Lay judge: Difference between revisions

Revision as of 10:37, 24 February 2020

Revision as of 18:21, 10 April 2020

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In Brazil, the Law Nº 9.099/1995 created the "Juizados Especiais" (Special Petty Courts), with restricted jurisdiction to settle small claims (understood as those with a "lawsuit worth" lower than 40 times the country's [[minimum wage]]) and/or criminal [[misdemeanor]]s (listed in the Executive Order Nº 3.688/1941). In this procedure, lay judges act under supervision of judges to preside over the court as well as to act as conciliators. Their decisions, called "''{{lang|pt|pareceres}}''", are submitted to the judge for homologation before it has any effects [[inter partes|between the parties]]. According to the law, lay judges must be selected among [[lawyers]] with more than 2 years of experience.

=== Finland ===

{{Refimprove section|date=November 2018}}

In Finland, two (previously and sometimes also today three) lay judges (''lautamies'', nominative pl. lautamiehet) are called in intofor serious or complicated cases in district courts, to accompany a professional, legally trained judge. The professional judge is the chairmanchair of the panel, but otherwise the judges have equal rights. The aim is to introduce their "common sense of justice" into the process. Simpler cases are handled by one or three professional judges, and all Appeals Court, Supreme Court and administrative court judges are necessarily professional.

Lay judges are appointed by local municipal councils, in practice by negotiations between political parties, from among volunteers. Each municipality elects a number of lay judges depending on its size, orwith two atas the minimum. The minimum qualifications are Finnish citizenship, full citizenship rights (i.e.a lay judge may not be a dependent or in bankruptcy), 25–64 years of age when elected, and general suitability for the position. Lay judges must resign at the age of 68 at the latest. Officials of the judicial, law enforcement or corrections authorities, such as prosecutors, attorneys, policemen, distrainers or customs officers, may not be elected as lay judges.

New legislation (2009) has limited the role of lay judges. They are employed only in serious criminal cases, which comprised 6% of cases in 2013., Instead,while 29% of cases were handled in writing and 65% with a single professional judge. Almost all (>94%) cases concerning homicideshomicide, child molestationsmolestation and vandalism are handled with lay judges.<ref>{{cite web|url=http://www.verkkouutiset.fi/kotimaa/lautamiehet-21889|title=Lautamiehet mukana enää 6 prosentissa rikosjutuista|language=Finnish|last=Ahtokivi|first=Ilkka|date=10 June 2014}}</ref> Formerly they always sat in, for instance, family law proceedings. On average, lay judges sit in session for 12 days a year, or 20 days at maximum.

=== Germany ===

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=== Greece ===

Under the [[Constitution of Greece]] and the Code of Criminal Procedure, all felonies except for a select few felonies of special nature (such as terrorism) must be tried by a "Mixed Jury Court" composed of three professional judges including the President of the Court and four lay judges.

=== Finland ===

{{Refimprove section|date=November 2018}}

In Finland, two (previously and sometimes also today three) lay judges (''lautamies'', nominative pl. lautamiehet) are called in into serious or complicated cases in district courts, to accompany a professional, legally trained judge. The professional judge is the chairman of the panel, but otherwise the judges have equal rights. The aim is to introduce their "common sense of justice" into the process. Simpler cases are handled by one or three professional judges, and all Appeals Court, Supreme Court and administrative court judges are necessarily professional.

Lay judges are appointed by local municipal councils, in practice by negotiations between political parties, from volunteers. Each municipality elects a number of lay judges depending on its size, or two at minimum. The minimum qualifications are Finnish citizenship, full citizenship rights (i.e. may not be a dependent or in bankruptcy), 25–64 years of age when elected, and general suitability for the position. Lay judges must resign at the age of 68 at the latest. Officials of the judicial, law enforcement or corrections authorities, such as prosecutors, attorneys, policemen, distrainers or customs officers may not be elected as lay judges.

New legislation (2009) has limited the role of lay judges. They are employed only in serious criminal cases, which comprised 6% of cases in 2013. Instead, 29% of cases were handled in writing and 65% with a single professional judge. Almost all (>94%) cases concerning homicides, child molestations and vandalism are handled with lay judges.<ref>{{cite web|url=http://www.verkkouutiset.fi/kotimaa/lautamiehet-21889|title=Lautamiehet mukana enää 6 prosentissa rikosjutuista|language=Finnish|last=Ahtokivi|first=Ilkka|date=10 June 2014}}</ref> Formerly they always sat in for instance family law proceedings. On average, lay judges sit in session for 12 days a year, or 20 days at maximum.

=== Israel ===

While all criminal cases in Israel are tried by professional judges without any lay participation, cases in the [[Labor Courts of Israel]], which hear labor disputes and cases involving Israel's social security system, are heard by professional judges sitting alongside lay judges. Cases in the Regional Labor Courts are heard by a single professional judge alongside two lay judges, one of whom has experience in the labor sector and another with experience in management, while appeals to the National Labor Court, which hears appeals from the Regional Labor Courts, are heard by three professional judges alongside a lay judge from the labor side and a lay judge from the management side. Lay judges in Israeli labor courts are appointed by the Minister of Justice and the Minister of Labor, and serve for a three-year period. They have equal voting power to the professional judges.<ref>https://www.lawschool.cornell.edu/research/ILJ/upload/Colby-final.pdf</ref>

The military court system of the [[Israel Defense Forces]] also employs officers as lay judges. HeadingsHearings in district military courts are generally presided over by a professional military judge and two officers who serve in units based in the court's regional district who generally do not have a legal background. Hearings in the [[Military Court of Appeals]], the supreme military court of Israel, are generally presided over by two professional judges and one officer acting as a lay judge.

