Richter (Germany)

from Wikipedia, the free encyclopedia

A judge (loan translation from Latin rector , “head” , “leader”) is the holder of a public office at a court that - as a single judge or member of a panel - performs judicial tasks. As a neutral person, he should impartially speak right against everyone. In order to guarantee that only neutral judges are called to make decisions, the rules of procedure stipulate that judges are excluded by law from judicial office in certain cases (e.g. if they are closely related to a party or if they are affected by the subject of the dispute). In addition, if there is concern about partiality, a rejection request can be made against the judge.

In making a decision, the judge is only bound by law and order. For Germany this results from Article 20 Paragraph 3 and Article 97 Paragraph 1 of the Basic Law (GG). According to Art. 92 GG, the judiciary is (only) entrusted to the judges.

In Germany, a fundamental distinction is made between professional judges and honorary judges .

Professional judge

General

Professional judges are not in an employment relationship , but at the federal or state level in a public service relationship of its own, the judge relationship, which is similar to the employment relationship of an official .

Professional judges are usually appointed for life, there are also judges for a period of time and judges by order , such as civil servants who are later to be appointed judges for life ( Section 8 of the German Judges Act DRiG). Professors can be appointed as judges for life and then act as judges on a part-time basis in addition to their position as professors. The appointment as judge takes place by handing over a certificate ( § 17 DRiG). Every judge is to be assigned a judge's office at a certain court for life and for a limited period of time ( Section 27 DRiG).

The judge has to dedicate himself to his profession with full personal commitment ( § 46 , § 71 DRiG in conjunction with § 61 BBG and § 34 BeamtStG ). The official duties of the judge are specified in the business allocation plan of the respective court.

Robe of the judge (ordinary jurisdiction) in the national service

The judge's official duties also include the duty to take the judge's oath ( Section 38 DRiG), the moderation requirement, i.e. the duty to behave inside and outside the service in such a way that confidence in one's independence is not endangered ( Section 39 DRiG ), as well as the duty to maintain confidentiality, i.e. the duty to remain silent about deliberations and votes ( Section 43 DRiG). A judge is not allowed to give legal opinions off-duty or to provide legal information for a fee ( Section 41 DRiG). Exceptions apply to judges who are also university lecturers. Traditionally, the judge in Germany is also obliged to wear the official costume (in the form of a robe ).

The rights of the professional judge include the right to care and protection from the employer. In particular, the judge has the right to appropriate pay . The details are in grades laws of the Federal and the countries regulated (see also pay regulation R ). In a European comparison, judges' salaries in Germany are among the worst. Since, in contrast to civil servants in some disciplines, judges are not regularly promoted, the salary regulations provide for regular increases in salary according to level of experience (or until February 2012 according to age). Similar to civil servants, judges receive a pension after they retire . Just like civil servants, judges are entitled to sickness allowance and leave .

Like civil servants, judges are subject to supervision, although supervision is limited by judicial independence. Only reprimand and warning are permitted as measures of the supervision ( § 26 Abs. 2 DRiG). If a judge claims that his independence is impaired by a measure of the service supervision, he can submit an application to the competent service court (§ 26 Abs. 3 DRiG).

Violations of duty by judges can be punished by disciplinary measures. As a mildest disciplinary measure, the superior can issue a reprimand through a disciplinary order . If the service offense is so serious that it can no longer be punished by reprimand, a judge for life or a judge for a limited period can be judged in formal disciplinary proceedings by ruling a service court for a fine, a reduction in salary, transfer to another judge's office with a lower final basic salary or Removed from the service. When formal disciplinary proceedings are initiated, the judge can be temporarily removed from service by decision of the service court. There are no formal disciplinary proceedings against probationary judges and judges acting on their behalf; rather, they can be dismissed in the event of behavior that would result in a disciplinary measure to be imposed in the case of judges for life in formal disciplinary proceedings ( Section 22 (3), Section 23 DRiG) .

The employment relationship of professional judges ends by law regularly when the judge reaches the age of sixty-seven ( Section 48 (1) DRiG for federal judges, the state laws provide for similar regulations) or upon the death of the judge. The judge is to be dismissed from the service if he requests his dismissal in writing or if there are other legally regulated - in practice of little importance - reasons ( § 21 DRiG). In the case of certain criminal convictions, in particular imprisonment of at least one year for an intentional act, the judge's relationship ends by operation of law, without the need for a further court decision ( Section 24 DRiG). In addition, a judge for life or for a period of time without his consent can only be used in proceedings on the judge's indictment ( Art. 98 (2) and (5) GG), in judicial disciplinary proceedings, in the interests of the administration of justice ( Section 31 DRiG) or - if his full judge's indictment is retained Salary - if the court organization changes ( § 32 , § 33 DRiG) be transferred to another office or dismissed.

