The German justice system and the institution of counsel in criminal proceedings

One of the interesting aspects that caught the attention of the members of the 6th generation Leaders for Justice on their study visit to Berlin was the institution of advisers in the German legal system. The topic was extensively discussed with judges of the Criminal Court of the Land of Berlin in a meeting which included participation in a court hearing.

Organisation of the German judicial system

In view of the federal organisation of the Federal Republic of Germany, the judicial system is also federally structured. Jurisdiction is exercised by the federal courts and by the courts of the 16 federal states ("Länder"). The main workload of the administration of justice lies with the Länder.

The German judicial system is divided into five independent specialised branches or jurisdictions: ordinary, labour law, general administrative, tax and social jurisdiction.

In addition to these specialised jurisdictions, there is the constitutional jurisdiction, exercised by the Federal Constitutional Court and the Land Constitutional Courts (for an overview of the structure of the courts you can visit the German Federal Ministry of Justice website at http://www.bmjv.de/EN/Home/home_node.html).

Participation of advisers in criminal cases

Criminal cases are heard by the courts in the three-tier system - local, regional or Land courts, and the higher regional Land courts (on appeal) - and can be appealed or reviewed from the lowest to the next two tiers or from all three courts to the highest court in the criminal justice system - the Federal Court of Justice. Cases where prosecution can lead to a sentence of up to one year are heard by a local court judge. In more serious cases involving possible sentences of up to three years, the judge is assisted by two lay judges or assessors, comparable to jury members in a common law system. Cases where the sentence exceeds three years are tried in a Land court, where they are heard by three judges and three to six assessors.

The participation of assessors is widespread in German criminal jurisdiction. Since 1924 this has been exclusively in the form of the so-called Schöffengerichte (court with assessors), a court formed in collaboration with one to three professional judges and two or three assessors, with essentially equal rights and duties.

The participation of counsel is widespread in German criminal jurisdiction. Since 1924 this has been exclusively in the form of the so-called Schöffengerichte (court with advisers), a court formed in collaboration with one to three professional judges and two or three advisers, with essentially equal rights and duties.

In general, assessors participate in almost all trials before the courts of first instance, with different panels of judges judging differently in number and composition. When it comes to voting, assessors vote first, starting with the youngest assessor, followed by professional judges, starting with the youngest and followed by the presiding judge. We consider it useful to mention that in taking the decision the assessors have an equal right to vote, but only the professional judges can draw up and sign the reasons for the decision, even when the judges were in a minority compared to the assessors in the deliberation.

Appointing assessors

Advisers are chosen through a process of proposal and selection. Every four years, communities, or more precisely their political organisations, draw up a list of potential advisers, twice the actual number required. Candidates must represent all sections of the population. A specially appointed council then selects the advisers from all the candidates on the list.

The choice of advisers is made before the trial takes place, so that the defendant, lawyer, prosecutor and other participants cannot influence their choice. However, the participants in the trial may file a request for recusal on the grounds of impartiality, regardless of whether the judge is a professional or an assessor. This applies to any judge who is found to be connected to the defendant or victim by birth or marriage, if he or she has already tried the case at a different stage or if other circumstances give rise to a concern about his or her impartiality.

Advisers are elected for a four-year term; during this period they are in session for twelve days each year. After that they can be re-elected for a second term. They hold an honorary position, receiving a remuneration of EUR 4 per hour to compensate for loss of income.

Conclusions

Many of the questions raised by the 6th generation concerned the impartiality of the advisers, their lack of legal education and their legitimacy. The answer, albeit unexpected for those in the room, was simple: although it is not easy to draw conclusions on this subject, there is (still) no fear/doubt among the judiciary or in the public space regarding the above. The presence of the advisors has not weakened the public's trust in the German justice system and gives the public the necessary information about the act of justice.

For more information on the institution of advisers in the German justice system, please visit the following addresses:

http://bit.ly/1iPX3iF | Walter PERRON "Lay participation in Germany"

http://bit.ly/1O0XGRB | Stefan MACHURA "Silent Lay Judges - Why Their Influence in the Community Falls Short of Expectations"