Lay judges in Germany
I. Criminal jurisdiction (assessors and youth assessors)
Volunteer lay judges in criminal cases are denominated in German 'Schoeffen' or, if the person before the court is a young person (up to 17 years) or a juvenile (18 - 20 years) the denomination is „Jugendschoeffen“.
What are called proposal lists are drawn up every 5 years by a local authority for lay judges in criminal cases and by the Youth Support Committee for youth lay judges, based on which a Lay Judge Selection Committee at the Local Court selects the lay judges for Juvenile and adult courts. Any person of German nationality, who on the day their duties are due to begin is at least 25 and not more than 69 years old, may be a volunteer lay judge. Specific criteria (being in a profession or job connected with the law, having a criminal conviction, being a declared bankrupt etc.) debar a person from serving as Magistrate. The person selected must accept the position.
Lay judges sit in criminal cases in the courts of first instance i.e. in local (Amtsgericht) and Regional (Landgericht) courts and in appeal proceedings at the Regional court. In each event there are 2 lay judges sitting; in addition, depending on which court it is, there are 1, 2 or 3 professional judges.
II. Administrative jurisdiction
All districts (Landkreis) and unitary authorities (towns or cities) draw up every five years a proposals list for the selection of lay judges in the respective jurisdictional district. From these lists the Selection Committee then selects the required number of lay judges for a five-year term of office.
Lay judges serve in the courts of first instance in administrative court proceedings. The question as to whether lay judges also work in Regional administrative courts and/or administrative courts of justice, is not decided nationally (federally) but - in accordance with § 9 section 3 of the appropriate order (VwGO) - is decided at the Federal State (Land) level. There are no lay judges serving in courts of second instance in the federal states of Bavaria, Baden-Wurttemberg, Saxony, Thuringia and the Saarland.
III. Labour or employment jurisdiction
One representative of employees and one representative of employers are always involved in labour (employment) tribunal court proceedings.
Volunteer lay judges are appointed by the relevant ministries from the proposals lists which have been submitted by trade unions and employers' confederations. To serve in labour tribunals a lay judge must be at least 25 years old, lay judges serving in the Regional labour tribunal must at least have passed their 30th birthday and have served for at least five years as a lay judge in a court of first instance. Volunteer lay judges in the Federal labour tribunal court must be at least 35 years old, have particular knowledge and experience in the field of labour (employment) law and of the world of work and have served for at least five years as volunteer lay judge in a court dealing with employment matters and also have been engaged for a considerable period of time in Germany as employee or employer.
Volunteer lay judges are active in all the instances of the labour tribunal system. Since at the level of the labour tribunal and at the Regional labour tribunal there is in each case only the presiding judge as a professional judge, the volunteer lay judges have in two instances a majority vis-à-vis the professional judge.
IV. Trade matter judges
At the regional level there are special chambers for trade matters to pass judgement in disputes between merchants. In these chambers merchants sit as volunteer lay judges, they are known as "trade matter judges".
Any person of German nationality who is over 30 years old and is a merchant (businessman), a member of a board, managing director or an authorised signatory of a business can be appointed as trade matter judge. Trade matter judges are appointed for a five-year term on proposals made by the Chamber of Commerce and Industry.
The Committee in the Regional Court allocates volunteer lay judges to the individual courts for trade matters. The President of a court then allocates the internal appointment of volunteer lay judges to sit on specific days. A Trade Matter Court is comprised of 1 professional judge and 2 lay trade matter judges.
V. Agricultural courts
In addition to professional judges, representatives from the agricultural sector also sit as volunteer lay judges in disputes in the agricultural legislation sphere.
Volunteer lay judges are proposed by the Central Association of German Agriculture and appointed for a period of five years by the President at the Higher Regional Court. Only persons of German nationality who have been or are working in agriculture in the jurisdictional district in a self-employed capacity either as a main or subsidiary profession may be included in the proposals lists.
