Lay judge
Encyclopedia
A lay judge is a person assisting a judge
in a trial. Lay judges are used in some civil law
jurisdictions, such as Germany
, Sweden
and Finland
. Japan
began implementing a new lay judge system in 2009.
Lay judges are appointed, and often require some legal instruction. Lay judges are usually used when the country does not have juries
.
The Kingdom of Hanover
(Germany
) was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary mixed court.
is a single professional judge, and serious political crime
s which are tried before a panel of professional judges, in the judiciary of Germany
all charges are tried before mixed tribunals on which lay judges () sit side by side with professional judges. Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception. In most cases lay judges do not directly examine documents before the court or have access to the case file.
Selection of lay judges has been described as a "highly political and discriminatory process." Lay judges are selected by a selection committee from lists that are passed by the municipal councils () with a two-thirds majority of attending local councilors. Given this high threshold, in practice these lists of lay judges are in practice first compiled by municipal bureaucracies and the political parties in Germany, and it would appear that selection favors those known personally by the selection committee. The selection committee consists of a judge from the Amtsgericht
, a representative of the state government, and ten "trusted citizens" () who are also elected by two-thirds of the municipal legislature, and selects from the list of candidates the number needed to staff the various tribunals. The practice is similar to the practice in East Germany. Applications can be made to become a lay judge by interested citizens but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertizing, and participation in fine penalty allocation.
Lay judges have historically been predominately middle-aged men from middle class socio-economic backgrounds, largely due to a selection procedure in which personal acquaintance, political affiliation and occupation all play an important role. A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service
employees, compared to only about 12% being blue-collar worker
s. A study published in 2009 put this number at 27% civil service employees versus 8% of the general population, and noted the relatively high numbers of housewive
s, the relatively low number of private sector
employees, and relative old age of lay judges.
was dissolved in 1806 and the German Confederation
was established in 1815 following the Napoleonic Wars
. The 1849 Frankfurt Constitution of the Frankfurt Assembly
during the failed Revolutions of 1848
called for jury trials for "the more serious crimes and all political offenses", but was never implemented. The Kingdom of Hanover
during the Confederation was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary (lay judge or mixed court). On 1 July 1867 the German Confederation became the North German Confederation
after the Austro-Prussian War
, and on 10 December 1870 the North German Confederation Reichstag renamed the Confederation as the German Empire
. An 1873 draft on criminal procedure produced by the Prussia
n Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate. The Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the (jury court) would consist of three judges and twelve jurymen, alongside the mixed court, with the jury court reserved for serious crimes except political crimes. The Weimar Republic
was created in 1919 when German Empire Chancellor Friedrich Ebert
signed the Weimar Constitution
into law on 11 August 1919. Lay judges were in use in the Bavaria
n People's Court
of November 1918 to May 1924, and the infamous Nazi
People's Court.
The jury
was abolished by the Emminger Reform of 4 January 1924, ostensibly as an emergency, money-saving measure in a period of acute financial stringency, during an Article 48
state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr
. The emergency decree abolished the jury in the and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name. Between 1948 and 1950 in American-occupied Germany and the Federal Republic of Germany
, Bavaria
returned to the jury trial as it had existed before the emergency decrees, but they were again abolished by the 1950 Unification Act () for the Federal Republic. In 1974 the number of lay judges in the was further reduced from 6 to 2 and in 1993 the number of professional judges was reduced from 3 to 2.
Lay judges are appointed by local municipal councils, in practice by negatiations between political parties, from volunteers.
s) serve as part of the bench in many types of cases, including all criminal cases but virtually no civil cases. The entire bench, lay judges and professional judge(s) alike, are responsible for the entire verdict of the court. In first-tier courts, the lay judges are always in the majority, whereas the professional judges are in the majority in the second-tier courts.
Lay judges are usually politicians from the local authority from which they are appointed, appointed in proportion to political party representation at the last local elections. They are appointed by local political assemblies for a period of service at a certain court. The municipal assemblies
appoint lay judges for the district courts and the county council
appoint lay judges for the county administrative courts and the appellate courts. Typically, a lay judge will serve one day per month in court during his or her tenure. The use of lay judges in Sweden goes back to Medieval times.
that in a particular case they were both retired police officers and one was a former head of the Criminal Investigation Department.
Lay judges in the district and regional courts were traditionally appointed by the assembly of the relevant socio-political community. In 1991, Serbia completely centralized the Kosovar judges' appointment and dismissal.
