German Legal system by abhijit kumar

German
Legal
System
Presented by-
Abhijit Kumar 11902116
7004126592
Karishma John 11901562
Salma Sabnom 11903994
Chowdhury
©Abhijit Kumar

CONTENT
01
Introduction
02
Separation of Powers
03
Court System
04
Rule of Law
Natural Justice
05
Comparison with
UK, US, India
©Abhijit Kumar

Introduction
• Germany comprises sixteen states that are
collectively referred to as Länder.
• 16 States (Länder)
• 3 city states and 13 area states
• Due to differences in size and population, the
subdivision of these states varies especially
between city-states (Stadtstaaten) and states with
larger territories (Flächenländer).
• 294 Rural districts
• 107 Urban districts
• For regional administrative purposes five states,
namely Baden-Württemberg, Bavaria, Hesse, North
Rhine-Westphalia and Saxony.
©Abhijit Kumar

Separation of Powers
©Abhijit Kumar

 Bundestag
 Bundesrat
Legislature
 Head of state
 Head of government
Executive
 Ordinary courts
 Specialized courts
 Constitutional courts
Judiciary
 Germany is a democratic, federal parliamentary republic, where federal legislative power is vested in the Bundestag (the parliament of
Germany) and the Bundesrat (the representative body of the Länder, Germany's regional states).
 The judiciary of Germany is independent of the executive and the legislature, while it is common for leading members of the executive to
be members of the legislature as well.
©Abhijit Kumar

The Legislature
 Federal legislative power is divided between the Bundestag and the Bundesrat.
 The Bundestag is directly elected by the German people, while the Bundesrat represents the governments of the
regional states (Länder). The federal legislature has powers of exclusive jurisdiction and concurrent jurisdiction with the
states in areas specified in the constitution.
Bundestag
 The Bundestag (Federal Diet) is elected for a four-year term and consists of 598 or more members elected
by a means of mixed-member proportional representation, 299 members represent single-seat
constituencies and are elected by a first past the post electoral system.
 The current Bundestag is the largest in German history with 709 members.
 The Bundestag is more powerful than the Bundesrat and only needs the latter's consent for proposed
legislation related to revenue shared by the federal and state governments, and the imposition of
responsibilities on the states
©Abhijit Kumar

The Executive
Head of state
 The German head of state is the Federal President.
 The office is currently held by Frank-Walter Steinmeier (since 2017).
 The role of the Federal President is mostly ceremonial. The Federal President, by their actions and public appearances,
represents the state itself, its existence, its legitimacy, and unity.
 Under Article 59 (1) of the Basic Law, the Federal President represents the Federal Republic of Germany in matters of
international law, concludes treaties with foreign states on its behalf and accredits diplomats.
 All federal laws must be signed by the President before they can come into effect; he or she does not have a veto,
but the conditions for refusing to sign a law on the basis of unconstitutionality are the subject of debate.
 The Federal President does have a role in the political system, especially at the establishment of a new government
and the dissolution of the Bundestag (parliament).
 Federal President together with the Federal Council can support the government in a "legislatory emergency state"
to enable laws against the will of the Bundestag (Article 81 of the Basic Law)
©Abhijit Kumar

The Executive
Head of Government
 The federal chancellor heads the federal government.
 The office is currently held by Angela Merkel (since 2005).
 They are elected by and responsible to the Bundestag, Germany's parliament.
 The other members of the government are the Federal Ministers; they are chosen by the Chancellor. Germany, like the
United Kingdom, can thus be classified as a parliamentary system.
 The Chancellor cannot be removed from office during a four-year term unless the Bundestag has agreed on a successor.
 the chancellor has usually been the candidate of the largest party
Cabinet
 The German Cabinet (Bundeskabinett or Bundesregierung) is the chief executive body of the Federal Republic of
Germany. It consists of the chancellor and the cabinet ministers.
©Abhijit Kumar

The Judiciary
 The German legal system is a civil law mostly based on a comprehensive compendium of statutes, as compared to the
common law systems.
 Germany uses an inquisitorial system where the judges are actively involved in investigating the facts of the case, as
compared to an adversarial system
The judicial system comprises of three types of courts-
 Ordinary courts, dealing with criminal and most civil cases, are the most numerous by far. The Federal Court of
Justice of Germany (Bundesgerichtshof) is the highest ordinary court and also the highest court of appeals.
 Specialized courts hear cases related to administrative, labour, social, fiscal and patent law.
 Constitutional courts focus on judicial review and constitutional interpretation. The Federal Constitutional Court
(Bundesverfassungsgericht) is the highest court dealing with constitutional matters.
©Abhijit Kumar

