German Judicial System

German Judicial System

JUDICIAL SYSTEM

1. Administration.

Courts in Germany deal with both civil and
criminal matters. There are four levels of courts
that deal with criminal matters: 1)local courts
(Amtsgerichte). These court are competent in all
criminal matters where a punishment of not more
than 3 years imprisonment can be imposed;
2)regional courts (Landgerichte). Both
Amtsgerichte and Landgerichte are courts of first
instance. The regional courts, furthermore, may
serve as a court of general appeal (Berufung),
along with the higher regional courts; 3)higher
regional courts (Oberlandesgerichte) or courts of
appeal for both the Amtsgericht and the
Landgericht; they may also hear cases at first
instance ; 4)the Federal High Court
(Bundesgerichtshof). The Federal High Court hears
appeals on questions of law; it is divided into
various panels each occupied by 5 professional
judges; 5)the Federal Constitutional Court is the
highest court in the land and considers only cases
involving violations of constitutional law. It
serves both as a court of first instance and a
court of appeal.(Heinz, 1992; 39) A case may be
heard for the first time in any of the first three
courts, depending upon the type of offense. It
may be taken to one or two more on appeal or
revision on a legal point. German lawyers may appeal through a
“Revision” which involves an appeal on a point of
law or error in proceedings or through a
“Berufung” which involves an appeal on a point of
fact.

A separate court for juveniles has
jurisdiction for those persons between 14 and 18
years of age. Young adults between the ages of 18
and 21 may be dealt with in Juvenile Court and may
also be institutionalized in juvenile facilities
up to the age of 25. Juvenile courts use the same
penal codes but employ different sanctions and
procedures than those used for adults.
Jugendgerichtsgesetz or JGG is the Juvenile Court
Act which determines the court’s handling of
juveniles and young adults.

2. Judges.

At the district court level, a single
professional judge will preside. It is also
possible for a professional judge and 2 lay judges
to preside. The votes of lay judges carry the
same weight as that of professional judges. They
determine guilt or innocence as well as the
sentence. While a unanimous decision is not
required, a two-thirds majority of judges, both
lay and professional, is necessary for a decision
against the accused. Lay judges are chosen by the
lay judge election committee and serve for a
period of 4 years. Lots are drawn to determine
the days on which lay judges will preside (Heinz,
1992; 41; Gerichtsverfassungsgesetz or GVG, s 40).
In the Regional Courts, a chamber consisting
of 3 professional judges and 2 lay judges hands
down decisions concerning serious crimes at first
instance (GVG 76) or may rule on appeals against
judgments of the judicial panel at the District
Court (Sch”ffengericht). The Small Criminal
Chamber (Kleine Strafkammer), consisting of one
professional judge and two lay judges, makes the
determination in cases involving hearing an appeal
of a decision made by the professional judge. In their
appellate function the Criminal
Panels of the Higher Regional Courts sit as panels
of three professional judges. If sitting as a
court of first instance, the panel sits as a panel
of 5 professional judges (GVG, s 122). The
Criminal Panels of the Federal Supreme Court are
composed of 5 professional judges (GVG, s 139).

* Number of judges. In 1991 there were 13,371
jugdges in state courts and 281 in federal
service. These courts are classified in the
Statistical Yearbook as ordinary courts dealing
with criminal and civil matters, but excluding
special courts dealing with social matters,
financial matters, professional and disciplinary
matters, administrative matters, work arbitration
matters. Of these 13, 371 judges, 2,599 (19.4%) female judges
sat in state courts and 20 (7.1%) on federal court
benches. All judges are civil servants and must
therefore be German citizens. No information is
available on ethnic background. (Statistisches
Jahrbuch 1992 fr die Bundesrepublik Deutschland,
Statistisches Bundesamt, Wisbaden, 1992; Table
15.2; p. 391.)

* Appointment, training and qualifications. After
studying law, completing an 18-month internship in
various branches of the legal field such as public
administration, courts, prosecutor’s office, or a
law firm, and passing the second state exam for
juridical studies, a lawyer may apply for
selection as a judge to the Electoral Committee
for Judges made up of parliamentarian
representatives. Article 98 of the Federal Constitution (GG, s
98) provides for the appointment and removal of
judges. Subsection 3 provides for the individual
states (L„nder) to pass laws concerning the
appointment of judges, while subsection 4 provides
that the states may allow for the appointment of
judges to be made in a cooperative effort between
the “Richterwahlausschuá” and the state’s Minister
of Justice. Appointment to the Federal
Constitutional Court (“Bundesverfassungsgericht”)
is spelled out in the Law of the Federal
Constitutional Court (BVerfGG or “Gesetz über das
Bundesverfassungsgericht”). For appointment to the
Federal Constitutional Court, judges must have at
least 3 years experience in a high court and must
submit their names for consideration. They may
not hold political office in state or federal
government. There are two panels of judges for
this court, each consisting of eight judges.
About half of the appointments to the panels are
made by the Bundestag’s 12-member electoral
committee. Eight votes of this electoral committee
are needed to make the appointment to the Court.
The other half of the judges are elected by
members of the Bundesrat. A two-thirds vote is
necessary to win an appointment. Judges serve a
12-year term on the Federal Constitutional Court,
unless they reach the mandatory retirement age of
68. Judges may not be reelected. (BVerfGG s 2,
4-7).

3. Special Courts.

The only other court which deals with
criminal matters is the juvenile court, which
maintains jurisdiction over individuals between
the ages of 14 and 21. Immigration offenses are
handled in regional courts that deal with criminal
matters. Article 101 of the Federal Constitution
prohibits the existence of special tribunals.
Courts dealing with specific problems can only be
created by law.

4. Procedure.

Cases may be filtered out of the system with
an informal punishment order whereby the judge
allows the defendant to make payments rather than
face trial. All other cases, even those in which
the defendant has made a confession and entered a
guilty plea, will be moved to the main hearing for
trial. Plea-bargaining, entering a guilty plea in
exchange for a lighter sentence, exists on a very
limited basis in Germany.

Note: this work was completed in 1993

Resources

See Also

  • Criminal Justice
  • Legal System
  • Criminology
  • German Criminal Justice System

Further Reading

  • Eser, Albin, “A Century of Penal Legislation in Germany” in Old Ways and New Needs in
    Criminal Legislation, Eser, Albin and Thormundsson (Eds.), Max-Planck-Institut: Freiburg, 1989, pp. 26.
  • “Federal Republic of Germany, The”, International Criminal Police Review, ICPO-INTERPOL, July-August 1987, Number 407, pp. 9-12.
  • Heinz, Volker G., “Germany” in EC Legal Systems: An Introductory Guide, by Sheridan, Maurice and Cameron, James (eds.), Butterworth and Co., Ltd.: London, 1992, pp. Germany iii – Germany 60.
  • International Criminal Police Review, “The Federal Republic of Germany”, Number 407, July-August 1987, Saint-Cloud, France; 9-12.

Leave a Comment