. After a 1958 reform they were elected for 2 years at general meetings of colleagues at their place of work or residence, or at higher levels appointed by the soviet. The incidents of lay judges overruling professional judges was rare, and was officially reported in only 1 case by the late 1960s. Unlike the juries of the United States, lay judges were not selected from panels that are cross-sections of the entire population, but selected by institutions in each district.
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
in a trial. Lay judges are used in some civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdictions, such as Germany
Judiciary of Germany
The Judiciary of Germany is based on the concept of the , in which the exercise of governmental power is constrained by law. Federal law delineates the structure of the judiciary, but the administration of most courts is regulated by the states of Germany which are responsible for the lower levels...
, Sweden
Judicial system of Sweden
The judicial system of Sweden consists of the law of Sweden and a number of government agencies tasked with upholding security and rule of law within the country...
and Finland
Judicial system of Finland
Under the Constitution of Finland, everyone is entitled to have their case heard by a court or an authority appropriately and without undue delay. This is achieved through the judicial system of Finland.The Finnish judicial system consists of...
. Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
began implementing a new lay judge system in 2009.
Lay judges are appointed, and often require some legal instruction. Lay judges are usually used when the country does not have juries
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
.
The Kingdom of Hanover
Kingdom of Hanover
The Kingdom of Hanover was established in October 1814 by the Congress of Vienna, with the restoration of George III to his Hanoverian territories after the Napoleonic era. It succeeded the former Electorate of Brunswick-Lüneburg , and joined with 38 other sovereign states in the German...
(Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
) was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary mixed court.
Germany
Except for most crimes for which the trier of factTrier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
is a single professional judge, and serious political crime
Political crime
In criminology, a political crime is an offence involving overt acts or omissions , which prejudice the interests of the state, its government or the political system...
s which are tried before a panel of professional judges, in the judiciary of Germany
Judiciary of Germany
The Judiciary of Germany is based on the concept of the , in which the exercise of governmental power is constrained by law. Federal law delineates the structure of the judiciary, but the administration of most courts is regulated by the states of Germany which are responsible for the lower levels...
all charges are tried before mixed tribunals on which lay judges () sit side by side with professional judges. Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception. In most cases lay judges do not directly examine documents before the court or have access to the case file.
Selection of lay judges has been described as a "highly political and discriminatory process." Lay judges are selected by a selection committee from lists that are passed by the municipal councils () with a two-thirds majority of attending local councilors. Given this high threshold, in practice these lists of lay judges are in practice first compiled by municipal bureaucracies and the political parties in Germany, and it would appear that selection favors those known personally by the selection committee. The selection committee consists of a judge from the Amtsgericht
Amtsgericht
Amtsgericht is German for Local District Court, situated in Germany in almost every larger capital of a rural district.It mainly acts in Civil and Criminal law affairs. It forms the lowest level of the so-called ordinary jurisdiction of the German judiciary , which is responsible for most criminal...
, a representative of the state government, and ten "trusted citizens" () who are also elected by two-thirds of the municipal legislature, and selects from the list of candidates the number needed to staff the various tribunals. The practice is similar to the practice in East Germany. Applications can be made to become a lay judge by interested citizens but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertizing, and participation in fine penalty allocation.
Lay judges have historically been predominately middle-aged men from middle class socio-economic backgrounds, largely due to a selection procedure in which personal acquaintance, political affiliation and occupation all play an important role. A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service
Civil service
The term civil service has two distinct meanings:* A branch of governmental service in which individuals are employed on the basis of professional merit as proven by competitive examinations....
employees, compared to only about 12% being blue-collar worker
Blue-collar worker
A blue-collar worker is a member of the working class who performs manual labor. Blue-collar work may involve skilled or unskilled, manufacturing, mining, construction, mechanical, maintenance, technical installation and many other types of physical work...
s. A study published in 2009 put this number at 27% civil service employees versus 8% of the general population, and noted the relatively high numbers of housewive
Housewife
Housewife is a term used to describe a married woman with household responsibilities who is not employed outside the home. Merriam Webster describes a housewife as a married woman who is in charge of her household...
s, the relatively low number of private sector
Private sector
In economics, the private sector is that part of the economy, sometimes referred to as the citizen sector, which is run by private individuals or groups, usually as a means of enterprise for profit, and is not controlled by the state...
employees, and relative old age of lay judges.