Federal Constitutional Court
• Considered one of the most interventionalist and powerful national
courts in the world.
• Judicial Review – Article 12 IV GG
• Although all German courts are empowered to review the
constitutionality of governmental action within their jurisdiction, the
Federal Constitutional Court is the only court that may declare
statutes unconstitutional under the Basic Law; the Länder (states)
have their own constitutional courts.
©Abhijit Kumar

Landmark Judgements
Year Case Unofficial
Name
Synopsis Legal Principle Set Consequences
1957 1 BvR
253/56
Elfes-Decision
(Elfes-Urteil)
The left-wing party member of
the centre-right CDU Wilhelm
Elfes was accused of working
against the constitution but
therefor was never convicted.
Based on this indictment he was
denied a passport multiple
times.[13] Elfes litigated against
the decision.
• The right to personal liberty is to be
construed in a broad way.
• Invention of “Heck’s Formula”
(named after the rapporteur of the
case: Justice Heck). The court can
only overview cases if one condition
apply:
• The impact of a constitutional norm
was misjudged
• Application of the law was
discretionary
• Violation of judicial restraint
Elfes lost his specific case but
the court cemented personal
liberty in general. Justice Heck
defined the limits of the court
relative to the specialised court
system.
1958 1 BvR
400/51
Lüth-Decision
(Lüth-Urteil)
The court of Hamburg prohibited
Erich Lüth to call for boycott of the
movie Immortal Beloved. Lüth
justified his action because director
Veit Harlan also was responsible for
the antisemetic movie Jud Süß in
1940.
• German Basic Law binds private law
indirectly
• The Federal Constitutional Court is
not a regular appellate court on
violation of federal law. The court
only overviews violation of the Basic
Law
The court defined and restricted its
own power. But on the other hand
it expanded the effective range of
the Basic Law beyond the tension of
government and people to the
private law. The Basic Law does not
bind citizens but it binds the
lawmakers in creating private law
and the judiciary in interpreting it.
©Abhijit Kumar

Federal Constitutional Court
 The Federal Constitutional Court is composed of two chambers, called senates. Each senate consists of
eight justices.
 A candidate must be at least forty years of age, be eligible for election to the Bundestag, and must have
stated in writing that he or she is willing to become a member of the Federal Constitutional Court.
 The justices who are chosen by the Bundestag (parliament) are elected without prior debate by secret
ballot upon a proposal of an electoral committee which is formed specifically for this purpose.
 The justices who are chosen by the Bundesrat (representation of the German states) are also elected by a
two-thirds majority. Unlike the Bundestag, the Bundesrat does not form an electoral committee.
 Once a justice is elected, he or she will be appointed by the Federal President. The appointment is for a
term of twelve years.
©Abhijit Kumar 7004126592

Federal Supreme Courts
• The judges at the other federal supreme courts are selected by the Judges Election
Committee.
• The Judges Election Committee is convened by the Federal Minister of Justice.
• The committee is composed of a total of thirty-two members and consists of the
ministers of justice of the sixteen German states and sixteen members selected by
the Bundestag. (Basic Law, art. 95, para. 2).
• The members must maintain confidentiality. (Judges Selection Act, §6, para. 2). The
proceedings are not public and votes are cast in a secret ballot. Whoever receives a
majority of the votes is elected and subsequently appointed by the federal president.
• The position is a lifetime appointment.
©Abhijit Kumar

JURISDICTION OF COURTS IN GERMANY
TYPES OF COURTS
• Ordinary courts
• Specialized courts
• Constitutional courts
©Abhijit Kumar

ORDINARY COURTS
DIVISION OF JURISDICTION
• Amtsgerichte (Local court)
• Landgerichte (Regional court)
• Oberlandesgerichte (Higher regional court)
©Abhijit Kumar

AMTSGERICHTE
1. Strafrichter
Composition
It has only 1 Judge
Jurisdiction
Criminal offences in which the
sentence is expected to be less
than two years.
2. Schoffengericht
Composition
1 or 2 judges
Jurisdiction
Criminal offenses in which the
sentence is expected to be
between two and four years.
©Abhijit Kumar

LANDGERCHTE
1. Grobe Strafkammer
Composition
It has only 1 or 2 Judges
Jurisdiction
Cases in which the sentence is
expected to exceed four years, cases
where the prosecutor decided to be
not tried by Amtsgerichte, and minor
political crimes.
2. Schwurgericht
Composition
3 judges
Jurisdiction
Specially
constituted Strafkammer for
felonies resulting in death and
economics crimes.
©Abhijit Kumar

