Judiciary of Germany: Difference between revisions
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===Defense Bar=== |
===Defense Bar=== |
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A lawyer can only qualify as a defense attorney if they fulfill possess the so-called ''Befähigung zum Richteramt''{{sfn|Delmas-Marty|2002|p=299}}. This translates literally as "aptitude to be a judge", however, the basical meaning is to have successfully completed a study of law on roughly a Master's level, |
A lawyer can only qualify as a defense attorney if they fulfill possess the so-called ''Befähigung zum Richteramt''{{sfn|Delmas-Marty|2002|p=299}}. This translates literally as "aptitude to be a judge", however, the basical meaning is to have successfully completed a study of law on roughly a Master's level, being finally examined by the State itself (''Staatsexamen''), and to have served for two years as associate to different lawyers from each of their most popular occupations (attorney, judge, administrative official, etc.; this is called the ''Referendariat''). However, to actually become a judge, besides the ''Befähigung zum Richteramt'' is expected an outstanding result in the respective exams, which is not excepted for attorneys (but, roughly, is for prosecutors and administrative officials). |
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Defense attorneys are grouped into divisions of their local or state [[bar association]]s{{sfn|Delmas-Marty|2002|p=299}} in which membership is mandatory. |
Defense attorneys are grouped into divisions of their local or state [[bar association]]s{{sfn|Delmas-Marty|2002|p=299}} in which membership is mandatory. |
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Revision as of 11:59, 22 March 2013
| This article is part of a series on the |
| Politics of Germany |
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The judiciary of Germany is the system of courts that interprets and applies the law in Germany.
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 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.
Law
Germany's legal system is a civilian system whose highest source of law is the 1949 German Constitution, which sets up the modern judiciary, but the law adjudicated in court comes from the German Codes; thus, German law is primarily codal in nature. The court system adjudicates (1) public law (öffentliches Recht), that is, administrative law (civil-government litigation or litigation between two government bodies) and criminal law, and (2) private law (Privatrecht). German law is mainly based on early Byzantine law, specifically Justinian's Code, and to a much lesser extent the Napoleonic Code.
German law is not impregnated with legal positivism to the extent of Napoleonic legal systems, so Germany's judiciary is not subordinated to the legislature, and decisional law has greater importance, though not to the extent of common law systems. The court system is inquisitorial, thus judicial officers personally enter proof and testimony into evidence, with the litigants and their counsel merely assisting, although in some courts evidence can only be tendered by litigants.
Courts
The primary legislation concerning court organization is the Courts Constitution Act (Gerichtsverfassungsgesetz, or GVG). The courts are characterized by being specialist, regional, and hierarchically integrated at the federal level.[1] There are 5 basic types of courts, plus the Federal Constitutional Court:[1]
- Ordinary courts, dealing with criminal and most civil cases. The Federal Court of Justice (Bundesgerichtshof) is the highest ordinary court.
- Administrative law courts. The Federal Administrative Court (Bundesverwaltungsgericht) is the highest administrative law court.
- Tax law courts. The Federal Finance Court (Bundesfinanzhof) is the highest tax law court.
- Labour law courts. The Federal Labour Court (Bundesarbeitsgericht) is the highest labour law court.
- Social law courts. The Federal Social Court (Bundessozialgericht) is the highest social law court.
- Constitutional law courts, focusing on judicial review and constitutional interpretation. The Federal Constitutional Court (Bundesverfassungsgericht) is the highest court dealing with constitutional matters.
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.
Ordinary courts are the most numerous by far.[1] 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).
Ordinary courts
Trial courts are composed of:[2]
| Trial Court | Composition | Jurisdiction | |
|---|---|---|---|
| Amtsgerichte | Amtsgericht | 1 judge | Criminal offences in which the sentence is expected to be less than two years. |
| Schöffengericht | 1 or 2 judges, 2 lay judges | Criminal offenses in which the sentence is expected to be between two and four years. | |
| Landgerichte | große Strafkammer or Staatsschutzkammer | 2 or 3 judges, 2 lay judges | Cases in which the sentence is expected to exceed four years, cases where the prosecutor decided to be not tried by Amtsgerichte, and minor political crimes. |
| Schwurgericht or Wirtschaftsstrafkammer | 3 judges, 2 lay judges | Specially constituted Strafkammer for felonies resulting in death and economics crimes. | |
| Oberlandesgerichte | Strafsenat | 3 or 5 judges | Serious political crimes. The Baader-Meinhof Group was tried by this court. |
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 Amtsgerichte. |
| Oberlandesgerichte | Strafsenat | 3 judges | Appeal for error of law from certain decisions of Amtsgerichte as well as appellate decisions of kleine Strafkammer. |
| Bundesgerichte | Bundesgerichtshof (Federal Court of Justice) | 5 judges | Appeal for error of law from trial decisions of the Landgerichte and Oberlandesgericht. |
For a comparison of the relative activity of the ordinary courts, in 1969 there were 468,273 criminal cases in Germany, and 388,619 or 83% of these were held in the Amtsgericht composed of a single judge.[4]
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 state court systems under a federal appeals court.
