Definition and Legal Basis of Lay Judges
Lay judges, also referred to as lay assessors or non-professional judges, are individuals who participate in the administration of justice in Germany without having a full-time judicial background. As representatives of the general public, they bring practical life and professional experience into the decision-making process. The work of lay judges is a vital element of democratically legitimized jurisprudence and serves to promote transparency, acceptance, and oversight in criminal, social, labor, and administrative court proceedings.
The deployment and duties of lay judges are regulated in the German Constitution (Art. 20 para. 2 GG) as well as in various procedural codes and special statutes, including the Courts Constitution Act (GVG), the Social Courts Act (SGG), the Labor Courts Act (ArbGG), and the Code of Administrative Court Procedure (VwGO).
Legal Status and Duties of Lay Judges
Legal Status
Pursuant to section 45 of the German Judiciary Act (DRiG), lay judges are independent organs of the administration of justice. They participate in oral hearings and in the decision-making process on an equal footing with professional judges. Within the decision-making process, their vote carries the same weight as that of professional judges.
Lay judges are subject to the same principles of independence and neutrality that apply to judges. In their decisions, they are bound only by the law and must neither receive nor follow instructions.
Duties and Participation
The duties of lay judges in particular include:
- Participation in the main hearing,
- Hearing the parties and witnesses,
- Participation in discussions and decisions on facts and legal questions within the area of their involvement,
- Taking part in judgment by participating in votes (voting rights).
In criminal trials, they serve as lay assessors, while in the social and labor courts they act as lay or non-professional judges. In each of these branches of the courts, the precise duties and competencies are determined by the relevant procedural codes.
Areas of Participation
- Criminal jurisdiction: Lay assessors participate at district and regional courts (§§ 28 et seq. GVG), primarily in criminal trials against adults.
- Labor jurisdiction: Lay judges are selected in equal numbers from representatives of employees and employers (§ 20 ArbGG) and participate in the chambers.
- Social jurisdiction: In this jurisdiction, lay judges from different social groups sit on the panels (§§ 13 et seq. SGG).
- Administrative jurisdiction: Lay judges also participate at administrative, higher administrative, and regional administrative courts (§§ 18 et seq. VwGO).
Selection, Appointment, and Oath
Requirements for the Role
As a rule, German citizens of legal age who do not have serious criminal records and enjoy full civil rights may be appointed as lay judges. Certain groups of people, such as judicial officials, active police officers, or members of parliament, are excluded by law (§ 33 GVG, § 20 SGG).
Selection Procedure
The selection and appointment of lay judges are carried out according to the provisions of the relevant codes of procedure:
- Lay assessors: The local authorities draw up lists of candidates (§ 36 GVG) from which selection committees choose the lay assessors based on statutory criteria.
- Labor and Social Courts: Lists of candidates are submitted by employers’ associations, trade unions, and other organizations, and the selection is made by a selection committee.
Term of Office and Oath
The term of office for lay judges is generally five years (§ 38 GVG, § 21 ArbGG, § 21 SGG). Reappointment is permitted once; further extensions are possible only in exceptional cases. Before taking office for the first time, lay judges must take an oath to faithfully conduct their duties. Lay judges are protected from conscription and compelled testimony during their term in office.
Rights and Duties of Lay Judges
Rights
Lay judges enjoy a number of rights as part of their role:
- Independence: Freedom of decision and consultation without outside influence,
- Compensation: Entitlement to compensation for loss of earnings, travel expenses, and costs in accordance with the Judicial Remuneration and Compensation Act (JVEG),
- Labor law protection: Statutory protection from discrimination by the employer due to the exercise of their office (§ 45 DRiG, § 26 ArbGG),
- Insurance protection: Coverage under statutory accident insurance during the exercise of their office.
Duties
Conversely, certain duties apply:
- Confidentiality: No information about deliberations or non-public proceedings may be disclosed, even after their term of office has ended (§ 43 DRiG).
- Impartiality and neutrality: Exclusion in cases of bias or personal interests.
- Attendance in hearings: Obligation to attend scheduled hearings, otherwise fines or penalties may be imposed (§ 51 DRiG).
- Participation in deliberations and decisions: Obligation to actively participate in the cases assigned to them.
Rejection, Disqualification, and Termination of Office
Grounds for Rejection
Lay judges may decline an appointment under certain circumstances, for example due to serious illness, family burdens, or professional obstacles (§ 35 GVG). Each case is reviewed individually, and the competent court decides on any application for release.
Disqualification and Removal
Lay judges may be removed from office if:
- They lack aptitude or have committed serious misconduct,
- They commit criminal offenses while in office,
- They lose their eligibility or German citizenship.
Removal may only occur by decision of the court or competent committees (§ 51 DRiG).
Termination of Office
After expiration of the regular term, the lay judge leaves office automatically. Reappointment is possible under certain conditions.