OBERLANDGERCHTE
Strafsenet
Composition
It has 3 to 5 Judges
Jurisdiction
Serious political crimes
©Abhijit Kumar

SPECIALIZED COURTS
Specialized courts deal with five distinct subject areas:
• Administrative
The jurisdiction of the administrative courts covers legal protection against all
administrative acts and other administrative proceedings
• Labour
Labour courts handle disputes under private law arising from employment
contracts and between management and labour force as well as matters covered
by the Works Constitution Act
• Social court
The social courts rule on disputes from all areas of social security. They have also
got three instances. Financial courts have only got two levels and are dealing with
taxation and related matters.
©Abhijit Kumar

Constitutional Court
• State
Each one of the Länder has its own state constitutional court. These
courts are administratively independent and financially autonomous
from any other government body. For instance, a state constitutional
court can write its own budget and hire or fire employees, powers that
represent a degree of independence unique in the government
structure.
• Federal
The Federal Constitutional Court is the supreme constitutional court
established by the constitution or Basic Law of Germany, all three
branches of the state the legislature , executive and judiciary are bound
directly by the constitution .
©Abhijit Kumar

Judicial officers
Professional judges- All professional judges are members of a common cou in that they
are recruited through a common process and their career is governed largely by federal
law.[8] However, most judges are state (Länder) civil servants and follow state rules on
legal education, appointment, and promotion.
Lay judges (Schöffen)- They are effectively short-term, politically appointed, non-
professional judges. They are appointed to act as a jury.
Prosecutors- Public prosecutors, are nonetheless simple ordinary
servants lacking the independence of the Bench.
Attorneys- A lawyer can only qualify as a defense attorney if they
fulfill/possess as "aptitude to be a judge", however, the basic
meaning is to have successfully completed a study of law at roughly
a master's degree level
©Abhijit Kumar

Independence of Judiciary
• Article 97 [Independence of Judges]
(1) The judges are independent and subject
only to the law.
(2) Judges appointed permanently on a
fulltime basis in established positions cannot,
against their will, be dismissed or permanently
or temporarily suspended from office or given a
different posting or retired before the expiration
of their term of office except by virtue of a
judicial decision and only on the grounds and in
the form provided for by statute. Legislation may
set age limits for the retirement of judges
appointed for life. In the event of changes in the
structure of courts or in their districts, judges
may be transferred to another court or removed
from office, provided they retain their full salary.
©Abhijit Kumar

Independence of Judiciary
• First, there is objective
independence, which guarantees
neutrality. Judges may not be
influenced, neither by colleagues
nor by superiors, in their
decisions.
• Secondly, there is personal
independence, which deems that
judges, who are lifetime
appointees, may not be fired or
relocated. This is designed to
protect judges from arbitrary or
undue influence.
©Abhijit Kumar

Jurisdiction
• Judicial Review- Power is available only to the federal constitutional
court other courts can just comment.
• Appellate Jurisdiction- There are five different supreme courts having
their own domain jurisdictions
• Original Jurisdiction- Each federal courts have their own original
jurisdictions.
• International Jurisdiction- Federastitutional court has somewhere the
international jurisdictions.
©Abhijit Kumar

Rule Of Law
• Rule of Law is the legal principle that law should
govern a nation, as opposed to be governed by
arbitrary decisions of individual government officials.
• Rule of Law implies that every citizen is subject to
law, including law makers themselves.
©Abhijit Kumar

Rule of Law (Contd…)
• The democratic regime institutionalized by the Basic Law is of the
parliamentary type. The president of the federation has almost
exclusively symbolic representative functions, and none of the powers
of the Reichspräsident that had paved the way for the Nazi take-over
in the Weimar Republic. Various other precautions were taken against
a return of “Weimar” instability.
• The Constitution itself could be changed at any time, and it was a
regular practice to enact un-constitutional laws.
• The President could, under certain circumstances, Abrogate basic
constitutional rights by virtue of Art. 48 of the Constitution itself.
• “Enabling Act”
©Abhijit Kumar

Rule of Law (Contd…)
• Eternity Clause Article 1 and 20
• Duty of all state authority: "The dignity of man is inviolable. To respect and protect it is the duty of all state authority." (Article 1)
• Acknowledgement of human rights: "The German people therefore acknowledge inviolable and inalienable human rights as the basis
of every community, of peace and of justice in the world." (Article 1 Paragraph 2)
• Directly enforceable law: "The following basic rights bind the legislature, the executive and judiciary as directly enforceable law."
(Article 1 Paragraph 3)
• Republic (form of government): (Article 20 Paragraph 1)
• Federal state (Länder): (Article 20 Paragraph 1)
• Social state (welfare state): (Article 20 Paragraph 1)
• Sovereignty of the People: "All state authority emanates from the People." (Article 20 Paragraph 2)
• Democratic: "All state authority is exercised by the people by means of elections and voting and by specific legislative, executive and
judicial organs." (Article 20 Paragraph 2)
• Rule of law (Rechtsstaat): "Legislation is subject to the constitutional order. The executive and judiciary are bound by the law." (Article
20 Paragraph 3)
• Separation of powers: "Specific legislative, executive and judicial organs," each "bound by the law." (Article 20 Paragraphs 2–3)

