Legal professions - Germany
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This page provides information on the legal professions in Germany.
Role and functions
The public prosecution service ( Staatsanwaltschaft) is an independent organ of criminal jurisdiction, structured in the same way as the courts themselves. The public prosecutor’s office is responsible for conducting the investigation, bringing the indictment and representing it at the trial and executing the sentence. Unless a law provides otherwise, the public prosecutor’s office is also competent to prosecute an offence as an administrative offence in the context of criminal proceedings.
The public prosecutor’s office is obliged, where there is sufficient evidence, to intervene in respect of all offences which can be prosecuted (principle of legality). This means that, before deciding whether the public action should be brought, the Public Prosecutor’s Office must investigate and carry out a legal examination of all the facts which have come to its knowledge. The Public Prosecutor’s Office is bound by an obligation of objectivity and impartiality. It must establish both incriminating and exculpatory facts. If the conditions laid down by law are met, it must bring an indictment. Where the proceedings relate to an offence, the public prosecutor’s office may refrain from prosecution if the offender’s guilt would be regarded as minor and there is no public interest in the prosecution. Under certain conditions laid down by law, the consent of the court having jurisdiction to open the main proceedings is also required. The accused may also be subject to obligations and instructions following which the case will be closed.
When investigating criminal proceedings, the public prosecutor’s office has the power to use other investigators. These include police officers, tax investigators and customs officers. These latter must follow the office’s instructions.
Prosecution is a prerequisite for subsequent judicial proceedings in criminal proceedings. With the exception of administrative offences, the prosecution must always be brought by the public prosecutor’s office. The trial is usually attended by a public prosecutor as representative of the prosecution authority.
The Public Prosecutor’s Office acts both at first instance and at appeal level (appeal and appeal on a point of law).
At the trial, the indictment must be read out by the public prosecutor or the public prosecutor. They have the right to question the accused and the witnesses. They may also make their own requests for evidence. At the end of the trial, the prosecutor holds a plea in law in which the factual and legal situation is assessed. The defendant is regularly requested to be sentenced to a specific sentence or acquittal.
With the consent of the Public Prosecutor’s Office, the court and the accused, the criminal proceedings can still be discontinued at this stage of the proceedings, for example if the accused’s guilt is deemed to be low after the trial has been held.
If the public prosecutor is satisfied that the court’s decision must be reviewed from a factual or legal point of view, it may lodge an appeal, including in favour of the accused.
The Public Prosecutor’s Office has its seat at the Regional Court, the Higher Regional Court and the Federal Court of Justice and has a hierarchical structure.
Because of the federal system in Germany, there is a need to distinguish between the competencies of the Federal Government and the competencies of the Länder.
Public prosecutor’s offices of the Länder
With the exception of offences for which the Generalbundesanwalt at the Federal Court of Justice has jurisdiction, the public prosecutor’s offices of the Länder are competent to prosecute. The Federal Attorney General at the Federal Court of Justice at federal level and the public prosecutor’s offices at Land level are different and separate authorities. There is no hierarchical link between the national level and those of the Länder. However, in exceptional cases, the federal general attorney at the Federal Court of Justice may, in exceptional cases, transfer proceedings out of his competence to the public prosecutor’s offices of the Land or entail proceedings in their own sphere.
All 16 Länder have their own public prosecutor’s office, organised as follows:
Each regional court (Landgericht) has its own public prosecutor’s office, which also assumes responsibility for the local courts (Amtsgerichte) within the judicial district of that regional court.
The public prosecutor’s offices in the regional courts are each subordinate to the prosecutor-general’s office in the corresponding higher regional court (Oberlandsgericht), which in turn answer to the respective ministry of justice of the Land.
The Public Prosecutor’s Office is responsible for appeal proceedings before the higher regional courts. If such proceedings fall within the jurisdiction of the Federal Court of Justice, the prosecution is conducted by the Federal Prosecutor-General.
Further information on the public prosecutor’s office can be found under the section Courts and Prosecutors’ Offices on the website of the Federal Ministry of Justice and Consumer Protection. Many public prosecution services also have their own websites, which can be accessed via the Länder justice portals.
Federal Attorney General at the Federal Court of Justice
The judiciary in the Federal Republic of Germany is in principle a matter for the Länder (Article 30, 92, 96 Basic Law). ‘The Federal General Attorney at the Federal Court of Justice’ is the only federal public prosecutor’s office. It is also referred to as the ‘Bundesanwaltschaft’. In addition to the Federal Prosecutor General, it consists of other federal attorneys, senior prosecutors and prosecutors and other employees. The Generalbundesanwalt (Generalbundesanwalt) is the Federal Prosecutor’s Office at the Federal Court of Justice.