Significance and Criticism of Lay Judges
The involvement of lay judges is of great importance for the rule of law, transparency, and the social anchoring of the judiciary. Particular emphasis is placed on democratic control and the incorporation of everyday experience into judicial decisions.
Criticism includes the time commitment required, the compatibility with professional and family life, emotional strain, and the professional preparation needed for complex cases. Regular training and improvements in the selection and support process are frequently called for.
Literature and Further Sources
- German Judiciary Act (DRiG)
- Courts Constitution Act (GVG)
- Labor Courts Act (ArbGG)
- Social Courts Act (SGG)
- Code of Administrative Court Procedure (VwGO)
- Judicial Remuneration and Compensation Act (JVEG)
- Federal Ministry of Justice: Information about voluntary judicial office
Note: This article provides a comprehensive legal overview of the term “lay judge (Ehrenamtliche Richter)” and covers the essential aspects for a legal encyclopedia.
Frequently Asked Questions
What rights and obligations do lay judges have in proceedings?
In legal proceedings, lay judges basically have the same rights as professional judges. They are entitled to inspect files, may ask questions during oral hearings, submit motions to take evidence, and participate on equal terms in deliberations and votes during the decision-making process, with their vote counting just as much as that of professional judges. Pursuant to § 45 Courts Constitution Act (GVG), lay judges are also subject to the confidentiality obligation concerning deliberations and confidential information. At the same time, they are required to display complete impartiality and neutrality; conflicts of interest must be notified in good time so that possible bias can be examined. In addition, there are special participation duties, such as attending all scheduled sessions to which the judge has been duly summoned. Violations of these participation duties may be punished with fines or detention (§ 56 GVG).
How are lay judges selected and appointed?
The selection and appointment of lay judges are set out in various procedural rules and in the Courts Constitution Act. As a rule, public lists of nominees are announced, from which suitable persons—after a formal examination of their eligibility—are appointed by a selection committee and the competent courts. For various courts (e.g. criminal, labor, social, or administrative), different selection procedures apply. Criteria include, in particular, German citizenship, attainment of certain age limits, as well as the absence of relevant criminal records or conflicts of interest. Objections to the selection may be raised within statutory deadlines. The appointment is usually for a fixed term, most frequently five years.
What are the legal consequences of unexcused absence from a hearing?
If a lay judge fails to attend a hearing without sufficient excuse or leaves such a session without permission, this may result in a fine being imposed pursuant to § 56 GVG. If the court deems the behavior a culpable breach of duty, the fine may be converted into detention if it is not paid. These sanctions are intended to ensure the proper functioning of the administration of justice. In addition, repeated breaches of duty may lead to dismissal from the office of lay judge, for which the court must issue a corresponding release decision. Besides court sanctions, the employer of the affected individual may also impose employment-related consequences in the event of breaches of duty during working hours.
In which cases can a lay judge be challenged for bias?
An application to challenge a lay judge for fear of bias is permissible if there are objective circumstances that could give rise to doubts about their impartiality. These may include family, friendship, or business relationships with parties, witnesses, or other participants, or previous statements or conduct indicating prejudice. Such a motion must usually be filed before the main hearing begins, at the latest immediately after the reason for challenge becomes known (§ 31 ZPO, § 24 StPO). The challenge is decided by the court without the participation of the challenged lay judge. The concrete requirements are set out in the relevant codes of procedure.
What compensation and reimbursement do lay judges receive?
Lay judges do not receive remuneration in the usual sense, but an allowance and reimbursement of their necessary expenses in accordance with the Judicial Remuneration and Compensation Act (JVEG). The compensation includes, among other things, an attendance fee per day, reimbursement of travel expenses, compensation for loss of earnings, and, if applicable, subsistence and accommodation costs. The amounts are fixed by law and depend on the duration of service and the individual financial circumstances of the lay judge. Applications for higher compensation must be substantiated and supported by evidence. Reimbursement is usually processed by the respective court cashier’s office.
Under what circumstances can a lay judge be released from office?
Release from office is possible when statutory reasons apply, in particular, inability to exercise the office for health reasons, upon application due to unreasonable personal or professional burdens, in the event of breach of official duties, or by court order in connection with disciplinary or criminal accusations. The application for release can be made by the judge themselves or by the court and must regularly be submitted in writing stating the relevant grounds. The release procedure is regulated independently by each branch of jurisdiction; legal remedies against release are only available in narrowly defined circumstances.
What special protection against dismissal applies to lay judges in employment relationships?
During their term of office, lay judges enjoy special protection against dismissal pursuant to section 15 of the Protection Against Dismissal Act (KSchG) and in some cases further special statutes, such as for works council members. The protection begins with entry into the list of candidates and only ends after the term of office has expired. Termination of the employment relationship due to activity as a lay judge is not permitted during this period, unless there are grounds for extraordinary termination not connected to the judicial office. The legislator wants to safeguard the independence of lay judges and ensure their unrestricted participation in the administration of justice.