Training and recruitment

The qualification for judicial office (as a professional judge) is acquired in Germany by studying law at a university , which is completed with the first examination, and the subsequent preparatory service , which is completed with the second state examination ( Section 5 DRiG ). The first exam consists of the focus area examination at the university and the compulsory subject examination by the responsible state authority. The state authority is either the state justice examination office for the entire state (e.g. in Lower Saxony) or - in some states - the examination offices at the respective higher regional courts (e.g. in North Rhine-Westphalia).

The course of studies must generally last at least four years, including at least two years at a German university, and three months of practical training must be completed during the lecture-free period in accordance with state law. The subsequent preparatory service (legal clerkship) lasts two years. It offers the opportunity to gain practical experience in various fields of work (civil, criminal, administrative law, public prosecutor's office, lawyer and elective station) and concludes with the second (major) state examination. Passing this examination qualifies the judge to be a judge. Lawyers with the qualification for judicial office are also referred to as “fully qualified lawyers”.

Employment as a judge is generally initially as a probationary judge ( Section 12 (1) DRiG). During the probationary period, the judge can be dismissed for the first two years without any particular reason ( Section 22 (1) DRiG). After the third or fourth year, the judge can be dismissed on probation if he is not suitable for the judicial office or if there are other reasons regulated by law (Section 22 (2) and (3) DRiG). If the judge is not released on probation, he must be appointed judge for life after at least three ( Section 10 (1) DRiG) and a maximum of five years ( Section 12 (2) DRiG). The respective Regional Judicial Administration provides only so many assessors into the judicial service, as appropriate posts for judges and prosecutors for life are present after the trial period.

The factual prerequisite for being employed as a judge is a grade that is well above average (currently mostly not below 8 points, i.e. “upper satisfactory”) in the second state examination. Such a grade average (or an even better grade) is only achieved by around 15 percent of graduates over many years. In some federal states, the successful passing of an extensive recruitment test ( assessment center ) is also required. Currently and in the foreseeable future, on average nationwide, less than five percent of trainee lawyers in one year are hired as probationary judges.

In addition to fully qualified lawyers, all German full university professors in the field of law are qualified to hold judgeships regardless of their previous education ( Section 7 DRiG).

Special features apply to the judges of the Federal Constitutional Court and the constitutional courts of the federal states. Judges at the Federal Constitutional Court are not appointed for life, but for a period of twelve years. Judges in the constitutional courts of the federal states are also often elected for a limited period. In addition, not all judges need to be qualified to hold judgeships at several constitutional courts in the federal states, for example at the constitutional court of the state of Baden-Württemberg or the constitutional court of Rhineland-Palatinate .

Persons who have at least five years of practical professional experience and the necessary legal knowledge (especially in the field of patent law) are also qualified to be technical judges at the Federal Patent Court .

Official titles

The official designations are based on § 19a DRiG:

  • "Judge at the ... court" for the single judge , associate judge and judge by order ,
  • "Presiding judge at the ... court" for the presiding judge in the collegial panel ,
  • "Director of the ... court" for the head of a local , labor or social court (up to a certain size of the court),
  • "President of the ... court" for the head of another court and large courts of first instance (so-called presidential courts ),
  • “Vice-President of the… court” for the permanent representative of a President.

Probationary judges use the term “judge” or, if they are used as public prosecutor , the term “public prosecutor” (Section 19a (3) DRiG).

Before the introduction of the independent pay system, introduced

  • Judge at the district court the designation "District Court Councilor" or "Chief Justice",
  • Judge at the regional court " Regional Court Councilor ",
  • Presiding judge at the regional court "Regional court director",
  • Judge at the Higher Regional Court " Higher Regional Court Council ",
  • Presiding judge at the Higher Regional Court " Senate President " and
  • Judge at the Federal Court of Justice " Federal Judge ".
  • The term “auxiliary judge” is legally historical. The early GVG understood this to be a professional judge who could be seconded to a court if necessary without a permanent post.

Honorary judges

Honorary judges are judges (and are explicitly designated as such according to Section 11 of the Criminal Code ) who do not have to be qualified to hold judicial office. In accordance with the respective procedural rules, as representatives of the population, they participate in the adjudication (for example lay judges in criminal proceedings as well as honorary judges in the labor, social and agricultural courts, administrative and financial courts) and are supposed to bring in " common sense ". The honorary judges take part in finding the law through their life experience and practical relevance. In some cases, the factual proximity is even expressly required by the law: In the labor courts, half of the honorary judges are drawn from the circles of employees and half of the employers ( Section 16 (1) sentence 2 ArbGG ), while the honorary judges ( commercial judges ) at the chambers for commercial matters must be merchants or responsible employees of a legal person who is a merchant ( § 109 GVG ).

