Judiciary of Germany
The judiciary of Germany is the system of courts that interprets and applies the law in Germany.
The German legal system is a civil law mostly based on a comprehensive compendium of statutes, as compared to the common law systems. 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.
In Germany, the independence of the judiciary is historically older than democracy. The organisation of courts is traditionally strong, and almost all federal and state actions are subject to judicial review.
Judges follow a distinct career path. At the end of their legal education at university, all law students must pass a state examination before they can continue on to an apprenticeship that provides them with broad training in the legal profession over two years. They then must pass a second state examination that qualifies them to practice law. At that point, the individual can choose either to be a lawyer or to enter the judiciary. Judicial candidates start working at courts immediately. However, they are subjected to a probationary period of up to five years before being appointed as judges for life.
The judicial system is established and governed by part IX of the Basic Law for the Federal Republic of Germany. Article 92 of the Basic Law establishes the courts, and states that "the judicial power shall be vested in the judges; it shall be exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic Law, and by the courts of the Länder."
History
Germany used jury trials from the Middle Ages onwards, for example in the Landgericht. The jury system was implemented in the German Empire by the Gerichtsverfassungsgesetz of 27 January 1877 with the jury court consisting of 3 judges and 12 jurymen. During a state of emergency under Article 48, and about one month before the trial of Adolf Hitler February 1924 for the Beer Hall Putsch of November 1923, the Emminger Reform was passed in January 1924 abolishing juries and replacing them with the mixed system of judges and lay judges that is still used today.Law
Germany's legal system is a civil law system, whose highest source of law is the 1949 Basic Law for the Federal Republic of Germany, which sets up the modern judiciary, but the law adjudicated in court comes from the German Codes; thus, German law is primarily codal in nature. The court system adjudicates public law, that is, administrative law and criminal law, and private law. German law—especially private law—is mainly based on early Byzantine law, specifically Justinian's Code, and to a much lesser extent the Napoleonic Code.German law is not impregnated with legal positivism to the extent of Napoleonic legal systems, so Germany's judiciary is not subordinated to the legislature; the Basic Law directly invests supreme judicial power in the Constitutional Court as well as other federal courts and the courts of each Länder, and case law has greater importance, though not to the extent of common law systems.
In contrast to the adversarial system used by common law countries, the German system of criminal procedure is inquisitorial. Rather than allowing cross-examination between the defense and prosecutors, the judges conduct the majority of the trial. During a trial, the parties are expected to give all their evidence to the judges, who will then call forward and question the witnesses, after which the defense counsel and prosecutor may question the witnesses.
Courts
The primary legislation concerning court organization is the Courts Constitution Act. The courts are characterized by being specialist, regional, and hierarchically integrated at the federal level. There are five basic types of courts, plus the Federal Constitutional Court and the Länder's constitutional courts:- Ordinary courts, dealing with criminal and most civil cases
- Administrative law courts
- Tax law courts
- Labour law courts
- Social law courts
- Constitutional law courts, focusing on judicial review and constitutional interpretation
Ordinary courts are the most numerous by far. Currently there are 828 ordinary courts, 142 labour courts, 69 administrative courts, 20 tax courts, 86 social courts and 17 constitutional courts.
More recently, specialized commercial courts have been created. In January of 2018, the Chamber for International Commercial Disputes of the Landgericht Frankfurt am Main was established. There is also the Commercial Court based in Stuttgart and Mannheim specializing in major commercial and international disputes.
Ordinary courts
Trial courts in criminal matters are composed of:The appellate courts in criminal matters are composed of:
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.
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 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. They also decide certain disputes between governmental institutions, eg between a municipality and a state agency or between mayor and council of a municipality. The Federal Administrative Court is the highest administrative law court.
- Labour law courts also function on three levels and address disputes over collective bargaining agreements and working conditions. The Federal Labour Court is the highest labour law court.
- Social law courts, organized at three levels, adjudicate cases relating to the system of social insurance, which includes unemployment compensation, workers' compensation, and social security payments. They are also responsible for several other cases on social security law, like support for disabled persons or victims of crimes. The Federal Social Court is the highest social law court.
- Fiscal Courts, also called tax law courts or finance courts, hear tax-related cases and have only a two-tier structure. The Federal Fiscal Court 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 shall be checked by a particular court created for that purpose, namely, the Federal Patent Court in Munich. Court of appeals is in all cases the Federal Court of Justice of Germany.
Constitutional courts
State
Each one of the Länder has its own state constitutional court. 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.Federal
The Federal Constitutional Court 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 Karlsruheintentionally in a certain geographical distance from the other federal institutions in Berlin, 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, 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, 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.