The Emminger Decree or Emminger Reform (German: Emminger Verordnung, Lex Emminger, or Emmingersche Justizreform; formally the Verordnung über Gerichtsverfassung und Strafrechtspflege) was an emergency decree in the democratic Weimar Republic by Justice Minister Erich Emminger (BVP) on 4 January 1924 that among other things abolished the jury as trier of fact and replaced it with a mixed system of judges and lay judges in Germany's judiciary which still exists today.
Jury trial abolition
The modern jury trial was first introduced in the Rhenish provinces in 1798, with a court consisting most commonly of 12 citizens (Bürgers). 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. 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. 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.
The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in Germany in which the process of investigation was secret and life and liberty depended upon judges appointed by the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. There was an 1873 proposal by the Prussian Ministry of Justice to abolish the jury and replace it with the mixed system. The jury system was implemented in the German Empire by the Gerichtsverfassungsgesetz (GVG) of 27 January 1877 with the jury court (Schwurgericht) consisting of 3 judges and 12 jurymen. The Weimar Republic was created in 1919 when German Empire Chancellor Friedrich Ebert signed the Weimar Constitution into law on 11 August 1919.
On 11 January 1923 the Belgian and French Army initiated the Occupation of the Ruhr which would last until 25 August 1925 in response to the failure of the Weimar Republic to pay the World War I reparations in the aftermath of World War I. In May 1923 Justice Minister Rudolf Heinze (DVP) under Chancellor Wilhelm Cuno attempted to replace the jury system with large lay judge (Schöffen) courts, but this was defeated in the Reichstag. An Article 48 (of the Weimar Constitution) state of emergency was proclaimed by President Ebert on 26 or 27 September 1923 that lasted until February 1924, in tandem with the announcement by Chancellor Gustav Stresemann of the end to the resistance against the Occupation of the Ruhr. Hyperinflation in the Weimar Republic would reach its peak in November 1923. On 8 December 1923 the Reichstag passed an enabling act (Marxsches Ermächtigungsgesetz) empowering the government to take all measures it deemed necessary and urgent with regard to the state of emergency and would last until 15 February 1924. Acts passed pursuant to Article 48 emergencies and their enabling acts are referred to as Notverordnung, or emergency decrees.
On 4 January 1924 Justice Minister Erich Emminger (BVP) under Chancellor Wilhelm Marx (Centre Party) issued the Verordnung über Gerichtsverfassung und Strafrechtspflege (Emminger Reform) which 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. The reform was presented as an emergency, money-saving measure in a period of acute financial stringency. Although a special meeting of the German Bar (Deutscher Anwaltverein) demanded the revocation of the decrees, and while the Social Democrats vigorously criticized the reform as representing a flagrant usurpation of the clearly expressed wishes of the Reichstag and called for the restitution of the jury in 1925, the decrees largely caused very little commotion.
The use of lay judges was completely eliminated on the first day of World War II, with the exception of the infamous People's Court. The jury system has never been reintroduced in Germany, but between 1948 and 1950, prior to the foundation of the Federal Republic of Germany, Bavaria returned to jury trial as it had existed before the Emminger Decrees. 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.
- Kahn-Freund 1974, footnote 73, p. 18.
- Wolff 1944, footnote 7, pp. 1069-1070.
- Casper & Zeisel 1972, p. 135.
- Forsyth 1852, p. 369.
- Forsyth 1852, p. 370.
- Casper & Zeisel 1972, p. 137.
- Forsyth 1852, p. 371.
- Casper & Zeisel 1972, p. 139.
- Wolff 1944, p. 1074.
- Vogler 2005, p. 244.
- Mulligan 2005, p. 173.
- Shirer 1990, p. 64.
- Fischer 2010, p. 64.
- Casper & Zeisel 1972, p. 140.
- Kahn-Freund 1974, p. 18.
- Casper & Zeisel 1972, p. 141.
- Vogler 2005, p. 245.
- Coutts 1966, p. 251.
- Verordnung über Gerichtsverfassung und Strafrechtspflege, 4 January 1924, Reichsgesetzblatt (Reich Law Gazette) I, pp. 15–22
- Casper, Gerhard; Zeisel, Hans (January 1972). "Lay Judges in the German Criminal Courts". Journal of Legal Studies 1 (1). JSTOR 724014.
- Wolff, Hans Julius (June 1944). "Criminal Justice in Germany". Michigan Law Review 42 (6). JSTOR 1283584.
- Coutts, John Archibald (1966). The Accused: A Comparative Study. British Institute Studies in International and Comparative Law 3. British Institute of International and Comparative Law. OCLC 470998549. "After the Second World War, that is, from 1948 to 1950, the State of Bavaria once again introduced trial by jury. Such courts were however abolished when in 1950 uniformity was once again applied to court procedure in the Federal Republic."
- Vogler, Richard (2005). A World View of Criminal Justice. International and Comparative Criminal Justice. ISBN 978-0-7546-2467-7.
- Kahn-Freund, Otto (January 1974). "On Uses and Misuses of Comparative Law". Modern Law Review 37 (1). JSTOR 1094713.
- Mulligan, William (2005). The creation of the modern German Army: General Walther Reinhardt and the Weimar Republic, 1914-1930. Monographs in German History 12. ISBN 978-1-57181-908-6.
- Shirer, William L. (1990). The Rise and Fall of the Third Reich: A History of Nazi Germany. ISBN 978-0-671-72868-7.
- Fischer, Wolfgang Chr. (2010). German Hyperinflation 1922/23: A Law and Economics Approach. ISBN 978-3-89936-931-1.
- Schubert, Werner (1998). Von dem Entwurf eines Gesetzes über den Rechtsgang in Strafsachen (1919/20) bis zu der Verordnung über Gerichtsverfassung und Strafrechtspflege (lex Emminger) vom 4.1.1924. Quellen zur Reform des Straf- und Strafprozeßrechts (in German) 5. ISBN 978-3-11-016334-6.
- Forsyth, William (1852). History of Trial by Jury. OCLC 29739821.