Definition and Legal Classification of the Schwurgericht
Das Schwurgericht is a special chamber within the German criminal judiciary, characterized by its specific composition and jurisdiction over certain criminal offenses. It is not an independent court, but a special criminal division of the district court (Landgericht), primarily responsible for particularly serious violent crimes and homicide offenses.
Legal Foundations of the Schwurgericht
The legal basis of the Schwurgericht is found in the Courts Constitution Act (GVG) and the German Code of Criminal Procedure (StPO).
Courts Constitution Act (GVG)
According to § 74 (2) sentence 1 GVG, the Schwurgericht, as a large criminal chamber at the district court (Landgericht), is responsible for the adjudication and decision of certain serious offenses. The appointment and composition are regulated by §§ 76 et seq. GVG.
Code of Criminal Procedure (StPO)
The Code of Criminal Procedure regulates procedural processes, responsibilities, and appeal mechanisms that must be observed in Schwurgericht proceedings. In particular, §§ 335 et seq. StPO contain special procedural provisions for handling major offenses before the Schwurgericht.
Historical Background and Development
The Schwurgericht was originally introduced in the 19th century as part of popular participation in the administration of justice. With the German Code of Criminal Procedure coming into force in 1877, lay judges (Schöffen) and professional judges were jointly involved in proceedings for the gravest offenses. However, the original Schwurgericht, modeled after the classic ‘jury trial’ and composed exclusively of jurors, has not existed since the 1924 criminal law reform. Today, the Schwurgericht is a collegiate court consisting of professional judges and lay judges.
Composition of the Schwurgericht
The Schwurgericht is prescribed by law as a large criminal chamber with a special composition.
Number of Members and Composition
According to § 76 (2) GVG, the Schwurgericht in the main hearing generally consists of the presiding judge, two additional professional judges, and two lay judges. As a rule, five members have voting rights, although the court may also sit with two professional judges and two lay judges in certain cases.
Role of Lay Judges
The honorary judges (Schöffen) participate equally with the professional judges in the decision making. Their votes carry the same weight as those of the professional judges. The participation of lay judges ensures that societal values are included in the adjudication process.
Jurisdiction of the Schwurgericht
The jurisdiction of the Schwurgericht is legally determined in the Courts Constitution Act, in particular § 74 (2) GVG.
Subject-Matter Jurisdiction
The Schwurgericht has exclusive jurisdiction over crimes against life, namely for murder (§ 211 StGB), manslaughter (§ 212 StGB), and offenses related to these crimes. Additional offenses that are committed in conjunction with these, provided there is a life-threatening assault or particularly severe acts of violence, may also be dealt with jointly.
Local Jurisdiction
The competent court, as a rule, is the district court (Landgericht) in whose district the offense was committed, or if applicable, the court where the accused resides or stays.
Functional Jurisdiction
The Schwurgericht assumes jurisdiction in the first instance as soon as murder or manslaughter is charged. In cases of less severe offenses (e.g., negligent homicide), jurisdiction may lie with the criminal chamber without Schwurgericht.
Proceedings Before the Schwurgericht
Proceedings before the Schwurgericht follow the general rules of the StPO, but exhibit some particularities.
Filing of Charges and Opening Order
If there is sufficient suspicion, the public prosecutor’s office files an indictment with the district court competent for the location of the offense. The competent criminal chamber examines whether the main proceedings before the Schwurgericht shall be opened. After the opening order is made, a date for the main hearing is set.
Main Hearing
The main hearing is conducted in the presence of the professional judges and lay judges. The proceedings consist of the investigation and discussion of the facts and law, the taking of evidence, closing arguments, and the final deliberation on the verdict.
Judgment and Legal Remedies
The judgment is rendered by a simple majority and, for certain convictions (e.g., murder, § 211 StGB), by a two-thirds majority. Each member of the Schwurgericht has an equal vote. An appeal (revision) to the Federal Court of Justice may be filed against the judgment.
Particularities and Distinction from Other Chambers
The Schwurgericht must be distinguished from other criminal chambers.
Difference from the Small and Large Criminal Chambers
While the Schwurgericht is specifically responsible for serious violent crimes, smaller and general criminal chambers handle other criminal matters with different focuses and composition, often without the participation of lay judges in appellate hearings.
State Security and Economic Crime Chambers
There are special chambers at the district court for offenses against external or internal security (state protection offenses) as well as complex economic crime matters; these operate with their own procedural rules.
Significance of the Schwurgericht in the German Legal System
The Schwurgericht represents a central institution for particularly serious criminal cases. The involvement of lay judges aims to provide democratic oversight of the administration of justice. The special procedural rules serve to protect the rights of the accused as well as the general public’s interest in a thorough investigation of the gravest crimes.
International Comparisons and Distinctions
Unlike in some other legal systems (e.g., France, USA, Switzerland), where there are still pure jury or lay courts, in Germany, even in Schwurgericht proceedings, the facts are not adjudicated solely by lay persons, but always with the participation of several professional judges.
