The jury is not a lawyer, but mostly uninvolved citizens who pass a verdict by voting. The jury usually assesses the facts of the case, while the judge assesses the legal situation. The name of the jury comes from the fact that these citizens traditionally had to swear by the law and their conscience.
From 1848 onwards, there were juries in various states in Germany. The participation of citizens in the decision-making process was also a result of the March Revolution of 1848. The failed Paulskirche constitution had compulsory jury courts for press offenses (Art. IV, § 143 Para. 3) as well as for more serious criminal cases and for all political offenses (Art. X, § 179 para. 2).
Jury courts in the German Reich from 1878 to 1924
Through the Courts Constitution Act (Reichsjustizgesetze) in 1878, the jury courts in the German Reich were set up as arbors that met periodically at the regional courts (Section 79 GVG old version). Even when this law was being drafted in the Reichstag , there was a demand for the abolition of jury courts in favor of lay judges due to divergent traditions in some states . However, this concept has not yet caught on. So it remained for the time being with jury courts at the regional courts “consisting of three judicial members including the chairman and twelve jurors appointed to decide the question of guilt” (Section 81 of the Courts Constitution Act (GVG), old version). Professional judges and jury thus had a different function: the jury ruled solely on the guilt of the accused, with the order of voting being based on the draw and the chairman of the jury voting last (Section 199 (2) GVG, old version). The professional judges then decided on the sentence. Decisions that had to be issued by the court making the decision in accordance with the Code of Criminal Procedure or the Courts Constitution Act were made in matters pending before the jury courts by the judicial members of the jury court (Section 82 GVG old version).
Appointment of the members of the jury
The appeal of the jury and the professional judge also came about in different ways. The judicial members were appointed by the president of the regional court from among the judges of the regional court for the duration of one session of the jury court (Section 83 (2) GVG old version); the chairman of the circuit court was the President of the Higher Regional Court appointed for the duration of the session from the number of judges of the Higher Regional Court or the belonging to the Higher Regional Court District Courts. As long as no chairman of the jury court had been appointed, the chairman of the criminal chamber of the regional court dealt with the business assigned to the chairman in the code of criminal procedure (Section 83 (3) GVG old version). The office of jury was an honorary position that could only be given to Germans (Section 84 of the GVG old version). The original list for the selection of lay judges also served as the original list for the selection of the jury. The lay judges' election committee at a local court had to select the people it proposed as a jury for the next financial year from the original list. The proposals were to be measured in such a way that three times as many candidates were proposed as the jury needed. The proposed were to be summarized in a proposal list. 91 GVG a. F. determined that no later than two weeks before the start of a jury session by the president of the regional court in a public session in which two members of the regional court also took part, 30 main jury members were drawn in the presence of the public prosecutor's office. The list of the main jury drawn by lots (jury list) was sent to the appointed chairman, who invited the main jury to the opening session of the jury court.
Material jurisdiction of the jury court
According to § 80 GVG a. F. the jury courts were responsible for the crimes that were not assigned to the Reichsgericht or the criminal chambers. Accordingly, the following offenses were essentially not within the jurisdiction of the circuit court:
- High treason and treason against the emperor and the empire (Section 136 (1) No. 1 GVG old version);
- Crimes which alone or in connection with other criminal acts were threatened with prison of up to 5 years (§ 78 No. 2 GVG old version);
- Crimes committed by persons under the age of 18 (Section 78 No. 3 GVG old version);
- Fornication (§ 8 No. 4 GVG old version);
- Crimes of theft, stolen goods and fraud (Section 78 No. 5 to 7 GVG old version);
Procedure in the main hearing
The 30 main jury had to appear at the main hearing. Of those who actually appeared, the accused and the public prosecutor together were allowed to reject so many that twelve remained, with the public prosecutor starting and, if the difference was odd, the accused could reject one more juror. Before the verdict was reached, the chairman instructed the jury which questions were to be decided. He signed and handed over the questionnaire, whereupon the jury withdrew and elected a chairman. Depending on the subject of the question, it had to be answered with different majorities. Once that happened, the accused was removed from the conference room and the chairman announced: "I testify to the jury's verdict on honor and conscience ...", whereby he had to name the respective majority requirement so that the chairman would give the verdict in the event of errors about the required Majority could correct. Only then did the professional judges decide on the sentence, the accused was brought back into the room and the verdict announced.
Emminger reform, National Socialism and the post-war period
The jury, which was controversial from the start, had various disadvantages. Often the jury was rejected on the basis of irrelevant considerations (peasants in the case of perjury , townspeople in the event of arson ), because the rejection neither needed to be justified nor was it checked by the court. Nevertheless, all 30 jurors had to appear and be compensated, which resulted in high costs. Especially in perjury cases, the jury tended to acquittals with unfounded facts. Often the jury was wrong about the complicated legal issues. Their decision also did not have to be justified, so that the revision based on complaints was de facto futile: the proof of incorrect application of the law could not be provided in this way. Finally, in the sentencing, where the jury was most likely to be useful, they were not allowed to participate. In the Emminger reform, named after the then Reich Minister of Justice Erich Emminger , jury courts were abolished by a decree of the Reich government "on the constitution of courts and the administration of criminal justice" of January 4, 1924. According to their name ( jury court ), they continued to exist as a judicial body meeting if necessary, but with a uniform bench of judges, i.e. without the characteristic separation of guilt and punishment:
- Section 82 (1) GVG old version
- The judges and the jury jointly decide on the question of guilt and punishment; During the main hearing, the jury exercise the office of judge to the same extent as the lay judges.
