Judiciary of Germany

Trial courts in criminal matters are composed of:[4]

The appellate courts in criminal matters are composed of:[5]

For a comparison of the relative activity of the ordinary courts, in 1969 there were 468,273 criminal cases in Germany, and 388,619 or 83% of these were held in the Amtsgericht composed of a single judge.[6]

Specialized courts deal with five distinct subject areas: administrative, labour, social, fiscal, and patent law. Like the ordinary courts, they are organized hierarchically with the state court systems under a federal appeals court.

• Administrative law courts (Verwaltungsgerichte) consist of local administrative courts, higher administrative courts, and the Federal Administrative Court. In these courts, individuals can have wrongful administrative acts overturned. For instance, many lawsuits have been brought in administrative courts by citizens against the government concerning the location and safety standards of nuclear power plants. The Federal Administrative Court (Bundesverwaltungsgericht) is the highest administrative law court.
• Labour law courts (Arbeitsgerichte) also function on three levels and address disputes over collective bargaining agreements and working conditions. The Federal Labour Court (Bundesarbeitsgericht) is the highest labour law court.
• Social law courts (Sozialgerichte), organized at three levels, adjudicate cases relating to the system of social insurance, which includes unemployment compensation, workers' compensation, and social security payments. The Federal Social Court (Bundessozialgericht) is the highest social law court.
• Fiscal Courts (Finanzgerichte), also called tax law courts or finance courts, hear tax-related cases and have only a two-tier structure. The Federal Fiscal Court (Bundesfinanzhof) is the highest tax law court and hears appeals against the decisions of the Fiscal Courts.
• The Federal Patent Court hears certain intellectual property cases on patents, utility rights and trademarks. In patent, utility rights and trademark matters there is a bifurcation of judiciary responsibilities in Germany between the Federal Patent Court and the various German Regional Courts. This bifurcated court system has a long tradition in Germany and is based on the notion that decisions of the Deutsches Patent- und Markenamt (German Patent and Trademark Office) shall be checked by a particular court created for that purpose, namely, the Federal Patent Court in Munich.[7] Court of appeals is in all cases the (ordinary) Federal Court of Justice of Germany.

Each one of the Länder has its own state constitutional court (see e.g. the Constitutional Court of the State of Berlin or the Constitutional Court of Saxony). These courts are administratively independent and financially autonomous from any other government body. For instance, a state constitutional court can write its own budget and hire or fire employees, powers that represent a degree of independence unique in the government structure. The courts of each state are also directly authorized by the Basic Law for the Federal Republic.

The Federal Constitutional Court (Bundesverfassungsgericht, or BVerfG) is the supreme constitutional court established by the constitution or Basic Law of Germany. Since its inception with the beginning of the Federal Republic of Germany, the court has been located in the city of Karlsruhe—intentionally in a certain geographical distance from the other federal institutions in Berlin (earlier in Bonn), Munich, and Frankfurt.

The sole task of the court is judicial review, and it may declare any federal or state legislation unconstitutional, thus rendering them ineffective. In this respect, it is similar to other supreme courts with judicial review powers, like the Supreme Court of the United States; yet the Court possesses a number of additional powers, and is regarded as among the most interventionist and powerful national courts in the world. Unlike other supreme courts, the constitutional court is not an integral stage of the judicial or appeals process (aside from in cases concerning constitutional or public international law), and does not serve as a regular appellate court from lower courts or the Federal Supreme Courts on any violation of federal laws.

The court's jurisdiction is focused on constitutional issues and the compliance of all governmental institution with the constitution. Constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz (per the "eternity clause"), those being the principles of human dignity, unalienable human rights, democracy, republicanism, social responsibility, federalism and separation of powers.

The court's practice of enormous constitutional control frequency on the one hand, and the continuity in judicial restraint and political revision on the other hand, have created a unique defender of the Grundgesetz since World War II and given it a valuable role in Germany's modern democracy.

The federal courts are administered by the federal government; all the other courts belong to a state and are administered by it. The independence of the judiciary that is laid down in the federal constitution (article 97 para. 1) only refers to the judicial decision-making process of any individual judge, not to the judicial power as a whole. In line with this, the courts are administrative bodies subordinate to the respective department of justice, special rules only applying to the judicial decision-making process and the status of the judges.

