Definition and general significance of the composition of courts
In legal terminology, the “composition of courts” refers to the personnel makeup of a court when deciding a case. The legal requirements regarding how many and which professional or lay judges (non-professional judges) may or must participate in a certain type of proceeding are a fundamental part of constitutional and procedural law. Proper composition of courts is a prerequisite for a proper legal procedure and the rule of law, and it ensures compliance with the right to the lawful judge according to Art. 101 para. 1 sentence 2 of the Basic Law (GG).
Statutory bases of court composition
Constitutional foundations
The composition of courts in Germany is constitutionally protected by the principle of the lawful judge (Art. 101 para. 1 sentence 2 GG). This states that no one may be deprived of their lawful judge, meaning that both the jurisdiction and the composition of the court are determined in advance by general rules, and not determined by the individual case. Arbitrary changes to the composition are prohibited.
Provisions under ordinary law
Rules regarding the composition of courts under statutory law are particularly set forth in the codes of procedure:
- Courts Constitution Act (GVG): Regulates the basic structure and composition of ordinary courts.
- Code of Civil Procedure (ZPO): Contains special provisions regarding composition in civil proceedings.
- Code of Criminal Procedure (StPO): Regulates composition in criminal proceedings.
- Code of Administrative Court Procedure (VwGO), Fiscal Court Code (FGO), Social Court Act (SGG), Labour Court Act (ArbGG): The respective rules for the specialized courts.
Composition in the various branches of jurisdiction
Ordinary courts
Local Court
The Local Court is usually composed of a single judge (§ 22 GVG). In some cases, for example in extensive criminal matters, the Schöffengericht (lay judge court) may decide, consisting of one judge and two lay judges (§ 28 GVG).
Regional Court
At the Regional Court, civil cases are generally decided by a civil chamber, which usually consists of three professional judges (§ 75 GVG). However, in straightforward cases, a single judge may decide if the chamber delegates the case to a member (§ 348 ZPO). In criminal cases, composition depends on the seriousness and type of indictment, often involving two to three professional judges and sometimes lay judges (§ 76 GVG).
Higher Regional Court and Federal Court of Justice
The composition of the Higher Regional Courts and the Federal Court of Justice is determined by §§ 122, 139 GVG and their respective business distribution plans. Panels of three or five professional judges generally decide cases here.
Administrative, Social, Labour and Fiscal Courts
In the specialized courts (administrative, social, labor, and fiscal jurisdiction), the law usually provides for panels (chambers or senates) composed of professional and lay judges. The exact number and composition are determined by the respective code of procedure (e.g., § 15 VwGO, § 16 SGG, § 13 ArbGG, § 10 FGO).
Principle of the lawful judge and business distribution plan
Lawful Judge
The principle of the lawful judge requires that both the jurisdiction and composition of the court are determined in advance through business distribution plans, not ad hoc. This prevents improper reasons from influencing composition. Any violation constitutes an absolute ground for appeal or nullity (§ 547 No. 1 ZPO, § 338 No. 1 StPO).
Business distribution plan
Each court sets a business distribution plan at the start of the business year. The plan determinatively establishes which judges are members of which panels, how they are composed, and how cases are allocated. Amendments during the business year are fundamentally allowed only for equalizing workloads or due to special circumstances.
Objection to court composition and remedies
If a proceeding is decided contrary to legal requirements regarding composition, an objection can be raised. In criminal proceedings, this is done by way of the so-called composition objection (§ 222b StPO). In civil matters, the error can be asserted through appeals or actions for nullity. Improper composition usually results in the annulment of the judgment.
Composition by professional and lay judges
Professional judges
They are full-time court officials and form the core of the panels. Their number within a panel is determined by statutory provisions and the business distribution plan.
Lay judges
In many proceedings, lay judges participate, especially as Schöffen in criminal matters or as labor court lay judges. Their involvement serves the democratic legitimacy of judicial decisions and introduces societal life experience. Selection is made according to statutory criteria and lists.
Consequences of violations against composition rules
Improper composition of the court has serious consequences. It affects the right to be heard (Art. 103 GG), can render a judgment invalid, and is designated as an absolute ground for appeal or nullity in numerous procedural codes.
References and further statutory provisions
- Basic Law for the Federal Republic of Germany (GG), especially Art. 101 para. 1 sentence 2
- Courts Constitution Act (GVG)
- Code of Civil Procedure (ZPO)
- Code of Criminal Procedure (StPO)
- Code of Administrative Court Procedure (VwGO)
- Social Court Act (SGG)
- Labour Court Act (ArbGG)
- Fiscal Court Code (FGO)
Summary
The composition of courts is a central legal institution that ensures due process and compliance with the principle of the lawful judge. The statutory regulations and the business distribution plan provide transparency and protection against manipulation. Mistakes in composition have severe consequences and can lead to annulment of judicial decisions. The proper composition of the judicial panel forms a fundamental basis of German jurisprudence.