History
Lay judges have been utilized in Germany throughout her early history and the middle ages. The Holy Roman EmpireHoly Roman Empire
The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes...
was dissolved in 1806 and the German Confederation
German Confederation
The German Confederation was the loose association of Central European states created by the Congress of Vienna in 1815 to coordinate the economies of separate German-speaking countries. It acted as a buffer between the powerful states of Austria and Prussia...
was established in 1815 following the Napoleonic Wars
Napoleonic Wars
The Napoleonic Wars were a series of wars declared against Napoleon's French Empire by opposing coalitions that ran from 1803 to 1815. As a continuation of the wars sparked by the French Revolution of 1789, they revolutionised European armies and played out on an unprecedented scale, mainly due to...
. The 1849 Frankfurt Constitution of the Frankfurt Assembly
Frankfurt Parliament
The Frankfurt Assembly was the first freely elected parliament for all of Germany. Session was held from May 18, 1848 to May 31, 1849 in the Paulskirche at Frankfurt am Main...
during the failed Revolutions of 1848
Revolutions of 1848 in the German states
The Revolutions of 1848 in the German states, also called the March Revolution – part of the Revolutions of 1848 that broke out in many countries of Europe – were a series of loosely coordinated protests and rebellions in the states of the German Confederation, including the Austrian Empire...
called for jury trials for "the more serious crimes and all political offenses", but was never implemented. The Kingdom of Hanover
Kingdom of Hanover
The Kingdom of Hanover was established in October 1814 by the Congress of Vienna, with the restoration of George III to his Hanoverian territories after the Napoleonic era. It succeeded the former Electorate of Brunswick-Lüneburg , and joined with 38 other sovereign states in the German...
during the Confederation was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary (lay judge or mixed court). On 1 July 1867 the German Confederation became the North German Confederation
North German Confederation
The North German Confederation 1866–71, was a federation of 22 independent states of northern Germany. It was formed by a constitution accepted by the member states in 1867 and controlled military and foreign policy. It included the new Reichstag, a parliament elected by universal manhood...
after the Austro-Prussian War
Austro-Prussian War
The Austro-Prussian War was a war fought in 1866 between the German Confederation under the leadership of the Austrian Empire and its German allies on one side and the Kingdom of Prussia with its German allies and Italy on the...
, and on 10 December 1870 the North German Confederation Reichstag renamed the Confederation as the German Empire
German Empire
The German Empire refers to Germany during the "Second Reich" period from the unification of Germany and proclamation of Wilhelm I as German Emperor on 18 January 1871, to 1918, when it became a federal republic after defeat in World War I and the abdication of the Emperor, Wilhelm II.The German...
. An 1873 draft on criminal procedure produced by the Prussia
Prussia
Prussia was a German kingdom and historic state originating out of the Duchy of Prussia and the Margraviate of Brandenburg. For centuries, the House of Hohenzollern ruled Prussia, successfully expanding its size by way of an unusually well-organized and effective army. Prussia shaped the history...
n Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate. The Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the (jury court) would consist of three judges and twelve jurymen, alongside the mixed court, with the jury court reserved for serious crimes except political crimes. The Weimar Republic
Weimar Republic
The Weimar Republic is the name given by historians to the parliamentary republic established in 1919 in Germany to replace the imperial form of government...
was created in 1919 when German Empire Chancellor Friedrich Ebert
Friedrich Ebert
Friedrich Ebert was a German politician of the Social Democratic Party of Germany .When Ebert was elected as the leader of the SPD after the death of August Bebel, the party members of the SPD were deeply divided because of the party's support for World War I. Ebert supported the Burgfrieden and...
signed the Weimar Constitution
Weimar constitution
The Constitution of the German Reich , usually known as the Weimar Constitution was the constitution that governed Germany during the Weimar Republic...
into law on 11 August 1919. Lay judges were in use in the Bavaria
Bavaria
Bavaria, formally the Free State of Bavaria is a state of Germany, located in the southeast of Germany. With an area of , it is the largest state by area, forming almost 20% of the total land area of Germany...
n People's Court
People's Court (Bavaria)
The People's Courts of Bavaria were special courts established by Kurt Eisner during the German Revolution in November 1918 and part of the Ordnungszelle that lasted until May 1924 after handing out more than 31,000 sentences...
of November 1918 to May 1924, and the infamous Nazi
Nazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...
People's Court.
The jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
was abolished by the Emminger Reform of 4 January 1924, ostensibly as an emergency, money-saving measure in a period of acute financial stringency, during an Article 48
Article 48 (Weimar Constitution)
Article 48 of the constitution of the Weimar Republic of Germany allowed the President, under certain circumstances, to take emergency measures without the prior consent of the Reichstag...
state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr
Occupation of the Ruhr
The Occupation of the Ruhr between 1923 and 1925, by troops from France and Belgium, was a response to the failure of the German Weimar Republic under Chancellor Cuno to pay reparations in the aftermath of World War I.-Background:...
. The emergency decree abolished the jury in the and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name. Between 1948 and 1950 in American-occupied Germany and the Federal Republic of Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
, Bavaria
Bavaria
Bavaria, formally the Free State of Bavaria is a state of Germany, located in the southeast of Germany. With an area of , it is the largest state by area, forming almost 20% of the total land area of Germany...
returned to the jury trial as it had existed before the emergency decrees, but they were again abolished by the 1950 Unification Act () for the Federal Republic. In 1974 the number of lay judges in the was further reduced from 6 to 2 and in 1993 the number of professional judges was reduced from 3 to 2.
Finland
In Finland, three lay judges are called in into serious or complicated cases in district courts, to accompany a professional, legally trained judge. The aim is to introduce "common sense of justice" into the process. Simpler cases are handled by one or three professional judges, and all Appeals Court, Supreme Court and administrative court judges are necessarily professional. The professional judge is the chairman of the panel, but otherwise the judges have equal rights.Lay judges are appointed by local municipal councils, in practice by negatiations between political parties, from volunteers.
Sweden
In first- and second-tier Swedish courts, both in the general and the administrative hierarchy, lay judges (nämndemän, sometimes also called lay assessorLay assessor
Lay assessors are used by the government of the United Kingdom to evaluate the quality of service provided by government agencies to the public and citizens of the United Kingdom....
s) serve as part of the bench in many types of cases, including all criminal cases but virtually no civil cases. The entire bench, lay judges and professional judge(s) alike, are responsible for the entire verdict of the court. In first-tier courts, the lay judges are always in the majority, whereas the professional judges are in the majority in the second-tier courts.
Lay judges are usually politicians from the local authority from which they are appointed, appointed in proportion to political party representation at the last local elections. They are appointed by local political assemblies for a period of service at a certain court. The municipal assemblies
Municipal assembly (Sweden)
A municipal assembly is the decision-making body governing each of the 290 municipalities of Sweden. Though the Swedish Local Government Act uses the term "municipal assembly" in the English translation of the Act, "municipal council" and even "city council" are used as well, even in official...
appoint lay judges for the district courts and the county council
County Councils of Sweden
A county council, or landsting, is an elected assembly of a county in Sweden. A county council is a political entity, elected by the county electorate and typically its main responsibilities lie within the public health care system. In each county there is also a county administrative board which...
appoint lay judges for the county administrative courts and the appellate courts. Typically, a lay judge will serve one day per month in court during his or her tenure. The use of lay judges in Sweden goes back to Medieval times.
Yugoslavia
Lay judges were in use in the Federal Republic of Yugoslavia, including the Autonomous Province of Kosovo and Metohija. Yugoslav trial courts consisted of 1 judge and 2 lay judges or 2 judges and 3 lay judges. Yugoslav law did not specify the qualifications (or disqualifications), and it was noted in the report by United Nations Special Rapporteur Elisabeth RehnElisabeth Rehn
Märta Elisabeth Rehn is a former MP of the Swedish People's Party and the first female Minister of Defence in Finland. In the 1994 presidential elections she was narrowly defeated by Martti Ahtisaari.Elisabeth Rehn spent her childhood in Mäntsälä, where her father worked as a community medical...
that in a particular case they were both retired police officers and one was a former head of the Criminal Investigation Department.
Lay judges in the district and regional courts were traditionally appointed by the assembly of the relevant socio-political community. In 1991, Serbia completely centralized the Kosovar judges' appointment and dismissal.
Soviet Union
Lay judges were in use in the Soviet UnionSoviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
. After a 1958 reform they were elected for 2 years at general meetings of colleagues at their place of work or residence, or at higher levels appointed by the soviet. The incidents of lay judges overruling professional judges was rare, and was officially reported in only 1 case by the late 1960s. Unlike the juries of the United States, lay judges were not selected from panels that are cross-sections of the entire population, but selected by institutions in each district.