Judiciary of Germany
Encyclopedia
The Judiciary of Germany
is based on the concept of the , in which the exercise of governmental power
is constrained by law
. Federal law delineates the structure of the judiciary, but the administration of most courts is regulated by the states of Germany
() which are responsible for the lower levels of the court system; the highest appellate courts alone operate at the federal level. This federal-state division of labour allows the federation to ensure that laws are enforced equally throughout the country, whereas the central role of the states in administering the courts safeguards the independence of the judicial system from the federal government.
The German legal system is a civil law
based on a comprehensive compendium of statute
s, as compared to the common law
systems. Germany uses an inquisitorial system
where the judge
s are actively involved in investigating the facts of the case, as compared to to an adversarial system
where the role of the judge is primarily that of an impartial referee between the prosecutor
and the defendant
.
The independence of the judiciary of Germany is historically older than democracy in Germany, the organisation of courts is traditionally strong, and almost all state actions are subject to judicial review.
Judges follow a distinct career path. At the end of their legal education at university, all law students must pass a state examination before they can continue on to an apprenticeship that provides them with broad training in the legal profession over two years. They then must pass a second state examination that qualifies them to practice law. At that point, the individual can choose either to be a lawyer or to enter the judiciary. Judicial candidates start working at courts immediately, however they are subjected to a probationary period of up to five years before being appointed as judges for lifetime.
The main difference between the Federal Constitutional Court and the Federal Court is, that the Federal Constitutional Court may only be called if a constitutional matter within a case is in question (e.g. a possible violation of human rights in a criminal trial), while the Federal Court of Justice may be called in any case.
Currently there are 828 ordinary courts (687 local, 116 regional, 24 appellate, one federal), 142 labour courts (122 local, 19 appellate, one federal), 69 administrative courts (52 local, 16 higher, one federal), 20 tax
courts (19 local, one federal), 86 social courts (69 local, 16 appellate, one federal) and 17 constitutional courts (16 State Constitutional Courts, one Federal Constitutional Court).
For a comparison of the relative activity of the courts, in 1969 there were 468,273 criminal cases in Germany in the ordinary courts, and 388,619 or 83% of these were held in the Amtsgericht
composed of a single judge.
The appellate courts are composed of:
. Labour courts also function on three levels and address disputes over collective bargaining agreements and working conditions. Social courts, organized at three levels, adjudicate cases relating to the system of social insurance
, which includes unemployment compensation, workers' compensation
, and social security
payments. Finance, or fiscal, courts hear only tax-related cases and exist on two levels. Finally, a single Federal Patents Court in Munich
adjudicates disputes relating to industrial property rights.
Sixteen judges make up the Federal Constitutional Court
, Germany's highest and most important judicial body. They are selected to serve twelve-year, non-renewable terms and can only be removed from office for abuse of their position and then only by a motion of the court itself. The Bundestag
and the Bundesrat each choose half of the court's members. Thus, partisan politics do play a role. However, compromise is built into the system because each candidate requires two thirds of the votes to be appointed. The court is divided into two senates, each consisting of a panel of eight judges with its own chief justice. The first senate hears cases concerning the basic rights guaranteed in Articles 1 through 19 of the Basic Law and concerning judicial review of legislation. The second senate is responsible for deciding constitutional disputes among government agencies and how the political process should be regulated.
Unlike the United States Supreme Court
, the Federal Constitutional Court does not hear final appeals—that function belongs to the specialised federal courts. The Basic Law explicitly confines the jurisdiction of the Federal Constitutional Court to constitutional issues. However, as all government institutions—including the courts—are bound by the basic rights enshrined in the constitution, the Federal Constitutional Court reserves the right to verify that the interpretation of laws by other courts takes these basic rights into consideration sufficiently. On occasion the Federal Constitutional Court has thus overturned judgments of the other federal courts.
The Federal Constitutional Court is somewhat unique because the Basic Law stipulates that every person may file a complaint to that court when his or her constitutional rights, especially human rights, have been violated by the state and when he or she has exhausted all stages of appeal in the regular court system. Such actions can include laws passed by the legislative branch, court decisions, or acts of the administration. While in practice, only a small percentage of these constitutional complaints are successful, the Constitutional Court is known to frequently antagonise both the executive and the legislative branches with far-reaching decisions. This has even gone so far as judges openly stating that they are indifferent to the reactions of the government, the Bundestag, public opinion or any financial consequences arising from a decision with the only relevant point being the constitution. It should also be mentioned that the Bundesverfassungsgericht has very high approval rates throughout the general population.
