Judiciary of Germany
The judiciary of Germany is the system of courts that interprets and applies the law in Germany.
The German legal system is a civil law mostly based on a comprehensive compendium of statutes, as compared to the common law systems. In criminal and administrative law, Germany uses an inquisitorial system where the judges are actively involved in investigating the facts of the case, as compared to an adversarial system where the role of the judge is primarily that of an impartial referee between the prosecutor or plaintiff and the defendant.
In Germany, the independence of the judiciary is historically older than democracy. The organisation of courts is traditionally strong, and almost all federal and state actions are subject to judicial review.
Judges follow a distinct career path. At the end of their legal education at university, all law students must pass a state examination before they can continue on to an apprenticeship that provides them with broad training in the legal profession over two years. They then must pass a second state examination that qualifies them to practice law. At that point, the individual can choose either to be a lawyer or to enter the judiciary. Judicial candidates start working at courts immediately. However, they are subjected to a probationary period of up to five years before being appointed as judges for life.
The judicial system is established and governed by part IX of the Grundgesetz für die Bundesrepublik Deutschland. Article 92 of the Basic Law establishes the courts, and that states that "the judicial power shall be vested in the judges; it shall be exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law, and by the courts of the Länder."
Law
is a civilian system whose highest source of law is the 1949 Basic Law for the Federal Republic of Germany, which sets up the modern judiciary, but the law adjudicated in court comes from the German Codes; thus, German law is primarily codal in nature. The court system adjudicates public law, that is, administrative law and criminal law, and private law. German law—especially private law—is mainly based on early Byzantine law, specifically Justinian's Code, and to a much lesser extent the Napoleonic Code.German law is not impregnated with legal positivism to the extent of Napoleonic legal systems, so Germany's judiciary is not subordinated to the legislature, the Basic Law directly invests supreme judicial power in the Constitutional Court as well as other federal courts and the courts of each Länder, and decisional law has greater importance, though not to the extent of common law systems.
In contrast to the adversarial system used by common law countries, the German system of criminal procedure is inquisitorial. Rather than allowing cross-examination between the defense and prosecutors, the judges conduct the majority of the trial. During a trial, the parties are expected to give all their evidence to the judges, who will then call forward and question the witnesses, after which the defense counsel and prosecutor may question the witnesses.
Courts
The primary legislation concerning court organization is the Courts Constitution Act. The courts are characterized by being specialist, regional, and hierarchically integrated at the federal level. There are five basic types of courts, plus the Federal Constitutional Court and the Länder's constitutional courts:- Ordinary courts, dealing with criminal and most civil cases
- Administrative law courts
- Tax law courts
- Labour law courts
- Social law courts
- Constitutional law courts, focusing on judicial review and constitutional interpretation
Ordinary courts are the most numerous by far. Currently there are 828 ordinary courts, 142 labour courts, 69 administrative courts, 20 tax courts, 86 social courts and 17 constitutional courts.
Ordinary courts
Trial courts in criminal matters are composed of:The appellate courts in criminal matters are composed of:
For a comparison of the relative activity of the ordinary courts, in 1969 there were 468,273 criminal cases in Germany, and 388,619 or 83% of these were held in the Amtsgericht composed of a single judge.
Specialized courts
Specialized courts deal with five distinct subject areas: administrative, labour, social, fiscal, and patent law. Like the ordinary courts, they are organized hierarchically with the state court systems under a federal appeals court.Administrative law courts consist of local administrative courts, higher administrative courts, and the Federal Administrative Court. In these courts, individuals can have wrongful administrative acts overturned. For instance, many lawsuits have been brought in administrative courts by citizens against the government concerning the location and safety standards of nuclear power plants. The Federal Administrative Court is the highest administrative law court.
Labour law courts also function on three levels and address disputes over collective bargaining agreements and working conditions. The Federal Labour Court is the highest labour law court.
Social law courts, organized at three levels, adjudicate cases relating to the system of social insurance, which includes unemployment compensation, workers' compensation, and social security payments. The Federal Social Court is the highest social law court.
Finance courts, also called tax law courts or fiscal courts, hear only tax-related cases and exist on two levels. The Federal Finance Court is the highest tax law court.
The Federal Patent Court hears certain intellectual property cases on patents, utility rights and trademarks. In patent, utility rights and trademark matters there is a bifurcation of judiciary responsibilities in Germany between the Federal Patent Court and the various German Regional Courts. This bifurcated court system has a long tradition in Germany and is based on the notion that decisions of the Deutsches Patent- und Markenamt shall be checked by a particular court created for that purpose, namely, the Federal Patent Court in Munich. Court of appeals is in all cases the Federal Court of Justice of Germany.
Constitutional courts
State
Each one of the Länder has its own state constitutional court. These courts are administratively independent and financially autonomous from any other government body. For instance, a state constitutional court can write its own budget and hire or fire employees, powers that represent a degree of independence unique in the government structure. The courts of each state are also directly authorized by the Basic Law for the Federal Republic.Federal
The Federal Constitutional Court is the supreme constitutional court established by the constitution or Basic Law of Germany. Since its inception with the beginning of the Federal Republic of Germany, the court has been located in the city of Karlsruheintentionally in a certain geographical distance from the other federal institutions in Berlin, Munich, and Frankfurt.The sole task of the court is judicial review, and it may declare any federal or state legislation unconstitutional, thus rendering them ineffective. In this respect, it is similar to other supreme courts with judicial review powers, like the Supreme Court of the United States; yet the Court possesses a number of additional powers, and is regarded as among the most interventionist and powerful national courts in the world. Unlike other supreme courts, the constitutional court is not an integral stage of the judicial or appeals process, and does not serve as a regular appellate court from lower courts or the Federal Supreme Courts on any violation of federal laws.
