Lay judge (honorary judge)

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Schöffen (from Old High German sceffino , the ordering party) are honorary judges in Germany and Austria who participate in the main proceedings of criminal proceedings .

General story

Germany

Until 1924 there were still real juries in Germany . Since then, the name of the jury has only had historical significance. Objective differences to the competent "normal" large criminal chamber of the regional court are no longer associated with it. The jury consists of three professional judges and two lay judges. Jury members are no longer jurors .

The basic regulations are Sections 44–45a of the German Judges Act (DRiG) and Sections 28–58 of the Courts Constitution Act (GVG).

Areas of application

Lay judges are employed in the following courts:

According to the Federal Ministry of Justice, there were 36,956 chief lay judges in Germany in 2009. For 2015 there are over 60,000 honorary judges nationwide.

The jury court of the district court in accordance with § 29 GVG - like the little criminal chamber of the regional court  regularly staffed with one professional judge and two lay judges -. Two lay judges and three professional judges work in the large criminal chamber of the regional court. The lay judges are on an equal footing with the judge.

aims

The participation of lay judges in court proceedings is intended to strengthen citizens' trust in the judiciary and to achieve real-life case law . They are a visible expression of popular sovereignty and are intended to help ensure the quality of justice and to represent an instrument for legal education of the people. The current specialist literature sometimes doubts whether these goals can still be achieved. Nevertheless, the participation of lay judges is an important element of the democratic constitutional state, as they can create a link between the state and its citizens. Accordingly, the lay judge fulfills a responsible task. On the other hand, there are views that an efficient administration of justice in a modern German society does not require lay participation in criminal justice. On the other hand, lay judges - like the national anthem or the federal flag - are a symbol that promises jurisdiction in the name of the people - borne by their legitimation.

Selection of lay judges and appointment

Notification of the election as lay judge
Term of office Duration
1989-1992 4 years
1993-1996
1997-2000
2001-2004
2005-2008
2009-2013 5 years
2014-2018
2019-2023

A term of office for lay judges is currently five calendar years, the current term of office began on January 1, 2019. Applications for the lay judges' office are possible in many municipalities. The applicant suggests to his / her community that he (or another citizen) be elected to the list of candidates for lay judges ( § 36 GVG ). The inclusion of an applicant in the list requires the votes of at least 2/3 of the community representatives present (in total at least half of the statutory number of members). If there are not enough suitable applicants, people who have not applied can be selected on the list. After the list has been drawn up, it is to be "displayed for everyone in the community for a week" ( Section 36 (3 ) GVG ). During this time, an objection can be raised with regard to the listed persons ( Section 37 GVG ). The list including any objections are sent to the local court ( Section 38 GVG ), where the appeals are decided by a committee made up of a judge at the local court , an administrative officer and seven confidants. The main and auxiliary lay judges are then elected by this committee with a 2/3 majority.

Only Germans can be appointed to the office of lay judge ( Section 31 ). Persons unable to serve as lay judges are ... ( § 32 )

  • "As a result of a judge's verdict, they are unable to hold public office or have been sentenced to imprisonment of more than six months for an intentional act",
  • "Against whom a preliminary investigation is pending because of an act that may result in the loss of the ability to hold public office".

The GVG specifies the conditions for the appointment. Whoever is appointed to the office of lay judge should:

  • be at least 25 years old at the beginning of the term of office ( Section 33 )
  • be younger than 70 years old at the beginning of the term of office ( § 33 )
  • have sufficient German language skills ( Section 33 )
  • reside in a municipality belonging to the judicial district at the time of the appeal
  • be suitable for health
  • not have fallen into financial decline
  • Confess in their behavior to the free and democratic basic order within the meaning of the Basic Law (judgment of the BVerfG in May 2008).

Furthermore, certain professional groups should not be appointed ( § 34 GVG):

Appointments as lay judges can only be refused in a few well-founded cases. Reason for rejection for the office of lay judge may be membership of certain professional groups ( Section 35 ).

  • "Members of the Bundestag, the Bundesrat, the European Parliament, a Landtag or a second chamber"
  • "Persons who have worked as honorary judges in the criminal justice system in two consecutive terms of office, provided that the last term of office is still in progress at the time the list of proposals was drawn up"
  • "Persons who have fulfilled the obligation of a honorary judge in the criminal justice administration for forty days in the previous term of office, as well as persons who are already active as honorary judges"
  • "Doctors, dentists, nurses, pediatric nurses, nurses and midwives, pharmacy managers who do not employ another pharmacist"
  • "Persons who make it credible that direct personal care for their family makes it particularly difficult for them to exercise their office"
  • "Persons who have reached the age of sixty-fifth or would have reached it by the end of their term of office"
  • "Persons who make credible that the exercise of the office means a particular hardship for them or a third party because of the endangerment or significant impairment of a sufficient economic livelihood."

