Sanctions under German law
Definition and General Overview
A sanction (Ordnungsmittel) is a coercive measure provided for under German law, which can be imposed by courts or administrative authorities to enforce judicial or administrative orders. Sanctions serve to ensure compliance with behavioral obligations and to guarantee the orderly conduct of proceedings. They are particularly significant in civil procedure law, family law, criminal procedure law, administrative enforcement law, as well as social and administrative procedural law.
Legal Basis for Sanctions
The legal foundations for sanctions can be found in various statutes and codes of procedure, especially:
- § 890 and § 891 Code of Civil Procedure (ZPO)
- § 33 and § 178 Courts Constitution Act (GVG)
- § 89 Code of Administrative Court Procedure (VwGO)
- § 62 Social Court Act (SGG)
- § 70 paras. 2 and 3 Code of Criminal Procedure (StPO)
- State Laws of Administrative Enforcement (VwVG, LVwVG)
Types of Sanctions
Administrative Fine (Ordnungsgeld)
The administrative fine is a financial penalty that can be imposed on a party or another participant in proceedings for violating judicial or administrative orders. The amount of the fine is determined in each individual case by the court or authority at its reasonable discretion. The decision is made taking into account the circumstances of the individual case and the seriousness of the violation.
Detention (Ordnungshaft)
Detention is another coercive measure and may be imposed if the administrative fine is not complied with or cannot be collected. The duration of detention is legally limited and may not exceed a period of six months for a single violation (§ 890 para. 2 ZPO). Detention is generally ordered after the affected person has been heard.
Sanctions in the Context of Administrative Fine and Detention
In a broader sense, both measures are collectively referred to as sanctions. They aim to prevent the repetition of violations against judicial or administrative orders and thereby safeguard the authority of the judiciary and administration as well as ensure the legal order.
Areas of Application
Code of Civil Procedure (ZPO)
Under the ZPO, sanctions are provided in particular for enforcing obligations to refrain, tolerate, or act. In cases of violation of enforceable orders (especially prohibitory injunctions), the court may, upon the creditor’s application, impose a fine or, if the fine cannot be collected, order detention (§ 890 ZPO).
Family Law
Sanctions are also applied in family law, for example in enforcing visitation arrangements, handing over children, or prohibitory injunctions in matters concerning children.
Administrative Proceedings and Administrative Law
In administrative procedural law (VwGO), sanctions can be used to ensure compliance with instructions from courts or administrative authorities. The underlying provisions stem from administrative enforcement law.
Social Court Proceedings
Similar to other codes of procedure, § 62 SGG regulates the application of sanctions to enforce certain court measures in social court proceedings.
Code of Criminal Procedure (StPO)
In criminal procedure law, sanctions can be imposed on witnesses, experts, or other participants, for example, to compel attendance or to maintain order in the courtroom.
Requirements and Procedure for Ordering Sanctions
Application and Issuance
The imposition of a sanction typically requires an application from the party seeking to enforce the claim embodied in a judgment or order. The court examines whether the violation can be proven and whether the conditions for imposing the sanction are met.
Legal Protection Against Sanctions
Affected individuals can appeal against the imposition of a sanction. The admissibility and type of appeal (e.g., complaint) are determined by the relevant procedural rules. In this context, the interest in effective enforcement is balanced against the legal protection interests of the affected person.
Differences from Other Coercive Measures
Sanctions differ from the so-called coercive measures (such as substitute performance, coercive penalty, direct force) that are applied in enforcement law, especially in the enforcement of public law claims. Sanctions serve as disciplinary and preventive measures, while coercive means primarily aim at immediately bringing about the owed condition.
Effect and Significance
Sanctions play a major practical role in the effectiveness of legal protection, as they ensure compliance with judicial and administrative orders, if necessary, by means of severe penalties. They are indispensable for upholding the rule of law and the proper functioning of the administration of justice.
References and Further Information
For in-depth information on sanctions, commentaries on the Code of Civil Procedure in general as well as relevant works on administrative enforcement and procedural law are helpful. Legal texts and high court jurisprudence form the basis for practical application and interpretation of sanctions.
This comprehensive overview systematically and thoroughly covers all legal aspects of the concept of sanctions (Ordnungsmittel).