The Federal Attorney General at the Federal Court of Justice carries out the office of prosecutor in all serious State protection criminal cases which have a particular impact on internal security (in particular terrorist violence) or external security (treason and espionage). In the case of other offences which have the character of State protection, the Generalbundesanwalt (Generalbundesanwalt) of the Federal Court of Justice assumes responsibility for prosecution under certain conditions laid down by law in Section 120 (2) of the Judicial System Act (‘Evokationsrecht’). The duties of the Generalbundesanwalt at the Federal Court of Justice also include the prosecution of offences under the Peoples Criminal Code and the participation in appeals and appeals before the criminal divisions of the Federal Court of Justice.
The Federal Attorney General is appointed by the Federal President on a proposal from the Federal Minister for Justice and Consumer Protection. The proposal must be approved by the Bundesrat. The Federal Attorney General is subject to the administrative supervision of the Federal Minister for Justice and Consumer Protection. However, the Federal Minister may not exercise any administrative supervision or authority over the prosecutors of the Länder.
The main legislation governing the profession of judge in both national and regional courts is the German Judges Act (Deutsche Richtergesetz, DRiG). Further provisions can also be found in legislation at Land level.
The ministries of justice of the Länder supervise the work of judges at Land level. The work of judges in federal courts (with the exception of the judges of the Federal Constitutional Court) is supervised by the relevant federal ministry.
Role and functions
Professional and lay judges
Professional or career judges (Berufsrichter) serve either in national or in regional courts. Provincial judges perform their duties at, for example, a district court, regional court or higher regional court. Most judges work at Land level.
Federal judges (Bundesrichter) may serve on the Federal Constitutional Court (Bundesverfassungsgericht), the Federal Court of Justice (Bundesgerichtshof), the Federal Labour Court (Bundesarbeitsgericht), the Federal Finance Court (Bundesfinanzhof), the Federal Social Court (Bundessozialgericht), the Federal Administrative Court (Bundesverwaltungsgericht) or the Federal Patent Court (Bundespatentgericht).
In criminal proceedings, professional judges are joined by ‘lay judges’ (Laienrichter). Lay judges are called by the authorities to perform this service, and are not paid a salary. In theory, this can also be done without the consent of the person concerned. A citizen appointed as a spokesperson can be exempted from this obligation only in special circumstances. Lay judges participate in local court hearings and criminal and juvenile hearings at regional courts.
In principle, magistrates have the same voting rights as professional judges. This means that they decide jointly on the question of the accused’s guilt and on the level of penalties.
According to Section 36 of the Courts Act (Gerichtsverfassungsgesetz, GVG), lay judges are elected every five years. The office of spokesperson can only be held by a German (§ 31 GVG). The post of spokesperson is not to be appointed (Paragraph 33 of the GVG), who:
- has not yet reached the age of twenty-five years or has reached the age of seventeenth or up to the beginning of the term of office;
- persons not residing in the district concerned,
- persons unfit for the role on health grounds,
- Persons unfit for the role due to insufficient knowledge of the German language,
- in the event of a fall in assets;
Is unable to perform the duties of a spoon,
- a person who, as a result of a claim by a judge, does not have the capacity to occupy public office or has been sentenced to a term of imprisonment of more than six months for an intentional offence; or
- Or who is under investigation in respect of an offence which may result in the loss of the capacity to hold public office (Paragraph 32 of the GVG).
Lay judges are entitled to compensation for loss of earnings, the amount being determined by the Legal Remuneration and Compensation Act (Justizvergütungs- und -entschädigungsgesetz) (Section 55 GVG). The Länder provide information brochures to inform lay judges of their duties. These brochures are also published on the internet. The Länder also offer training for lay judges.
‘Rechtspfleger’ are officials of the German judiciary. As the “second pillar of third force”, they mainly perform tasks in the area of so-called non-contentious jurisdiction (e.g. succession, care, childhood and adoption cases, land registry, commercial, cooperative and partnership register cases, association cases, property register cases, ship register cases, etc.), but they are also responsible for a large number of other judicial activities, such as court orders for payment, legal aid, enforcement, foreclosure and administration of property and administration of property rights, legal enforcement, criminal proceedings, etc.
There are now more ‘Rechtspfleger’ than judges in the District Courts. Their tasks and responsibilities are set out in the Rechtspfleger Act (RPflG). In exercising their duties and taking decisions, judicial officers, like judges, are impartial and independent and bound only by law and statute. As a matter of principle, appeals may be made against their decisions in accordance with the general procedural laws in force.
Internet websites dedicated to the judicial professions and accessible to the general public are:
- The website of the Federal Ministry of Justice and Consumer Protection
- The websites of the Ministries of Justice of the Länder (e.g. Hamburg, Berlin or Bavaria)
- individual courts that make information available via the internet
- The common e-Justice portal of the Federal Government and the Länder
Information can also be found on the websites of the Association of Judges (Deutscher Richterbund) or the Federation of German Judicial Officers (Bundes Deutscher Rechtspfleger).
