Judiciary of Germany

In criminal and administrative law, Germany uses an inquisitorial system where the judges are actively involved in investigating the facts of the case, as compared to an adversarial system where the role of the judge is primarily that of an impartial referee between the prosecutor or plaintiff and the defendant or defense counsel.

The organisation of courts is traditionally strong, and almost all federal and state actions are subject to judicial review.

The judicial system is established and governed by part IX of the Basic Law for the Federal Republic of Germany.

[3][4] During a state of emergency under Article 48 (of the Weimar Constitution), and about one month before the trial of Adolf Hitler February 1924 for the Beer Hall Putsch of November 1923, the Emminger Reform (a Notverordnung, or emergency decree) was passed in January 1924 abolishing juries and replacing them with the mixed system of judges and lay judges that is still used today.

[14] Specialized courts deal with five distinct subject areas: administrative, labour, social, fiscal, and patent law.

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 sole task of the court is judicial review, and it may declare any federal or state legislation unconstitutional, thus rendering them ineffective.

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.

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.

[17] 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).

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.

[26] The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" (Vertrauenspersonen, German: [fɛɐ̯ˈtʁaʊ̯ənspɛʁˌzoːnən] ⓘ) who are also elected by two thirds of the municipal council.

[28] 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.

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

[30] 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.

[31] Despite having to be put under "supervision of a probation officer", the person is able to avoid the negative aspects of prison such as being "torn away from his previous life, work, and social contracts".

[25] It has been argued that personal acquaintance, political affiliation and occupation have all historically played an important, if publicly unacknowledged, role in the selection procedure.