Special regulations on the composition of the jury courts - three professional judges and now only six “jurors” - in the 6th title of the Courts Constitution Act have also been preserved. Initially, however - from January 15 to March 31, 1924 - jury courts no longer met and lay judges in criminal matters were no longer called in "to prevent the impending standstill of the administration of justice" (Section V of the ordinance). National Socialist legislative acts and the legal fragmentation that occurred in the federal states between 1945 and the entry into force of the Basic Law led to the fact that in 1950 the legal situation of 1924 had to be restored (Art. 1 No. 41 of the law for the restoration of legal unity in the field of court constitution, civil justice, criminal proceedings and the law on costs of September 12, 1950). The special provisions on the occupation of the jury courts were later repealed, the jury courts are large criminal chambers of the regional court. In the Courts Constitution Act, there is still a 6th title on jury courts, which only consists of the repealed Sections 79 to 92.
Current legal situation
While jury courts have long ceased to exist in Germany, the name jury court has been retained. The large criminal chamber of the regional court is still called jury court for certain, particularly serious offenses, (2) sentence 1 GVG . This jury only has the name in common with the original jury. It negotiates in the cast of the large criminal chamber, so it has no jury who only vote on the question of guilt, but with the two lay judges in addition to the three professional judges, although honorary, but otherwise equal judges, who have extensive co-decision. The jury also no longer meets periodically, but is a normal chamber of the regional court. The only special rule is that the jury, unlike the usual large criminal chamber, cannot decide to downsize it.
- See jury court
The jury is a procedural form of the regional court , as the first instance for the most serious offenses and crimes and political offenses (for example under the Prohibition Act ). Explicitly mentioned are (§ 31 Abs. 2 StPO):
- Offenses with a life sentence or 5–10 years imprisonment ; Surrender to a foreign power (§ 103 StGB), high treason (§ 242 StGB, and preparation § 244 StGB); connections hostile to the state (§ 246 StGB); Degradation of the state and its symbols (§ 248 StGB); Attack on the highest state organs (§§ 249-251 StGB); Treason (§§ 252–258 StGB); armed association (§ 279 StGB); Accumulation of ordnance (§ 280 StGB); Disruption of relations with foreign countries (Sections 316–320 StGB); Aggression (§ 321k StGB); Incitement to , approval of (both § 282 of the Criminal Code) and failure to prevent (§ 286 Penal Code) of the aforementioned criminal acts; as well as jurisdiction based on special provisions.
A jury consists of the jury court , that is three professional judges , and the jury bank , which includes eight lay people (Section 32 (1) of the Code of Criminal Procedure). In the case of criminal acts against sexual integrity and self-determination (Sections 201-207 StGB), the jury must include at least two jurors of the gender of the accused and two jurors of the gender of the person who could have been injured in their gender sphere by the offense (Section 32 Paragraph 2 StPO).
This procedure is regulated in the 15th main section §§ 297–351 StPO: After instruction by the presiding judge, the jury alone decides on the so-called verdict on guilt or innocence, and together with the judges on the sentence. Unlike in other legal systems, unanimity does not have to be achieved, a simple majority is sufficient. If there is no majority for a conviction ( i.e. also if the vote goes 4: 4), the accused is to be acquitted according to the principle in dubio pro reo .
If the three professional judges are unanimously convinced that the jury's decision is incorrect or incomplete, they can order an amendment to the verdict. In this case, the jury has to deliberate again ( Monitur ; StPO ). If the error cannot be remedied by Monitur, the jury can unanimously suspend the verdict of the jury (suspension according to StPO) and have it checked by the Supreme Court . The latter may assign the case to another jury for retrial. In this a suspension of the jury's decision is no longer permitted.
Legal situation after the introduction of the Swiss Code of Criminal Procedure
The Swiss Code of Criminal Procedure , which came into force on January 1, 2011 , no longer provides for any trials based on the principle of immediacy and thus no longer for jury trials. It is true that jury courts are not expressly excluded by the corresponding provisions in the Code of Criminal Procedure, so that the cantons, which are still responsible for organizing the courts, could in principle retain or create them. However, the Swiss Code of Criminal Procedure lacks special regulations for jury trials. The code of criminal procedure presupposes that the court also decides on the basis of the evidence already collected in the preliminary proceedings, i.e. H. also on the basis of the files. In the classic jury process, however, the jury makes its decision solely on the basis of the oral hearing. Accordingly, the jury had to be abolished in the last cantons on January 1, 2011. In the canton of Zurich, this was done through the law on the organization of courts and authorities in civil and criminal proceedings of May 10, 2010.
