The German federal cabinet has agreed on an amendment to the German Judges Act (DRiG) to enshrine in law that only citizens who are loyal to the constitution can be appointed as lay judges. The aim of the amendment is to ensure that extremists are no longer allowed to participate in court decisions in the role of lay judge.
A draft law to this effect, which also contains a clarification on measures against professional judges, was adopted by the Federal Cabinet on 13 July 2023, in the form of the Sixth Act Amending the German Judges Act (“Sechstes Gesetz zur Änderung des Deutschen Richtergesetzes”).
“In future, it will no longer be permissible to become an honorary judge who does not offer any guarantee that he or she will at all times stand up for the liberal democratic fundamental system in the sense of the Constitution”.
To ensure this, the new § 44a (1) was inserted into the DRiG. In addition to that paragraph, § 44b (1) DRiG clarifies that subsequent conduct during the period of office as a lay judge must also lead to dismissal. This way, it is made clear that dismissal takes place irrespective of the point in time at which the person concerned raises doubts about his or her loyalty to the Constitution.
Problems with lay judges in the judiciary
As there is currently a lack of diversity and too few interested parties, courts rely on appointing everyone as lay judge. This leads to problems since there are cases of right-wing extremist lay judges among the few interested parties. The reason for the problems with lay judges in the judiciary is the fact that the two lay judges in the criminal justice system can even outvote the professional judge in a ratio of 2:1. To prevent this, an amendment to the Judges Act became necessary.
In 2008, the Federal Constitutional Court had ruled that the duty to be faithful to the contract applies to both professional judges and honorary judges. The latter, however, had not been enshrined in law until now. Consequently, it is only now that the law states that lay judges have the same duty as professional judges.
Can EU foreigners be jurors?
The proposal to open access to the office of a lay judge to EU citizens in order to have enough lay judges available is currently considered controversial. However, this proposal has been predominantly dismissed due to the fact that people who did not want to become German citizens, or did not fulfil the requirements to become German citizens would then judge Germans as honorary judges, which would constitute a contradiction.