Removal from office

The removal of a lay judge from office is justified if he has grossly violated his duties ( § 51 , § 77 GVG), "his incapacity for the office of lay judge occurs or becomes known" ( § 51 § 52 para. 1 No. 1 GVG ), Non-appeal reasons become known, he has moved his residence outside the district court or he advocates anti-constitutional goals. The decision of the competent authority cannot be challenged ( Section 51 GVG).

Deletion from the list of lay judges is possible in exceptional cases at the request of the lay judge and in the event of his death. Recognized reasons are unavoidable circumstances, unreasonable service, more than 24 meeting days in a financial year or the relocation of residence outside of the district court district.

Rights and obligations

In Germany, an honorary judge is objectively independent to the same extent as a professional judge ( Section 45 , Paragraph 1, Clause 1 DRiG ). He takes an oath of office that he “[...] fulfills the duties of an honorary judge true to the Basic Law for the Federal Republic of Germany and true to the law [...], judging to the best of his knowledge and belief without regard to the person [...] and only the truth and justice [...] serve [...] "( § 45 , Paragraph 3 DRiG). He must maintain the confidentiality of advice ( Section 45 , Paragraph 1, Clause 2 DRiG). A judge can be excluded from exercising his office under strict conditions, according to § 41 , § 42 ZPO and § 22 , § 23 StPO . As an honorary judge, the lay judge, as a representative of the people, exercises “the judicial office to the full extent and with equal voting rights” alongside the appointed judge (definition from Section 30 of the GVG). Here lay judges at local and regional courts have essentially the same rights and duties as professional judges. In particular, they are therefore only subject to the law and are not bound by instructions in their judicial office. Impartiality is the first duty of lay judges.

The following applies in detail:

  • Lay judges have the right to inspect the files and to take note of the main results of the investigations.
  • In the main hearing, lay judges have equal rights with the professional judge, both in reaching a judgment and in determining the sentence.
  • Jury members are not authorized to conduct their own investigations, such as inspecting the scene of the crime or examining witnesses.
  • Upon request, the court presidents must allow them to put questions to the accused, witnesses and experts, because the lay judges are obliged to work towards clarifying points that appear to them to be essential.
  • Lay judges take part in all decisions in the course of the main hearing, including those that do not affect the judgment but the rest of the proceedings.
  • If, as an exception, the lay judges do not take part in a decision, this must be expressly regulated in a law.

Just like the professional judge, lay judges have full voting rights when reaching a judgment. They can overvote the professional judge, as a majority of two thirds of the votes is required here. Otherwise the court decides with an absolute majority of the votes.

Chief, auxiliary and supplementary lay judges

A distinction is made between principal, auxiliary and supplementary lay judges . The main lay judges are informed of the trial dates (usually twelve) for the whole year before the start of each financial year. If a main lay judge submits a reason for the absence, an assistant lay judge will be appointed instead, who has full rights like a main lay judge and has to participate as a lay judge for the entire duration of the trial. Deputy lay judges are also required when extraordinary meetings are scheduled. The legal basis for auxiliary lay judges is §42 GVG . They are the "persons who take the place of discontinued lay judges or who are required as lay judges in the cases of Sections 46 , 47 ".

Supplementary lay judges are called in for extensive processes (preventive) so that they can step in if a main lay judge is absent. In order to be able to perform this function, the supplementary lay judge has to be present at every hearing during the entire process, but does not (yet) take part in the deliberations of the court (full-time judges and the active lay judges). The attendance is necessary to know the entire process flow and, if necessary, to have all the knowledge to work for the failing (chief) lay judge. The legal basis is §192 GVG . According to §48 GVG , additional lay judges are assigned from the list of auxiliary lay judges.

Youth aldermen

Aldermen to the juvenile courts are youth aldermen called. As an additional requirement, the “youth lay judges should have educational qualifications and be experienced in youth education” ( Section 35 JGG ).

compensation

The compensation of lay judges is regulated in the Judicial Remuneration and Compensation Act (JVEG). According to § 18, lay judges receive compensation of six euros per hour for the time they were in court, a reimbursement of travel costs and, if necessary, a loss of earnings payment, which, depending on the circumstances, is between 24 euros and 61 euros per hour. The employer, who must enable the lay judges to exercise their office, can continue to pay their wages in their absence - in this case, the loss of earnings payment is waived if there is no loss of earnings.

criticism

Various problem areas are under discussion.

