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Unfairness: How to get your legal right

What is the best course of action in Germany when injustice befalls you?

I don’t mean that somebody is pushing in front of you in the cafeteria, or that you are always stuck waiting at the cash register in Aldi where the longer queue of customers is lined up. That’s part of everyday life.

No, I mean that someone really is unjust to you and you suffer actual economic harm. Perhaps because your boss, who you work for while you’re studying, pays you for fewer hours than you did. Or because your landlord keeps the entire deposit when you move out, even though it was agreed that you do not have to renovate when you move out. And you don’t know what to do about it. Like These students:


“I could never have possibly imagined that this would happen to me with a German employer!”  

The Indian students had been waiting, patiently and considerately, for several months for their wages.

The business was had just started up, there were repeated cash-flow problems, and the hours developing accumulated more and more, and ran into thousands of Euros. Yes, that was extremely kind and empathetic of them. But, sadly, also naive! But that’s how it happens when you have little or no experience.

And then came the kicker – something that simply shouldn’t happen: falsified timesheets and a refusal to pay back salary. An immediate severing of ties – i.e., fired. And a disaster for the students, as they urgently needed the money to prove financial solvency for their residence permits.

Let there be no mistake here: this is a blatant crime and an absolutely exceptional case.

Unfortunately, there are also black sheep in Germany who exploit the ignorance of others.


 

In this post:

  • You will learn that legal advice is a social welfare benefit for people who cannot cover the costs by themselves (like students) and
  • that you have a legal entitlement to it (even) when you’re a foreigner.
  • learn about the difference between “legal advice” and “legal aid”, and
  • whom you can turn to for legal help and advice in a complicated legal matter.
  • You will get an outline of the procedures, forms, and contacts.
  • and get a tip about what you can do when you don’t know German.

 

Legal Advice is a Basic (Human) Right in Germany

Article 3 of the German constitution states that everyone is equal before the law. That is one of the reasons why everyone has the right to protect himself/herself legally. If you do not have the resources to do so, you can claim legal support in the form of a “social benefit” (Sozialleistung), as it’s called in German.

And it’s a very good thing that this right exists.

Legal problems may occur in one of these aspects of daily life:

Most fatal accidents in Germany do not happen in an airplane or car, but in a private household. Somebody falls from a ladder while cleaning windows and is then dead. * Basically, anywhere in everyday life undesired disturbances like these may occur:

  • Dispute with the landlord about the deposit and renovation costs when moving out (tenancy law)
  • Faulty repair of a computer (consumer rights)
  • An employer for whom a student has a part-time job does not want to give the student paid vacation time (employment law)
  • Involvement in an accident – the other party claims damages and compensation for pain and suffering (accident laws)
  • Exams (higher education laws)

* Note: have you noticed how Germans have a thing with insurance of every type and kind? This is why – because they want to be prepared for events like this.

 

Two basic legal services for people without much money

Many problems are annoying, but not really dramatic.

But some problems rob us of sleep at night for a good reason. Depending on how serious the problem is, there are two types of support:

  1. Out-of-court legal advice and representation (this is known as counselling assistance, “Beratungshilfe” )
  2. Support while conducting legal proceedings (called legal aid,”Prozesskostenhilfe”)

Offering 1: Counselling Assistance (“Beratungshilfe”)

Counselling assistance is about helping you find out what you are actually able to do.

Often, a (legal) problem will disappear quickly if you (re)act properly.

For example, when you move into your new apartment, you may find that the landlord has not renovated the apartment as agreed. If you can write an official, properly worded letter, you are allowed to reduce the rent. But you need somebody who is familiar with such situations, and who can suggest what you need to write. Roughly how much may you reduce the rent by? And are you allowed to move into a hotel until the renovations are completed and have the landlord pay for your room? You can only get answers to questions like these from someone who is ‘knowledgeable’ (fachkundig).

Usually a ” knowledgeable ” person is a lawyer. The precondition for receiving advice is that you are in financial need or have a very small budget. If things go positively, your landlord will approach you after receiving the lawyer’s letter and look for a compromise. He will not be inclined to engage in a serious legal dispute.

This is how you proceed to get Counseling (Legal) Assistence:

1. Do some research at the local court in your town/city/county of residence (the local court is the first legal contact point).

2. Telephone to find out which documents you should bring with you to an appointment (application documents can be obtained in person or as downloads from your local court).

3. Make an appointment at the district court (Amtsgericht).  You’ll most likely talk to a judicial officer/clerk (not a lawyer, but an employee trained in legal topics):

  • Explain your problem to him/her.
  • Present your economic situation.

(You may potentially have already filled out the application form and brought all necessary documents with you.)

