Lay judges in Austria

Lisbon 8-9 June - Lay judges in Administrative Courts

In connection with the General Assembly of AEAJ in Lisbon the Working Group Independence and Efficiency will discuss the system with lay participation in the Administrative courts. We will therefore ask a representative from each country to give an oral representation at the WG meeting based on the following questions:

Do you have lay judges in your countries? ( If not: 1. What is the reason for this? 2. If your country has lay judges in general courts you may describe that system instead.)

As far as Austria is concerned we don’t have any direct lay-participation in administrative jurisdiction (in some cases – see below - we have experts integrated within the deciding panels of the administration). Maybe that there will be some lay participation in deciding panels, when we introduce new administrative courts of first instance in 2014. (The lay-participation is only foreseen in severe criminal cases and in some civil-right-cases).

Lay participation exists in criminal law: 
See Art. 91 Austrian Constitution:
Art. 91. (1) The people shall participate in the jurisdiction.
(2) A jury returns a verdict upon the guilt of the accused in crimes entailing severe penalties, to be specified by law, and in all cases of political felonies and misdemeanours.
(3) In criminal proceedings for other punishable offences lay assessors take part in the administration of justice if the penalty to be imposed exceeds a limit to be determined by law. Art. 92. (1) The Supreme Court is the court of final instance in civil and criminal suits.
(2) Members of the Federal Government, a Land government, a general representative body or the European parliament cannot be members of the Supreme Court. For members of a general representative body or the European parliament elected for a fixed term of legislation or office such incompatibility continues until the expiry of that term of legislation or office even though they prematurely renounce their seat. Anyone who during the preceding five years has exercised one of the aforesaid functions cannot be appointed President or Vice-President of the Supreme Court.

Lay Participation also exists in civil social insurance and employers law area: 
This falls within the area of civil law. A senate is competent to decide: apart from one judge also one representative of the employer and a representative of the employee sit in the chamber with full rights of participation and decision. The chamber of commerce and chamber to represent the interests of employees send the respective representantive.(in first instances: one judge and one representative of employee and one representative of employers side, in last instances: three judges and one representative of employer and one representative of employee)

Lay participation exists also in special cases of commercial law in case one party to the case requests so: one lay judge (who must be expert in the area of commercial law) may be member of a chamber together with two judges.

Lay participation exists also in many different areas of the administration,

In case tribunals decide, e.g. Art. 12 B-VG: land reform matters:
(2) In matters pertaining to land reform the final decision and that at Land level lies with tribunals composed of a chairman and judges, administrative officials, and experts; the tribunal qualified to pronounce final judgment will be constituted within the framework of the competent Federal Ministry. The organization, the duties and the procedure of the tribunals as well as the principles for the organization of other authorities concerned with matters pertaining to land reform will be prescribed by Federal law. This shall provide that the decisions by the tribunals are not subject to repeal and change by way of administrative ruling; the exclusion of ordinary appeal from the authority of first instance to the Land jurisdiction is inadmissible.

e.g. also in many areas of specific tribunals in the sense of Art. 133 para 4 B-VG:
Art. 133. The following matters are excluded from the jurisdiction of the Administrative Court:
1. matters pertaining to the jurisdiction of the Constitutional Court:
2. (Note: Repealed by F.L.G. No. 444/1974)
3. patent matters;
4. matters where the final decision rests with a
tribunal if, in accordance with the Federal or Land law which prescribes the organization of this authority, its membership includes at least one judge, the remaining members too are in the exercise of this office not bound by any instructions, the rulings of this authority are not subject to administrative rescission or alteration, and complaint to the Administrative Court, notwithstanding the fulfillment of these conditions, is not expressly declared admissible.

Generally spoken, the legislator can, passing such laws, foresee that lay judges, i.e. experts with specific technical knowledge sit in the senate.

No lay judges participation exists so far in proceedings before administrative courts.

In what kind of courts? Which instances?

How are the lay judges nominated? Politically or in other ways?
Senates acc. Art. 133 Z. 4 B-VG: depends on the specific law, no general provisions exist
Criminal matters: obligation of the people

How many lay judges serve in the same bench?
Criminal matters: 2 lay judges and 2 prof. judges, in severe matters: 8 lay judges and 3 prof. judges

What is the purpose with the lay judges? (To represent the public, to possess local knowledge, to have special competence, other?)

Criminal matters: representation of the public

Do they swear an oath?

Criminal matters: yes

Do they have an individual vote?

Criminal matters: yes, but the lay judges are led by the prof. judges

Can they overrule the professional judge?

Generally spoken, lay-judges have one vote, as well as professional judges. It depends on the composition of the deciding body whether they can overrule the professional judges. In severe criminal cases a jury decides upon the question whether the accused is guilty or not. This jury is composed of 8 lay-judges (no professional judge).
In smaller cases (Schöffengericht) there are two lay judges and one professional judge.

Is there any discussion going on in your country concerning the role of the lay judges?

A reform in the administrative court system was recently passed by the parliament. So far no procedural laws have been passed yet, but there are discussions to include participation of lay judges in some areas of administrative law, especially where specific knowledge is necessary.

What is your personal experience of working with lay judges?

There is no personal experience.

Do you have others, besides the professional judges, who may take part in the adjudication process, like experts in different fields?