The issue of Poland's judicial reforms has raised the question of judicial independence in Germany. Here it is a cornerstone of the rule of law. But where is the concept anchored and what are its limits?
The independence of judges is not a privilege in states governed by the rule of law; rather, it is an obligation. In Germany, judicial independence is anchored in the constitution, known as the Basic Law: "Judges shall be independent and subject only to the law," as stated in article 97, paragraph 1 thereof. Therein, the German legal system differentiates between two types of independence: First, there is objective independence, which guarantees neutrality. Judges may not be influenced, neither by colleagues nor by superiors, in their decisions.
Secondly, there is personal independence, which deems that judges, who are lifetime appointees, may not be fired or relocated. This is designed to protect judges from arbitrary or undue influence.
How much influence do politicians have?
Nevertheless, no system is perfect: The independence and neutrality of judges is also questioned, criticized and attacked here in Germany. Who is entitled to appoint and promote judges? "The appointment of state judges is fundamentally based on merit," explains Gigi Deppe, a legal expert for Germany's public service broadcaster, ARD. "But the question is, how much influence do politicians have in promoting judges?"
So-called Councils of the Judiciary decide just who is appointed and promoted. "Politicians from state parliaments have seats on most of those councils," says Deppe. "That means that politicians do in fact have a great amount of influence when it comes to appointing and promoting judges."
People's representatives have a say
But political participation makes sense, explains the legal expert. "There is an upside to the fact that representatives have input." Otherwise there would be an inherent danger that judicial appointments would not reflect the will of the people.
"The first lesbian judge to serve on Germany's Federal Constitutional Court, for instance, said that she would likely never have been appointed had it not been for the influence of Green and Left party politicians," says Deppe in speaking of the appointment of Susanne Baer. "That is something that a traditionally conservative judiciary would not have been able to imagine."
But those who desire to become judges must be more than just good jurists. "Personal attitude is probably even more important," says Deppe. The basic law dictates that judges must apply the law regardless, even if this does concur with their own personal interpretation. This ensures that their own world view does not influence the decision making process. "Otherwise it might become a matter of whether a judge knows a defendant or plaintiff, if they may have been raised in a similar context, or if he or she sympathizes with the attitudes of ruling politicians," adds Deppe.
The limits of independence
"Nemo index in sua causa" – no one should be a judge in his own case, is the guiding principle of natural justice. But are judges who are part of a judicial system the exception? They decide how the law can and should be interpreted – and they judge their colleagues' decisions as well. Many view this situation critically but judges are not untouchable.
Internal administrative supervisors monitor their work and also handle complaints about them. Judges can be prosecuted for perversion of justice if they incorrectly interpret the law, causing harm to others in the process. And judges can also be reassigned or even removed from the bench as a result of disciplinary proceedings. At other times, a judge may see no possible way to arrive at a fair judgement, at which point he or she may recuse themselves, for partiality or bias, for example. Plaintiffs and defendants can also call for recusals.
Despite internal control mechanisms, the German judiciary is a closed system. Is it susceptible to abuse? "Luckily, that is not the case," says legal expert Deppe. "We have two European courts that often review German legal decisions." As a member of the European Union, Germany acknowledges the jurisprudence of the European Court of Justice (ECJ) in Luxembourg and the European Court of Human Rights (ECHR) in Strasbourg. "Sometimes that means decisions are overturned," says Deppe.