=== Japan ===

{{main|Lay judges in Japan}}

A system for trial by jury was first introduced in 1923 under [[Prime Minister]] [[Katō Tomosaburō]]'s administration. Although the system generated relatively high acquittal rates,<ref>{{cite journal |last=Johnson |first=David T. |title=

Early Returns from Japan’s New Criminal Trials |url=https://apjjf.org/-David-T.-Johnson/3212/article.html |journal=The Asia-Pacific Journal: Japan Focus |date=7 September 2009 |volume=7 |issue=36}}</ref> it was rarely used, in part because it required defendants to give up their rights to appeal the factual determinations made.<ref>{{cite journal |last=Dobrovolskaia |first=Anna |title=The Jury System in Pre-War Japan: An Annotated Translation of “The Jury Guidebook” (Baishin Tebiki) |url=http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_09.2_dobrovolskaia.pdf |journal=Asian-Pacific Law & Policy Journal |date=2008 |volume=9 |issue=2 |page=238}}</ref> The system lapsed by the end of [[World War II]].<ref>Haley, JO, The Spirit of Japanese Law, Univ. of Georgia Press, 1998, p. 52.</ref> In 2009, as a part of a larger judicial reform project, laws came into force to introduce citizen participation in certain criminal trials by introducing lay judges. Lay judges comprise the majority of the judicial panel. They do not form a [[jury]] separate from the judges, likeas in a [[common law]] system, but participate in the trial as [[Inquisitorial system|inquisitorial]] judges in accordance with the [[Civil law (legal system)|civil law]] legal tradition,. whoThey actively analyze and investigate evidence presented by the defense and prosecution.

=== Norway ===

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{{Refimprove section|date=November 2018}}

In the [[district court (Norway)|district courts of Norway]], lay judges sit alongside professional judges in mixed courts in most cases.{{sfn|Malsch|2009|p=47}} In most cases, 2two lay judges sit alongside 1one professional judge. The court leader (''Sorenskriver'') may decree that a case have 3three lay judges sitting alongside 2two professional judges if its workload is particularly large or if there are other significant reasons.<ref>{{cite web|url=http://lovdata.no/dokument/NL/lov/1981-05-22-25/KAPITTEL_5-5#§293|title=Lov om rettergangsmåten i straffesaker (Straffeprosessloven). Femte del. Saksbehandlingens enkelte ledd.|language=Norwegian|accessdate=1 August 2014}}</ref> Decisions are made by [[majority|simple majority]].{{sfn|Malsch|2009|p=47}}

Lay judges also serve duringin criminal cases in the [[Court of appeal (Norway)|appellate courts]]. For smaller cases, the court is convened with three professional and four lay judges. If the crime carries a maximum sentence of six years imprisonment or more, the lay judges are replaced with a jury. The jury is chosen from the same list as the lay judges, meaning that lay judges in the appellate courts also serve as jurors. If the jury finds the defendant guilty, the jury spokesperson, and three other jurors selected at random, serve as lay judges during the sentencing. In the few cases where thea professional judges overturn the jury's verdict, regardless of whether the original verdict was one of guilt or innocence, the case is re-triedretried with three professional judges and four lay judges.

In the [[Supreme Court of Norway|Supreme Court]], there are no lay judges.

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In principle, any adult can become a lay judge.{{sfn|Malsch|2009|p=48}} Lay judges must be Swedish citizens and under 70 years old.{{sfn|Terrill|2009|pp=248–249}} People that cannot be lay judges are judges, [[officer of the court|court officers]], prosecutors, police, attorneys, and professionals engaged in judicial proceedings.{{sfn|Terrill|2009|pp=248–249}} In practice, lay judges in Sweden are elderly, wealthy, and better-educated.{{sfn|Malsch|2009|p=48}} Lay judges are usually [[politician]]s with the local authority from which they are appointed, appointed in proportion to political party representation at the last local elections.{{sfn|Bell|2004|pp=299–300}}{{sfn|Bell|2004|p=306}}

The use of lay judges in Sweden goes back to Medievalthe timesMiddle Ages.

==Historical examples==

=== Germany ===

Lay judgesThere have been utilizedlay judges in Germany throughout hersince early history and the Middle Agestimes.{{sfn|Casper|Zeisel|1972|p=137}} A [[Swabia]]n ordinance of 1562 called for the summons of jurymen (''{{lang|de|urtheiler}}''), and various methods were in use in [[Emmendingen]], [[Oppenau]], and [[Oberkirch (Baden)|Oberkirch]].{{sfn|Forsyth|1852|p=369}} [[Hauenstein]]'s charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in [[Freiburg im Breisgau|Friburg]] the jury was composed of 30 citizens and councilors.{{sfn|Forsyth|1852|p=370}} The modern jury trial was first introduced in the [[Rhineland|Rhenish provinces]] in 1798, with a court consisting most commonly of 12 citizens (''{{lang|de|[[:wiktionary:Bürger|Bürger]]s}}'').{{sfn|Forsyth|1852|p=369}}

The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in Germany in which the process of investigation was secret and life and liberty depended upon judges appointed by the state.{{sfn|Forsyth|1852|p=371}} In [[Constance]] the jury trial was suppressed by decree of the [[Habsburg Monarchy]] in 1786.{{sfn|Forsyth|1852|p=370}} The [[Frankfurt Constitution]] of the failed [[Revolutions of 1848 in the German states|Revolutions of 1848]] called for jury trials for "the more serious crimes and all political offenses",{{sfn|Casper|Zeisel|1972|p=137}} but was never implemented. An 1873 draft on criminal procedure produced by the [[Prussia]]n Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.{{sfn|Casper|Zeisel|1972|p=139}}