In Germany there are approximately 166.000 lawyers. They complete the same legal training as judges and can advise and represent their clients in every form of legal matter. They are allowed to act in court and out of court; there are no special lawyers for legal representation under German law. The judicial power of representation applies in principle to all courts in Germany without distinction. The only exception is when lawyers wish to represent their client in a civil case before the Federal Court of Justice, where there are specific admission prerequisites. Another exception is for enrolled in-house lawyers (lawyers employed by a non-lawyer employer to advise and represent the employer in its legal affairs). They are not allowed to represent their employer before some courts.
Lawyers are subject to the statutory provisions of the Federal Lawyers Act (Bundesrechtsanwaltsordnung, BRAO). The legal profession is also self-regulated by further professional rules, more specifically, the Lawyers’ Professional Code of Conduct (Berufsordnung der Rechtsanwälte, BORA) and the Code of Conduct for Specialist Lawyers (Fachanwaltsordnung, FAO). The remuneration of lawyers is determined by the Lawyers’ Remuneration Act (Rechtsanwaltsvergütungsgesetz, RVG).
The lawyers are organised in 27 regional bar associations and the Bar Association at the Federal Court of Justice. The Chambers are responsible for admission to the legal profession. They are also responsible inter alia for monitoring that lawyers comply with their professional obligations.
Full information on the legal profession is available on the website of the Federal Bar Association (BRAK). In addition, the German Bar Association (DAV), the largest German free representation of lawyers, provides a wide range of information on the profession of lawyer, including in English and French.
Help to find a lawyer can be found in the Federal Official Register of Lawyers, which lists all lawyers (available in German and English) and the German Bar Information.
Some 3.500 patent attorneys are active in Germany. Patent agents have generally completed university-level studies in sciences or technical affairs, followed by subsidiary legal training. Its powers include advice and representation in the field of industrial property rights (in particular: Patents, utility models, trademarks, design), in particular their registration and monitoring. Patent agents are entitled to represent their clients before the German Patent and Trademark Office, the Federal Patent Court and, under specific circumstances, before the Federal Court of Justice. Before the regional and higher regional courts, however, they may only deliver opinions on their clients’ cases, and cannot conduct actions themselves.
The activities of patent attorneys are governed by the law of the Patent Attorneys’ Code (Patentanwaltsordnung — PAO). The patent attorneys are organised in the Patent Attorneys’ Association.
There are currently almost 7.000 notaries in Germany, who must in principle have the same training as a judge. They provide independent, impartial and objective advice and support for important legal transactions and the handling of legal matters in such a way as to avoid litigation. Their most important task is certifying legal transactions.
Due to Germany’s federal structure, there are different forms of notary. In most of the Länder, notaries exercise their duties as their main professional occupation (‘single-profession notaries’, Nurnotariat). In some Länder, the profession of notary is practised alongside the profession of lawyer (notarial profession). All notaries are appointed and supervised by their respective regional judicial authority (Landesjustizverwaltung).
The provisions governing the notary profession can be found in the Federal Notaries Act (Bundesnotarordnung, BNotO). The remuneration of notaries is determined by the Fees Act (Kostenordnung, KostO).
Notaries belong to their respective regional Chamber of Notaries.
Comprehensive information on various topics of notaries is available on the website of the Federal Chamber of Notaries. The list of notaries there is also a help to find a notary. The content is available in German, English, French and Spanish.
Other legal professions
Legal professions defined in the Legal Services Act (Rechtsdienstleistungsgesetz, RDG)
The Legal Services Act makes it possible for debt collectors, pension consultants and legal service providers with a specialisation in foreign law to provide extrajudicial legal services. In certain cases, debt collection service providers and pension advisers are also authorised to represent their clients in court. The activity is subject to registration by the court at the request of the court. The names of persons registered are listed in the Legal Services Register.
There is no legal requirement for these registered service providers to belong to a Chamber or specific professional association. Collection service providers and pension counsellors are partly organised in professional associations; the largest associations are the Federal Association of German Debt Companies, the Federal Association of German Legal Advisors/Legal Service Providers and the Federal Association of Pension Advisers.
It is possible to consult the Legal Services Register, which includes the list of legal service providers and the courts responsible for registration, via the German judicial portal. The websites of the Federal Association of German Debt Companies, the Federal Association of German Legal Advisers/Legal Service Providers and the Federal Association of Pension Advisers provide a wide range of further information.
Organisations that provide free legal services
In Germany, numerous charitable organisation provide free legal advice (in accordance with Sections 6 and 8 of the Legal Services Act). Some of the most important of these are:
- Arbeiterwohlfahrt Bundesverband e.V.
- Welfare organisations
- Jewish Central Welfare Office in Germany
- German Red Cross
- Paritätischer Wohlfahrtsverband (Parity Welfare Association)
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Last update: 23/11/2020