Term and Legal Classification of the Substitute Lay Judge
Der Substitute lay judge is a person provided for in the German criminal justice system who can be deployed in criminal proceedings as an alternate lay judge within the system of lay judiciary. In contrast to the principal lay judge, who is regularly called to attend sessions, the substitute lay judge assumes their function only when the regular participation of the principal lay judges is not possible. The legal foundations and prerequisites for the deployment of substitute lay judges are regulated in the Courts Constitution Act (GVG) as well as in further procedural rules. Substitute lay judges are an essential component in ensuring the lawful judge and the proper composition of criminal panels in Germany.
Historical Development of the Substitute Lay Judge Office
The institution of the substitute lay judge was introduced with the reform of the German Code of Criminal Procedure in the 19th century to secure the staffing of lay courts. The need arose from the necessity of maintaining the functionality of the criminal judiciary in cases when a principal lay judge was absent due to illness or vacation and to avoid procedural delays. Originally, the term was used more frequently in the postwar period and in connection with shortages in the staffing of lay judges.
Legal Foundations of the Substitute Lay Judge
Position in the Courts Constitution Act (GVG)
The legal classification of substitute lay judges is derived in particular from the Courts Constitution Act (GVG). According to § 47 GVG, in addition to the principal lay judges, alternate lay judges—also referred to as substitute lay judges—are appointed. These regulations govern both the term of office and the appointment.
Differences from Principal and Alternate Lay Judges
Substitute lay judges are often used synonymously with alternate lay judges. In a narrower sense, ‘substitute lay judge’ refers to the lay judge who steps in at short notice in individual cases for prevented principal or alternate lay judges. Unlike professional judges, substitute lay judges—like all lay judges—participate in the sessions on an honorary basis.
Selection and Appointment Procedure
Requirements
The general requirements for the lay judge office (§§ 31-36 GVG) apply to the selection of substitute lay judges, particularly regarding age, nationality, suitability, and lack of criminal record. Substitute lay judges are selected from the same lists of candidates from which the principal lay judges are also drawn.
Appointment
The appointment is carried out by the lay judge selection committee of the respective municipality or court district. The number of substitute lay judges depends on the need, with the court determining the required quantity based on expected absences.
Deployment and Areas of Responsibility of the Substitute Lay Judge
Function During Court Proceedings
Substitute lay judges assume their function if, due to the absence of principal or alternate lay judges, the required number of assessors is no longer present. They fully perform the role of a lay judge during court proceedings, including participation in decision-making and voting.
Legal Status and Participatory Rights
In concrete proceedings, substitute lay judges do not differ from other members of the court. They have the same voting rights and are equally involved in reaching decisions. While participating, they are subject to the same obligations of confidentiality and responsibilities.
Participation in Judgments and Procedural Actions
Substitute lay judges participate in the entire main hearing as soon as they step in for an absent lay judge. Case law places importance on the substitute lay judge following the entire main hearing from the beginning, or that proper introduction to the proceedings is provided, in order to ensure the immediacy of the taking of evidence.
Rights and Obligations of the Substitute Lay Judge
Rights
- Right to Participate: Equal participation in decision-making
- Right to Question: Ability to ask questions during the taking of evidence
- Right to Vote: Full voting rights in all decisions and judgments during the session
Obligations
- Duty of Confidentiality: Confidentiality regarding the proceedings and the results of the vote
- Duty to Attend: Obligation to be present at assigned sessions, if summoned
- Impartiality: Obligation to perform official duties objectively and neutrally
Distinction from Other Court Participants and Terminology
Difference from Other Alternate Lay Judges
While colloquially ‘substitute lay judges’ and ‘alternate lay judges’ are often equated, the term in the narrower sense refers to substitute persons who do not belong to the regular pool of lay judges and are only called in when needed.
No Independent Office
Unlike principal lay judges, substitute lay judges do not have an independent office with their own area of responsibility but rather serve as a reserve to ensure that the court is properly staffed.
Overview of Statutory Provisions
Relevant Provisions
- §§ 31-36 GVG: Requirements for the lay judge office
- § 47 GVG: Appointment and number of alternate lay judges
- Code of Criminal Procedure (StPO): Course of the main hearing and rights of participation
Special Provisions
In particularly exceptional individual cases, the court can add additional persons to the pool of substitute lay judges during an ongoing term of office to ensure the functionality of the court.
Importance of the Substitute Lay Judge Office for Criminal Justice
Substitute lay judges are an indispensable part of the regular judiciary in Germany. They help to guarantee the continuous and rule-of-law staffing of the lay judge bench, thereby ensuring the right to a lawful judge as per Art. 101 Para. 1 GG. Their use avoids procedural delays and ensures that court decisions are always made with the full participation of the judiciary.
