wealthy litigant. The indigent has the same right to choose a lawyer as a more affluent person. The lawyer representing the indigent is naturally motivated to win the case, since as a victorious party the lawyer is entitled to recover the full lawyer's fees, i.e., not just the reduced legal aid fees, from the party that loses the case.Schlesinger, The German Alternative, p. 216 The loser-pays-all system constitutes an incentive for lawyers to represent indigent clients.

Legal aid in criminal procedures

In criminal procedures, the court assigns an accused with a

defence counsel In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense (or defence) in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat a ...

in so-called "necessary defence" cases if the accused has not already retained a lawyer. In practice, however, the court usually appoints the lawyer which the accused had already chosen for mandatory representation. Necessary defence means that the accused is charged with a

felony A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...

that is punishable by a

minimum sentence Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...

of one year's imprisonment, is tried before a higher court, already is detained on remand or otherwise not considered able to defend himself or herself. The entitlement of an accused to have counsel assigned in cases of mandatory legal representation is irrespective of indigence.Brodowski et al., Effective Criminal Defence in Europe, p. 11 The court-assigned defence lawyer is entitled to claim fees from the state budget. Like in civil proceedings, however, the legal aid fees are lower than fees the lawyer could otherwise claim from the client. Every lawyer can be appointed by the court as a public defender scheme does not exist in Germany. If the accused loses the case, i.e., is convicted, the court imposes the court fees and the costs of defence on the defendant. After conviction, the court-appointed lawyer can choose whether to execute a claim against the convicted client or the

treasury A treasury is either *A government department related to finance and taxation, a finance ministry. *A place or location where treasure, such as currency or precious items are kept. These can be state or royal property, church treasure or in p ...

. Normally, if the client is indigent, the lawyer will seek payment from the solvent debtor, the state.Brodowski et al., Effective Criminal Defence in Europe, p. 12 If a case does not require "necessary defence", an accused, who cannot pay a lawyer, is not entitled to be provided with counsel paid by the state but must defend himself or herself.

References

{{Reflist, 30em Legal aid Law of Germany