Honorary judge

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A volunteer judge is involved in court proceedings as a judge and is sometimes referred to as a lay judge . Depending on jurisdiction, have lay judges different names: In Germany lay judges are called according to § 45a German Judiciary Act (DRiG) in the criminal justice juror in the chambers for commercial matters Trading judge or otherwise use lay judges . There are local magistrates in Hesse . In Bavaria they are called voluntary assessors in disciplinary proceedings against civil servants or in staff representation matters . In Austria there are juries as well as lay judges .

General story

There were already honorary judges in earlier epochs, then called court scouts (see Schöffe ). The office of honorary judge goes back to the political enlightenment in the 19th century and the emancipation of the bourgeoisie . The participation of non-lawyers in the judiciary should reduce the influence of the authorities . Ideally, honorary judges bring an understanding that is independent of purely legal thinking into the decision-making process and that should be more firmly rooted in real life.

Germany

Compensation form
used at the regional court

Until the "Emminger Regulation" in 1924, the German looked Criminal Procedure Code in circuit court matters still a real jury before where the "lay judges", as jurors decided solely on the question of guilt, the professional judges were only for the negotiation line and the sentencing jurisdiction. Today the name of the jury has only a historical meaning. The jury now consists of professional judges and lay judges. Jury members are no longer jurors.

The basic regulations are Sections 44–45a of the German Judiciary Act (DRiG). In addition, the rights and duties of the honorary judges are determined by the regulations applicable to the individual branches of the court .

aims

By involving voluntary lay judges in court proceedings, the citizens' trust in the judiciary should be strengthened and real-life case law achieved. In addition, they served as a visible expression of popular sovereignty, contributed to the quality assurance of the judiciary and represented an instrument for the legal education of the people. Whether these goals are still achieved today, is in the current specialist literature z. T. doubted. In addition, z. Some represent that the efficient administration of justice in a modern German society does not require lay participation in criminal justice, even if the lay judges - like the national anthem or federal flag - represented a symbol that makes it clear that the law is carried in the name of the people through its legitimation , is spoken.

Areas of application

Honorary judges are employed at the following courts:

In the higher regional courts ( § 122 GVG) and the Federal Court of Justice ( § 132 , § 139 GVG) honorary judges are not used in civil or criminal jurisdiction. Agricultural matters are an exception, however, where honorary judges are also active in the senates of the higher regional courts and the BGH ( Section 4 LwVfG ). Notaries , lawyers, and law enforcement officers cannot serve as honorary judges in most courts . This applies according to § 22 No. 5 VwGO for administrative jurisdiction and according to § 19 No. 5 FGO for financial jurisdiction .

Labor court

For labor courts, Section 20 of the Labor Court Act (ArbGG) contains the basic requirements for the office of honorary judge. Sections 21 and 22 of the ArbGG regulate the groups of people from which the honorary judges may be selected from among employers and employees. According to Section 24, the rejection of the office is only possible in certain cases (health reasons, reaching a certain age, 10 years as an honorary judge at the labor court, other voluntary work, other important reasons such as caring for the family). The Federal Labor Court ruled on August 19, 2004 that appearing before the labor courts in foreign matters does not in principle conflict with the activity as an honorary judge. A lawyer can also be an honorary judge at the labor court.

The Chamber of the Labor Court is made up of one full-time judge and two honorary judges. The latter each from the ranks of employers and employees. The honorary judges are not present at the merit negotiations .

Honorary judges as authorized representatives

Honorary judges are not allowed to appear before the arbitration body of a court to which they belong. This has been in effect since July 1, 2008 and is regulated in the following regulations:

According to the Legal Services Act , they can appear in any other panel. The honorary judge does not have any special rights to act as an authorized representative.

Aldermen

Lay judges work in criminal justice. There they are involved in the decision-making process together with one or more professional judges, basically on an equal footing .

The election of lay judges is regulated in Sections 31–43 GVG : lay judges are elected by a committee at the local court for a period of 5 years based on a list that has been decided by the municipal council. To be elected as lay judge, you have to be German and (along with other criteria) you should be between 25 and 70 years old. Only certain professional groups such as doctors or persons for whom the office "[...] means special hardship" ( Section 35 ) may refuse an appointment as lay judge . You will be removed from the list of lay judges, for example, if you move away or if you grossly breach your duties.

A distinction is made between principal, auxiliary and supplementary lay judges . The main lay judges are informed of the trial dates (usually 12) for the whole year before the start of each financial year. If a main lay judge is prevented from attending, an assistant lay judge, who is then given full rights like a main lay judge, will be used for the entire duration of the process. Supplementary lay judges are called in for extensive processes (preventive) so that they can step in if a main lay judge is absent. His presence throughout the entire process is necessary in order to know the entire process flow and, if necessary, to have all the knowledge to work for the absent (chief) lay judge.