Literature and Further Sources
- Courts Constitution Act (GVG)
- Code of Criminal Procedure (StPO)
- Federal Ministry of Justice: Information on the Lay Judge Office
- Commentary literature on the GVG and on lay judge participation
Note: The term ‘Hilfsschöffe’ is increasingly being replaced by the term ‘Ersatzschöffe’ in official language; however, both terms are found in case law and literature, sometimes also used synonymously.
Frequently Asked Questions
What tasks and powers does a substitute lay judge have in criminal proceedings?
A substitute lay judge is an honorary judge appointed in German criminal proceedings to temporarily replace an absent principal lay judge if necessary. The tasks and powers of the substitute lay judge are generally on par with those of the principal lay judge in court proceedings (§ 54 GVG). In particular, while summoned, a substitute lay judge exercises all rights and duties of a lay judge during the main hearing. This includes hearing the parties, asking questions, participating in deliberations, and, above all, contributing to the final decision with voting rights equal to those of a professional judge. However, the role of the substitute lay judge usually ends when the need for substitution ceases, so no further participatory rights exist beyond the respective session. The obligations of impartiality and confidentiality continue throughout and after the exercise of office.
How is a substitute lay judge designated for a session?
The selection of a substitute lay judge is made from a pre-determined substitute lay judge list, confirmed by the court’s presidium. This list is compiled according to § 54 GVG. If a principal lay judge is unable to serve—due to illness, extended absence, or bias—the next substitute lay judge on the list is called for the respective session. The summons is issued by the court administration in advance of the hearing. A substitute cannot be added once a main hearing has already started, as the continuous presence of lay judges is essential for the validity of the judgment.
Does a substitute lay judge have to meet the same requirements as a principal lay judge?
Yes, the legal requirements for the office of substitute lay judge largely correspond to those of a principal lay judge under §§ 31-33 GVG. These include, in particular, German citizenship, a minimum age of 25 years, residence in the district court area, and possession of full civil rights. In addition, there must be no grounds for exclusion, such as ongoing investigations against the person, relevant criminal records, exceeding of age limits, or work in certain professions (such as judge, public prosecutor, police officer). Independence and impartiality are also mandatory for substitute lay judges.
Can a substitute lay judge be added during an ongoing hearing?
Adding a substitute lay judge during a main hearing that has already begun is not permitted in German criminal proceedings. The continuity of judicial participation in the main hearing—which includes both lay judges and substitute lay judges—is a mandatory prerequisite for the judgment to be based on the complete and personal observation of the taking of evidence by the deciding persons (§ 226 StPO). A substitute lay judge can thus only be assigned at the start of a session, if it is established that a principal lay judge is prevented. After the beginning, no substitute can be added; in the event of absence, the hearing must generally be repeated.
What legal duties and liabilities do substitute lay judges have?
Substitute lay judges are subject to the same legal duties as other lay judges. They are obliged to exercise their office diligently, impartially, and confidentially (§ 45 DRiG). If substitute lay judges intentionally or grossly negligently breach their official duties, they can, in very rare exceptional cases, be held liable from a civil law perspective (§ 839 BGB). Criminal consequences may arise, for example, from breaches of official secrets (§ 353b StGB) or by accepting bribes (§ 332 StGB). Dismissal during the term of office is only possible under strict conditions, such as subsequently discovered bias or unreliability (§ 51 GVG).
How are substitute lay judges compensated and released from work?
Compensation for substitute lay judges is governed by the Judicial Remuneration and Compensation Act (JVEG). They receive a flat fee for lost time and, if applicable, compensation for loss of earnings. For the period in which they are serving the court, there is a legal entitlement to leave from work (§ 45 DRiG, § 54 JVEG). The employer may not terminate or disadvantage the employment because of the lay judge duties. Travel and accommodation costs are also reimbursed. The compensation is paid regardless of whether the substitute lay judge is actually used for the hearing; it is granted upon being summoned to be on standby.
Can substitute lay judges object to their appointment or summons?
Persons summoned as substitute lay judges can only object to their appointment within strict statutory limits. They may raise objections, particularly for the reasons listed in § 35 GVG (e.g., illness, incapacity for work, urgent business or family reasons). A corresponding application for exemption must be substantiated with evidence and submitted to the competent court, which decides on admissibility at its discretion. An appeal may be lodged against a rejection, which is decided by the regional court (§ 37 GVG). There is no general right to refuse the office.
