Judiciary of Germany

Germany

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The Judiciary of Germany is based on the concept of the Rechtsstaat, in which the exercise of governmental power is constrained by law.^[1] Federal law delineates the structure of the judiciary, but the administration of most courts is regulated by the states of Germany (Länder) 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 statutes, as compared to the common law systems. Germany uses an inquisitorial system where the judges 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.

Court organization

The judicial system comprises three types of courts.

• Ordinary courts, dealing with criminal and most civil cases, are the most numerous by far. The Federal Court of Justice of Germany (Bundesgerichtshof) is the highest ordinary court and also the highest court of appeals.
• Specialized courts hear cases related to administrative, labour, social, fiscal, and patent law.
• Constitutional courts focus on judicial review and constitutional interpretation. The Federal Constitutional Court (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 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.^[2]

Ordinary courts

Trial courts are composed of:^[3][4][5]

Trial Court		Composition	Jurisdiction
Amtsgerichte	Amtsgericht	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	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	3 judges, 2 lay judges	Specially constituted Strafkammer for minor political or economic crimes.
	Schwurgericht (jury court)	3 judges, 2 lay judges	Specially constituted Strafkammer for an an exhaustive list of serious felonies and all felonies resulting in death.
	Oberlandesgericht	3 or 5 judges	Serious political crimes like treason.

The appellate courts are composed of:^[3]

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	3 judges	Appeal for error of law from certain decisions of Amtsrichter as well as appellate decisions of kleine and große Strafkammer.
Bundesgerichte	Bundesgerichtshof (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 plants. 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.

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, 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.

Officers of the court

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.^[6] However, most judges are state (Länd) civil servants and follow state rules on legal education, appointment, and promotion.^[7]

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 judges (Schöffen) are effectively short-term, politically-appointed lay jurors and judges. Except for most crimes for which the trier of fact is a single professional judge, and serious political crimes 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.^[8] 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.^[8] In most cases lay judges do not directly examine documents before the court or have access to the case file.^[9]

Selection of lay judges has been described as a "highly political and discriminatory process."^[10] Lay judges are selected by a selection committee from lists that are passed by the municipal councils (Gemeinderat) with a two-thirds majority of attending local councilors.^[10][11] 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,^[10] and it would appear that selection favors those known personally by the selection committee.^[11] The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" (Vertrauenspersonen) 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.^[10][11] The practice is similar to the practice in East Germany.^[12] 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.^[9]

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.^[11][13] 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 workers.^[14] 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 housewives, the relatively low number of private sector employees, and relative old age of lay judges.^[9]

History

Lay judges have been utilized in Germany throughout her early history and the middle ages.^[15] A Swabian ordinance of 1562 had also called for the summons of jurymen (urtheiler), and various methods were in use in Emmendingen, Oppenau, and Oberkirch.^[16] 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.^[17] The modern jury trial was first introduced in the the Rhenish provinces in 1798, with a court consisting most commonly of 12 citizens (Bürgers).^[16]

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.^[18] In Constance the jury trial was suppressed by decree of the Habsburg Monarchy in 1786.^[17] The Frankfurt Constitution of the failed Revolutions of 1848 called for jury trials for "the more serious crimes and all political offenses",^[15] but was never implemented. An 1873 draft on criminal procedure produced by the Prussian Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.^[19]

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 Schöffengericht (lay judge or mixed court).^[20] The Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the Schwurgericht (jury court) would consist of three judges and twelve jurymen,^[20][21][22] alongside the mixed court, with the jury court reserved for serious crimes except political crimes.^[19] Lay judges were in use in the Bavarian People's Court of November 1918 to May 1924,^[23][24][25] and the infamous Nazi People's Court.^[8]

The jury was abolished by the Emminger Reform of 4 January 1924,^[26] ostensibly as an emergency, money-saving measure in a period of acute financial stringency,^[27] during an Article 48 state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr.^[28][29] The emergency decree abolished the jury in the Schwurgericht and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name.^[26][27] 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,^[8][13] but they were again abolished by the 1950 Unification Act (Vereinheitlichungsgesetz) for the Federal Republic.^[8] In 1974 the number of lay judges in the Schwurgericht was further reduced from 6 to 2 and in 1993 the number of professional judges was reduced from 3 to 2.^[13]

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.^[30] Defense counsel are grouped in divisions of the bar association,^[30] wherein membership is mandatory.