  • As a result of the Law on the Administration of Justice of 1993, only around 13% of all proceedings with the participation of lay judges take place in criminal cases. In addition, many individual regulations are criticized by the Federal Association of Honorary Judges , which, in its opinion, place lay judges worse off than professional judges.
  • The honorary office of lay judges is a visible “expression of popular sovereignty”. The obvious difference is that wearing a robe is generally only required for the professional judge. Judges do not wear these.
  • Despite the case law of the BGH and the ECHR on information rights, the lay judges' right to inspect files, in particular the charges and the main results of the investigations, are not recognized across the country.
  • Introductory events to the office are not held in all courts. In individual cases, the events were held by public prosecutors instead of members of the judiciary. In other cases it was limited to handing out a leaflet. Adequate training for lay judges before or at the beginning of the term of office, through which the lay judges are not only familiarized with their rights and duties, but also learn or learn essential details of how they can be structured according to the respective rules of procedure, does not generally take place in the competent court. Many relevant offers are only offered by external parties such as adult education centers or other educational institutions. Inevitably, these usually do not take place close to the beginning of the lay judge's office.
  • The involvement of honorary judges in court administration is sometimes felt to be inadequate and, due to the introduction of committees of honorary judges (which already exist under federal law in labor and social justice), so far only in the state judge laws of Brandenburg and Berlin for the ordinary, Administrative and financial jurisdiction implemented.
  • Some lawyers critically discuss what, in their opinion, tends to be too passivity or inattentiveness on the part of lay judges in the main hearing, which under certain circumstances can justify a revision according to Section 338 No. 1 StPO .

Association

The Federal Association of Honorary Judges deals with the work of lay judges . V. / German association of lay judges, divided into seven regional associations and numerous regional groups. Since 1989 he has published the magazine Richter ohne Robe , which is published quarterly by the Berlin Wissenschafts-Verlag.

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 . Art. 91 para. 3 provides a guarantee of existence for the participation of lay judges in criminal proceedings.

Criminal law

The participation of lay judges takes place in the case of certain crimes that have not been dealt with by a jury, or if the threatened sentence exceeds a certain extent (usually 5 years imprisonment), 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 are not 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.

The lay judges' senate consists of a professional judge and two lay judges, and for certain serious criminal offenses (such as manslaughter, serious robbery, rape) of two professional judges and two lay judges ( Section 32 StPO). The lay judges together with the professional judges decide on the guilt of the accused and subsequently the sentence. In those cases in which the lay judge's senate consists of a professional judge and two lay judges, the question of guilt cannot be answered in the affirmative against the professional judge's vote ( Section 41 StPO). Due to the size of the penalties, lay judges' senates exist exclusively in the regional courts for a number of the offenses listed in the law ( Section 31 of the Code of Criminal Procedure), including:

Otherwise, lay judges take action in crimes that are threatened with more than five years imprisonment, unless a jury has jurisdiction.

compensation

Schöffe is an honorary post in Austria without pay. In order to ensure that the lay judge does not suffer any financial losses as a result of his activity, he is entitled to reimbursement of travel and accommodation costs as well as compensation for missed time in accordance with Section 55 GebAG. Since many collective agreements provide for the continued payment of wages for employees, the lay judge usually has no loss of earnings. Social security and unemployment insurance contributions are reimbursed by the court if the lay judge loses wages or salaries. The lay judge has to pay these amounts to the employer.

Liechtenstein

Up to a change in the law in 2011 were in the court system in Liechtenstein also lay judges involved. You were responsible for offenses , i.e. crimes with a maximum imprisonment of three years.

literature

  • Hasso Lieber, Ursula Sens: Fit for the office of lay judge. An orientation aid for equal participation in the main negotiation. Volume 1: Duties, rights and duties of lay judges. Berliner Wissenschafts-Verlag, Berlin 2013, ISBN 978-3-8305-3274-3 . Volume 2: The criminal procedure: basics, taking evidence, penalties. Berliner Wissenschafts-Verlag, Berlin 2014, ISBN 978-3-8305-3292-7 .
  • George Andoor: Laypersons in Criminal Justice. A comparative consideration of the lay participation in German and English criminal courts. Berliner Wissenschafts-Verlag, Berlin 2013, ISBN 978-3-8305-3234-7 .