4. Authorisation

  • Option A: You receive counselling assistance directly during the office hours of the district court.
  • Option B: You get what is called a “legal advice voucher” (Rechtsberatungsgutschein) with which you can go to a lawyer.

Offering 2: Legal aid (Prozesskostenhilfe) for bringing a court case


Example:

Suppose you have a part-time job in a restaurant. As agreed with your boss, you took a two-week beach holiday in summer.

Now you are back again, tanned and refreshed. But you now see a row of zeros staring back at you from your bank account. Apparently your boss has forgotten to continue transferring your salary for your 10 hours a week.

 But hey, no problem – everyone forgets things. You’ll just remind him. You ask him  to transfer the payment to your bank account in the next few days.

 But hold on –your boss tells you: “No, that isn’t how we operate here. We don’t give paid vacation to a temporary employee.” When you explain to him that he is legally obliged to do so – he makes a couple of nasty remarks and fires you.


What can you do if your boss ignores a lawyer’s letter and a demand for back pay? Perhaps he will come up with some explanation as to why he has paid you more money than you earned in the past and that he has now only offset this against your vacation days.

Now legal aid enters the game: It enables you to take the necessary legal action and defend your claim in court – that is, provided you don’t have the money to do so yourself.  “Legal expenses” mean the costs of the court hearing (the judge and the city/county administration also want to be paid) and your lawyer’s fees.

Would you like to read more about all this? You can find a flyer with further explanations on the justice portal of NRW. You can also download the application forms there.

Legal aid is available only under the following conditions:

There are three prerequisites which are checked by a judge.

1: little money: As an applicant, you must have only “meager financial means”, as the law so beautifully states. The judge will check your income situation and then make a decision.

2: prospect of success: You must have a ‘sufficient’ prospect of success with your complaint (the legal term is hinreichend). What is most important is proof (a copy of your time sheets or account statements) or witnesses who support your version of events. If the judge has serious doubts that you might win, he will not grant legal aid.

3: No brazenness: oh yeah, and of course you shouldn’t be doing this just to annoy your (former) supervisor; you should genuinely have cause. In legal German this translates as not suing someone ‘wilfully’, or ‘just because’.

Variant A of Legal Aid: a Gift

If your neediness is considered extreme enough by the judge, you don’t have to pay any of the costs yourself. That’s why it’s called “installment-free legal aid”.  I call it a gift!

Variant B of Legal Aid: a Loan

However, it may also be that the judge is going to decide to help; for the time being, the court will pay the lawyer’s fees, but the judge has decided that you have to repay the costs of the lawyer and the trial in installments.

How exactly it will be arranged in detail will depend on your income. But you will never have to repay it for a longer period than 48 months – which is hopefully reassuring to know.

You lawyer should be able to tell you if a repayment plan is on the cards, and with what probability it will happen.

That’s what you have to do:

  1. Identify and locate the local court in your town/city/county of residence (the local court is the first point of contact for legal issues).
  2. Seek advice. Either:
  • You go directly to your local court and get advice, and bring the request papers with you, or
  • You make an appointment directly with a lawyer of your choice and native language, and get advice. He will also give you the required documents.

However, there is a risk for you when you take legal aid: losing the case. If this happens, you have to shoulder the legal expenses of your opponent in court.  Keep in mind that Legal Aid only covers the court costs and your lawyer’s fees. It does not include the fees of your opponent’s attorney.

The legal request is in German

The papers that you must submit to the judge to request financial assistance are in German. For you, as for many others as well, this might be a huge hurdle. But don’t panic just yetyou can download the form prior to the meeting with the lawyer and thoroughly read it.  You will presumably find the application form on the homepage of your local court or lawyer, or at the very least on the web portal of NRW Justiz.

A tip If you don’t understand the German legal request form:

There is an NGO in Berlin that supports foreign people and migrants in Germany with legal issues. They have been translating a variety of legal requests voluntarily for a while now. I found the request forms in English, but they are also available in several languages. You can see if they have your first language as well; it will help you to understand what it is all about before you fill it out. KEEP IN MIND: After that, you MUST still fill out and submit the German form.

Who can help you further in case of legal questions: the mediation office and your ASTA

It is probably the best solution to reach an amicable agreement and to avoid court proceedings if you can.  For that purpose, there is a “mediation office” for legal matters in Germany, or the help of experienced, volunteer mediators. More in-depth information is available from the NRW Dispute Resolution Office.

Many universities have also signed cooperation agreements with lawyers. Asking your ASTA or the head of your study program for legal advice on campus might be an easy way for you if you have that option.

I very much hope that you only have good experiences, and that you never have to use any of this advice!

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