“Rechte Richter” is the name of the book published in 2022 by the journalist and doctor of law Joachim Wagner. The subtitle asks this question: “A threat to the rule of law?” Wagner refers to cases like Jens Maier. He was a member of the Bundestag for the Alternative for Germany (AfD) from 2017 to 2021 and then wanted to work as a judge in the state of Saxony again. But nothing came of it.
Saxon Justice Minister Katja Meier (Greens) defended herself in court and was successful: the AfD man, who was classified as a right-wing extremist by the Office for the Protection of the Constitution, was put into early retirement. However, the verdict is not yet final because the suspended judge can appeal.
Nevertheless, the minister was happy about her stage victory in the Jens Maier case: “Enemies of the constitution will not be tolerated in the judicial service. All judges and civil servants must commit themselves to the free democratic basic order in the sense of the Basic Law and stand up for its observance at all times.”
Of course, what is expected of professionals in the judiciary also applies to laypersons. These include honorary judges, so-called lay judges. Around 60,000 are needed for the approximately 750 criminal courts in Germany alone. The application process for the Alderman election 2023. The mix of professional and lay judges is also intended to symbolically ensure that a court hearing decides “in the name of the people”. Every pronounced judgment begins with this formula.
Becoming a lay judge is easy
There are only a few requirements to be met in order to become a lay judge: You have to have German citizenship, be between 25 and 69 years old and have neither ongoing criminal proceedings nor a prison sentence of more than six months in your CV. Legal knowledge is not a requirement.
These low hurdles seem tempting to anti-democracy. A concrete example: The right-wing extremists Freie Sachsen openly call on Facebook to apply for jury duty “so as not to leave the judiciary to left-wing amateur judges”.
“Defensive Democracy – Should We Be Worried?”
The Federal Ministry of Justice takes such calls very seriously. “Reports on rights that want to sneak in are very disturbing,” said Secretary of State Angelika Schlunck at an event hosted by the Germans Association of lay judges (DSV) in Berlin. Experts discussed the question “Defensive democracy – do we have to worry?” about the possible danger of extremist infiltration of the judiciary.
Such fears are not new. In the application round for the jury office in 2018, right-wing extremist parties and groups in their milieus campaigned to apply for the influential honorary office. Among them was the National Democratic Party of Germany (NPD) and the xenophobic Pegida movement (Patriotic Europeans against the Islamization of the West).
In order to prevent infiltration from the right, the Federal Ministry of Justice wants to supplement paragraph 44a of the German Judges Act (DRiG). Under current law, lay judges can be excluded who violate principles of humanity or the rule of law or who served in the Ministry for State Security (Stasi) during the GDR dictatorship.
In future, it will also be possible to remove someone from the jury office who “offers no guarantee that he or she will always stand up for the free democratic basic order within the meaning of the Basic Law”. according to a draft by the Federal Ministry of Justice.
A judge who played in a Nazi band
The Federal Constitutional Court made it clear in 2008 that the obligation to comply with the constitution also applies to honorary judges. The reason for this was a complaint by a lay judge who had been removed from office by the Baden-Württemberg State Labor Court. As a member of the right-wing extremist band “NoieWerte”, the man had taken part in over 200 concerts in Germany and abroad.
Non-fiction author Joachim Wagner believes it is wrong to generalize from individual cases. “I would not go so far as to speak of infiltration.” But he also warns against underestimating the danger. “It is infinitely difficult to identify extremists beforehand.” The fully qualified lawyer therefore advocates preventive measures.
Experts for rule requests at the Office for the Protection of the Constitution
Joachim Wagner finds the approach in the federal state of Lower Saxony to be emulated. There, applicants for the alderman’s office are asked a question: “Would you mind if the Office for the Protection of the Constitution asked about you?” If all federal states did that, it would be progress, said the former television journalist at the event of the German Association of Aldermen.
The head of the Office for the Protection of the Constitution in the state of Brandenburg, Jörg Müller, has long wondered about the low formal hurdles for the approval of lay judges. “I wonder why we are not asked at lay judges – like with the gun law.” Since 2020, people who apply for a gun license have been checked by the Office for the Protection of the Constitution. In this way, registered extremists should be recognized in good time.
Is there a “right tick” sitting next to me?
The honorary judge Ines Moegling thinks it is unlikely that a rule query could have a deterrent effect on applicants for the jury office: “I don’t think that jurymen are worried about being examined by the Office for the Protection of the Constitution. It’s more that they have a right-wing tick next to them.” The lay judge, who has been working at the Hamburg district court since 2019, means people who do not take the free-democratic basic order in Germany and the judiciary so seriously.