Literature and Further Sources
- Courts Constitution Act (GVG)
- Code of Criminal Procedure (StPO)
- Criminal Code (StGB)
- Case Law and Commentary on § 74 GVG
Conclusion: The Schwurgericht is an important chamber for deciding the gravest violent crimes and homicides in German criminal law. Its structural and procedural particularities serve to ensure a careful, fair, and socially embedded criminal procedure in the most serious cases.
Frequently Asked Questions
Who decides on the question of guilt in Schwurgericht proceedings?
In Schwurgericht proceedings, the court consists of three professional judges and two lay judges (§ 76 (2) GVG). These five members together form the so-called Schwurgericht. All members of the Schwurgericht, each with an equal vote, decide on the question of guilt—that is, whether the accused committed the alleged offense and is therefore guilty of a crime. Contrary to popular belief, lay judges have the same voting rights as professional judges in deliberations. The decision is made according to the majority principle as provided in § 263 (1) StPO. In the event of a tie, the presiding judge’s vote decides. However, a conviction always requires a qualified majority: For a conviction of murder (§ 211 StGB) or other particularly severe crimes, a two-thirds majority of votes is required (§ 263 (2) StPO).
In which cases is the Schwurgericht competent?
The Schwurgericht, under § 74 (2) Courts Constitution Act (GVG), is responsible for certain particularly serious crimes, especially homicide offenses. These include murder (§ 211 StGB), manslaughter (§ 212 StGB), bodily injury resulting in death (§ 227 StGB), as well as other offenses where the act resulted at least directly in the death of a person. Attempted homicide offenses also fall under the jurisdiction of the Schwurgericht. In addition, the Schwurgericht is assigned criminal cases that are directly related to homicide offenses, provided that both subject-matter and local jurisdiction are established. The Schwurgericht is a special criminal chamber of the district court and does not sit on a permanent basis, but is convened as needed for each case.
Can joint plaintiffs (Nebenkläger) participate in Schwurgericht proceedings and what rights do they have?
Joint plaintiffs (Nebenkläger) can participate in Schwurgericht proceedings, particularly relatives of the victim and directly affected individuals (§§ 395 et seq. StPO). This is often the case in homicide offenses, as close relatives—such as spouses, children, or parents—are regularly entitled to join the proceedings as joint plaintiffs. Joint plaintiffs have the right to be personally present throughout the entire proceedings, to file their own motions, to question witnesses, and to file appeals against the judgment. They may also be represented by their own lawyer, who also receives access to the files. Thus, the rights of joint plaintiffs in Schwurgericht proceedings are particularly extensive, enabling victims or their relatives to actively participate and protect their interests.
How does the procedure before the Schwurgericht differ from other criminal chambers?
The proceedings before the Schwurgericht differ in several respects. The composition is already specific: The Schwurgericht consists of three professional judges and two lay judges, whereas other large criminal chambers are usually staffed with two professional judges. Schwurgericht proceedings are typically more comprehensive and complex, with main hearings frequently lasting several days or even weeks. The law provides expanded rights for parties to the process in Schwurgericht cases, as well as special requirements for conducting the main hearing, especially relating to the taking of evidence and reasoning of the judgment. In addition, hearings are almost always public but may be closed to protect witnesses or victims. Appeals against Schwurgericht judgments follow the general rules; in particular, revision to the Federal Court of Justice is permitted (§ 333 StPO).
What special rules apply to appeals and revisions in Schwurgericht proceedings?
The defendant and other entitled persons may file a revision, but not an appeal, against Schwurgericht judgments (§ 312 StPO), just as in other criminal proceedings. The revision must be filed with the Federal Court of Justice and is limited to legal errors and procedural defects; new facts and evidence are not considered in the revision instance. Due to the seriousness of the offenses tried and the associated risk of severe penalties, appellate review has particular importance. The revision only examines whether the trial and the evaluation of evidence and grounds for judgment were legally correct. If an error is found, the judgment may be set aside and the case remitted to a different Schwurgericht chamber for retrial.
What happens if a lay judge is unable to continue during Schwurgericht proceedings?
If a lay judge is unable to continue during Schwurgericht proceedings, for example due to illness or other reasons, § 192 (2) GVG allows the use of an alternate lay judge (Ersatzschöffe). Alternate lay judges are drawn for each proceeding at the outset and participate in the hearing to ensure continuity. If it is not possible to replace the absent judge by an alternate, and the legally prescribed composition can no longer be ensured, the case must be retried from the beginning before a newly constituted chamber (with new judges and lay judges) (§ 229 StPO). Such cases are rare but lead to considerable delays in the proceedings.
Are there special regulations for victim protection in Schwurgericht proceedings?
Yes, Schwurgericht proceedings provide numerous special regulations for the protection of victims. In addition to the possibility of actively participating as joint plaintiffs (§§ 395 et seq. StPO), particularly vulnerable witnesses—especially close relatives of the victim—can be heard via video testimony or in closed sessions under § 247a StPO. Furthermore, there is a right to psychosocial support for the proceedings under § 406g StPO, to best assist victims or their relatives throughout the process. Witnesses and joint plaintiffs can object to making their statements in public, so the presiding judge can make case-by-case decisions regarding the taking of evidence and media presence to ensure the personal protection of those involved. The publication of judgment contents can also be restricted to safeguard the personal rights of victims and their families.
