In a criminal hearing at a local court, three people sit at the judges’ table. The professional judge in the middle wears a robe, has studied law and leads the session. The man and woman beside him are lay judges, Schöffen. They have not read the file before the hearing and have no law degree, yet German law gives them the judicial office in full and with the same voting rights. If both vote to convict and the professional judge does not, the professional judge cannot stop the verdict.
A report in the Ostfriesland press uses a fictional case that it says would also be conceivable at a local court in East Frisia. After the evidence, the prosecutor asks for an acquittal because it is one statement against another and the evidence is thin. The defence agrees. The professional judge reminds the lay judges that a defendant must be acquitted if the court still has doubts. One lay judge says he has no doubts and that it is established the defendant is the offender. He does not say that he asserts this because the defendant is a foreigner and, in his view, does not belong in Germany. The other lay judge is persuaded, and both vote to convict. The professional judge announces a conviction of a man who, on the legal standard described, should have been acquitted. Deliberation secrecy bars him from saying he was outvoted, and a breach can be punished. He hopes the defendant appeals. The small criminal chamber at the regional court would again have one professional judge and two lay judges. Only on appeal to the higher regional court do professional judges alone review the judgment, and then only for errors of law. Because of deliberation secrecy, the public would not learn how such a verdict was reached.
Observers of trials often see lay judges stay passive, ask few questions and rarely take notes, which can suggest they follow the expert in the middle. They do not have to. For the 2024–2028 term the Aurich regional-court district, which covers all of East Frisia, has 369 lay judges and substitute lay judges. Nobody knows how many share the view in the example, because constitutional loyalty of lay judges is not routinely checked in Lower Saxony.
Someone who wants to become a professional judge in Lower Saxony needs strong exam results and a long hiring interview. The justice ministry obtains an unrestricted extract from the central criminal register and the education register for successful applicants, and each applicant must consent to screening by the domestic intelligence service. The application form used at the last lay-judge election did not mention constitutional loyalty. Applicants had to declare, among other things, prior sentences of more than six months in prison and ongoing investigations on suspicion of a felony.
Selection has several stages. In Leer, the press office said about 135 applications arrived in 2023. As required by the regional court, the council drew up a list of 37 people by a two-thirds majority. Councillors received each applicant’s name, year of birth, occupation and address. After a statutory public-inspection period in which residents could raise objections, the list went with those of other municipalities to the Leer local court. The final decision lay with the lay-judge selection committee, which by law consists of a judge, an administrative official and municipal representatives. The court said every applicant was checked for criminal offences and that the choice was kept as even as possible by age, occupation and gender.
The absence of a loyalty check is the current legal position, not only an East Frisian practice. Unlike professional judges, constitutional loyalty for lay-judge applicants is not specifically written into statute. The Federal Constitutional Court stated in 2008 that honorary judges are also bound by the duty of constitutional loyalty, but that has not yet been put into a provision. In February 2023 the Lower Saxony justice ministry said it had no fundamental doubts about lay judges’ loyalty and therefore ran no routine query with the domestic intelligence service. It also said consent to check applicants should in future be obtained, as for prospective professional judges. That did not happen for the current term.
In October 2026 Federal Justice Minister Stefanie Hubig of the SPD announced a draft bill meant to make it harder for extremists to enter the lay-judge office. The law would state that honorary judges must support the free democratic basic order and therefore be loyal to the constitution. It would also exclude anyone convicted of an intentional offence and given a fine of more than 90 daily rates or a prison sentence, lowering the present bar of more than six months in prison. Hubig also said she still did not consider a routine intelligence-service query necessary. If doubts arose, the selection committee would have to pursue them, for example by obtaining central-register extracts, which Leer already does, or by checking public social-media profiles.
The report asks how doubts are supposed to arise when committees know only a candidate’s name, place of residence, age and occupation, and says there is so far no answer. Without an intelligence-service query, it argues, criminal justice would remain open to enemies of the constitution even if the draft passed the Bundestag, because not every extremist has a criminal record or is known by name to the local politicians and judges who draw up the lists. Lay judges have the same power as professional judges, while their selection remains almost as blind as the familiar image of Justice.