Which volunteer lay judge is needed to sit in courts for agricultural matters is decided in accordance with a list compiled by the President of the court. Volunteer lay judges sit in courts for agricultural matters in all the instances in agricultural court proceedings. An agricultural court at local level is generally composed of one judge of the local court as chairperson and two volunteer lay judges. Panels of judges in the Higher Regional Courts and in the Federal Supreme Court are composed of three professional judges and two volunteer lay judges.
VI. Social welfare jurisdiction
Every local appeal tribunal court (social welfare) consists of a chairperson who is a professional judge and two volunteer lay assessors. These volunteer lay judges must be employers or socially insured persons, employees or self-employed persons, handicapped persons, statutory health insurance physician (NHS) or psychotherapist.
Volunteer lay judges are appointed by the Higher State Social Court on the basis of proposals lists. In this context, in particular when there are questions concerning welfare (health, care, pension) insurance and unemployment insurance, trade unions and employers' confederations are able to make proposals.
Volunteer lay judges are allocated to the appropriate panel of judges in accordance with the respective field of law. Only socially-insured persons and employers may sit in tribunals or courts for matters concerning social insurance and job creation where there is equal representation of both categories. In specialised courts for questions of victim compensation law and severely handicapped persons' law, volunteer lay judges are involved, one of whom must be familiar with the Compensation Act or with participation of handicapped people. The second volunteer lay judge is appointed from persons entitled to support/pension, disabled persons according to § 2 SGB IX (Federal Social Welfare Code) or socially-insured persons. Volunteer lay judges in specialised courts for questions of statutory health insurance physicians law emanate from persons in health insurance organisations and statutory health insurance ('NHS') physicians / dentists or psychotherapists.
VII. Tax disputes jurisdiction
Volunteer lay tax dispute judges do not need to be tax experts, however, they need to be very familiar with practice in everyday business life. They are involved in panels of judges at tax dispute courts, to be precise, in every situation two volunteer lay judges sit with three full-time salaried judges.
Volunteer lay judges must be of German nationality, have passed their 30th birthday and have either their place of residence or a business or professional address or practice within the jurisdictional district. They are selected by a selection committee from a proposals list which has been drawn up by the President of the tax disputes tribunal. Prior to drawing up this list, the occupational groupings (trade unions, Chambers of Trade and Industry, Chambers of Crafts, representative bodies of independent professions, Farmers' Associations etc.) should be given an opportunity to express themselves.
The order in which volunteer lay judges are allocated to individual court sitting dates is determined annually prior to the beginning of the financial year by the presiding committee in the tax disputes tribunal by drawing up a list.
VIII. Other types of court – brief overview
There are other courts or tribunals in which volunteer lay judges sit in the capacity as representatives of persons affected, such as for example Military service tribunals for disciplinary jurisdiction proceedings against forces personnel or professional association tribunals which proceed against behaviour not compatible with the reputation or good name of the profession.
IX. Fundamental position in law of volunteer lay judges
In criminal jurisdiction in Germany there are more than 60,000 lay judges (Schoeffen) involved, in all spheres of jurisdiction there are in all well over 100,000 volunteer lay judges. In every situation they are appointed or selected for a period or term of five years. As far as their rights and responsibilities are concerned, they are in an equal situation to professional judges, unless in a specific situation an exception has been specifically provided for in law. They have an equal voting weight, they are guaranteed the same independence as other judges. Volunteer lay judges do not receive a salary or stipend. Volunteer lay judges receive compensation for their time and for actual expenses incurred.
X. Arbitrators or assessors (Justice of the Peace)
Duties of arbitrators or mediators (in the Federal State of Saxony known as Friedensrichter – justice of the peace) are specified in the respective Regional law of the Federal State. They are involved in pre-hearing and out-of-court settlements in particular legal disputes. Thus for example in certain criminal cases(known as private accusation offences) prior to the court hearing, a conciliation meeting must be held. The Office of Conciliation may also become involved in order to clarify disputes over property or other ownership law. The arbitrators or conciliators then carry out conciliation procedures, with the aim of reaching a settlement in order to conciliate differences existing between the parties concerned.