What is the idea behind German courts having both professional judges and lay judges?

Question

In this wiki, it is mentioned that in trial courts there are both professional judges and lay judges involved. What is the basis behind this set up?

Answer 1

Lay Judges?

The lay judges in Germany are called Schöffen. I will refer to them as such in the following because just calling them lay judges as a German feels kind of wrong, as they carry the full power of the court.

Tracing the origin...

The origin of the Schöffe goes back to the high medieval time, when a Schöffe, Schöppe or Schöpfe was a person tasked with judging and executing law on the lowest level.

Before the Schöffen, all men of a region had to convene to make judgments. As a member of those, the word appears in 8th century. Under Charlemagne, the law was changed from all men to a group of 7, and Schöffen was the name applied to that group. The same edict also made them crown officers. They were to assist the judge (who could be a noble) by answering direct questions, for example by determining guilt.

This institution then branched. Over time, in England this institution (traveling in the baggage of a certain William the Bastard) they would become the jurors.

In Germany, the path was somewhat different. In the free cities, Schöffengerichte would appear in the high medieval time, going totally without a judge and staffed just with (wealthy) laymen that handled the whole law. However, when the 15th century came around, the common law was started to be replaced by Roman Law and recorded other laws, so pretty much a shift to written laws. In the wake, many Schöffenkammern were fully replaced by studied judges. For example, the Reichskammergericht was established in 1495 and only allowed people that had studied law to judge or even speak on behalf of a party.

By the time of the neighboring French Revolution and Napoleon and the total disruption of the Roman Law tradition he brought in his wake, Schöffen as laymen giving judgments on their own were phased out but for the absolute lowest layers, such as the resolution of cases in villages.

Then... Germany... took quite a few decades to re-invent itself between Napoleon's defeat in 1814 and the founding of the German Empire in 1871. First as a loose alliance with self-proclaimed enlightened rulers, then as a tighter alliance under Prussian hegemony, and finally as the German Empire under Prussian hegemony. With those re-inventions of themselves came sweeping re-constructions of the legal body over and over again, and with each step nobility was robbed of some influence.

In effect, by the late 19th century, Germany finally had formed its own interpretation that was based in part on the French Code Civil - or rather Code Napoléon, bits and pieces of Roman Law and canonized laws from the Holy Roman Empire, the various legal codes from the lower layers that made up the German Empire and over that a very Prussian onlook, but in general, it was meant to be enlightened.

In this environment, the Schöffen (and jurors) were meant as a means to limit the nobility's influence on court judgments and in part to bring a pragmatic non-jurist's view on problematic cases into the courts.

Origin of the modern Schöffen: The Weimar Republic!

Between 1879 and 1924 technically Jurors also existed in the Schwurgerichtskammer which had 12 Jurors and 3 professional Judges and was operating very similar to a common law court in that jurors decided on guilt and judges on punishment. This setup was created during the German Empire and just kept when the First World War ended with the loss of all nobility. In the so-called Weimar Republic times or the Interwar period, this part of the German judiciary was not touched for 6 years, as there were far more pressing matters.

However, in 1924 a wide-sweeping justice reform took place. Erich Emminger, the German justice minister, is often blamed for this "Emminger-Novelle", or rather the Verordnung über Gerichtsverfassung und Strafrechtspflege. As a result, the Jurors were entirely removed and replaced with 6 layman judges - now called Schöffen - that had to assist the professional judges.

Modern Schöffen - and where to find them

After a few smaller reforms since the Emminger-Novelle, today a German Schwurgerichtskammer (or Große Strafkammer) is comprised of 3 professional judges and 2 Schöffen. In a similar fashion, the Landgerichte - or rather the chamber of appeals of the Landgericht - is comprised of one professional judge and 2 Schöffen, forming the Kleine Strafkammer, which is doing criminal appeals cases of the Amtsgericht. Both types are prescribed in § 76 (1) GVG.

Amtsgerichte, the layer below the Landgericht, has specific matters that are to be given to the Schöffengericht under § 28 GVG and is set up with one professional judge as well as 2 Schöffen under § 29 GVG. The court may decide to double up the professional judges, if the prosecution (Staatsanwaltschaft) requests this and the court finds the case to be complicated enough. In that case, an appeal to the Kleine Strafkammer also doubles up the judges automatically.

The general rule if a case gets to the Schöffengericht or a Straftrichter is based on the type of case and the estimated punishment:

• Civil cases in the first instance in front of the Zivilgericht and in the Family Court get you to just a professional judge in the shape of an Einzelrichter - which is the term §22 GVG uses to demark a professional judge. No way to get a Schöffen there.
• Civil cases in the first instance of appeals or revision get seen by (up to) 3 professional judges and there are usually no Schöffen involved.
• Specialty Courts like Verwaltungsgericht (Administrative Court), Sozialgericht (Cocial Court), Arbeitsgericht (Work Court), and Handelskammer (Mercantile Court) follow their own rules and can have Schöffen, and so do their appeals and revision layers. To be eligible for those Schöffen, you might need to have heightened requirements, e.g. only a merchant can serve in mercantile court.
  • As already mentioned: Family Court is of special note, currently Schöffen are never employed there.
• In a criminal case that would commonly end in less than 2 years if guilty goes to just a professional judge in the shape of an Einzelrichter, who acts as the Strafrichter. He can however sentence up to 4 years, even without Schöffen.
• For a criminal case between 2 years and 4 years of estimated punishment, if the case ends with guilty, the Schöffengericht is to be consulted, set up of one professional Judge and two Schöffen.
• If the case brings up evidence that more than 4 years are warranted, the Amtsgericht gives the case to the Landesgericht.
• Criminal cases that have an estimated punishment of 4 years or more, the case will be handled by the Landesgericht in the first place.

How do Schöffen influence judgments?

The Schöffen are deemed to have not only the same weight but also the same influence on the court case. Since Germany is an inquisitorial system, they can ask questions to witnesses and others during trial just as much as the professional judge and they get the same case file. However, there is a fine limit:

• Unlike judges, they are not allowed to request visitation to the crime scene and may not do further investigations outside of the courtroom.

Besides this point, they are equal in all questions - or rather: the court speaks with a single voice that is made up of all the judges, professionals and Schöffen together. To decide on guilt, a 2/3 majority of the chamber is needed, so in the normal first-instance chamber, the Schöffen could decide on guilt alone, while an enlarged chamber allows them to block a conviction against their will. In mere procedural questions, a simple majority is sufficient, but it is often customary for the Schöffen to follow the opinion of the professional Judge in those administrative matters.

Schöffen are called upon for 5 years for as many trials as needed