The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institution with the constitution. Constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz, those being the principles of human dignity, unalienable human rights, democracy, republicanism, social responsibility, federalism and separation of powers.
The court's practice of enormous constitutional control frequency on the one hand, and the continuity in judicial restraint and political revision on the other hand, have created a unique defender of the Grundgesetz since World War II and given it a valuable role in Germany's modern democracy.
Judicial officers
Professional judges
The federal courts are administered by the federal government, all the other courts belong to a state and are administered by it. The independence of the judiciary that is laid down in the federal constitution only refers to the judicial decision-making process of any individual judge, not to the judicial power as a whole. In line with this, the courts are administrative bodies subordinate to the respective department of justice, special rules only applying to the judicial decision-making process and the status of the judges.All professional judges are members of a common corps in that they are recruited through a common process and their career is governed largely by federal law. However, most judges are state civil servants and follow state rules on legal education, appointment, and promotion.
State
As a rule, each decision on the initial employment, vesting with lifetime tenure or promotion of a judge is taken by the department of justice. Yet in some of the states there is some kind of a parliamentary body that needs to be heard or even has a say in some of the decisions on careers of individual judges. The mostly decisive influence of the administration on the career of judges is exceptional in continental Europe, where mostly bodies of judges, elected by and within the judiciary take this kind of decision. By some it is regarded as a threat to judicial independence that with a view to their personal career judges might be inclined to specially regard possible political effects of their decisions or may choose to support a political party.Federal
Federal judges are picked in an in-camera-procedure by a body composed of a Minister of the federal state, federal MPs and ministers of the states. Candidates do not have to be professional judges, but lawyers. There are neither public hearings, nor would the identity of any candidate even be disclosed to the public. Judicial members of the federal constitutional court are elected in turns by the federal chambers. This decision requiring a large majority, it usually follows a political compromise. Public discussion about candidates is very unusual.Lay judges
s are effectively short-term, politically appointed, non-professional judges. Except for most crimes for which the trier of fact is a single professional judge and serious political crimes which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit alongside professional judges. Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception. In most cases, lay judges do not directly examine documents before the court or have access to the case file.The only statutory criterion is that lay judges must be citizens who have not been convicted of, and are not under investigation for, any serious crime. However, people "ought not" to be chosen if they are under 30 years old, very high government officials, judges, prosecutors, lawyers, policemen, ministers or priests, or have lived in the community for less than one year. In addition, people may refuse to serve if they are over 65 years old, members of the federal or state legislatures, doctors, nurses, pharmacists if working alone or housewives if overburdened, or have served as lay judges in the preceding year. Applications can be made by interested citizens to become lay judges, but this does not occur often. Welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other :wiktionary:public authority|public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertising, and participation in fine penalty allocation.
The lay judges needed to staff the various tribunals are selected by a selection committee from lists that are passed by the municipal councils with a two-thirds majority of attending local councillors. Given the high threshold for inclusion on the municipal council lists, in practice these lists are first compiled by municipal bureaucracies and the political parties in Germany, but some municipal councils rely on registers of residents and generate names randomly. The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" who are also elected by two-thirds of the municipal council.
Lay judges have historically been predominantly middle-aged men from middle-class backgrounds. A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service employees, compared to only about 12% from blue-collar backgrounds. A study published in 2009 put the proportions at 27% civil service employees versus 8% of the general population, and noted the relatively high numbers of housewives, the relatively low number of private sector employees, and the relative old age of lay judges.
Prosecutors
Public prosecutors, who earn as much as judges, are nonetheless simple ordinary servants lacking the independence of the Bench.Attorneys
A lawyer can only qualify as a defense attorney if they fulfill/possess the so-called Befähigung zum Richteramt. This translates literally as "aptitude to be a judge", however, the basic meaning is to have successfully completed a study of law at roughly a master's degree level, being finally examined by the state itself, and to have served for two years as an associate to different lawyers from each of their most popular occupations. However, to actually become a judge, besides the Befähigung zum Richteramt the expectations include outstanding results in the respective exams, which is not expected for attorneys.Defense attorneys are grouped into divisions of their local or state bar associations in which membership is mandatory.
Sentencing practices
If a defendant is convicted, the court will usually credit the period of pre-trial confinement as part of the sentence. Sentences can range from one month to life, and typically do not exceed 15 years. Defendants sentenced to life in prison can typically apply for parole after 15 years, and if the application is rejected, the defendant can re-apply after a set period no longer than two years. If the court determines that there is a "severe gravity of guilt", parole can be delayed for a non-specific period beyond 15 years.In addition to reducing an offender’s sentence, Germany’s corrections system has a form of punishment called suspended sentencing. Depending on the crime, some sentences can take away jail or prison time and replace it with probation. If a person is convicted of a crime, they can be put on a probationary sentence where they do not have to go to prison if “the person sentenced should demonstrate that being sentenced was itself sufficient warning that he will not commit any further crimes.”. Despite having to be put under “supervision of a probation officer,” the person is able to avoid the negative aspects of prison such as being “torn away from his previous life, work, and social contracts.”. Sentences of six months or less are automatically suspended by the court as well as those sentences between six months to a year unless it is “necessary for the person to serve the sentence to preserve legal order.”. After two-thirds of an inmate’s prison sentence, it is possible to have their sentence suspended. The process for having a sentence suspended after serving time is the same as applying for parole. It is even possible for offenders serving life sentences to receive a suspended sentence after serving at least fifteen years. Just like any other probation sentence, if anyone breaks their probation or commits another crime, they can have their freedom revoked and be sent back to prison..