Honorary judges may only act in the cases specified by law ( Section 44 (1) DRiG). They can only be recalled under the conditions stipulated by law and, against their will, only by decision of a court ( Section 44 (2) DRiG). Like professional judges, honorary judges have to maintain confidentiality and take an oath before the first service ( Section 45 DRiG). In criminal jurisdiction, honorary judges use the designation "lay judge", in the chambers for commercial matters the designation " commercial judge" and otherwise the designation "honorary judge". The Judge's wear nationwide only the commercial judge in Berlin, the lay judges in the administrative courts and in Hamburg the lay judges in the labor courts; Aldermen and other honorary judges do not wear robes.

liability

For damages that a judge inflicts on a third party in the course of his official activity, the judge is not liable according to Art. 34 sentence 1 GG. The liability lies rather with his employer ( state or federal ). If the damage is caused by the violation of an official duty in a judgment , according to § 839 Abs. 2 BGB in connection with Art. 34 sentence 1 GG, the body at which the judge is employed, is only liable if the breach of duty of the judge in an offense exists, whereby this offense must represent a perversion of the law (so-called judge privilege, also misunderstandably called arbiter privilege). In addition to judgments in the technical sense, the term judgment within the meaning of Section 839 (2) of the German Civil Code (BGB) also includes decisions , insofar as it is a judicial decision, which is based on the principles that are essential to the judicial process (right to be heard , compulsory reasoning, exhaustion) the evidence) is conducted, the instance terminated and the legal force is capable.

In the event of intent , which is always present when the judge has acted, or gross negligence on the part of the judge, the corporation with which he is employed can take recourse against the judge.

Criminal responsibility

By willful misapplication of the law, the judge can for violation of the law make punishable. In addition, depending on the case structure, other offenses, e.g. B. obstruction of punishment in office, deprivation of liberty and coercion in indirect perpetration. However, the judge can only be punished for these offenses if he is guilty of perversion of the law at the same time (so-called “blocking effect” of the act of perversion of the law).

Judicial independence

General

According to Art. 97 GG the judges are (personally and factually) independent and only subject to the law. Section 1 GVG and Section 25 DRiG repeat this elementary principle.

Section 39 DRiG expressly obliges judges to maintain their independence both inside and outside of their office, including when they are politically active. If they see their independence violated by measures of the service supervision, legal recourse is open to them to the service court of the federal government, a special senate of the Federal Court of Justice ( 26 Abs. 3, 61 ff. DRiG). Conversely, violations of the constitutional order can be brought before the Federal Constitutional Court ( Art. 98 ( 2) and Art. 98 ( 5 ) of the Basic Law).

79 para. 3 GG guarantees the federal structure of the Federal Republic of Germany and thus also a federal administration of justice. § 21e GVG regulates the judicial distribution of business by the presidium elected by the judges.

Service supervision

Judges are independent and only subject to the law ( Art. 97 (1) GG, § 1 GVG , § 25 DRiG). A supervision of the judge is subject only in so far not affected its independence ( § 26 para. 1 DRiG). Judicial independence is a fundamental characteristic of the rule of law. Judicial independence guarantees the separation of powers , which is essential for the rule of law , and ensures that citizens subject to the law are faced with a neutral judge. Judicial independence is in the interests of those seeking justice, so it is not a basic right or a professional privilege for judges. However, the principle of factual and personal independence is one of the traditional principles of judicial official law in accordance with Article 33 (5) of the Basic Law and therefore grants the judge an individual right similar to that of fundamental rights. Independence exists only vis-à-vis the executive , but not vis-à-vis the legislature or superordinate courts in terms of appeals , insofar as the law stipulates that they are bound by their decisions.

A distinction is made between factual independence and personal independence. Objective independence means freedom from instructions. Instructions are to be understood in the broadest sense: any kind of influence is prohibited. Neither a court president nor a minister of justice can instruct a judge how to decide a particular case. Also, assessments and measures of the service supervisory authority must not contain any express or indirect instructions as to how the judge should decide in the future. Every judge has factual independence, including the probationary judge and the honorary judge. Personal independence means that the judge usually cannot be dismissed from his office or transferred against his will ( Section 30 DRiG). Personal independence serves to ensure factual independence and is intended to prevent an unpopular judge from being dismissed or transferred. Dismissals or transfers as a disciplinary measure are only possible through a judge's verdict (i.e. again through an independent judge). Only judges employed for life have personal independence (Art. 97, Paragraph 2, Basic Law). Even honorary judges can only be recalled against their will under certain legal requirements and only by decision of a court ( Section 44 (2) DRiG).