Natural Justice
The doctrine of natural justice is founded in the notion that for a determination of a
just and fair trial
“The due process of law”
Certain basic legal principles are required by nature, or are so obvious that they
should be applied universally without needing to be enacted into law by legislation.
Principles:
1. Nemo judex in causa sua- no one sholud be made judges in own
cause
2. Audi alteram partem- hear the party
no one should be condemned unheared
©Abhijit Kumar

Natural Justice
• Natural law as such remained alien to the Weimar Constitution (1918-
1933) as well, although certain isolated principles of the natural law did
enjoy the status of constitutional provisions or guarantees.
• The greatest obstacle to the recognition of natural law was the doctrine
of positivism which equated right and might to begin with and, hence,
assigned to the legislator full discretion as to the detailed content or
provisions of the law, to the pointof injustice, indeed to the point of
complete, high-handed arbitrariness.
• The positivistic theory which held law to be simply the expression of the
sovereign will regardless ofthe nature of that will, made supreme the will
of the Fiihrer, and, by putting it beyond the reviewing power of any court,
made it the sole fountainhead of law and right.
©Abhijit Kumar

Natural Justice
• As early as 1945 a decision of the lower court (Amtsgericht) in Wiesbaden
held: "The laws which declared that the property of Jews had become
forfeited to the State” were “incompatible with natural law” and
therefore “void at the very time of their enactment”.
• ”Natural rights belonging to all human beings, which rights precede
positive law and limit the power of the state,"
• The legislator should be a "guiding orientation toward the ideal of
justice."
• The Present German legal thinking tends to conceive of law and justice as
a logical system.
©Abhijit Kumar

Precedent as a LAW
Inductive & Deductive
The German legal system does not follow a general rule of stare decisis.
It should be emphasised that stare decisis understood as a formally binding
precedent refers only to rulings issued by the Federal Constitutional Court
Under Article 31(1) of the Federal Constitutional Court Act, the decisions of the Federal
Constitutional Court are binding upon all courts. While there is no analogous provision
concerning the effect of the decisions of other courts, appeals on points of law can be used
in all branches of the court system in order to ensure uniform adjudication.
Precedents of higher courts have a significant meaning to everyday judicial practice in
Germany, despite the fact that they are not formally binding.
The role of precedents increases, when there is a lack of appropriate legal rights, or if legal
rights require interpretation.
©Abhijit Kumar

Federal Courts
of
GERMANY US India
Number of courts Five Federal Supreme Courts
One Constitutional court
One Supreme Court One Supreme Court.
Tenure of Judges Constitutional court: 12 years
Federal Supreme Court: Lifetime
Life time
employement
Judges retire at the age of 65.
Number of Judges Number of judges in
constitutional court-16
Total of 9 Justices
including Chief Justice
There are 34 Judges in
Supreme Court of India
including CJI

Judicial
Appointment
GERMANY US India
Authority The Minister of Justice in
appointments in the states’
judges.
Presidential appointment
with advice and consent of
the senate
(Federal level)
The Chief Justice of India will
initiate proposal and forward his
recommendation to the Union
Minister of Law, Justice and
Company Affairs for the
appointment.
Consultation Electoral committees
comprised of judicial members
and political
representatives of Germany
(state level);
Commission based
appointments, also known
as merit selection;
usually involving an
election at some point;
The opinion of the CJI Should be
formed in consultation with a
collegium of the four seniormost
Judges of the Supreme Court.
Final Decision At Constitutional Court level,
judges are elected by the
upper and
lower chamber of Parliament
Gubernatorial
appointment (appointed
by the Governor); this is
similar to the Federal
system
The CJI, the Union Minister of Law,
Justice and Company Affairs will
put up the recommendations to
the PM who will advise the
President in the matter of
appointment
©Abhijit Kumar

T H A N K S

German Legal system by abhijit kumar

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to German Legal system by abhijit kumar

Similar to German Legal system by abhijit kumar (20)

Recently uploaded

Recently uploaded (20)

German Legal system by abhijit kumar

Editor's Notes