Es gilt das gesprochene Wort!
Greeting by the State Secretary Wedel on the occasion of the European Day of Lay Judges in Bonn
also on my part I would like to warmly welcome you this year’s Conference of European Network of Associations of Lay Judges here in Bonn. I am particularly pleased to see you here today.
The contribution which you all make every day in an honorary capacity for an efficient justice - in Germany and in Europe -, is to be appreciated to a maximum extent.
I would like to express my extreme gratitude to you for this at this point already.
It is worth turning the attention to how the participation of honorary judges has developed here with us in Europe. It can be repeatedly be recognised how much Germany has also greatly profited from the experiences of other European countries – how much we can reciprocally help each other within the European Union with our experiences and knowledge. Therefore, let us have a look at the various areas of justice.
Honorary judges in the administration of criminal justice
The participation of honorary judges in the administration of criminal law has a long tradition in Europe. Above all the English always had a certain fundamental mistrust towards an overpowering state. Therefore, for 800 years already English criminal proceedings have known the principle of indictment and the requirement for a main oral hearing before a jury court.
Since the end of the 18th century – with the French revolution – this institution also began its victory march for the protection against arbitrary acts of the authorities and for establishing transparency and for the general public of England on the Continent. The lay participation in criminal proceedings thus goes back to the emancipation of the bourgeoisie and the age of enlightenment. Napoleon’s "Code d’Instruction Criminelle" of 1808 became the model of many reforms in the 19th century.
Since then we all have in common in Europe the conviction that the people as the responsible body of the state power have to have a significant word to say in the criminal courts. And together we share the experience that the participation of honorary judges strengthens the trust in the justice of the judgements.
This is not only theory, but functions very practically in daily life. Professional legal practitioners tend, as know, towards "specialist language". Therefore, in Germany of three persons who are asked two are of the opinion that the laws are much too complicated. One cannot understand them as a "normal citizen" even when making the best effort. The majority of accused and witnesses are judicial laymen. They do not always understand either what is actually happening in proceedings. Experienced criminal defence counsels report that the presence of honorary judges has a beneficial effect here. When the professional legal practitioners cooperate with the laymen they must, whether they like it or not, make an effort to use an understandable language. All parties involved benefit from this in the end.
However, the benefit of the laymen in the criminal proceedings goes far beyond this. Studies examine the trust of the population in the justice system at regular intervals. Germany is mostly in the upper mid-range with good values in a comparison of the EU. However, there is a certain scepticism among the Germans with regard to the criminal proceedings.
Many citizens, who gain their knowledge from the media alone, are of the opinion that the punishments were generally too mild in our country. If one asks the honorary judges, who have actually seen the accused and witnesses and who know the details, a different picture is seen.
A clear majority of the honorary judges show greater trust in the system after an assignment consider the proceedings to be fair and the judgements to be just on the whole.
If you now clearly realise that more than 60,000 lay judges are active in Germany alone, who all have families and friends, with whom they share their experiences, then you can recognise the importance of the honorary engagement for a democratically legitimised justice system.
This all does not however now mean that it could not be possible to further improve a good system. The Europe-wide exchange of the honorary judges can particularly make an important contribution to this. As the comparison of the European criminal procedural law shows that the participation of the laymen in the decision-making can be organised in very different ways.
The model of the jury courts with an English influence competes in Europe with the model of the court of lay assessors that was introduced in Germany in 1924. In the jury court the functions of professional and lay judges are separated, the laymen are limited to the determination of facts and the conviction. As opposed to the court of lay assessors, in which professional and lay judges make a joint decision on the guilt and the punishment and with which the lay judges also have a right to ask questions.
Both models have advantages and disadvantages. A "jury" with jurors is individually determined for each proceeding in a time-consuming selection procedure and is dissolved after this. Lay judges can, on the other hand, gain experience in office over years by participating in several proceedings. It is, on the other hand, criticised about the lay judge system that some professional judges lead their proceedings in a far too authoritarian manner "over the lay judges’ heads". In the jury court the lay judges are on their own when they vote. This, on the other hand, is deemed by the defenders of the lay judge solution as an avoidable source of errors and a gateway for all too emotional decisions. In some of our neighbouring countries, for example in Austria, there are therefore interesting mixed forms.
Honorary judges in labour and social welfare court jurisdiction
In the labour and social welfare courts in Germany honorary judges have always participated already and thus make an important contribution for the acceptance of as well as the trust in the activity of these courts.
The roots for this participation of lay judges in the German labour court jurisdiction can be found already in its historical predecessors, among others in the conseils de prud’hommes, the councils of the commercial trade experts. These were set up based on a French model from 1808 in the territories left of the Rhine in Aachen, Krefeld as well as Cologne, which were under French administration. This was substantiated by the fact that the settlement of disputes in the field of commerce requires knowledge which "only factory owners or plant foremen and craftsmen can have". The councils also continued their successful activity under Prussian government as commercial and factory courts. Whereas they originally, above all, served the interests of the entrepreneurs in disciplining the workers and the positions were also only filled with entrepreneurs, this changed over the course of the 19th century. Finally, in 1890 commercial trade courts were formed in the entire German Empire and thus the foundation was laid for a standard labour court jurisdiction. These commercial trade courts were distinguished, above all, by a judges’ bench that was occupied with an equal number of members. Besides the presiding judge respectively one employer and one of workers’ representative participated as assessors.