The Constitutional Court also handles several other procedures such as disputes between state institutions over their constitutional powers. It has also the power to outlaw political parties when their goals contravene the principles of the constitution. So far the Constitutional court has used this power twice, outlawing the SRP (Socialist Reichs Party, a successor to the NSDAP) in 1952, and the KPD (Communist Party of Germany) in 1956.
By the late 1980s, the majority of the articles in the Basic Law had been subjected to judicial review, and the constitutionality of federal and state legislation had been considered in hundreds of court cases. When lacking the legislative clout to challenge a government policy, the opposition in the Bundestag traditionally has turned to the Federal Constitutional Court to question the constitutionality of legislation.
All professional judges are compose a common corps in that they are recruited through a common process and their career is governed largely by federal law. However, most judges are state () civil servants and follow state rules on legal education, appointment, and promotion.
s () are effectively short-term, politically-appointed non-professional judges. Except for most crimes for which the trier of fact
is a single professional judge, and serious political crime
s which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit side by side with professional judges. Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception. In most cases lay judges do not directly examine documents before the court or have access to the case file.
Selection of lay judges has been described as a "highly political and discriminatory process." Lay judges are selected by a selection committee from lists that are passed by the municipal councils () with a two-thirds majority of attending local councilors. Given this high threshold, in practice these lists of lay judges are in practice first compiled by municipal bureaucracies and the political parties in Germany, and it would appear that selection favors those known personally by the selection committee. The selection committee consists of a judge from the Amtsgericht
, a representative of the state government, and ten "trusted citizens" () who are also elected by two-thirds of the municipal legislature, and selects from the list of candidates the number needed to staff the various tribunals. The practice is similar to the practice in East Germany. Applications can be made to become a lay judge by interested citizens but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertizing, and participation in fine penalty allocation.
Lay judges have historically been predominately middle-aged men from middle class socio-economic backgrounds, largely due to a selection procedure in which personal acquaintance, political affiliation and occupation all play an important role. A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service
employees, compared to only about 12% being blue-collar worker
s. A study published in 2009 put this number at 27% civil service employees versus 8% of the general population, and noted the relatively high numbers of housewive
s, the relatively low number of private sector
employees, and relative old age of lay judges.
n ordinance of 1562 had also called for the summons of jurymen (), and various methods were in use in Emmendingen
, Oppenau
, and Oberkirch
. Hauenstein
's charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in Friburg the jury was composed of 30 citizens and councilors. The modern jury trial was first introduced in the the Rhenish provinces
in 1798, with a court consisting most commonly of 12 citizens ().
The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in Germany in which the process of investigation was secret and life and liberty depended upon judges appointed by the state. In Constance
the jury trial was suppressed by decree of the Habsburg Monarchy
in 1786. The Frankfurt Constitution of the failed Revolutions of 1848
called for jury trials for "the more serious crimes and all political offenses", but was never implemented. An 1873 draft on criminal procedure produced by the Prussia
n Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.
The Kingdom of Hanover
during the Confederation was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary (lay judge or mixed court). The Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the (jury court) would consist of three judges and twelve jurymen, alongside the mixed court, with the jury court reserved for serious crimes except political crimes. Lay judges were in use in the Bavaria
n People's Court
of November 1918 to May 1924, and the infamous Nazi
People's Court.
The jury
was abolished by the Emminger Reform of 4 January 1924, ostensibly as an emergency, money-saving measure in a period of acute financial stringency, during an Article 48
state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr
. The emergency decree abolished the jury in the and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name. Between 1948 and 1950 in American-occupied Germany and the Federal Republic of Germany
, Bavaria
returned to the jury trial as it had existed before the emergency decrees, but they were again abolished by the 1950 Unification Act () for the Federal Republic. In 1974 the number of lay judges in the was further reduced from 6 to 2 and in 1993 the number of professional judges was reduced from 3 to 2.
, wherein membership is mandatory.
