Comparative Law Spring 2002 Professor Susanna Fischer CLASS 22 German Judicial System March 1, 2002

Wrap-Up: French Legal Profession There is no concept of an Einheitsjurist in the French legal profession. Rather, training depends on which branch of the legal profession a student aspires to join

Principles Applying to All German Trials What general principles or constitutional guarantees apply to all trials in Germany?

Principles Applying to All German Trials What general principles or constitutional guarantees apply to all trials in Germany? 1. Guarantee of legal protection Art. 19(4) GG 2. No one should be able to influence or obstruct work of judges – see Art. 101 GG (providing that “[n]obody may be removed from the jurisdiction of his lawful judge.” 3. Judicial independence (Art. 97 GG) 4. Right to a Fair Trial (not express in GG)

What Principles Provide for a Fair Trial? Which of these are in the Grundgesetz?

What Constitutional (or other) Provisions Provide for a Fair Trial? Principle of the right of audience (Art. 103(1) GG) Principle of orality Principle of public trial Grundsatz der Öffentlichkeit. Can German proceedings be recorded/broadcast? Can the public ever be excluded from court?

Judicial Branch of Government Germany’s judicial branch is governed by the GG Art. 92 GG states that judicial power is to be entrusted to judges and only exercised by Bundesverfassungsgericht (Federal Constitutional Court), Bundesgerichte (Federal courts) and courts of Länder.

Specialized Judicial System How specialized is Germany’s court system compared to the U.S. court system?

5 independent branches of judicial system What are these?

5 independent branches of judicial system What are these? 1. Ordinary juridisdiction (ordentliche Gerichtsbarkeit) 2. Administrative jurisdiction (Verwaltungsgerichtbarkeit) 3. Jurisdiction of the social courts (Sozialgerichtsbarkeit) 4. Jurisdiction of the tax courts (Finanzgerichtsbarkeit) 5. Jurisdiction in labor matters (Arbeitsgerichtsbarkeit)

5 independent branches of judicial system Each of the 5 jurisdictions is headed by a Federal Court as the court of last resort What is the function of these Federal Courts?

Vertical and Horizontal Separation of Power in Judicial Branch Compare the horizontal and vertical court structure in Germany to the U.S. system. What are the similarities and differences? At what level are proceedings usually started in Germany?

Constitutional Jurisdiction There is also a separate constitutional jurisdiction handled by the Bundesverfassungsgericht in Karlsruhe and constitutional courts of Länder How does this system differ from that of the U.S.?

Other Federal Courts with Specialized Jurisdiction For example: Truppendienstgericht - Military Court, Bundesdisziplinarhof - Supreme Federal Disciplinary Tribunal, Richterdienstgericht - Disciplinary Court for Judges, Bundespatentgericht - Federal Patent Tribunal (in Munich), Also Schiedsgerichte (arbitration tribunals)

Disputes Over Jurisdiction What happens if courts from two jurisdiction disagree as to which has the power to hear a given case? How does this work in the U.S.?

Hierarchy of German Court System How is the court system generally structured in Germany? How does this compare to the U.S. What is the highest court in the German system? Now we’ll look at each branch of jurisdiction in more detail

Hierarchy of Courts of Ordinary Jurisdiction Amtsgericht (local Land court) Landgericht (regional Land court) Oberlandesgericht (regional Appeal court) Bundesgerichtshof (Federal Supreme Court of Justice; sits in Karlsruhe) Of the approximately 17,000 judges, 13,000 in the ordinary system Each court has a civil chamber and a criminal chamber

Hierarchy of Labour Courts Arbeitsgerichte (Labor Courts) Landesarbeitsberichte (Higher Labor Courts – each Land has at least one) Bundesarbeitsgericht (Federal Labor Court – in Kassel but to be moved to Erfurt) Do you need to have a Rechtsanwalt to appear in the Arbeitsbericht Trials in labor courts must start with conciliation proceedings (Güteverhandlung)

Administrative Court Hierarchy Verwaltungsgerichte (Administrative Courts) Oberverwaltungsgerichte (Higher Administrative Courts) Bundesverwaltungsgerichte (Supreme Federal Court Administrative Tribunal; sits in Berlin and Munich – to be moved to Leipzig)

Hierarchy of Social Courts Sozialgerichte (Social Security Tribunals) Landessozialgerichte (Regional Social Appeal Tribunals) Bundessozialgericht (Federal Social Court; sits in Kassel) Usually free of charge Can appeal without representation or be represented by trade union employee, trade association, lawyers, war victims’ associations

Hierarchy of Tax Courts Only 2 tiers! Finanzgericht (Fiscal Court) Bundesfinanzgerichthof (Federal Fiscal Court; sits in Munich) Handles tax cases, VAT Can be represented by lawyer, accountant, auditor or represent yourself

Hierarchy of Constitutional Jurisdiction Verfassungsgerichthof/Staatsgerichthof (Land Constitutional Court –note not all Lander set up separate constitutional courts; some just use the Staatsgerichthof, which is a court of general jurisdiction) Bundesverfassungsgericht (Federal Constitutional Court – in Karlsruhe) What does the Federal Constitutional Court do?