Lay judge

A lay judge is a person assisting a judge in a trial. Lay judges are used in some civil law jurisdictions, such as Germany, Sweden and Finland. Japan began implementing a new lay judge system in 2009. In the past the Yugoslavia and the Soviet Union utilised lay judges as well.

Lay judges are appointed, and often require some legal instruction. Lay judges are usually used when the country does not have juries.

The Kingdom of Hanover (Germany) was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary mixed court.

Austria

Further information: judiciary of Austria

In criminal proceedings, lay judges sit alongside professional judges on cases carrying a maximum punishment of more than five years, as well as for political crimes. Lay judges are also used in labor, social, and commercial law disputes.

Brazil

In Brazil, the Law Nº 9.099/1995 created the "Juizados Especiais" (Special Petty Courts), with restricted jurisdiction to settle small claims (understood as those with a "lawsuit worth" lower than 40 times the country's minimum wage) and/or criminal misdemeanors (listed in the Executive Order Nº 3.688/1941). In this procedure, lay judges act under supervision of judges to preside the court as well as to act as conciliators. Their decisions, called "pareceres", are submitted to the judge for homologation before it has any effects between the parties. According to the law, lay judges must be selected among lawyers with more than 5 years of experience.

Germany

Further information: judiciary of Germany

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, in the judiciary of Germany all charges are tried before mixed tribunals on which lay judges (Schöffen) sit side by side with professional judges. Section 263 of 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. In most cases lay judges do not directly examine documents before the court or have access to the case file.

The only statutory criteria is that lay judges must be citizens that have not been convicted of, or be under investigation for, a serious crime. However, people "ought not" to be chosen if they are under 30 years old, very high government officials, judges, prosecutors, lawyers, policemen, ministers, priests, or have lived in the community less than 1 year. In addition, people may refuse to serve if they are over 65 years old, members of the federal or state legislatures, doctors, nurses, druggists if working alone, housewives if overburdened, or have served as a lay judge in the preceding year. Applications can be made to become a lay judge by interested citizens, but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertising, and participation in fine penalty allocation.

Lay judges are selected by a selection committee from lists that are passed by the municipal councils (Gemeinderat) with a two-thirds majority of attending local councilors. 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 legislature, and selects from the list of candidates the number needed to staff the various tribunals. The practice was similar in East Germany.

Lay judges have historically been predominately middle-aged men from middle class socio-economic backgrounds, largely due to a selection procedure in which personal acquaintance, political affiliation and occupation all play an important role. 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% being blue-collar workers. A study published in 2009 put this number 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 relative old age of lay judges.

History

Lay judges have been utilized in Germany throughout her early history and the Middle Ages. A Swabian ordinance of 1562 called for the summons of jurymen (urtheiler), and various methods were in use in Emmendingen, Oppenau, and Oberkirch. Hauenstein's charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in Friburg the jury was composed of 30 citizens and councilors. The modern jury trial was first introduced in the Rhenish provinces in 1798, with a court consisting most commonly of 12 citizens (Bürgers).

The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in Germany in which the process of investigation was secret and life and liberty depended upon judges appointed by the state. In Constance the jury trial was suppressed by decree of the Habsburg Monarchy in 1786. The Frankfurt Constitution of the failed Revolutions of 1848 called for jury trials for "the more serious crimes and all political offenses", but was never implemented. An 1873 draft on criminal procedure produced by the Prussian Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.

The Kingdom of Hanover during the Confederation was the first to provide a mixed system of judges and lay judges in 1850, which was quickly adopted by a number of other states, with the Hanoverian legislation providing the model for the contemporary Schöffengericht (lay judge or mixed court). The Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the Schwurgericht (jury court) would consist of three judges and twelve jurymen, alongside the mixed court, with the jury court reserved for serious crimes except political crimes. Lay judges were in use in the Bavarian People's Court of November 1918 to May 1924, and the infamous Nazi People's Court.

