Definition and Legal Classification of the ‘delegated judge’
The term ‘delegated judge’ holds a central position in various legal systems and jurisdictions. It refers to a judge appointed by a court or a superior body to perform specific tasks, usually within the context of a particular proceeding. The ‘delegated judge’ does not constitute an independent judicial office but refers to the transfer of individual judicial activities to a certain judicial body, usually one involved in the proceedings.
Legal Basis and Regulations
Code of Civil Procedure (ZPO)
In German civil procedure law, the delegated judge is regulated in § 361 ZPO. This provision stipulates that the court may assign specific procedural acts, especially taking of evidence, to one of its members or to another court, by way of legal assistance. If a member of the deciding court is entrusted with certain actions, they are referred to as a ‘delegated judge.’ The delegated judge acts within the scope of the mandate given and remains bound by the instructions of the transferring decision.
Code of Criminal Procedure (StPO)
The Code of Criminal Procedure also provides for the possibility of commissioning a judge to perform specific judicial acts. A typical case is the appointment for evidentiary purposes, e.g., for the questioning of witnesses or the conduct of site inspections, when the trial court is unable to perform these itself.
Areas of Responsibility of the Delegated Judge
A delegated judge typically undertakes the following tasks:
- Taking of evidence: Conducting the taking of evidence (e.g., witness examinations, inspection, expert hearings) outside the main hearing or the oral proceedings.
- Judicial assistance measures: Performing judicial official acts for other courts, particularly within the framework of cross-border legal assistance.
- Execution of urgent measures: The short-term delegation ensures that a rapid judicial decision or measure can be taken when the deciding court is unable to do so itself.
Distinction from Other Judicial Functions
The delegated judge is to be distinguished
- from the requested judge, who acts by way of legal assistance through another court,
- from the trial judge or the panel, which as a whole remains responsible for issuing the final decision,
- from the investigating judge, who acts in the investigation proceedings according to the StPO.
The delegated judge acts as an auxiliary to the trial court but remains substantively and personally independent within the scope of the assigned task.
Procedural Particularities
Binding Nature of the Mandate and Participation in the Final Decision
The delegated judge is strictly bound by the scope of the mandate and may not perform any other acts than those delegated by the transferring court or presiding judge. Upon completion of the mandate, the delegated judge submits the results to the deciding court, which determines how they will be used.
Direct involvement in the final adjudication is generally not reserved for the delegated judge—unless they are a member of the panel. The evidence taken by the delegated judge does not substitute for the personal conviction of the entire panel, but nevertheless plays a practical role, particularly in extensive, lengthy, or geographically distant examinations.
Admissibility of the Results
The results of the activities of the delegated judge—particularly from the taking of evidence—are presented in the main hearing or the oral hearing; objections to the procedure of the evidence taking are to be raised only during the final assessment by the court.
International References and Areas of Application
Comparable institutions of the delegated judge can also be found in other European and non-European legal systems, although different terms may be used (e.g., ‘juge délégué’ in French law). The functional role remains essentially the same: to relieve and support the panel by delegating judicial authority for individual procedural acts.
In the context of European legal assistance, for example under Regulation (EU) No. 1206/2001, the delegated judge regularly appears in cross-border proceedings to ensure cooperation between the courts of the member states.
Summary and Legal Significance
The ‘delegated judge’ is a procedural role primarily serving procedural economy and practical implementation of complex or geographically dispersed cases. Transferring certain acts to a judicial body serves the right to be heard and to the complete ascertainment of the facts. The role of the delegated judge adds flexibility to the proceedings while ensuring adherence to judicial independence and procedural principles.
Note: This article serves as comprehensive information within a legal encyclopedia and does not claim to be exhaustive with respect to all possible individual questions and special cases.
Frequently Asked Questions
What tasks and powers does a judge hold as a delegated judge?
A delegated judge is entrusted by the court with specific, clearly defined tasks, which are related to taking evidence or further preparation of proceedings. The main authority lies in independently conducting specific evidence gathering (such as the hearing of witnesses or experts, inspections, or other investigations). In this respect, the delegated judge does not act on their own initiative, but within the framework of a judicial order or on the basis of a judicial decision. The procedural acts performed by the delegated judge, especially transcripts and recorded evidence, are directly accessible to the trial court and are fully valid. In doing so, the delegated judge is bound by the statutory requirements regarding the taking of evidence, for example the principles of immediacy and publicity, insofar as they apply, and must ensure the procedural rights of the parties.
What differences exist between the delegated and the requested judge?
While the delegated judge is appointed within the competent court, the appointment of a requested judge occurs when evidence is to be taken or other judicial acts are to be performed outside the court’s locality—typically by other locally competent courts. The delegated judge remains a member of the panel (such as the chamber or senate), whereas the requested judge acts as an auxiliary to the requesting court, but does not exercise judicial power over the principal matter. Thus, the delegated judge is functionally more closely tied to the proceedings, serving as the extended arm of the panel in carrying out judicial tasks.
In which proceedings can a delegated judge be used?
A delegated judge can be active both in civil procedure (see § 357 ZPO) and in criminal proceedings (see § 162 StPO). Their appointment is particularly indicated for reasons of procedural economy or to relieve the trial court, when certain investigative tasks need to be carried out which do not necessarily require the participation of the entire panel. This often involves extensive witness examinations or expert assessments, as well as other measures relating to the factual presentation of the case.
What rights do the parties to the proceedings have in relation to the delegated judge?
The parties to the proceedings generally have the same rights to participate and be heard before the delegated judge as they would before the trial court. In particular, they may take part in taking evidence, ask questions, submit motions for evidence, and raise objections. The delegated judge is obliged to summon the parties properly and to inform them of their rights and obligations. Violations of these duties can result in the inadmissibility of the evidentiary proceedings or procedural disadvantages.
What significance does the evidence taken by the delegated judge have for the main proceedings?
The evidence taken by the delegated judge constitutes an essential part of the main proceedings and is generally binding on the deciding court, provided the statutory procedural rules have been observed. The result of the evidence taking is evaluated by the trial court as if it were collected by itself. However, it remains for the deciding panel to evaluate the evidence at its own discretion (§ 286 ZPO, § 261 StPO).
Can the delegated judge participate in the decision-making process?
Since the delegated judge is usually a member of the panel managing the main proceedings, they also regularly participate in the court’s final deliberations and decisions. Thus, their taking of evidence is not only a procedural basis for action, but also factors into their personal formation of conviction regarding the subject matter of the proceedings.
How is the activity of a delegated judge documented?
The activities of the delegated judge are generally documented by a judicial transcript, in which all essential procedural acts, identification of the parties, their statements, and the result of the evidence taking are recorded. The transcript must be made available to the trial court and becomes part of the case file. All parties to the proceedings may request access to the file to review the course and outcome of the delegated judge’s activities.