Administrative law courts (Verwaltungsgerichte) 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. The Federal Administrative Court (Bundesverwaltungsgericht) is the highest administrative law court.
Labour law courts (Arbeitsgerichte) also function on three levels and address disputes over collective bargaining agreements and working conditions. The Federal Labour Court (Bundesarbeitsgericht) is the highest labour law court.
Social law courts (Sozialgerichte), organized at three levels, adjudicate cases relating to the system of social insurance, which includes unemployment compensation, workers' compensation, and social security payments. The Federal Social Court (Bundessozialgericht) is the highest social law court.
Finance courts (Finanzgerichte), also called tax law courts or fiscal courts, hear only tax-related cases and exist on two levels. The Federal Finance Court (Bundesfinanzhof) is the highest tax law court.
Patent law courts hear intellectual property cases and consists of the single Federal Patents Court located in Munich.
Constitutional courts
State
Each state has a state constitutional court. These courts are administratively independent and financially autonomous from any other government body. For instance, a state constitutional court can write its own budget and hire or fire employees, powers that represent a degree of independence unique in the government structure.
Federal
The Federal Constitutional Court (Bundesverfassungsgericht, or BVerfG) is the supreme constitutional court established by the constitution or Basic Law of Germany. Since its inception with the beginning of the Federal Republic of Germany, the court has been located in the city of Karlsruhe—intentionally distanced from the other federal institutions in Berlin (earlier in Bonn), Munich, and Frankfurt.
The sole task of the court is judicial review, and it may declare legislation unconstitutional, thus rendering them ineffective. In this respect, it is similar to other supreme courts with judicial review powers, like the Supreme Court of the United States; yet the Court possesses a number of additional powers, and is regarded as among the most interventionist and powerful national courts in the world. Unlike other supreme courts, the constitutional court is not an integral stage of the judicial or appeals process (aside from in cases concerning constitutional or public international law), and does not serve as a regular appellate court from lower courts or the Federal Supreme Courts on any violation of federal laws.
The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institution with the constitution. Constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz (per the "eternity clause").
The court's practice of enormous constitutional control frequency on the one hand, and the continuity in judicial restraint and political revision on the other hand, have created a unique defender of the Grundgesetz since World War II and given it a valuable role in Germany's modern democracy.
Judicial officers
Professional judges
The federal courts are administrated by the federal government, all the other courts belong to a state 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.[5] However, most judges are state (Länder) civil servants and follow state rules on legal education, appointment, and promotion.[6]
State
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 states 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
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 states (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 (Geschworenen or Schöffen) 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 crimes which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit alongside professional judges.[7] 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.[7] In most cases lay judges do not directly examine documents before the court or have access to the case file.[8]
The only statutory criteria is that lay judges must be citizens that have not been convicted of, or be under investigation for, a serious crime.[9] However, people "ought not" to be chosen if they are under 30 years old, very high government officials, judges, prosecutors, lawyers, policemen, ministers, priests, or have lived in the community less than 1 year.[9] In addition, people may refuse to serve if they are over 65 years old, members of the federal or state legislatures, doctors, nurses, pharmacists if working alone, housewives if overburdened, or have served as a lay judge in the preceding year.[9] 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, advertising, and participation in fine penalty allocation.[8]
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.[9][10] Given the high threshold for inclusion on the municipal council lists, in practice these lists are first compiled by municipal bureaucracies and the political parties in Germany,[9][10] but some municipal councils rely on the list of residents and generate names randomly.[10] 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.[9][10]
Lay judges have historically been predominately middle-aged men from middle class socio-economic backgrounds.[10][11] 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.[12] 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.[8]
Selection of lay judges has been described as a "highly political and discriminatory process."[9] Personal acquaintance, political affiliation and occupation have all historically played an important, if publicly unacknowledged, role in the selection procedure.[10][11]
Prosecutors
Public prosecutors, who earn as much as judges, are nonetheless simple ordinary servants lacking the independence of the Bench.