The development in social welfare jurisdiction progressed parallel to this. With the introduction of the accident insurance in 1884 as well as invalid and retirement protection in 1889 new courts of arbitration were set up with the responsible insurance bodies and the Reichsversicherungsamt [former German social insurance office] was formed in Berlin, which also performed court tasks. One representative of the workers and one employers’ representative each participated as honorary judges in the jurisprudence from the start. This was an important contribution in order to achieve the actual aim of the social welfare legislation, the protection of the workers. After the creation of the Reichsversicherungsordnung [German Law on Social Insurance] in 1911 as a standard law for the social welfare state in Germany this was principle was expanded step-by-step into all branches of the social welfare insurance and taken over into the social welfare jurisdiction in 1954.
Nowadays, respectively two honorary judges are involved in the decision-making in all three instances in the labour and social welfare jurisdiction. In both jurisdictions the appointment to the office as an honorary judge always requires special expertise and experience in the lawsuits that are to be decided. Thus, honorary judges contribute the experience horizon of working life and its conflicts to the formation of an opinion and the making of decisions in the labour jurisdiction.
In the social welfare jurisdiction they have practical knowledge and life experience with regard to the services and deficits of the social welfare state. This way honorary judges supplement the considerations under labour and social welfare law of the professional judges by professional practice, business and social welfare experience as well as a view of the world influenced by interests. This strengthens the trust in the jurisprudence.
Honorary judges in the administrative and finance court jurisdiction
Honorary judges also participate in the administrative and finance courts in Germany.
In the administrative court jurisdiction their participation was realised to a very large extent by the end of the Weimar Republic in 1933 already. After the foundation of the Federal Republic of Germany in 1949 this tradition was adhered to. From now on two honorary judges (also respectively one vote) had to participate in oral hearings and judgements of the administrative courts and the higher administrative courts, in which three professional judges (with respectively one vote) participated. A similar situation exists in the finance courts:
Two honorary judges are envisaged in oral hearings and in judgements, in which five judges participate.
In both jurisdictions the appointment to the office as honorary judge does not require – as opposed to several other jurisdictions – any special expertise and experience in the lawsuits that are to be decided. The legislative motive for the participation of honorary judges in the administrative and finance court jurisdiction is in the first place is to benefit from the realistic non-judicial assessment and thus – to put it simply – the "common sense".
Commercial judges in the chambers for commercial matters
Finally, I would like at this point to also address the chambers for commercial matters. As an efficient commercial jurisdiction is of inestimable value for the regional business locations within the European Union.
The chambers for commercial matters in Germany also have a long tradition. The first German commercial court was set up in 1804 already and the positions were filled with one legal practitioner and two merchants, consequently two honorary judges, as commercial judges.
This led to the so-called commercial court according to the “German system”, which with the Court Constitutional Act at the latest was introduced into the whole of Germany. It is the expression of the participation and assistance of German business in the justice under business law.
We must, however, determine that the concept of the chambers for commercial matters no longer works correctly in practice. In 80 to 90% of the cases at the chambers for commercial matters the parties de-select the two commercial judges. Then the presiding professional judge of the chamber decides alone and it de facto concerns a decision of a sole judge.
Cited as a reason for the de-selection of the commercial judges is frequently that these often do not match the topic or with regard to the field of law in the concretely negotiated cases.
We must correctly use the valuable resource of commercial judges. The corresponding key word here is: matching. The commercial judges should match with a view to the field of law and the business sector to the case. Thus, for example, a matching commercial judge can even make an expert’s opinion dispensable and this way substantially accelerate the proceedings, because he has the corresponding expertise himself.
We in North-Rhine Westphalia have been discussing a fundamental reform of the chambers for commercial matters for quite a while now in fact. We would like to upgrade the chambers for commercial matters with three professional judges and commercial judges who are matching the subject. I could imagine that the commercial judges will respectively be allocated according to the field of law or sector, for example to a chamber for transport law or corporate acquisition.
A further planned element with the reinforcement of the chambers for commercial matters is that with certain chambers the entire proceedings from the filing of the action until the judgement can be conducted in English. These English-speaking chambers for commercial matters are a clear advantage with lawsuits between a German and a foreign company. And therefore it was also a special concern for us as the state of North-Rhine Westphalia to contribute a bill of a law for the introduction of chambers for international commercial matters in this year once again in the Bundesrat and Bundestag.
the conference taking place today offers us the unique opportunity to exchange experiences beyond the borders.
Therefore, I now wish you an interesting day, lots of fruitful talks and on the whole a good stay here in Bonn – thank you for your attention!