Limits to judicial independence

The freedom to issue instructions guaranteed by the independence of the judiciary only applies to judicial activity, i.e. jurisdiction , but not to the tasks of court administration and administration of justice . The judicial independence does not release the judge from his obligation to the law. The freedom to issue instructions does not exempt the judge from (general) criticism or from liability for breaches of official duties .

The judge's independence does not release the judge from supervision . He is subject to supervision insofar as the judicial independence is not affected. In the context of official supervision, the judge can be held responsible for the improper execution of official business if it is a matter of securing the proper course of business, of the external form, the so-called area of ​​external order, or of judicial activities that are the core area of ​​independence are far removed from the fact that the guarantee of judicial independence cannot be invoked for them. It is permissible to urge the judge to be punctual and to behave appropriately with other parties involved in the proceedings. According to the case law of the federal service court, business audits, comparisons of completion numbers, holding back arrears, complaining about illegal scheduling practice and the suggestion to hold another meeting day during the week are also permitted. Obvious mistakes in a decision can also be objected to if there can be no doubt about the mistake. However, the supervisory body may not undertake an assessment of the factual and legal situation that is only available to the appellate courts. Otherwise, the content of a decision is beyond the control of the service.

Supervision, however, is not permitted in the core area of ​​judicial independence. This includes not only the decisions of the judge himself, but also everything that is connected with them, for example the preparation and implementation of the oral hearing. It is inadmissible to accuse a judge that his conduct of the negotiations is not tight enough or that he is trying too hard to get the parties to reach a settlement.

Judicial independence and judgments

The regular assessment of judges is permissible and does not violate judicial independence. Because appraisals are indispensable for appropriate personnel decisions. An assessment is only meaningful if it also expresses the judge's specific legal knowledge and skills. On the other hand, the judge must not be influenced as to how he has to decide certain cases, and indirect and psychological influence is also not permitted. Therefore, there is always a dispute about which statements are permissible in assessments in individual cases.

The statements that the judge's performance at least in quantitative terms corresponded to the lower average of the requirements, that his workload was not satisfactory, that the judge had left things ready for session longer for no apparent reason, that the judge's draft decisions ( in a collegial court) until the end, in some cases only with significant changes, could have been adopted that the judge's judgments would gain in persuasiveness through a more detailed assessment of the submissions of the parties, that in individual cases the exact connection of the legal clauses with the concrete facts did not seem entirely successful and that a The judge shows problematic social behavior that cannot be overlooked and the judge shows obvious personality deficits.

A statement about how often decisions by the judge were overturned by the appellate court, as well as a statement about how many cases opened in one year, the judge settled through judgments and not otherwise was considered inadmissible. The statements that in the foreground of the discussions of the factual and legal situation are mostly the effort to avoid a court decision, that the judge should have used the principle of orality in suitable cases, that the judge was the suggestion were also considered inadmissible to hold another session day in the week, and the judge's negotiation is not tight enough.

It is sometimes criticized that inappropriate behavior of a judge can be sanctioned in assessments, which endangers his independence. "If you defend yourself aggressively - as an upright and independent judge - this leads to the 'determination' of deficits in the area of ​​self-criticism."

Discussions about judicial independence

The free democratic basic order and the function of the courts in the structure of the separation of powers require a judiciary that is independent of the legislative and executive branches.

The judges are therefore increasingly criticizing the political influence exerted by the judges' selection committees ( Article 95 (2) and Article 98 (4) of the Basic Law) and the factual prejudicial effect of highest court judgments on the lower courts.

In addition, there has been a demand for self-administration of the judiciary with its own budget and full staff sovereignty for years. In this context, in 2019 the Wiesbaden Administrative Court submitted to the ECJ, among other things, the question of whether the referring administrative court was an independent court. Here, the referring court questions its institutional independence against the background that Hessian judges are appointed and promoted by the Hessian Ministry of Justice.

In 2002, Gerd Seidel took the view that today the real dangers to judicial independence come from the jurisprudence itself: Through obviously grossly disproportionate and completely implausible decisions and escapades in the personal behavior of individual judges, the entire judiciary and often also the rule of law become in Brought discredit. As a remedy, he suggested replacing the previous assessments by the superiors with evaluations that take place every two years by commissions, which should be made up of judges from the same court and from the higher appeal court.

