Hundred times I was asked how can I survive and live in Germany with it inflexibility and rigid way of life, reflexes by its bureaucracy, the administration of government and its citizens.
An adventure with the administration of justice was the day we decided to file an application as precautionary measures against a debtor of an office client.
It was a difficult but necessary, decision for our client to make sure that the debtor would not continue not performing his loans.
It was my first case at the commercial court in Berlin and, don’t ask me when it was, the date was deep in the last century. We had prepared two papers with the required diligence, sent previously by fax in order to inform the judge about the urgency of the subject and give us a swift appointment. Precautionary measures can have a fixed date for first view in one or two days, giving notice to the opponent about the position of the petition.
Our client, as a matter of fact a Spanish entrepreneur, was very impressed with the German efficiency, thanking God, weather by Lutheran or Catholic rite, for agreeing to bring this to civil action; well, glad for having put his skates on…
Without wanting to bore the reading public, the application was a hard measure for the opponent and rather unusual. This is something certain judges in Spain would call “extreme measures”, not in the sense of statute law but speaking in silver about the articles of the procedural laws which regulate the actions, deadlines and response times of the parts and judicial organs.
Well, it was not a big surprise not having any response of the counterparty. So far something unusual but not disposable since you can always answer in sight and present the opposition writings personally in front of the judge. Something that left us baffled was the fact that on the D day nor the sued nor the legal representation appeared. The judges at the commercial court in first instance is formed by a career judge and two lay judges who have voice but no written vote; opened the session saying that they had read the papers and enclosures carefully and could understand the motivation of the petition, given the severe facts that preceded but supporting jurisprudence to the case were missing
The five minutes that it took the judge to expose the case seemed to be hours, which made me learn again the principles of the relativity of time. It made me mentally and emotionally goes back to my prep-school times, which made me feel gloomy about the lessons of another époque which I have never forgotten and from what I have learned a lot: Not to be like them!
There is no evil that last a hundred years or ticking off without atonement. The judge with velvety voice, or maybe because he knew I was a newcomer, asked me if I wanted to ratify my allegations or if I wanted to get a second hearing to complete the legal paperwork. This was my first time; but do not be surprised to hear that in German Courts it is rather usual to practice judicial economy. Well, I got a second chance.
I accepted with pleasure and they fix down the second hearing-date in three working days, as it was Thursday, it was going to be the following Tuesday. On the weekend we worked down to the bottom of jurisdiction.
On the H day we even went more nervous as on the first time knowing that there will be for sure no third time, that was clear.
We had, as it is usual, sent the”masterpiece” by fax a day before. When the president judge started to talk it was like hearing celestial music. He recognized the merit of hard work in short time without praises but going through the new cited decisions point by point, closing it roundly with the words: your request is granted.
The looks of the three judges we received reminded me of some of my old professors at the law faculty at my final oral exams, you could read: Congratulations.
The administration of justice in Germany has a one prior and main thing before any decision:
Not to let escape the process moment to correct the correctable, avoiding unnecessary resources that would only expand the process. Substance over form principle, override the Right to he Protocol.
Appendix: A principal who holds professional judges, prosecutors and lawyers together in Germany is that, all of them have the same legal education and training; there is no “oposiciones” [Peculiar civil service examination in Spain]. This gives a solid foundation of mutual respect, at least until someone proves otherwise.