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
is based on the concept of the , in which the exercise of governmental power
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
is constrained by law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
. Federal law delineates the structure of the judiciary, but the administration of most courts is regulated by the states of Germany
States of Germany
Germany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
() which are responsible for the lower levels of the court system; the highest appellate courts alone operate at the federal level. This federal-state division of labour allows the federation to ensure that laws are enforced equally throughout the country, whereas the central role of the states in administering the courts safeguards the independence of the judicial system from the federal government.
The German legal system is a civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
based on a comprehensive compendium of statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s, as compared to the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
systems. Germany uses an inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...
where the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s are actively involved in investigating the facts of the case, as compared to to an adversarial system
Adversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
where the role of the judge is primarily that of an impartial referee between the prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
and the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
.
The independence of the judiciary of Germany is historically older than democracy in Germany, the organisation of courts is traditionally strong, and almost all state actions are subject to judicial review.
Judges follow a distinct career path. At the end of their legal education at university, all law students must pass a state examination before they can continue on to an apprenticeship that provides them with broad training in the legal profession over two years. They then must pass a second state examination that qualifies them to practice law. At that point, the individual can choose either to be a lawyer or to enter the judiciary. Judicial candidates start working at courts immediately, however they are subjected to a probationary period of up to five years before being appointed as judges for lifetime.
Court organization
The judicial system comprises three types of courts.- Ordinary courts, dealing with criminalCriminal lawCriminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and most civilPrivate lawPrivate law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
cases, are the most numerous by far. The Federal Court of Justice of GermanyFederal Court of Justice of GermanyThe Federal Court of Justice of Germany in Karlsruhe is the highest court in the system of ordinary jurisdiction in Germany. It is the supreme court in all matters of criminal and private law...
(Bundesgerichtshof) is the highest ordinary court and also the highest court of appeals. - Specialized courts hear cases related to administrativeAdministrative lawAdministrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
, labourLabour lawLabour law is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees...
, social, fiscal, and patent law. - Constitutional courts focus on judicial review and constitutional interpretation. The Federal Constitutional CourtFederal Constitutional Court of GermanyThe Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...
(Bundesverfassungsgericht) is the highest court dealing with constitutional matters and has played a vital role through its interpretative rulings on the Basic Law.
The main difference between the Federal Constitutional Court and the Federal Court is, that the Federal Constitutional Court may only be called if a constitutional matter within a case is in question (e.g. a possible violation of human rights in a criminal trial), while the Federal Court of Justice may be called in any case.
Currently there are 828 ordinary courts (687 local, 116 regional, 24 appellate, one federal), 142 labour courts (122 local, 19 appellate, one federal), 69 administrative courts (52 local, 16 higher, one federal), 20 tax
Tax law
Tax law is the codified system of laws that describes government levies on economic transactions, commonly called taxes.-Major issues:Primary taxation issues facing the governments world over include;* taxes on income and wealth...
courts (19 local, one federal), 86 social courts (69 local, 16 appellate, one federal) and 17 constitutional courts (16 State Constitutional Courts, one Federal Constitutional Court).
For a comparison of the relative activity of the courts, in 1969 there were 468,273 criminal cases in Germany in the ordinary courts, and 388,619 or 83% of these were held in the Amtsgericht
Amtsgericht
Amtsgericht is German for Local District Court, situated in Germany in almost every larger capital of a rural district.It mainly acts in Civil and Criminal law affairs. It forms the lowest level of the so-called ordinary jurisdiction of the German judiciary , which is responsible for most criminal...
composed of a single judge.