All professional judges are members of a common corps in that they are recruited through a common process and their career is governed largely by federal law.[8] However, most judges are state (Länder) civil servants and follow state rules on legal education, appointment, and promotion.[9]

As a rule, each decision on the initial employment, vesting with lifetime tenure or promotion of a judge is taken by the department of justice. Yet in some of the states there is some kind of a parliamentary body that needs to be heard or even has a say in some of the decisions on careers of individual judges (Richterwahlausschuss). The mostly decisive influence of the administration on the career of judges is exceptional in continental Europe, where mostly bodies of judges, elected by and within the judiciary take this kind of decision (e.g., France: conseil superieur de la magistrature, Italy: consiglio superiore della magistratura). By some it is regarded as a threat to judicial independence that with a view to their personal career judges might be inclined to specially regard possible political effects of their decisions or may choose to support a political party.

Federal judges are picked in an in camera procedure by a body composed of a Minister of the federal state, federal MPs and ministers of the states (article 95 para. 2 of the federal constitution). Candidates do not have to be professional judges, but must be lawyers. There are neither public hearings, nor would the identity of any candidate even be disclosed to the public. Judicial members of the federal constitutional court are elected in turns by the federal chambers (article 94 of the federal constitution). This decision requiring a large majority, it usually follows a political compromise. Public discussion about candidates is very unusual.

Lay judges (Schöffen) are ordinary members of the public selected for this role by a special committee, at the suggestion of a municipal council, for a five-year term.[10] Lay judges must be German citizens who have neither been convicted of nor are under investigation for any serious crime.[11] In addition, certain groups of individuals shall not be chosen as lay judges, such as people under the age of 25 or over the age of 69, or individuals working in the court system in a professional capacity (such as lawyers and judges).[12] In addition, individuals over the age of 65 may refuse to serve, as may, for instance, members of federal or state legislatures, doctors, nurses, and those who have served as lay judges in the preceding term.[13] Applications to become lay judges can be made by interested citizens and local governments will typically encourage applications before a new term begins.[14] Welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are sometimes called upon to nominate candidates.[15]

Except for most crimes for which the trier of fact is a single professional judge and serious political crimes which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit alongside professional judges.[16] 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.[16] In most cases, lay judges do not have access to the case file.[15]

The lay judges needed to staff the various tribunals are selected by a selection committee from lists that are passed by the municipal councils (Gemeinderat) with a two-thirds majority of attending local councillors.[17][18] Given the high threshold for inclusion on the municipal council lists, in practice these lists are first compiled by municipal bureaucracies and the political parties in Germany,[17][18] but some municipal councils rely on registers of residents and generate names randomly.[18] The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" (Vertrauenspersonen) who are also elected by two thirds of the municipal council.[17][18]

Lay judges have historically been predominantly middle-aged men from middle-class backgrounds;[18][19] more recently, the share of male and female judges was about the same.[20] 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% from blue-collar backgrounds.[21] A study published in 2009 put the proportions at 27% civil service employees versus 8% of the general population and noted the relatively high numbers of housewives, the relatively low number of private sector employees, and the relative old age of lay judges.[15]

Public prosecutors, who earn as much as judges, are nonetheless simple ordinary servants lacking the independence of the Bench.

It is to be noted that the switching between prosecutorial office and the bench is not only accepted but encouraged so as to allow for the greatest amount of experience.

A lawyer can only qualify as a defense attorney if they fulfill/possess the so-called Befähigung zum Richteramt.[22] This translates literally as "aptitude to be a judge"; however, the basic meaning is to have successfully completed a study of law at roughly a master's degree level, being finally examined by the state itself (Staatsexamen), and to have served for two years as an associate to different lawyers from each of their most popular occupations (attorney, judge, administrative official, etc.; this is called the Referendariat). However, to actually become a judge, besides the Befähigung zum Richteramt the expectations include outstanding results in the respective exams, which is not expected for attorneys (but, roughly, is expected for prosecutors and administrative officials).

Defense attorneys are grouped into divisions of their local or state bar associations[22] in which membership is mandatory.