Judiciary of Germany

The judiciary of Germany is the system of courts that interprets and applies the law in Germany. It plays a vital role in ensuring that laws are followed and that people are treated fairly.

The German legal system is a civil law mostly based on a comprehensive compendium of statutes, which is different from common law systems. In criminal and administrative cases, Germany uses an inquisitorial system where judges help uncover the facts, unlike an adversarial system where the judge mainly watches as the prosecutor or plaintiff faces the defendant or defense counsel.

In Germany, the independence of the judiciary has existed longer than democracy itself. The structure of courts is very strong, and almost every action by the federal or state governments can be checked by the courts.

Judges in Germany follow a special path. After finishing university studies in law, they must pass a state exam, complete a two-year apprenticeship, and pass a second exam. Only then can they choose to become a judge. New judges work at courts right away but go through a probationary period of up to five years before becoming judges for life.

The judicial system is set up and guided by part IX of the Basic Law for the Federal Republic of Germany. Article 92 of this law states that judicial power belongs to judges and is used by the Federal Constitutional Court, federal courts, and the courts of the Länder.

History

Germany has a long history of using juries to help decide court cases, dating back to the Middle Ages. In 1877, a law was created to officially start using juries in courts. These courts had three judges and twelve jurors to help make decisions.

However, in 1924, during a special emergency time, a change was made to stop using juries. Instead, courts began using a mix of judges and people called lay judges, which is still how things work today in Germany.

Law

Main article: Law of Germany

Germany uses a civil law system, where laws are written down in detailed books called codes. The most important law is the Basic Law, which acts like the country’s constitution. Courts in Germany handle two main types of cases: public law, which deals with the government and criminal matters, and private law, which covers agreements between people.

Unlike some other countries, judges in Germany play an active role in criminal and government-related cases. They lead the trials, asking questions to witnesses and gathering evidence, rather than just watching the two sides fight it out. This helps make sure all facts are carefully checked.

The German legal system has roots in ancient laws from places like Byzantium and, to a smaller extent, from the Napoleonic Code.

Courts

The main law that decides how courts are organized in Germany is called the Courts Constitution Act. Germany has many different types of courts, each handling specific kinds of cases. These include courts for regular legal matters, like criminal and civil cases, as well as special courts for things like administrative issues, taxes, jobs, and social services.

Germany also has constitutional courts, which are very important. These courts check if laws follow the country's basic rules and values. There are constitutional courts in each state and one big federal constitutional court in Karlsruhe. This court can decide if a law goes against the country's most important principles, like human rights and democracy.

Personnel

Professional judges

The federal courts are managed by the federal government, while all other courts belong to a state and are managed by that state. The independence of the judiciary, as stated in the federal constitution, only applies to the decision-making process of individual judges, not to the entire judicial system. Courts are administrative bodies under the control of the department of justice, with special rules only for the decision-making process and the status of judges.

All professional judges are part of a common group. They are chosen through a shared process, and their careers are mostly governed by federal law. However, most judges are state civil servants and follow state rules on education, appointment, and promotion.

State

Generally, decisions about hiring, giving lifetime positions, or promoting judges are made by the department of justice. In some states, a parliamentary body also has a say in these decisions. The strong influence of the administration on judges' careers is different from many other European countries, where bodies made up of judges make these decisions. Some believe this could affect judicial independence, as judges might consider political effects of their decisions.

Federal

Federal judges are chosen in a private process by a group including a federal minister, federal members of parliament, and state ministers. Candidates must be lawyers but do not need to be professional judges. There are no public hearings, and the public does not even learn the identity of candidates. Judges of the federal constitutional court are chosen by the federal chambers, usually following a political compromise.

Lay judges

Further information: Lay judge § Germany

Lay judges are ordinary citizens chosen for a five-year term by a special committee, based on suggestions from a municipal council. They must be German citizens who have not been convicted of or are under investigation for serious crimes. Certain groups, like people under 25 or over 69, or those working in the court system, cannot be chosen. Applications to become lay judges can be made by interested citizens, and local governments often encourage applications.

Lay judges sit with professional judges in most trials, except for certain crimes tried by a single professional judge or serious political crimes tried by panels of professional judges. Decisions against the defendant usually need a two-thirds majority.

Prosecutors

Public prosecutors earn the same as judges but do not have the same independence. Moving between working as a prosecutor and a judge is common and encouraged to gain experience.

Attorneys

To become a defense attorney, a lawyer must complete a law study at a level similar to a master's degree, pass state exams, and work for two years with different types of lawyers. To become a judge, higher exam results are expected. Defense attorneys must join their local or state bar associations.

Sentencing practices

When someone is found guilty of a crime in Germany, the time they spent in jail before their trial often counts toward their final sentence. Sentences can be as short as one month or last a lifetime, but usually they do not go beyond 15 years. People given a life sentence can ask to leave prison after 15 years, and if their request is denied, they can try again every few years. In some cases, if the crime is very serious, they might have to stay longer.

Germany also has a system where people who commit smaller crimes might not go to prison right away. Instead, they can stay out of prison if they follow certain rules and show they won’t break the law again. This is called a suspended sentence. For very minor crimes, the court might automatically decide on a suspended sentence. If someone has already served part of their prison time, they can also ask to have the rest of their sentence suspended, following the same rules as applying for parole. If they break the rules or commit another crime, they can be sent back to prison.

Analysis and criticism

Some people say that choosing lay judges—the people who help make decisions in court—can be unfair. They believe that things like knowing someone personally, having the same political views, or having a certain job can secretly affect who gets chosen, even if this isn’t talked about openly.