The state has to fill tens of thousands of jury posts - but there are hardly any applicants. Above all, the right-wing want to use this misery for themselves. Your chances of actually ending up on the judge's bench are good so far. Because the loopholes of the state are huge.
At the beginning of the year, Gitta K. was hardly noticed on the judges' bench in the district court of Erfurt. The judge wears a gray blazer, as she often does before the trial, adjusts her reading lamp. The electoral period for lay judges has been running for four years and ends in December. So K. is an experienced lay judge, she has had a say in the fate of many of the accused. At first glance, it looks as if this case is no exception: It is about three suspected smugglers who are said to have given around 100 people from non-EU countries jobs in Germany. The trial has only just begun when a journalist in the room - by chance - notices something.
The viewer recognized Gitta K. - and not just as a math and physics teacher from Erfurt, as she is known to the court. The journalist also recognizes K. as an activist from the right-wing extremist scene. Last November, for example, she organized a large demonstration at which Thuringia's AfD boss Björn Höcke marched with "Compact" publisher Jürgen Elsässer and Pegida initiator Lutz Bachmann, as reported by MDR. According to research by the broadcaster, K. also spreads conspiracy theories of the lateral thinking movement, the Reich bourgeois milieu and masses of Russian propaganda. All of this was reason enough for the district court of Erfurt to suspend the process and start again in March with different judges.
However, Germany has far from enough of them, as is currently becoming clear. For the next term of office from 2024 to 2028, the state is desperately looking for candidates - there are around 60,000 vacancies to be filled in the criminal courts alone. So the state advertises diligently for the office. In addition, he can recruit citizens from the population register for the post - the first letters with such obligations have already been sent. Because the voluntary applications for the office are far from sufficient. Above all, the rights know how to use this misery for themselves.
"Apply now as a lay judge so as not to leave the judiciary to left-wing amateur judges," demands the right-wing extremist party "Freie Sachsen" on Telegram. She delivers her intention directly: They want to "correct the judiciary" and prevent "a criminalized walker from getting draconian punishments, for example" or that "green judges" give refugees "a cultural penalty discount once again". For the right-wing extremists, the "Welt" quotes the Hamburg Office for the Protection of the Constitution, the role of lay judge is so interesting because it allows them social influence without having to have a political majority. According to the newspaper, the aim is to influence the judiciary in line with its ideology.
This would be possible. Because the voice of an honorary judge counts just as much as that of a professional judge. In many criminal proceedings, laypersons even outnumber them. So you could overrule the fully qualified lawyer, ensure an acquittal or make the sentence significantly less. In most cases, however, the opposite is the case: the lay judges tend to use much harsher sentences, as a study by the criminal lawyer Elisa Hoven, about which the "Süddeutsche Zeitung" reports, shows. According to this, the lawyer perceives a certain punitivity - lust for punishment - among lay judges. For the accused, the actions of the lay judges tend to result in a higher sentence.
In principle, the postponement of the sentence by the lay judges is not a problem, but is exactly what is wanted. Because every judgment is made "in the name of the people" - the task of the lay judges is to represent them. They bring the opinion of the average population to the bench, in a way they ground the judiciary. However, this concept only works as long as the honorary judges stand on the ground of the Basic Law. If lay judges reject the free democratic basic order, the most important protective right of the accused is no longer secured: equality before the law. Or to put it another way: a punishment may only be based on the guilt of a person - not on their cultural background. But when people like Gitta K., who attend NPD events in their free time, decide on the punishment, this essential principle is obviously no longer guaranteed.
Nevertheless, Gitta K. is by no means an isolated case on Germany's judges' benches. A few years ago, a judge in Berlin was noticed who described asylum seekers on Facebook as "semi-wild and animals". In Essen, an honorary judge admitted to being both an AfD and NPD member, and in Stuttgart, a lay judge who had been a member of a neo-Nazi rock band since 1989 ruled. After this case, the Federal Constitutional Court made it clear: not only full-time, but also honorary judges are subject to a duty of special loyalty to the constitution. The state does not accept lay judges such as Gitta K.
However, he has so far made little effort to block right-wing extremists from sitting on the bench. Applicants for the office of alderman only have to fill out an A4 page: In addition to personal data such as name and address, possible previous convictions or insolvency as well as sufficient knowledge of German are requested. The state wants to know whether the applicant was once with the Stasi. "But even the field in which you justify your candidacy is voluntary," explains Marko Goschin, chairman of the Association of Honorary Judges in Central Germany. "There is neither a query about the political views of the applicants nor a mandatory examination of the candidates for their loyalty to the constitution," he says in an interview with ntv.de.
The municipalities are responsible for the verification. You decide "how intensively you look at the people and whether you google the name or not". At the moment, Goshin criticizes, the review is going "very, very roughly" at best. An applicant's right-wing extremist attitude would have to be obvious in order for it to be rejected. The jury representative therefore demands that the election of lay judges no longer be perceived as an "annoying duty". More commitment on the part of those responsible, for example through compulsory training and more time, should clearly increase the diligence in the selection of the lay judges.
The state, so the impression, has so far taken almost everyone. However, that is about to change. Federal Minister of Justice Marco Buschmann recently announced that he wants to enshrine the constitutional loyalty of honorary judges in law. This does not change anything about the rule that already exists, but it emphasizes the position of the federal government. In the future, Lower Saxony will rely on deterrence: applicants should declare in writing that they are committed to the free and democratic basic order. Bremen goes one step further and recently created the legal basis for municipalities to be able to obtain information from the Office for the Protection of the Constitution if they have doubts about an applicant.
The state wants to get a better look at the applicants for a jury office. However, he will not be able to filter out everyone with extremist leanings. Not everyone is trumpeting their attitude on the Internet - and after all, A4 paper can easily be lied to. What happens when a lay judge's extremist attitude is only noticed long after he has been in office, as in the case of Gitta K.?
"There won't be any major problems in blatant cases," says Susanne Müller, presiding judge at the Freiburg Regional Court, in an interview with ntv.de. In the impeachment process, for example, "every NPD member would be easily removed from his position as a lay judge." In less clear cases, however, it is hardly so easy. Because the freedom of opinion of the lay judges also weighs heavily. "There is still a large gray area in the case law in this regard," explains Müller. So it has to be decided on a case-by-case basis. Not every Islam- or migration-critical statement from the situation has to lead to removal from office.
In the case of Gitta K. from Erfurt, the association of lay judges led by Marko Goschin demanded careful examination and "consequences, if necessary". The case is now with the Thuringia Higher Regional Court. However, the decision as to whether Gitta K. can continue to judge as a lay assessor until the end of the year has not yet been made, as the court announced when asked by ntv.de. Even if she is removed from office, it will be too late for all the decisions she has been involved in over the past four years. You can no longer take action against them, explains Müller. "They are all legal."