Web links

Wiktionary: Schöffe  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. Local Court Act
  2. Honorary judges as of January 1, 2009 (PDF) BMJ . September 30, 2009. Archived from the original on October 5, 2013. Info: The archive link was automatically inserted and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved December 24, 2010. @1@ 2Template: Webachiv / IABot / www.bmj.de
  3. Aldermen. Planet Wissen , October 15, 2015, accessed January 19, 2016 .
  4. George Andoor: Laity in Criminal Justice. A comparative consideration of the lay participation in German and English criminal courts. Berliner Wissenschafts-Verlag, Berlin 2013, p. 89 ff.
  5. ^ Justice portal NRW: The office of lay judges
  6. George Andoor: Laity in Criminal Justice. A comparative consideration of the lay participation in German and English criminal courts. Berliner Wissenschafts-Verlag, Berlin 2013, p. 112 f.
  7. ^ BGH, judgment of January 26, 2011 , Az. 2 StR 338/10, full text; Principle: Trials with lay judges who cannot speak German are void.
  8. "The language of the court is German" . German Bundestag . 2010. Accessed December 24, 2010.
  9. Federal Council demands sufficient knowledge of German from lay judges , Federal Council . March 5, 2010. Archived from the original on September 21, 2011 Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. . Retrieved August 29, 2014. @1@ 2Template: Webachiv / IABot / www.bundesrat.de 
  10. Legal Tribune Online : On the BGH judgment of January 26, 2011 (Az. 2 StR 338/10), see also LTO / Jan Bockemühl: The lay judge who did not speak German
  11. ^ Judgment of the Federal Constitutional Court on special loyalty to the constitution . Federal Constitutional Court . May 6, 2008. Retrieved June 3, 2013.
  12. Leaflet for lay judges (PDF; 506 kB). JVA Geldern, justiz.de, point 14.
  13. Leaflet for lay judges (PDF; 506 kB). JVA Geldern, justiz.de, point 13.
  14. § 97 (1) GG, §45 (1) 1 u. Section 25 DRiG
  15. Leaflet for lay judges (PDF; 506 kB). JVA Geldern , justiz.de. Retrieved October 18, 2013.
  16. Hasso Lieber, Ursula Sens: Fit for the office of lay judges. An orientation aid for equal participation in the main negotiation. Volume 1: Duties, rights and duties of lay judges. Berliner Wissenschafts-Verlag, Berlin 2013, ISBN 978-3-8305-3274-3 . Volume 2: The criminal procedure: basics, taking evidence, penalties. Berliner Wissenschafts-Verlag, Berlin 2014, ISBN 978-3-8305-3292-7 .
  17. BGH, judgment v. February 23, 1960, 1 StR 648/59, RohR 1997, 95, RohR 2003, 96, confirmed in 1997 with judgment v. March 26, 1997, 3 StR 421/96, BGHSt 43, 36, RohR 1997, 95, RohR 1997, 80 Note Lieber, RohR 2003, 96
  18. European Court of Human Rights, judgment v. June 12, 2008, 26771/03, RohR 2009, 74
  19. Legal status according to DVS ( Memento of the original from September 3, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.schoeffen.net
  20. Section 240 (2), Section 241 (2), Section 241a of the Code of Criminal Procedure
  21. Leaflet for lay judges (PDF; 506 kB). JVA Geldern, justiz.de, point 5.
  22. Remuneration and compensation for honorary judges ( Memento from September 11, 2010 in the Internet Archive )
  23. Action program . ( Memento of the original from October 16, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Federal Association of Honorary Judges e. V., October 30, 1999. @1@ 2Template: Webachiv / IABot / www.schoeffen.de
  24. The office of lay judges . Justice portal NRW, under The essential rights .
  25. Leaflet for lay judges (form No. 124). Justice portal of the federal and state governments (PDF; 506 kB).
  26. Example of a further training offer ( memento of the original from December 29, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 115 kB) @1@ 2Template: Webachiv / IABot / www.web-koeln.de
  27. Beate Linkenheil: Lay participation in criminal justice: relic of the bourgeois emancipation process or legitimation of a case law "In the name of the people"? Berliner Wissenschafts-Verlag, Berlin 2003, pp. 221-223 and 236, ISBN 978-3-8305-0389-7 .
  28. Stefan Machura: Fairness and Legitimacy. NOMOS Verlagsgesellschaft, Baden-Baden 2001, pp. 198–209, ISBN 978-3-7890-7072-3 .
  29. ^ Judge without robe at the Berlin Wissenschafts-Verlag