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Judiciary 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 federal and 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 life.

The judicial system is established and governed by part IX of the Grundgesetz für die Bundesrepublik Deutschland (the Basic Law of the Federal Republic of Germany). Article 92 of the Basic Law establishes the courts, and that states that "the judicial power shall be vested in the judges; it shall be exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law, and by the courts of the Länder."

Law

Main article: Law of Germany

Germany's legal system is a civilian system whose highest source of law is the 1949 Basic Law for the Federal Republic of Germany (which serves as the nation's 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, the Basic Law directly invests supreme judicial power in the Constitutional Court as well as other federal courts and the courts of each Länder, and decisional law has greater importance, though not to the extent of common law systems.

In contrast to the adversarial system used by common law countries, the German system is inquisitorial. Rather than allowing cross-examination between the defense and prosecutors, the judges conduct the majority of the trial. During a trial, the parties are expected to give all their evidence to the judges, who will then call forward and question the witnesses, after which the defense counsel and prosecutor may question the witnesses.[1][2]

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.[3] There are 5 basic types of courts, plus the Federal Constitutional Court:[3]

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.[3] 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 in criminal matters are composed of:[4]

Trial Court Composition Jurisdiction
Amtsgerichte Strafrichter 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 appellate courts in criminal matters are composed of:[5]

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.
Bundesgerichtshof (Federal Court of Justice) Strafsenat 5 judges Appeal for error of law from trial decisions of the Landgerichte and Oberlandesgerichte.

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.[6]

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 have wrongful 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.

The Federal Patent Court hears certain intellectual property cases on patents, utility rights and trademarks. In patent, utility rights and trademark matters there is a bifurcation of judiciary responsibilities in Germany between the Federal Patent Court and the various German Regional Courts. This bifurcated court system has a long tradition in Germany and is based on the notion that decisions of the Deutsches Patent- und Markenamt (German Patent and Trademark Office) shall be checked by a particular court created for that purpose, namely, the Federal Patent Court in Munich.[7] Court of appeals is in all cases the (ordinary) Federal Court of Justice of Germany.

Constitutional courts

State

Each one of the Länder has its own 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. The courts of each state are also directly authorized the Basic Law for the Federal Republic.

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 any federal or state 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"), those being the principles of democracy, republicanism, social responsibility, and federalism.

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 administered by the federal government, all the other courts belong to a state and are administered 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 members of a common corps in that they are recruited through a common process and their career is governed largely by federal law.[8] However, most judges are state (Länder) civil servants and follow state rules on legal education, appointment, and promotion.[9]

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

Further information: Lay judge#Germany

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.[10] 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.[10] In most cases, lay judges do not directly examine documents before the court or have access to the case file.[11]

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.[12] 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.[12] 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.[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, advertising, and participation in fine penalty allocation.[11]

The lay judges needed to staff the various tribunals 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.[12][13] 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,[12][13] but some municipal councils rely on the list of residents and generate names randomly.[13] 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.[12][13]

Lay judges have historically been predominantly middle-aged men from middle class socio-economic backgrounds.[13][14] 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.[15] 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.[11]

Prosecutors

Public prosecutors, who earn as much as judges, are nonetheless simple ordinary servants lacking the independence of the Bench.

Attorneys

A lawyer can only qualify as a defense attorney if they fulfill/possess the so-called Befähigung zum Richteramt.[16] This translates literally as "aptitude to be a judge", however, the basic meaning is to have successfully completed a study of law at roughly a master's degree level, being finally examined by the state itself (Staatsexamen), and to have served for two years as an 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 the expectations include outstanding results in the respective exams, which is not expected for attorneys (but, roughly, is expected for prosecutors and administrative officials).

Defense attorneys are grouped into divisions of their local or state bar associations[16] in which membership is mandatory.

Sentencing practices

If a defendant is convicted, the court will usually credit the period of pre-trial confinement as part of the sentence. Sentences can range from one month to life, and typically do not exceed 15 years.[1] Defendants sentenced to life in prison can typically apply for parole after 15 years, and if the application is rejected, the defendant can re-apply after a set period no longer than two years. If the court determines that there is a "severe gravity of guilt", parole can be delayed for a non-specific period beyond 15 years.

Analysis and criticism

Selection of lay judges has been described as a "highly political and discriminatory process."[12] It has been argued that personal acquaintance, political affiliation and occupation have all historically played an important, if publicly unacknowledged, role in the selection procedure.[13][14]

History

Germany used jury trials since medieval times,[17][18][19][20] but during an Article 48 (of the Weimar Constitution) state of emergency, and about one month before the February 1924 trial of Adolf Hitler for the Beer Hall Putsch of November 1923, the Emminger Reform (a Notverordnung, or emergency decree) was passed in January 1924 abolishing their use and replacing them with a mixed system of judges and lay judges which is still used today.[21][18][22]

Notes

  1. ^ a b http://www.howtogermany.com/pages/legal.html
  2. ^ Handbook of Transnational Crime and Justice. Albanese, Jay and Reichel, Phillip. P. 33
  3. ^ a b c Bell 2006, pp. 110.
  4. ^ Courts Constitution Act (Gerichtsverfassungsgesetz, or GVG). "Courts Constitution Act GVG". juris GmbH. Retrieved 2012-10-29.
  5. ^ Casper & Zeisel 1972, p. 142.
  6. ^ Casper & Zeisel 1972, p. 143.
  7. ^ Seyfert, Christian. "Bifurcation of judiciary responsibilities: Federal Patent Court and German Regional Courts". Retrieved 10 November 2013.
  8. ^ Bell 2006, pp. 109–110.
  9. ^ Bell 2006, pp. 110–111.
  10. ^ a b Casper & Zeisel 1972, p. 141.
  11. ^ a b c Malsch 2009, p. 137.
  12. ^ a b c d e f g Casper & Zeisel 1972, p. 182.
  13. ^ a b c d e f Bell 2006, p. 153.
  14. ^ a b Vogler 2005, p. 245.
  15. ^ Casper & Zeisel 1972, p. 183.
  16. ^ a b Delmas-Marty 2002, p. 299.
  17. ^ Forsyth 1852, pp. 369–371.
  18. ^ a b Wolff 1944, footnote 7, pp. 1069-1070.
  19. ^ Wolff 1944, p. 1074.
  20. ^ Casper & Zeisel 1972, pp. 137–139.
  21. ^ Kahn-Freund 1974, footnote 73, p. 18.
  22. ^ Casper & Zeisel 1972, p. 135.

References

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