Frequently asked questions
Who decides the composition of a court in a specific proceeding?
The decision regarding the specific composition of a court in a particular proceeding is governed by statutory and business plan rules. The decisive factors are the relevant statutory provisions, especially § 21e Courts Constitution Act (GVG) for judges and § 39 Judges Act (RiG) at state level, as well as the relevant codes of procedure (e.g., Code of Civil Procedure, Code of Criminal Procedure). The composition decision is made by the panel set out in the court’s business distribution plan (e.g., chamber, senate), with this plan being established by the court presidium annually in advance for the entire year. As a rule, the composition of the deciding panel is definitively determined upon receipt of the claim or initiation of proceedings. Any deviations, such as if individual judges are prevented, are also governed by the business distribution plan. The business distribution is binding for the courts and aims to prevent arbitrary selection (“forum shopping”), in accordance with the principle of the lawful judge from Art. 101 para. 1 sentence 2 Basic Law (GG).
What legal requirements exist regarding transparency and publication of court composition?
The composition of courts is subject to the principle of transparency, derived from the principle of the lawful judge in Art. 101 para. 1 sentence 2 GG. Central legal requirements are the timely and publicly accessible determination of the business distribution, which is usually available for inspection at the court itself or published on its website. It must be designed so that for every individual case it is clear and verifiable from the outset which panel and which judges are designated to decide. According to the established case law of the Federal Constitutional Court, changes to the business distribution plan—and thus to court composition—after the fact or in reaction to particular cases are only permissible under narrow conditions, such as unforeseeable and compelling substantive reasons (e.g., illness or extended absence of a judge). Any change must be carefully documented and justified to preclude manipulation.
What is meant by the principle of the lawful judge in court composition?
The principle of the lawful judge is the central constitutional principle in court composition. It requires that, before commencement of any legal dispute, it is determined which judges, chambers, or senates are responsible for deciding the case. This guarantees impartiality, objectivity, and freedom from manipulation in the allocation of judicial responsibilities. The principle requires that objective criteria, specified in advance, be used for the business distribution; later case-by-case decisions regarding composition are fundamentally excluded. Exceptions are only permitted if unforeseen changes occur, such as illness, parental leave, or other official hindrances, which must be foreseen and regulated in the business distribution plan. A breach of this principle can lead to annulment of a judicial decision.
What is the impact of improper court composition on proceedings?
Improper court composition constitutes an absolute ground for appeal or review and generally leads to the annulment of the judicial decision, as it breaches the right to the lawful judge pursuant to Art. 101 para. 1 sentence 2 GG. This applies regardless of whether the error results from incorrect application of the business distribution plan, an impermissible alteration of the composition, or the failure to duly announce the appointments. A party may raise a so-called composition objection and challenge the correctness of the composition; however, this objection must generally be lodged within one week of the announcement of the composition, pursuant to § 222b GVG. If the error is established, the case is referred back to the competent, properly composed court. A decision issued in substance cannot remain in effect.
What effect do changes of judge and substitution arrangements have on court composition?
Changes of judge, for example due to transfer, retirement, parental leave, or sudden incapacity, must be regulated by the pre-established business distribution plan. In this context, the role of substitute, supplementary, or auxiliary judges may become relevant; specific substitution arrangements must also be bindingly documented in the business distribution plan. Every change and substitution must be traceable and verifiable in order to guarantee transparency and legal certainty regarding the composition. Unforeseen personnel changes during proceedings do not entitle the court to arbitrarily deviate from the business distribution; instead, the substitution mechanisms provided therein apply. Such changes must be meticulously recorded and communicated to all parties involved in the proceedings. Any violation, such as unauthorized changes in composition, can lead to illegality.
In which cases may parties challenge the composition of the court?
Parties may challenge the composition of a court, in particular by means of a composition objection under § 222b GVG in civil proceedings, or the corresponding objection under § 338 No. 1 StPO in criminal proceedings. Such objection must as a rule be made within one week after announcement of the judicial composition, otherwise the right to object is forfeited. A challenge may be brought if the business distribution has been incorrectly applied, the composition does not comply with the business plan, or an unlawful replacement has taken place. A successful objection results in the court, as improperly composed, lacking authority to decide. The decision is then annulled and the proceedings must recommence before a properly composed court.
What are the differences regarding court composition between the various German branches of jurisdiction?
The basic principles of court composition according to the principle of the lawful judge apply uniformly to all branches of jurisdiction (ordinary, administrative, social, labor, and fiscal courts). However, there are procedural differences in detail; for example, in some branches (e.g., labor courts, social courts), lay judges participate in the verdict, which must be considered in planning composition. The number of appellate or review judges may also vary. In ordinary courts, usually three professional judges or a single judge are competent, whereas in administrative courts both single judges and chambers of several professional judges and, where applicable, lay judges may decide. The specific legal provisions and business distribution plans nevertheless always guarantee the constitutionally protected right to the lawful judge.
