What is right and what is justice? Do the two coincide or do they even contradict each other?? What do the citizens expect from the decisions of judges?? Can you expect just decisions from them??
The problem already starts with what we define as justice. Since the ancient philosophers, justice has been understood as a human virtue, as a measure of individual human action. This alone makes it clear that this measure is very subjective and associated with a large number of evaluations. What one person considers just, another may consider grossly unjust.
As an initial example, let’s consider the following: if you ask the audience at a criminal trial what penalty a defendant should receive for a traffic violation, let’s take a drunk driver with one or more deaths and injuries. It will almost certainly be the case that ten different sentences were demanded by ten listeners, ranging from a low custodial sentence with retention to a high custodial sentence without retention, perhaps even just a high fine. The legal penal framework allows everything.
What is a severe punishment?
Even more extreme distinctions are made in cases of rape, for example, where the only issue is the number of years the defendant will be sentenced to. Which of the listeners demands the just punishment??
Now one could say, they are all non-lawyers, they don’t know any better. Far from it. Even professionals, i.E. Judges, will not necessarily arrive at the same punishment for the same act, even though the "range" of punishment may be greater could be clearly lower.
In recent times, this has led to the judiciary coming under massive criticism in some cases. Judges have been too lenient, especially against criminals from foreign cultures, alcoholism or drug addiction have been given too much credit for the defendants. This list can easily be continued.
In the name of the people
Are therefore only severe punishments just? And what are harsh punishments? Some even think, if only "in the name of the people" if a court is to judge, the people, whatever one understands by this, must also be allowed to say what is just.
Such a view cannot be reconciled with our principles of the rule of law. It ultimately leads to arbitrariness. Guilt and punishment are decided by a court exclusively in accordance with the law, taking into account the case law of the highest courts, including the federal supreme court and the federal constitutional court, and applying strict procedural rules.
A court cannot arbitrarily create new procedural rules or punishment targets. A criminal trial is also not meant to answer all open questions, if they have no meaning for guilt and punishment. Ferdinand von schirach, an excellent criminal defense lawyer from berlin and now a renowned author, puts it this way: "criminal proceedings are not therapy sessions or church services. It is not a question of sensitivities and theological guilt, but of proof."
Especially when a court is trying to convince a defendant of his guilt, this can be of existential importance for him.
In doubt for the accused
Whether someone is guilty or not, a court may not have any reasonable doubts. The principle of "in doubt for the accused" applies. Every judge does not make this responsibility and task easy for himself. It is a real struggle for the truth of criminal procedure, which follows only the rules of the law. It is more acceptable that one guilty person is acquitted than one innocent person is wrongly convicted.
It may well be that a judge is inwardly convinced of the guilt of a defendant, but he cannot prove it with the admissible evidence.
The same is true in civil cases, where a plaintiff has to prove his claim for damages, for example. If he cannot, he will not find a judge who will grant him his claim, even if the judge believes that everything the plaintiff claims is true.
Gut feeling does not pay
The aforementioned decision-making processes are not easy and, in some cases, painful for the deciding judge.
This is different from justice, but it corresponds to our principles of the rule of law and also leads to a high good, namely legal certainty. Judges must not follow moods, inclinations, diffuse ideas or even their gut feeling. What pays is the right and that the rule of law works. This still does well.
In addition: judges are not machines, but only people with a special qualification. Neither can you throw a coin into it like into a vending machine, nor can you press a button on a computer and wait for the desired result.
What can be expected of the burghers is that judges, despite considerable burdens, take on their task seriously and with great conscientiousness and contribute to legal peace and legal certainty with their decisions. I have no doubt that this will happen.
In this way, the law can approach a rightly understood justice without being so presumptuous as to be just in all cases.
In the name of justice
Anton lohneis (59) joined the bavarian judiciary in 1987 as a judge at the district court of nurnberg-furth. In the further course of his professional career, he worked as a public prosecutor at the public prosecutor’s office in nurnberg-furth and the public prosecutor’s office in bamberg, and as a judge at the district court in lichtenfels and the regional court in bamberg. He then worked for two and a half years as a group leader and, from june 2000, as a senior public prosecutor at the coburg public prosecutor’s office. From april 2007, he was director of the coburg district court before returning to the coburg public prosecutor’s office in 2010 as senior public prosecutor. With effect on 1. September 2015 lohneis was appointed president of the coburg district court. Commercial, criminal and civil cases are heard there.