Ordinary courts
Trial courts are composed of:| Trial Court | Composition | Jurisdiction | |
|---|---|---|---|
| Amtsgerichte | Amtsgericht Amtsgericht Amtsgericht is German for Local District Court, situated in Germany in almost every larger capital of a rural district.It mainly acts in Civil and Criminal law affairs. It forms the lowest level of the so-called ordinary jurisdiction of the German judiciary , which is responsible for most criminal... |
1 judge | Criminal offences in which the sentence is less than two years, small civil suits, and routine legal functions. |
| Schöffengericht | 1 judge, 2 lay judges | Criminal cases in which the sentence is a minimum of one year (Verbrechen) or is expected to to be between two and four years. | |
| erweitertes Schöffengericht | 2 judges, 2 lay judges | Cases heard by the Schöffengericht but with special circumstances. | |
| Landgerichte Landesgericht (Germany) In Germany, each national court whose personnel are not allied but rather from one or several of the sixteen landes of the Federal Republic of Germany is known through § 154 GVG as a Landesgericht. More precisely, in the plural these courts are usually designated as Gerichte der Länder. Their... |
kleine Strafkammer | 1 judges, 2 lay judges | Some felonies and special less serious crimes or cases in which the sentence is expected to exceed four years. |
| große Strafkammer | 3 judges, 2 lay judges | Some felonies and special less serious crimes or cases in which the sentence is expected to exceed four years. | |
| Sonderstrafkammer, Staatsschutzkammer, or Wirtschaftsstrafkammer | Specially constituted Strafkammer for minor political or economic crimes. | ||
| Schwurgericht (jury court) | Specially constituted Strafkammer for an an exhaustive list of serious felonies and all felonies resulting in death. | ||
| Oberlandesgericht Oberlandesgericht The Oberlandesgericht is one of the 'ordinary courts' in Germany... |
3 or 5 judges | Serious political crimes like treason. | |
The appellate courts are composed of:
| Appellate Court | Composition | Jurisdiction | |
|---|---|---|---|
| Landgerichte | kleine Strafkammer | 1 judge, 2 lay judges | Appeal for review of facts and law from the Amtsrichter. |
| große Strafkammer | 3 judges, 2 lay judges | Appeal for review of facts and law from the Schöffengericht. | |
| Oberlandesgericht Oberlandesgericht The Oberlandesgericht is one of the 'ordinary courts' in Germany... |
3 judges | Appeal for error of law from certain decisions of Amtsrichter as well as appellate decisions of kleine and große Strafkammer. | |
| Bundesgerichte Bundesgericht (Germany) Bundesgerichte are, in accordance with article 92 of the Basic Law for the Federal Republic of Germany, those courts through which the judicial authority of the state is exercised that is only otherwise exercised in the Länder .... |
Bundesgerichtshof Federal Court of Justice of Germany The Federal Court of Justice of Germany in Karlsruhe is the highest court in the system of ordinary jurisdiction in Germany. It is the supreme court in all matters of criminal and private law... (Federal Court of Justice) |
5 judges | Appeal for error of law from trial decisions of the große Strafkammer, Schwurgericht and Oberlandesgericht. |
Specialized courts
Specialized courts deal with five distinct subject areas: administrative, labour, social, fiscal, and patent law. Like the ordinary courts, they are organized hierarchically with the Land court systems under a federal appeals court. Administrative courts consist of local administrative courts, higher administrative courts, and the Federal Administrative Court. In these courts, individuals can seek compensation from the government for any harm caused by incorrect administrative actions by officials or even have administrative acts overturned. For instance, many lawsuits have been brought in administrative courts by citizens against the government concerning the location and safety standards of nuclear power plantsNuclear power
Nuclear power is the use of sustained nuclear fission to generate heat and electricity. Nuclear power plants provide about 6% of the world's energy and 13–14% of the world's electricity, with the U.S., France, and Japan together accounting for about 50% of nuclear generated electricity...
. Labour courts also function on three levels and address disputes over collective bargaining agreements and working conditions. Social courts, organized at three levels, adjudicate cases relating to the system of social insurance
Social insurance
Social insurance is any government-sponsored program with the following four characteristics:* the benefits, eligibility requirements and other aspects of the program are defined by statute;...
, which includes unemployment compensation, workers' compensation
Workers' compensation
Workers' compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...
, and social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
payments. Finance, or fiscal, courts hear only tax-related cases and exist on two levels. Finally, a single Federal Patents Court in Munich
Munich
Munich The city's motto is "" . Before 2006, it was "Weltstadt mit Herz" . Its native name, , is derived from the Old High German Munichen, meaning "by the monks' place". The city's name derives from the monks of the Benedictine order who founded the city; hence the monk depicted on the city's coat...
adjudicates disputes relating to industrial property rights.