Notes

1. ^ Wolff 1944, p. 1067.
2. ^ Casper & Zeisel 1972, p. 143.
3. ^ ^{a b} Casper & Zeisel 1972, p. 142.
4. ^ Jehle & BMJ 2009, p. 23.
5. ^ Delmas-Marty 2002, pp. 306-307.
6. ^ Bell 2006, pp. 109-110.
7. ^ Bell 2006, pp. 110-111.
8. ^ ^{a b c d e} Casper & Zeisel 1972, p. 141.
9. ^ ^{a b c} Malsch 2009, p. 137.
10. ^ ^{a b c d} Casper & Zeisel 1972, p. 182.
11. ^ ^{a b c d} Bell 2006, p. 153.
12. ^ Wolfe 1994, pp. 503-504.
13. ^ ^{a b c} Vogler 2005, p. 245.
14. ^ Casper & Zeisel 1972, p. 183.
15. ^ ^{a b} Casper & Zeisel 1972, p. 137.
16. ^ ^{a b} Forsyth 1852, p. 369.
17. ^ ^{a b} Forsyth 1852, p. 370.
18. ^ Forsyth 1852, p. 371.
19. ^ ^{a b} Casper & Zeisel 1972, p. 139.
20. ^ ^{a b} Casper & Zeisel 1972, p. 138.
21. ^ Wolff 1944, footnote 7, pp. 1069-1070.
22. ^ Wolff 1944, p. 1074.
23. ^ Bauer 2009.
24. ^ Volksgericht 1924.
25. ^ Fulda 2009, p. 69.
26. ^ ^{a b} Kahn-Freund 1974, footnote 73, p. 18.
27. ^ ^{a b} Vogler 2005, p. 244.
28. ^ Mulligan 2005, p. 173.
29. ^ Shirer 1990, p. 64.
30. ^ ^{a b} Delmas-Marty 2002, p. 299.

References

• Casper, Gerhard; Zeisel, Hans (January 1972). "Lay Judges in the German Criminal Courts". Journal of Legal Studies 1 (1). JSTOR 724014. 
• Jehle, Jörg-Martin; German Federal Ministry of Justice (2009). Criminal Justice in Germany. Forum-Verl. ISBN 9783936999518. http://books.google.com/books?id=-V-ng-8jOoQC&pg=PA23. 
• Delmas-Marty, Mireille (2002). European Criminal Procedures. Cambridge University Press. ISBN 9780521591102. http://books.google.com/books?id=epTsD3_6DVMC&pg=PA306. 
• Bell, John (2006). Judiciaries Within Europe: A Comparative Review. Cambridge University Press. ISBN 9780521860727. http://books.google.com/books?id=Hw47iqneTnIC&pg=PA153. 
• Wolfe, Nancy Travis (December 1994). "Lay Judges in German Criminal Courts: The Modification of an Institution". Proceedings of the American Philosophical Society 138 (4). JSTOR 986849. 
• Malsch, Marijke (2009). Democracy in the Courts: Lay Participation in European Criminal Justice Systems. Ashgate Publishing. ISBN 9780754674054. http://books.google.com/books?id=CrLLzVZfrPwC&pg=PA137. 
• Vogler, Richard (2005). A World View of Criminal Justice. International and Comparative Criminal Justice. Ashgate Publishing. ISBN 9780754624677. http://books.google.com/books?id=rN90FSGhr-cC&pg=PA245. 
• Kahn-Freund, Otto (January 1974). "On Uses and Misuses of Comparative Law". Modern Law Review 37 (1). JSTOR 1094713. 
• Wolff, Hans Julius (June 1944). "Criminal Justice in Germany". Michigan Law Review 42 (6): footnote 7, pp. 1069-1070. JSTOR 1283584. 
• Bauer, Franz J. (23 December 2009). "Volksgerichte, 1918-1924". Historisches Lexikon Bayerns. http://www.historisches-lexikon-bayerns.de/artikel/artikel_44638. 
• Der Hitler-Prozeß vor dem Volksgericht in München [The Hitler Trial Before the People's Court in Munich]. 1924. 
• Fulda, Bernhard (2009). Press and politics in the Weimar Republic. Oxford University Press. ISBN 9780199547784. http://books.google.com/books?id=StNY-71yVXQC&pg=PA69. 
• Mulligan, William (2005). The Creation of the Modern German Army: General Walther Reinhardt and the Weimar Republic, 1914-1930. Monographs in German History. 12. Berghahn Books. ISBN 9781571819086. http://books.google.com/books?id=lrQz-DQwF_kC&pg=PA173. 
• Shirer, William L. (1990). The Rise and Fall of the Third Reich: A History of Nazi Germany. Simon and Schuster. ISBN 9780671728687. http://books.google.com/books?id=sY8svb-MNUwC&pg=PA64. 
• Case, Nelson (1902). European Constitutional History. Jennings & Pye. OCLC 608806061. http://books.google.com/books?id=G2t9AAAAMAAJ&pg=PA139. 
• Forsyth, William (1852). History of Trial by Jury. J. W. Parker. OCLC 29739821. http://books.google.com/books?id=CTdeF8IhJiAC&pg=PA369.