Frequently Asked Questions
When are sanctions applied in civil procedure law?
Sanctions are used in civil procedure law to enforce judicial orders, particularly when a party fails to comply with a court order, resolution, or preliminary injunction. They serve as coercive measures to ensure the effectiveness of judicial decisions without interfering directly with the main proceedings. The legal basis is primarily found in § 890 ZPO (administrative fine, detention for breaches of prohibitory orders) and § 888 ZPO (coercive penalty, coercive detention to enforce non-fungible acts). Unlike in criminal law, sanctions are not intended as punishment, but solely as a means for enforcing substantive law and court orders. Typical cases include breaches of obligations to refrain, obligations to act or tolerate, or the obligation to surrender certain items. The order generally requires an enforceable title and service on the obligated party. Only when the obligation embodied in the title is breached may the court, upon the creditor’s application, impose sanctions.
How is the procedure for imposing sanctions carried out?
The procedure for imposing sanctions is initiated by an application to the competent enforcement court, with the creditor required to prove the breach of the obligation embodied in the title. The court first checks whether an enforceable title exists and whether the obligation was unequivocally imposed on the debtor. If this is the case, the court decides at its reasonable discretion by resolution whether and which sanction is to be imposed. The affected debtor is generally granted the right to be heard before the decision is made (§ 891 ZPO). The debtor may appeal the order immediately. The enforcement and execution of the administrative fine or detention is the responsibility of the competent enforcement authorities or the judicial administration.
What types of sanctions exist and how do they differ from each other?
Under German law, the main types of sanctions are the administrative fine, detention, and occasionally sanctions in the form of a coercive penalty. An administrative fine (§ 890 ZPO) is a monetary payment that can be imposed for each individual violation. Detention is the deprivation of liberty imposed in lieu of an uncollected fine, or considered directly in particularly serious or repeated breaches. In administrative law, the Administrative Enforcement Act (VwVG) provides for analogous measures such as coercive penalty and direct force, whereby terminology and scope may overlap. The choice of sanction in a given case depends in particular on the nature of the obligation and the seriousness of the breach.
What must be considered when determining the amount of the administrative fine or the duration of detention?
The amount of the administrative fine is determined by § 890 para. 1 ZPO, which sets a limit of up to 250,000 euros, with detention of up to six months as a substitute, and up to a total of two years for repeated violations. The precise determination depends on the seriousness and duration of the violation, the degree of fault, and the financial circumstances of the debtor. When assessing the measure, the court must observe the prohibition of excessiveness, i.e., the sanction must not be disproportionate to the breach of obligation, but must at the same time be sufficiently severe to provide a real incentive for future compliance with the court’s order. To ensure proportionality, courts may, in individual cases, set the fine lower or in installments, or even waive it in cases of minor violations.
Can sanctions be imposed multiple times?
Yes, sanctions can be imposed multiple times in the case of repeated or ongoing breach, as long as the act or omission to be enforced has not been properly fulfilled. For each new breach, the administrative fine or detention can be imposed again, and the amount may be increased depending on the seriousness or persistence of the violation. The possibility of repeated imposition ensures that the debtor does not enjoy lasting protection against enforcement by persisting in non-compliance and that court orders can be enforced effectively.
Who bears the costs for the imposition and enforcement of sanctions?
The costs for the imposition and enforcement of sanctions are generally borne by the obligated party, i.e., the party against whom the sanction is directed. This results from the principle in civil procedure law that the party who gives cause for the proceedings must bear its costs (§ 91 ZPO by analogy). These include court fees for the application process as well as costs for carrying out the enforcement, such as expenses for bailiffs or the costs of deprivation of liberty in the case of detention.
Are legal remedies available against the imposition of sanctions?
The debtor may file an immediate complaint (§ 793 ZPO) against the imposition of sanctions, which must be submitted within two weeks of service of the order. The immediate complaint suspends the enforcement of the sanction until a decision is reached. The appellate court examines whether the requirements for the imposition and selection and assessment of the sanction were correct and may amend or revoke the decision. Further legal remedies against the decision of the appellate court are generally not available, unless the matter concerns a constitutional issue which could ultimately be reviewed by the Federal Constitutional Court.