Constitutional courts
Each Land has a state constitutional court. These courts are administratively independent and financially autonomous from any other government body. For instance, a Land constitutional court can write its own budget and hire or fire employees, powers that represent a degree of independence unique in the government structure.Sixteen judges make up the Federal Constitutional Court
Federal Constitutional Court of Germany
The Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...
, Germany's highest and most important judicial body. They are selected to serve twelve-year, non-renewable terms and can only be removed from office for abuse of their position and then only by a motion of the court itself. The Bundestag
Bundestag
The Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
and the Bundesrat each choose half of the court's members. Thus, partisan politics do play a role. However, compromise is built into the system because each candidate requires two thirds of the votes to be appointed. The court is divided into two senates, each consisting of a panel of eight judges with its own chief justice. The first senate hears cases concerning the basic rights guaranteed in Articles 1 through 19 of the Basic Law and concerning judicial review of legislation. The second senate is responsible for deciding constitutional disputes among government agencies and how the political process should be regulated.
Unlike the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, the Federal Constitutional Court does not hear final appeals—that function belongs to the specialised federal courts. The Basic Law explicitly confines the jurisdiction of the Federal Constitutional Court to constitutional issues. However, as all government institutions—including the courts—are bound by the basic rights enshrined in the constitution, the Federal Constitutional Court reserves the right to verify that the interpretation of laws by other courts takes these basic rights into consideration sufficiently. On occasion the Federal Constitutional Court has thus overturned judgments of the other federal courts.
The Federal Constitutional Court is somewhat unique because the Basic Law stipulates that every person may file a complaint to that court when his or her constitutional rights, especially human rights, have been violated by the state and when he or she has exhausted all stages of appeal in the regular court system. Such actions can include laws passed by the legislative branch, court decisions, or acts of the administration. While in practice, only a small percentage of these constitutional complaints are successful, the Constitutional Court is known to frequently antagonise both the executive and the legislative branches with far-reaching decisions. This has even gone so far as judges openly stating that they are indifferent to the reactions of the government, the Bundestag, public opinion or any financial consequences arising from a decision with the only relevant point being the constitution. It should also be mentioned that the Bundesverfassungsgericht has very high approval rates throughout the general population.
The Constitutional Court also handles several other procedures such as disputes between state institutions over their constitutional powers. It has also the power to outlaw political parties when their goals contravene the principles of the constitution. So far the Constitutional court has used this power twice, outlawing the SRP (Socialist Reichs Party, a successor to the NSDAP) in 1952, and the KPD (Communist Party of Germany) in 1956.
By the late 1980s, the majority of the articles in the Basic Law had been subjected to judicial review, and the constitutionality of federal and state legislation had been considered in hundreds of court cases. When lacking the legislative clout to challenge a government policy, the opposition in the Bundestag traditionally has turned to the Federal Constitutional Court to question the constitutionality of legislation.
Professional judges
The federal Courts are administrated by the federal state, all the other courts belong to a Land and are administrated by it. The independence of the judiciary that is laid down in the federal constitution (article 97 para. 1) only refers to the judicial decision-making process of any individual judge, not to the judicial power as a whole. In line with this, the courts are administrative bodies subordinate to the respective department of justice, special rules only applying to the judicial decision-making process and the status of the judges.All professional judges are compose a common corps in that they are recruited through a common process and their career is governed largely by federal law. However, most judges are state () civil servants and follow state rules on legal education, appointment, and promotion.
Judges of the Länder
As a rule, each decision on the initial employment, vesting with lifetime tenure or promotion of a judge is taken by the department of justice. Yet in some of the Länder there is some kind of a parliamentary body that needs to be heard or even has a say in some of the decisions on careers of individual judges (Richterwahlausschuss). The mostly decisive influence of the administration on the career of judges is exceptional in continental Europe, where mostly bodies of judges, elected by and within the judiciary take this kind of decision (e.g. France: conseil superieur de la magistrature, Italy: consiglio superiore della magistratura). By some it is regarded as a threat to judicial independence that with a view to their personal career judges might be inclined to specially regard possible political effects of their decisions or may choose to support a political party.Federal judges
Federal judges are picked in an in-camera-procedure by a body composed of a Minister of the federal state, federal MPs and ministers of the Länder (article 95 para. 2 of the federal constitution). Candidates do not have to be professional judges, but lawyers. There are neither public hearings, nor would the identity of any candidate even be disclosed to the public. Judicial members of the federal constitutional court are elected in turns by the federal chambers (article 94 of the federal constitution). This decision requiring a large majority, it usually follows a political compromise. Public discussion about candidates is very unusual.Lay judges
lay judgeLay judge
A lay judge is a person assisting a judge in a trial. Lay judges are used in some civil law jurisdictions, such as Germany, Sweden and Finland. Japan began implementing a new lay judge system in 2009....