Impartiality is the first duty of lay judges. In addition to the appointed judge, lay judges exercise “the judicial office to the full extent and with equal voting rights” (requirement according to § 30 GVG). This applies both to the taking of evidence, in which the lay judges are allowed to put questions to the accused, witnesses and experts; as well as the finding of a judgment (guilt / innocence and, if necessary, determination of the sentence).

Judges will be reimbursed for possible travel costs or loss of earnings and compensation will be paid based on the time spent at the court.

In addition to the criticism of the need for lay judges expressed in the section on objectives , the organization of the lay judge's office is also criticized. A right to inspect files is not recognized nationwide. In the courts there is still a hierarchy that subordinates the lay judges to the presiding judge: for example, the administrative penalty that the presiding judge can impose on the honorary judge.

Commercial judge

Commercial judges work at the chambers for commercial matters. In Germany, commercial judges wear the black judge's robe in court hearings . Commercial judges judge according to German law with job-specific qualifications , since according to §109 GVG they have to be merchants , board members or managing directors of a legal person or authorized signatory .

Austria

The Austrian Federal Constitutional Law (B-VG) provides in Article 91, Paragraph 1, the basic participation of the people in the jurisdiction of the ordinary courts . While the following paragraphs 2 and 3 provide a guarantee of existence for the participation of lay judges and juries in criminal proceedings, there is no such guarantee for the participation of the people in civil jurisdiction. Based on Art. 91 Para. 1 B-VG, a simple law ordered the participation of competent lay judges (in commercial jurisdiction : professional lay judges ) also in civil jurisdiction, for example in commercial jurisdiction ( §§ 7 and 8 JN ), labor and Sozialgerichtsbarkeit - ( §§ 10 ff. ASGG and) Competition jurisdiction ( §§ 59 ff. Competition Act ). For the proceedings before the administrative courts , Art. 135 B-VG provides for the possibility of expert lay judges to participate in the case law. This option was also used for many material matters, for example for public procurement law ( §§ 292 ff Bundesvergabegesetz ) or the service law of federal civil servants ( § 135b BDG ).

Criminal law

The participation of the people in the judiciary takes place in the case of "crimes threatened with severe penalties" (regularly a threat of punishment with a lower limit of more than 5 years and an upper limit of more than 10 years imprisonment) as well as for all political offenses by juries , with certain others Criminal offenses, or if the impending punishment exceeds a certain extent (regularly 5 years imprisonment), by lay judges ; otherwise there is no direct participation of the people in the judiciary.

A list of lay judges is drawn up at the beginning of each year. It comprises 5  ‰ (in Vienna 10 ‰) of the entries in the electoral register. At this point in time, lay judges must be between 25 and 65 years old and in good standing. Their physical and mental state must allow them to reliably follow the course of the negotiation. In particular, a sufficient command of the German court language is required.

There are numerous exceptions to the creation of the list: The most important professional politicians, such as the Federal President, the Federal Ministers and State Secretaries, members of the state government, the legislative bodies; the President and Vice-President of the Court of Auditors, the Ombudsman; Clergy and religious of the legally recognized churches and religious communities; Judges, public prosecutors, notaries, lawyers and the candidates for these professions; Employees of the Federal Ministries of the Interior and of Justice as well as their subordinate federal agencies and members of a community guard; finally, people without their main residence in Germany. None of them are appointed as lay judges.

On request, further exemption reasons are to be observed, especially if the service for the person concerned "would be associated with a disproportionate personal or economic burden for themselves or third parties or with a serious and unavoidable threat to public interests" or if they are in have actually fulfilled their vocation as jurors or lay judges in recent years.

Aldermen

Appellate senates exist exclusively at the regional courts . There lay judges together with a professional judge decide on the guilt of the accused and subsequently the sentence. They take action in the case of certain offenses listed in ( § 31 StPO). Otherwise, active in crimes with a prison sentence of more than five years, unless a jury has jurisdiction.

Jury

Jury courts generally act in the case of crimes with a penalty of more than 5 years and an upper limit of more than ten years imprisonment. In addition, also with certain political offenses, such as:

  • Transfer to a foreign power ( Section 103 StGB)
  • High treason ( § 242 StGB) and the preparation for it ( § 244 StGB)
  • Degradation of the state and its symbols ( § 248 StGB)
  • Attack on the highest state organs ( § 249 to § 251 StGB)
  • Treason ( § 252 to § 258 StGB)
  • Collection of ordnance ( Section 280 of the Criminal Code)
  • Request for or approval of actions threatened with punishment ( § 282 StGB)
  • Disruption of relations with foreign countries ( § 316 to § 320 StGB)

The jurisdiction of jury senates can also be arranged in other criminal ancillary laws. An important example is the prohibition law .