Reform efforts

Election of federal judges

The procedure for the election of judges at the highest federal courts is repeatedly criticized. In particular, the lack of transparency of the procedure and the fact that, in addition to professional qualifications, the party-political orientation of the candidates also plays a role in the election are criticized. Accordingly, for example, the presidents of the higher regional courts and the Federal Court of Justice demanded at their annual meeting in 2002 that the federal judges should be appointed in a transparent procedure solely on the basis of their personal and professional suitability. The former judge of the Federal Constitutional Court Ernst-Wolfgang Böckenförde speaks of "party patronage" and "personal expansion of the parties' power". On the other hand, the participation of elected representatives in the election of judges serves to implement the principle of democracy ( Article 20, Paragraph 2, Sentence 1 of the Basic Law), while co-optation , i.e. a system in which the judges complement themselves through elections, would be constitutionally inadmissible.

Self-government of the judiciary

The independence of the judiciary from the executive branch is also discussed. Already the 40th German Juristentag in 1953 warned: "Legislative measures to ensure the independence of the judge who judges, both through the way he is selected and promoted and through his position vis-à-vis the administration, are necessary for the implementation of the Basic Law."

In the recommendation of the Council of Europe on the role of judges and in the criteria of the European Union on the admission of new member states it is stated: "The authority responsible for the selection and career of judges should be independent of the executive branch". Heribert Prantl writes about this: “This is the case in France, Spain, Italy, Norway, Denmark and the Netherlands - not in Germany. So Germany would be a problematic candidate for accession if it weren't already at the heart of the EU [...]. ”However, the appointment of judges by the government or the responsible minister - in accordance with German tradition - is compatible with the principle of democracy because of the government's parliamentary responsibility.

Both the German Association of Judges and the New Judges Association advocate self-administration of the judiciary.

literature

  • Günther Schmidt-Räntsch, Johanna Schmidt-Räntsch: Commentary on the German Judges Act . 6th edition. Beck, Munich 2009, ISBN 978-3-406-49947-0 .

Web links

Individual evidence

  1. ↑ New version for federal judges with retroactive effect from January 1, 2008 through the law on the adjustment of salaries and pensions in the federal government 2008/2009 (Federal Salary and Pension Adjustment Act 2008/2009) of July 29, 2008, published in the Federal Law Gazette of January 1, 2008. August 2008 Part I No. 34, pages 1582 ff.
  2. ↑ Judges' income in a European comparison p. 261 f in the study by the European Commission for the Efficiency of ( http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2012/Rapport_en.pdf )
  3. ↑ Salary: Experience levels replace salary seniority. Retrieved October 12, 2014 .
  4. ^ Constitutional Court of Baden-Württembert. Retrieved August 20, 2020 .
  5. ^ Meyers Großes Konversations-Lexikon, Volume 9. Leipzig 1907, pp. 333–334.
  6. ↑ Guide. Information for honorary judges at the regional labor court and at the labor court Hamburg, Justice Authority Hamburg (ed.), Page 6, accessed on July 3, 2019.
  7. ↑ BVerfG, decision of July 14, 2016 - 2 BvR 661/16 marginal no. 14 mwN
  8. ↑ Haberland, DRiZ 2009, p. 242ff
  9. ↑ Kirchhoff, NRV-Info Hessen, 06-2011, p. 22
  10. ↑ Judge Election Committee of the Bundestag ( Memento from February 28, 2014 in the Internet Archive )
  11. ↑ see article Judge Election Committee - Criticism
  12. ↑ German Judges Association : The Third Power Must Administer itself September 11, 2018
  13. ↑ Question submitted by the Wiesbaden Administrative Court on the independence of the court, accessed on August 20, 2020
  14. ↑ NJW aktuell - Editorial on the question submitted by the Wiesbaden Administrative Court on judicial independence, accessed on August 20, 2020
  15. ↑ Seidel : The limits of judicial independence , AnwBl 2002, 325-330
  16. ↑ a b Jürgen Thomas: Judge Law . Heymann, Cologne / Berlin / Bonn / Munich 1986, ISBN 3-452-20333-6 , pp. 59 ff .
  17. ^ Resolutions of the 40th German Jurists' Conference in 1953 ( Memento from March 17, 2014 in the Internet Archive )
  18. ↑ Heribert Prantl: The Unleashing of the Third Power ( Memento from June 19, 2013 in the Internet Archive ) , Süddeutsche Zeitung from April 6, 2006, page 28
  19. ^ German Judges' Association - Self-Administration of Justice ( Memento from March 4, 2016 in the Internet Archive )
  20. ↑ Participation conference of the New Judges Association of March 1, 2003 ( Memento of January 21, 2012 in the Internet Archive )