s () are effectively short-term, politically-appointed non-professional judges. Except for most crimes for which the trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
is a single professional judge, and serious political crime
Political crime
In criminology, a political crime is an offence involving overt acts or omissions , which prejudice the interests of the state, its government or the political system...
s which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit side by side with professional judges. Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception. In most cases lay judges do not directly examine documents before the court or have access to the case file.
Selection of lay judges has been described as a "highly political and discriminatory process." Lay judges are selected by a selection committee from lists that are passed by the municipal councils () with a two-thirds majority of attending local councilors. Given this high threshold, in practice these lists of lay judges are in practice first compiled by municipal bureaucracies and the political parties in Germany, and it would appear that selection favors those known personally by the selection committee. The selection committee consists of a judge from the Amtsgericht
Amtsgericht
Amtsgericht is German for Local District Court, situated in Germany in almost every larger capital of a rural district.It mainly acts in Civil and Criminal law affairs. It forms the lowest level of the so-called ordinary jurisdiction of the German judiciary , which is responsible for most criminal...
, a representative of the state government, and ten "trusted citizens" () who are also elected by two-thirds of the municipal legislature, and selects from the list of candidates the number needed to staff the various tribunals. The practice is similar to the practice in East Germany. Applications can be made to become a lay judge by interested citizens but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertizing, and participation in fine penalty allocation.
Lay judges have historically been predominately middle-aged men from middle class socio-economic backgrounds, largely due to a selection procedure in which personal acquaintance, political affiliation and occupation all play an important role. A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service
Civil service
The term civil service has two distinct meanings:* A branch of governmental service in which individuals are employed on the basis of professional merit as proven by competitive examinations....
employees, compared to only about 12% being blue-collar worker
Blue-collar worker
A blue-collar worker is a member of the working class who performs manual labor. Blue-collar work may involve skilled or unskilled, manufacturing, mining, construction, mechanical, maintenance, technical installation and many other types of physical work...
s. A study published in 2009 put this number at 27% civil service employees versus 8% of the general population, and noted the relatively high numbers of housewive
Housewife
Housewife is a term used to describe a married woman with household responsibilities who is not employed outside the home. Merriam Webster describes a housewife as a married woman who is in charge of her household...
s, the relatively low number of private sector
Private sector
In economics, the private sector is that part of the economy, sometimes referred to as the citizen sector, which is run by private individuals or groups, usually as a means of enterprise for profit, and is not controlled by the state...
employees, and relative old age of lay judges.
History
Lay judges have been utilized in Germany throughout her early history and the middle ages. A SwabiaSwabia
Swabia is a cultural, historic and linguistic region in southwestern Germany.-Geography:Like many cultural regions of Europe, Swabia's borders are not clearly defined...
n ordinance of 1562 had also called for the summons of jurymen (), and various methods were in use in Emmendingen
Emmendingen
Emmendingen is a town in Baden-Württemberg, capital of the district Emmendingen of Germany. It is located at the Elz River, north of Freiburg im Breisgau...
, Oppenau
Oppenau
Oppenau is a town located in the state of Baden-Württemberg, Germany. It has a population of 5,200 inhabitants.-Geography:Oppenau is situated in the Rench valley in the Black Forest. The nearest major cities are Offenburg and Freudenstadt.-History:...
, and Oberkirch
Oberkirch
Oberkirch may refer to:*Oberkirch , a town in Baden-Württemberg, Germany*Oberkirch, Lucerne, a municipality in the canton of Lucerne, Switzerland*Henriette Louise de Waldner de Freundstein, Baronne d'Oberkirch...
