Perceptions of the Independence of Judges in Europe by Frans van Dijk

Author:Frans van Dijk
Language: eng
Format: epub
ISBN: 9783030631437
Publisher: Springer International Publishing

4.1 Lay Judges and Judicial Independence

Lay judges are a potentially interesting group when one wants to know more about perceptions of the independence of the judiciary. First of all because they are judges in their own right, and therefore their own independence matters. In the second place, they have hands on experience in the judiciary, yet they have less vested interests in the judiciary than professional judges as their primary tasks lay outside the courts. They do not fall under the court hierarchy for their careers like judges (Schneider 2005). Also, they do not have an interest in the cases they adjudicate like the parties and their lawyers. Lay judges are in a position to be more objective about the judiciary than the professional judges as well as the parties and lawyers. Their perceptions of the independence of the whole system are particularly interesting when they fulfil their tasks together with professional judges. This they generally do.

The number of lay judges amounts to 250,000 in the EU, the UK and Norway.1 The latter two countries are included because they participated in the survey discussed below. This number can be compared with 83,500 professional judges. It should be stressed that these figures concern the number of persons. In full time equivalents the number of lay judges is only a small but unknown fraction of this figure. The involvement of lay judges is very unevenly spread across countries. In 68% of the above judiciaries lay judges play a role. In the judiciaries that make use of lay judges, their numbers per 100,000 inhabitants range from 6 in Italy and 8 in Scotland through 37 in France and 112 in Germany to 174 in Denmark and a staggering 856 in Norway (CEPEJ 2018). According to CEPEJ lay judges are working in all areas of law, and in some countries this is actually the case (Denmark, Norway and, except family cases, Belgium). In other countries the participation is much more limited, such as in Scotland where only misdemeanour and minor criminal cases are handled by lay judges. Involvement in serious criminal cases occurs often: in 75% of the countries that have lay judges. Also, in specific areas of civil law such as labour law there is relatively often involvement of lay judges. Machura (2016) looks at the involvement of lay judges in civil proceedings. He concludes that a wide variety exists in the way lay judges are involved. See also Burgess et al. (2014) on lay person involvement in specialized labour courts that exist in some countries. Again, differences among countries are large.

The reach of the survey among lay judges of the ENCJ (see Table 3.​1) is much smaller than that of the survey among professional judges, because, obviously, not all judiciaries deploy lay judges but also for administrative reasons such as difficulties in reaching lay judges. Ten Judiciaries participated in the survey. Scandinavia had a heavy presence in the survey, but all parts of Europe are represented. As background information, the survey shows how lay judges are deployed.

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