Jury courts consist of eight lay and three professional judges. In contrast to the lay judges, the decision on the question of guilt of the accused rests exclusively with the jury. Only if this preliminary question is answered in the affirmative will you and the three professional judges decide on the sentence. In contrast to other legal systems, unanimity is not required; a simple majority is sufficient. In the event of a tie (4: 4), the principle in dubio pro reo applies and an acquittal can be recognized.

Switzerland

The situation in Switzerland differs from canton to canton, as the cantons are generally responsible for organizing the courts.

In most cantons, lay judges also belong to the criminal courts of lower instances (see Swiss district courts ). Until the Swiss Code of Criminal Procedure came into force on January 1, 2011, some cantons had jury courts consisting of a president or several professional judges and a number of lay people, the jury. However, these jury courts, which had a long historical tradition, had long been replaced by other courts in the cantons. It was argued that the jury courts are usually too lengthy, costly and cumbersome.

Lay judges are also present in many cantonal civil courts.

United States

The US jury system is based on English practice in the 13th century. However, the selection process varies from state to state.

Each year, a total of approximately four to five million US citizens are called up for jury service based on their driver's license or registration as voters . As a rule, the candidates first have to fill out questionnaires so that those who are out of the question can be filtered out - such as lawyers or police officers. The remaining candidates are then questioned orally by the judge, the prosecution and the defense.

Both sides in the process can reject candidates who are biased. In addition, they have the option of voting out a certain number of candidates without giving any reason. Once the 12 jurors and the substitute jurors have been appointed, the opening statements can begin.

In some states, the jury is allowed to take notes during the process. In a few cases she is even allowed to ask direct questions to witnesses. The judgment consultations always take place behind closed doors. The jury is permitted to submit written questions to the judge or to view copies of witness statements to refresh the memory. A guilty verdict must be unanimous. If, despite all efforts, the jury does not achieve a unanimous vote, the judge must declare the process to have failed.

literature

  • Dagmar Spona: Lay participation in criminal proceedings: A legal sociological investigation into the function of lay participation in criminal proceedings (= Bielefelder Rechtsstudien. Volume 9). Peter Lang Verlag, Frankfurt am Main [u. a.] 2000, ISBN 3-631-36664-7 (Zugl .: Bielefeld, Univ., Diss., 2000).
  • George Andoor: Laymen in Criminal Justice: A Comparative Consideration of Lay Participation in German and English Criminal Courts. Berliner Wissenschafts-Verlag, Berlin 2013, ISBN 978-3-8305-3234-7 .
  • Fit for lay judges. An orientation aid for equal participation in the main negotiation.
    • Volume 1: Hasso Lieber , Ursula Sens: Duties, rights and duties of lay judges. Berliner Wissenschafts-Verlag, Berlin 2013, ISBN 978-3-8305-3274-3 .
    • Volume 2: Ursula Sens: The criminal proceedings. Basics, evidence, penalties. Berliner Wissenschafts-Verlag, Berlin 2014, ISBN 978-3-8305-3292-7 .
  • Norman Lieber: Aldermen and Trial by Jury. A comparative study of the origin, current practice and possible future of two models of lay participation in criminal proceedings in Europe (= writings on procedural law. Volume 215). Duncker & Humblot, Berlin 2010, ISBN 978-3-428-12850-1 (Zugl .: Leipzig, Univ., Diss., 2007/2008).

Web links

Individual evidence

  1. ↑ a b George Andoor: Laymen in criminal justice - A comparative consideration of lay participation in German and English criminal courts . Berliner Wissenschafts-Verlag, Berlin 2013, p. 89 ff., 112 f .
  2. ↑ § 71 , § 74 , § 75 WDO .
  3. ↑ BArbG, decision of August 19, 2004 , Az. 1 AS 6/03, full text.
  4. ↑ §§ 240 Paragraph 2, 241 Paragraph 2, 241a StPO.
  5. ↑ Legal status. Rights and duties of lay judges. (No longer available online.) In: schoeffen.net. Federal Association of Honorary Judges e. V. - German Association of Aldermen (DVS) -, November 19, 2010, archived from the original on September 11, 2010 ; accessed on November 19, 2018 .
  6. ↑ The office of lay judges. Justice portal NRW, under The essential rights .
  7. ↑ 155.100 - Law on the Organization of Ordinary Judicial Authorities (Court Organization Act, GOG) . Kanton Aargau. Accessed on December 24, 2010: "§ 4 II. Eligibility 1 Any citizen with voting rights can be elected as a justice of the peace, governor, district judge and substitute judge of the district court."