. Hauenstein
Hauenstein
Hauenstein is a municipality in the Südwestpfalz district, in Rhineland-Palatinate, Germany. It is situated in the Palatinate forest, approximately 20 km east of Pirmasens, and 20 km west of Landau....
's charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in Friburg the jury was composed of 30 citizens and councilors. The modern jury trial was first introduced in the the Rhenish provinces
Rhineland
Historically, the Rhinelands refers to a loosely-defined region embracing the land on either bank of the River Rhine in central Europe....
in 1798, with a court consisting most commonly of 12 citizens ().
The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in Germany in which the process of investigation was secret and life and liberty depended upon judges appointed by the state. In Constance
Constance
Constance is a female given name that derives from Latin and means "constant." Variations of the name include Connie, Constancia, Constanze, Constanza, Stanzy, and Konstanze.Constance may refer to:-People:*Constance Bennett , American actress...
the jury trial was suppressed by decree of the Habsburg Monarchy
Habsburg Monarchy
The Habsburg Monarchy covered the territories ruled by the junior Austrian branch of the House of Habsburg , and then by the successor House of Habsburg-Lorraine , between 1526 and 1867/1918. The Imperial capital was Vienna, except from 1583 to 1611, when it was moved to Prague...
in 1786. The Frankfurt Constitution of the failed Revolutions of 1848
Revolutions of 1848 in the German states
The Revolutions of 1848 in the German states, also called the March Revolution – part of the Revolutions of 1848 that broke out in many countries of Europe – were a series of loosely coordinated protests and rebellions in the states of the German Confederation, including the Austrian Empire...
called for jury trials for "the more serious crimes and all political offenses", but was never implemented. An 1873 draft on criminal procedure produced by the Prussia
Prussia
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
n Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.
The Kingdom of Hanover
Kingdom of Hanover
The Kingdom of Hanover was established in October 1814 by the Congress of Vienna, with the restoration of George III to his Hanoverian territories after the Napoleonic era. It succeeded the former Electorate of Brunswick-Lüneburg , and joined with 38 other sovereign states in the German...
during the Confederation was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary (lay judge or mixed court). The Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the (jury court) would consist of three judges and twelve jurymen, alongside the mixed court, with the jury court reserved for serious crimes except political crimes. Lay judges were in use in the Bavaria
Bavaria
Bavaria, formally the Free State of Bavaria is a state of Germany, located in the southeast of Germany. With an area of , it is the largest state by area, forming almost 20% of the total land area of Germany...
n People's Court
People's Court (Bavaria)
The People's Courts of Bavaria were special courts established by Kurt Eisner during the German Revolution in November 1918 and part of the Ordnungszelle that lasted until May 1924 after handing out more than 31,000 sentences...
of November 1918 to May 1924, and the infamous Nazi
Nazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...
People's Court.
The jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
was abolished by the Emminger Reform of 4 January 1924, ostensibly as an emergency, money-saving measure in a period of acute financial stringency, during an Article 48
Article 48 (Weimar Constitution)
Article 48 of the constitution of the Weimar Republic of Germany allowed the President, under certain circumstances, to take emergency measures without the prior consent of the Reichstag...
state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr
Occupation of the Ruhr
The Occupation of the Ruhr between 1923 and 1925, by troops from France and Belgium, was a response to the failure of the German Weimar Republic under Chancellor Cuno to pay reparations in the aftermath of World War I.-Background:...
. The emergency decree abolished the jury in the and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name. Between 1948 and 1950 in American-occupied Germany and the Federal Republic of Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
, Bavaria
Bavaria
Bavaria, formally the Free State of Bavaria is a state of Germany, located in the southeast of Germany. With an area of , it is the largest state by area, forming almost 20% of the total land area of Germany...
returned to the jury trial as it had existed before the emergency decrees, but they were again abolished by the 1950 Unification Act () for the Federal Republic. In 1974 the number of lay judges in the was further reduced from 6 to 2 and in 1993 the number of professional judges was reduced from 3 to 2.
Prosecutors
Public prosecutors, although equally paid as judges, do not enjoy judicial independence and legally are ordinary civil servants.Defense counselors
A lawyer can only act as defense counsel if they fulfill the aptitude criteria for judges. Defense counsel are grouped in divisions of the bar associationBar association
A bar association is a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both...
, wherein membership is mandatory.