Right-wing extremists as lay judges?

This year, elections for lay assessor positions are due again in many German courts. Lay judges are actually a really good idea: in addition to the appointed judges, non-lawyers are appointed from the middle of life to jointly administer justice and pass judgment. This has two functions: Firstly, it is intended to increase citizens' trust in the courts. Secondly, it is hoped that the office of lay assessor will provide an outside perspective, because sometimes the law and justice are very different. With their experience "from everyday life" and "life itself", the lay judges are supposed to bring the two closer together by not just looking at the paragraphs. The office is therefore also important in real terms: they dispense justice on behalf of the German people.

Unfortunately, various right-wing extremist organizations are also aware of this and regularly call on their members to apply for this office. In fact, any adult with German citizenship can apply to be nominated by the respective municipality. Ultimately, a judicial committee decides who will be appointed and who will not. As many municipalities do not receive enough applications, the door is wide open for anyone who puts themselves forward. Formally, applicants must not be involved in any criminal proceedings of their own. A commitment to the free democratic basic order and thus to the core elements of the democratic constitutional state is also required.

What does this mean for the far-right calls to apply? Anyone with an open criminal record is out of the running. Well-known faces are also unlikely to have a chance of being nominated by their local authority. However, less prominent members can slip through the selection process and, once appointed, are not so easy to get rid of.

Against this backdrop, Justice Minister Buschmann is now planning a legislative initiative to regulate the office of lay assessor. Commitment to the Basic Law is now to become mandatory and members of unconstitutional parties or other known extremists will no longer be able to access these offices or be immediately removed from the office of lay judge if there are justified doubts about their loyalty to the constitution. Thanks to a ruling by the Federal Constitutional Court, this already applies today. However, the draft bill makes it even clearer.

This raises several questions: Why don't government agencies automatically check all applications, e.g. by making a regular inquiry to the State and Federal Office for the Protection of the Constitution? With around 40,000 positions, this would be an enormous bureaucratic effort on the one hand. On the other hand, it would also be a bad sign. The office of lay assessor is intended to strengthen citizens' trust in the rule of law. However, trust can only be built if both sides take appropriate steps. A standard request for all applications would mean that the rule of law would initially mistrust those involved, placing them under suspicion of extremism instead of offering them a hand of cooperation. This is unlikely to be a good start to a collaboration. What's more, lay judges work on a voluntary basis. Committed people should not be unnecessarily discouraged and in the vast majority of all lay judges there is no reason to do so. To date, only very few cases with a right-wing extremist background have come to light.

The other order therefore seems to me to make more sense. There is a leap of faith in the competence and sensitivity of local authorities with regard to their proposals. If a right-wing extremist does slip through the net, any evidence of this must be investigated immediately. If the suspicion is confirmed, this person will be removed from office.

But how can we then prevent the calls from the far right from being successful? The answer to this is somewhat uncomfortable and yet always the same. In addition to a clear legal situation and sensitivity when it comes to proposals from local authorities, we need committed democrats who get involved, apply and are proposed. The democratic constitutional state also needs civic engagement in this area. Only autocracies can do without it, are even afraid of it and suppress it. Functioning democracies and constitutional states are dependent on it and develop their particular strength and connection to the population from it.