The jury was abolished by the Emminger Reform of 4 January 1924, ostensibly as an emergency, money-saving measure in a period of acute financial stringency, during an Article 48 state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr. The emergency decree abolished the jury in the Schwurgericht and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name. Between 1948 and 1950 in American-occupied Germany and the Federal Republic of Germany, Bavaria returned to the jury trial as it had existed before the emergency decrees, but they were again abolished by the 1950 Unification Act (Vereinheitlichungsgesetz) for the Federal Republic. In 1974 the number of lay judges in the Schwurgericht was further reduced from 6 to 2 and in 1993 the number of professional judges was reduced from 3 to 2.

Finland

In Finland, three lay judges (lautamies, nominative pl. lautamiehet) are called in into serious or complicated cases in district courts, to accompany a professional, legally trained judge. The aim is to introduce "common sense of justice" into the process. Simpler cases are handled by one or three professional judges, and all Appeals Court, Supreme Court and administrative court judges are necessarily professional. The professional judge is the chairman of the panel, but otherwise the judges have equal rights.

Lay judges are appointed by local municipal councils, in practice by negatiations between political parties, from volunteers.

Japan

Main article: Lay judges in Japan

Soviet Union

Lay judges were in use in the Soviet Union. After a 1958 reform they were elected for 2 years at general meetings of colleagues at their place of work or residence, or at higher levels appointed by the soviet. The incidents of lay judges overruling professional judges was rare, and was officially reported in only 1 case by the late 1960s. Unlike the juries of the United States, lay judges were not selected from panels that are cross-sections of the entire population, but selected by institutions in each district.

Sweden

Further information: Judicial system of Sweden

In first- and second-tier Swedish courts, both in the general and the administrative hierarchy, lay judges (nämndemän, sometimes also called lay assessors) serve as part of the bench in many types of cases, including all criminal cases but virtually no civil cases. The entire bench, lay judges and professional judge(s) alike, are responsible for the entire verdict of the court. In first-tier courts, the lay judges are always in the majority, whereas the professional judges are in the majority in the second-tier courts.

Lay judges are usually politicians from the local authority from which they are appointed, appointed in proportion to political party representation at the last local elections. They are appointed by local political assemblies for a period of service at a certain court. The municipal assemblies appoint lay judges for the district courts and the county council appoint lay judges for the county administrative courts and the appellate courts. Typically, a lay judge will serve one day per month in court during his or her tenure. The use of lay judges in Sweden goes back to Medieval times.

Yugoslavia

Lay judges were in use in the Federal Republic of Yugoslavia, including the Autonomous Province of Kosovo and Metohija. Yugoslav trial courts consisted of 1 judge and 2 lay judges or 2 judges and 3 lay judges. Yugoslav law did not specify the qualifications (or disqualifications), and it was noted in the report by United Nations Special Rapporteur Elisabeth Rehn that in a particular case they were both retired police officers and one was a former head of the Criminal Investigation Department.

Lay judges in the district and regional courts were traditionally appointed by the assembly of the relevant socio-political community. In 1991, Serbia completely centralized the Kosovar judges' appointment and dismissal.

See also

• Jury
• Judge
• Lay assessor

References

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• Riha, Thomas (1969). Soviet Russia, 1917-1963. Readings in Russian Civilization. 3. University of Chicago Press. ISBN 978-0-226-71857-6. http://books.google.com/books?id=AH3Y82BfrPYC&pg=PA641. 
• Bell, John (2004). "Lay Judges". In Dashwood, Alan; Bell, John; Ward, Angela. Cambridge Yearbook of European Legal Studies. 3. ISBN 978-1-84113-361-4. http://books.google.com/books?id=mEIayVZORAQC&pg=PA299. "The choice by the local community is now reflected in the appointment of the nämnd by the local authority. … Nämndemän are usually chosen from members of the authority in proportion to the political representation at the last local elections." 
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External links

• Estonian lay judges