Defense Bar
A lawyer can only qualify as a defense attorney if they fulfill possess the so-called Befähigung zum Richteramt[13]. This translates literally as "aptitude to be a judge", however, the basical meaning is to have successfully completed a study of law on roughly a Master's level, being finally examined by the State itself (Staatsexamen), and to have served for two years as associate to different lawyers from each of their most popular occupations (attorney, judge, administrative official, etc.; this is called the Referendariat). However, to actually become a judge, besides the Befähigung zum Richteramt is expected an outstanding result in the respective exams, which is not excepted for attorneys (but, roughly, is for prosecutors and administrative officials).
Defense attorneys are grouped into divisions of their local or state bar associations[13] in which membership is mandatory.
Notes
- ^ a b c Bell 2006, pp. 110.
- ^ Courts Constitution Act (Gerichtsverfassungsgesetz, or GVG). "Courts Constitution Act GVG". juris GmbH. Retrieved 2012-10-29.
- ^ Casper & Zeisel 1972, p. 142.
- ^ Casper & Zeisel 1972, p. 143.
- ^ Bell 2006, pp. 109–110.
- ^ Bell 2006, pp. 110–111.
- ^ a b Casper & Zeisel 1972, p. 141.
- ^ a b c Malsch 2009, p. 137.
- ^ a b c d e f g Casper & Zeisel 1972, p. 182.
- ^ a b c d e f Bell 2006, p. 153.
- ^ a b Vogler 2005, p. 245.
- ^ Casper & Zeisel 1972, p. 183.
- ^ a b Delmas-Marty 2002, p. 299.
References
- Casper, Gerhard; Zeisel, Hans [in German] (January 1972). "Lay Judges in the German Criminal Courts". Journal of Legal Studies. 1 (1). JSTOR 724014.
{{cite journal}}: Invalid|ref=harv(help) - Jehle, Jörg-Martin; German Federal Ministry of Justice (2009). Criminal Justice in Germany. Forum-Verl. ISBN 978-3-936999-51-8.
- Delmas-Marty, Mireille (2002). European Criminal Procedures. Cambridge University Press. ISBN 978-0-521-59110-2.
{{cite book}}: Invalid|ref=harv(help) - Bell, John (2006). Judiciaries Within Europe: A Comparative Review. Cambridge University Press. ISBN 978-0-521-86072-7.
{{cite book}}: Invalid|ref=harv(help) - 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.
{{cite journal}}: Invalid|ref=harv(help) - Malsch, Marijke (2009). Democracy in the Courts: Lay Participation in European Criminal Justice Systems. Ashgate Publishing. ISBN 978-0-7546-7405-4.
{{cite book}}: Invalid|ref=harv(help) - Vogler, Richard (2005). A World View of Criminal Justice. International and Comparative Criminal Justice. Ashgate Publishing. ISBN 978-0-7546-2467-7.
{{cite book}}: Invalid|ref=harv(help) - Kahn-Freund, Otto (January 1974). "On Uses and Misuses of Comparative Law". Modern Law Review. 37 (1). JSTOR 1094713.
{{cite journal}}: Invalid|ref=harv(help) - Wolff, Hans Julius [in German] (June 1944). "Criminal Justice in Germany". Michigan Law Review. 42 (6). JSTOR 1283584.
{{cite journal}}: Invalid|ref=harv(help) - Bauer, Franz J. (23 December 2009). "Volksgerichte, 1918-1924". Historisches Lexikon Bayerns.
{{cite web}}: Invalid|ref=harv(help) - Der Hitler-Prozeß vor dem Volksgericht in München. 1924.
{{cite book}}: Unknown parameter|trans_title=ignored (|trans-title=suggested) (help) - Fulda, Bernhard (2009). Press and politics in the Weimar Republic. Oxford University Press. ISBN 978-0-19-954778-4.
{{cite book}}: Invalid|ref=harv(help) - Mulligan, William (2005). The Creation of the Modern German Army: General Walther Reinhardt and the Weimar Republic, 1914-1930. Monographs in German History. Vol. 12. Berghahn Books. ISBN 978-1-57181-908-6.
{{cite book}}: Invalid|ref=harv(help) - Shirer, William L. (1990). The Rise and Fall of the Third Reich: A History of Nazi Germany. Simon and Schuster. ISBN 978-0-671-72868-7.
{{cite book}}: Invalid|ref=harv(help) - Case, Nelson (1902). European Constitutional History. Jennings & Pye. OCLC 608806061.
{{cite book}}: Invalid|ref=harv(help) - Forsyth, William (1852). History of Trial by Jury. J. W. Parker. OCLC 29739821.
{{cite book}}: Invalid|ref=harv(help)
| Constitutional Court |  | |
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| Supreme Courts | ||
| Collaborations of Supreme Courts | ||