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Judicial Assistance Germany

DISCLAIMER: The information in this circular relating to the legal requirements of specific foreign countries is provided for general information only and may not be totally accurate in a particular case. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel or the foreign central authority for the Hague Conventions.

A. SERVICE OF PROCESS:

1. Civil Cases:

a) Personal Service: The FRG is party, as is the United States, to The Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters, 28 USCA (Appendix following Rule 4 FRCvP); Martindale-Hubbell International Law Digest, Part VII: "Selected International Conventions" (1993 Edition).

Pursuant to the Convention personal service may be obtained by sending a completed "Request and Summary" (See Martindale- Hubbell for the appropriate forms), with the documents to be served directly to the appropriate Central Authority. It is important to read the footnotes of the Convention which contain the German reservations. Footnote 7a, following the text of the Convention, contains the German reservations. The reservations include the addresses for the designated Central Authorities. Each "Land", or state, of the FRG has its own Central Authority. A list with addresses for those Authorities is also included in this flyer.

A request form may also be obtained from any U.S. Marshall''s office. Ask for Memorandum No. 386, Revision 3.

One of the German reservations states that the documents to be served must be accompanied by German translations. This is a requirement upon which the Central Authorities generally insist. The documents to be served and their translations should be in duplicate. The "Request and Summary" themselves need not be translated into German.

Service of process in the FRG can be obtained through the method prescribed by the Convention. Any other methods of service, including attempts at service by mail, are considered illegal in the FRG and an affront to its judicial sovereignty.

2. Criminal Cases:

a) Personal Service: The Hague Service Convention does not apply to criminal cases. Therefore, in order to obtain personal service, it is necessary to prepare a letter rogatory, as described in 4 Moore''s Federal Practice 28.05. As stated in Moore''s, it should be sent through diplomatic channels, in duplicate, with German translations, also in duplicate. In the letter rogatory it is important to specifically request that the documents be served personally.

The letter rogatory and documents to be served should be sent to:

CA/OCS/ACS/WE
Room 4817, N.S.
Department of State
Washington, D.C. 20520-4818

Effective June 1, 2002, there is a $650.00 consular fee for processing letters rogatory (See Federal Register, May 16, 2002, Volume 67, Number 95, Rules and Regulations, Pages 34831-34838; 22 CFR 22.1, item 51). Counsel are requested to submit a certified bank check in the amount of $650.00 payable to the U.S. Embassy Berlin). Corporate or personal checks are not acceptable. Foreign authorities may also charge a fee. Counsel will be notified by the U.S. embassy and/or the Office of American Citizens Services and Crisis Management in the Department of State if the Embassy is advised by foreign authorities of any applicable local fees. There is no consular fee for letters rogatory on behalf of federal, state or local government officials. (See 22 CFR 22.1, item 53). If the letter rogatory requests compulsion of evidence from more than one witness or service of process on more than one person, multiple fees may be charged if more than one foreign court is required to execute the request due to multiple jurisdictions.

The FRG does not object to American Consular Officers serving subpoenas on American citizens in that country. However, American Consular Officers, by regulation, may serve subpoenas only on American citizens in criminal cases and, usually, only if the subpoenas emanate from a Federal Court. If the person to be served is an active duty member of the U.S. Armed Forces stationed in the FRG, it would be advisable to first consult with CA/OCS/ACS/WE by calling (202) 647-6178.

b) Service by Mail: The same German objections to service by mail in civil cases also prevail in criminal cases.

B. OBTAINING EVIDENCE:

1. Civil Cases:

a) In civil cases, where a witness is willing to testify voluntarily, a deposition may be conducted at the American Embassy in Bonn or any of the American Consulates. Depositions may be taken on notice or by issuance of a commission by an American court to a "Consular Officer". See 22 CFR 92.53.

Effective June 1, 2002, consular fees related to taking depositions or executing commissions to take testimony changed. See Federal Register, May 16, 2002, Volume 67, Number 95, Rules and Regulations, Page 34831-34838; 22 CFR 22.1. A deposit for fees is payable in advance prior to taking of deposition based on consular officer''s estimate of time required. Make certified or corporate check payable to "American Embassy (name of city)".

Effective June 1, 2002, the consular fees for a deposition involving little participation by consular officers is $235.00, representing one hour or part thereof of consular officer time. See Federal Register, May 16, 2002, Volume 67, Number 95, Rules and Regulations, Page 34831-34838; 22 CFR 22.1, Item No. 52(b). In addition, there is a $475.00 fee for scheduling/arranging appointments for depositions, including video teleconference depositions (per daily appointment); Item No. 52(a).

The new fees are:

Item No. 52(a) - Scheduling/arranging appointments for depositions, including depositions by video teleconference (per daily appointment) - $475 (If an appointment is changed and a new appointment must be scheduled and new arrangements made, a new $475 fee will be charged each time.)

Item No. 52(b) - Attending or taking depositions, or executing commissions to take testimony (per hour or part thereof) - $235 per hour plus expenses

Item No. 52(c) - Swearing in witnesses for telephone (teleconference) depositions - $235

Item No. 52(d) - Supervising telephone (teleconference) depositions (per hour or part thereof over the first hour) - $235 per hour plus expenses

Item No. 52(e) - Providing seal and certification of depositions - $60.00

Postage for Return of Transcript - Actual Costs

Although technically the consular officer is "taking the deposition", attorneys for either side may pose all questions orally or in writing. Authority for American Consular Officers to depose willing witnesses of German or third-country nationality is derived from Agreements Between the United States of America and the Federal Republic of Germany, T.I.A.S. 9938.* Any deposition of German or third-country nationals** must be in accordance with the agreements made in this exchange of diplomatic notes.

b) In civil cases in which a witness must be compelled to testify, a German judge must pose the questions in a German court proceeding. Nevertheless, an American attorney may request to be present and may, on occasion, have the flexibility in such a proceeding to pose additional questions through the German Judge. Just as in requests for service, requests for evidence from involuntary witnesses must follow the procedures set forth in the appropriate convention, The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Part VII USCA 1781 (1977 Supp.); Martindale-Hubbell International Law Digest, Part VII (1993). Essentially, the same rules as those for the Service Convention (described previously) apply. Although under the Evidence Convention, the Letter of Request, as well as questions and all other documents must be translated into German and submitted in duplicate. A model letter of request follows the text of the Convention.