Only the canton of Ticino has retained its jury, at least in name. In a referendum in November 2010, their abolition was rejected. As a temporary solution, the Grand Council of the Canton of Ticino decided that the jury should technically be employed as lay judges from the opening of the proceedings and that they should be given access to the files. 2012, this Court was as a second instance for appeals against decisions Upper jury created.
Former cantonal criminal proceedings (using the example of the canton of Zurich)
In the 19th century, as part of the “democratization” of the judiciary, juries were set up in the cantons for serious criminal cases. Western Switzerland led the way - Geneva introduced it in 1844, Vaud in 1846. It was characteristic of this court that the jury was first drawn for each individual legal case from among the number of citizens elected for this purpose and secondly, without prior knowledge of the file, they decided on the basis of the process alone (principle of immediacy).
This type of legal finding is now generally viewed as outdated, which is why most cantons have long had either regular criminal jurisdiction (exercised by the district court and the higher court or whatever the courts are called) or a so-called criminal court or criminal court as a specialized court whose members, in contrast to the jury, have knowledge of the files and are elected for a fixed term of office. Before the Swiss Code of Criminal Procedure was introduced on January 1, 2011, only the cantons of Zurich , Ticino , Vaud and Neuchâtel knew the jury institute, after it was last abolished in the canton of Geneva in May 2009.
According to the 1919 cantonal code of criminal procedure valid until the end of 2010, the last version of the jury took the place of the higher court if the accused disputed the facts. According to the cantonal court constitution law of 1976, it was composed of the president, two judges and nine jurors, with the president and judge appointed by the higher court and the jury drawn from among the total of four-year jurors. According to Section 56 of the Zurich Courts Constitution Act, the jury had to judge the following offenses and crimes:
- Intentional homicide Art. 111 of the Criminal Code (StGB)
- Murder Art. 112 StGB
- Manslaughter Article 113 of the Criminal Code
- serious bodily harm Art. 122 StGB
- Robbery according to Art. 140 Numbers 3 and 4 StGB
- Extortion according to Art. 156 Numbers 2 and 4 StGB
- Deprivation of liberty and kidnapping according to Art. 184 StGB
- Hostage-taking according to Art. 185 Numbers 2 and 3 StGB
- Arson in accordance with Art. 221 Paragraph 2 StGB
- Danger from explosives or poisonous gases according to Art. 224 Paragraph 1 StGB
If the accused acknowledged the facts accused and pleaded guilty, the higher court had jurisdiction as the first instance. If the accused acknowledged the facts accused, but denied the legal assessment or if the accused had committed the act before the age of 25, he had the choice between a jury and a high court. In contrast to the traditional jury, as it is known in the Anglo-Saxon region ( jury ), in which the jury judges the guilt and the judge decides on the sentence, the Swiss jury (from the second half of the 20th century) decided on the president and judge and jury together about guilt and punishment.
Federal criminal process
For the administration of criminal justice of the federal government the "Bundesassisen" were introduced in 1849. Article 112 of the revised Federal Constitution of 1874 also provided for the following criminal offenses to be assessed by the Federal Supreme Court with the involvement of a jury ("Federal Assis"):
- High treason against the Confederation, riot and act of violence against the federal authorities;
- Crimes and offenses against international law;
- political crimes and offenses that are the cause or consequence of the civil unrest that prompts armed federal intervention , and
- in cases where the officials appointed by a federal authority are referred to the federal court for a criminal assessment.
The federal assistants met extremely rarely, only twice in the 20th century (in 1927 after an attack by Ivan de Justh on the Hungarian Prime Minister István Bethlen at the League of Nations and in 1933 after the riots in Geneva in 1932 ). As part of the legislative amendments to the new Federal Constitution of 1999, in which the federal aids are no longer provided, they were abolished on March 1, 2000. The reason given by the Federal Council was that the Federal Assistance Institute had become obsolete due to decades of non-use and, from today's perspective, appears to be dispensable.
Today, in the first instance, the Federal Criminal Court , as the lower instance of the Federal Court within the meaning of Art. 86 BGG, judges criminal cases within the jurisdiction of the federal government.
- RGBl I, p. 15.
- BGBl . I p. 455.
- Lorenz Frischknecht: One of the last jury trials, in: Neue Zürcher Zeitung from March 16, 2010.
- Ticino still has a jury, in: Plädoyer 1/2011, p. 5; Peter Jankovsky: The Ticino people have a say in court, in: Neue Zürcher Zeitung from December 13, 2011.
- René Pahud de Mortanges: Swiss legal history. A floor plan. 2nd, supplemented and improved edition. Dike, Zurich / St. Gallen 2017, ISBN 978-3-03751-838-0 , p. 255.
- § 198a aStPO ZH .
- Message on the entry into force of the new federal constitution and the necessary amendment of the legislation of August 11, 1999, BBl 1999 7922 (PDF; 108 kB), p. 7935.