* Key points under the notes are: (a) that absolutely no compulsion be brought to bear on the witness to appear or to provide testimony (e.g. the request to give information may not be called a "summons" nor may the interview be called an "interrogation"); (b) witnesses must give their expressed consent to be interviewed outside the consulate (i.e. at their home or place of business); and (c) witnesses have a right to be accompanied by an attorney.

** The issue of whether non-Germans who do not have a business or residence in Germany may be deposed is presently in dispute.

For background information, see the Report on the work of the Special Commission on the Operation of the Hague Convention on the Taking of Evidence Abroad in Civil or Commericial Matters prepared by the United States Delegation at 17 Int''l. Legal Mat. 1417 (Nov. ''78). A useful discussion of the operation of the Convention in the FRG is contained in an article by Donald R. Shemanski, "Obtaining Evidence in the Federal Republic of Germany: The Impact of the Hague Evidence Convention on German American Judicial Cooperation," International Lawyer, Vol. 17, #3, Summer 1983 p. 465-487.

2. Criminal Cases:

a) The Hague Evidence Convention does not apply to criminal cases. In criminal cases, the taking of evidence from any witness must be handled by a German court pursuant to written questions submitted under cover of a letter rogatory, set up as described in the previous paragraphs concerning service in criminal cases. Letters rogatory can take some time to execute and return to the American requesting court. Often more than three months.

C. ADMINISTRATIVE CASES:

a) German authorities do not regard The Hague Evidence and Service Conventions as applying to administrative cases. They may, however, entertain requests for both service and evidence in these cases if made by letters rogatory, arranged and sent as previously described.

D. ENFORCEMENT OF JUDGMENTS

There is no treaty, convention, or other international agreement in force between the FRG and the United States regarding enforcement of judgments. Expedited enforcement of American judgments may not be available. For general information on German law, see the Law Digest on the Federal Republic of Germany in Martindale-Hubbell International Law Digest. Lists of attorneys who practice in the FRG, prepared by our consular posts in that country are available from CA/OCS/ACS/WE upon request.

E. AMERICAN POSTS IN THE FRG WITH CONSULAR FUNCTIONS

The American Embassy Bonn
Deichmannsaue 53170
Bonn, FRG

-or-

PSC 117, Box 345
APO AE 09080

Telephone: (228) 3391
Fax: (228) 332-712

United States Embassy Office Berlin
Clayallee 170
14169 Berlin (Dahlem), FRG

-or-

APO AE 09265

Telephone: (30) 832-9233
Fax: (30) 831-4926

American Consulate General Frankfurt
Siesmayerstrasse 21
60323 Frankfurt am Main, FRG

-or-

PSC 115
APO AE 09213-0115

Telephone: (69) 7535-0
Fax: (69) 748-938

American Consulate General Hamburg
Alsterufer 27/28
20354 Hamburg, FRG

Telephone: (40) 411-710
Fax: (40) 443-004

American Consulate General Munich
Koeniginstrasse 5
80539 Muenchen, FRG

-or -

Unit 24718
APO AE 09178

Telephone: (89) 28880
Fax: (89) 280-5163

F. CENTRAL AUTHORITIES FOR THE FEDERAL REPUBLIC OF GERMANY

Baden-Wuerttemberg
Justizministerium Baden-Wuerttemberg Schillerplatz
4 70173 Stuttgart

Bavaria
Bayerisches Staatsministerium der Justiz
80097 Muenchen

Berlin
Senator fuer Justiz
Salzburger Strasse 21-25
10825 Berlin

Brandenburg
Ministerium der Justiz des Landes Brandenburg
Heinrich-Mann-Allee 107
14473 Potsdam

Bremen
Praesident des Landgerichts Bremen
Domsheide 16
28195 Bremen

Hamburg
Praesident des Amtsgerichts Hamburg
Sievekingplatz 1
20535 Hamburg

Hessen
Hessischer Minister der Justiz
Luisenstrasse 13
65185 Wiesbaden

Lower Saxony
Niedersaechsischer Minister der Justiz Am Waterloo Platz 1
30169 Hannover

Mecklenburg-Western
Minister fuer Justiz, Bundes- und Pomerania
Europa Angelegenheiten
Demmlerplatz 1-2
19053 Schwerin

Northrhine-Westphalia Der Praesident des Oberlandesgerichts Cecilienallee 3
40474 Duesseldorf

Rhineland-Palatinate
Ministerium der Justiz
Ernst-Ludwig-Strasse 3
55116 Mainz

Saarland
Minister fuer Rechtspflege und Bundesangelegenheiten
Zaehringerstrasse 12
66119 Saarbruecken 1

Saxony
Das Saechsische Staatsministerium der Justiz
Archivstrasse 1 PSF 100930
01076 Dresden

Saxony Anhalt
Das Ministerium der Justiz des Landes Sachsen-Anhalt
Wilhelm-Hoepfner-Ring 46
39116 Magdeburg

Schleswig-Holstein
Justizminister des Landes Schleswig-Holstein
Lorentzendamm 35
24103 Kiel

Thuringia
Das Justizministerium des Landes Thueringen
Alfred-Hess-Strasse 8 99094 Erfurt

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