Strasbourg, 12 February 2001
CCJE (2001) 25
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Germany
I. The independence of judges
1. Is the independence of judges guaranteed by the Constitution or by legislation?
Both the Constitution (Basic Law Art. 97) and special
legislation guarantee the independence of judges. Judges are subject only to the law.
2. What institutional safeguards are there with regard to the independence of judges?
On principle only judges for life may act as judges of the court.
A judge shall be subject to supervision only in so far as there is no detraction from his independence - a provision by the German Judiciary Act which has been put into concrete terms by a wealth of court decisions. These decisions distinguish between the core area of judicial activity and external order. In the core area od judicial activity (for instance not only determination of the content of a judgment but also preparation of an oral hearing) supervisory measures are simply inadmissible. Where a judge contends that a supervisory measure detracts from his independence a court (service court) shall, on application being made by the judge, give a ruling.
The presidium, which is composed of the president of the court and judges elected by all judges of the court, annually decides about the rules according to which cases are conferred to a judge or a division of a court (schedule of responsibilities).
3. Is the irremovability of judges recognised?
Yes. According to Art. 97 of the Basic Law judges appointed permanently may be involuntarily dismissed, permanently or temporarily suspended, transferred or retired before the expiration of their term of office only by virtue of judicial decision and only for the reasons and in the manner specified by the laws. The legislature has set age limits (on principle 65
years). In the event of changes in the structure of courts or in their districts, judges may be transferred to another court or removed from office, provided they retain their full salary.
4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided by law, by institutions other than courts of appeal or cassation?
5. Can a case be withdrawn from a judge?
On principle: No. However, the presidium (see above 2.) may change the rules according to which cases are conferred on judges (mainly because of uneven burden of work). The consequence may be the withdrawal of certain categories of cases from a judge or a division of the court.
II. The appointment of judges and their careers
1. What qualifications are required and what conditions must be met in order to become a judge?
Whoever concludes his legal studies at a university by taking the first state examination as well as a subsequent period of preparatory training by taking the second state examination is legally qualified to hold judicial office. Normally only candidates with good examinations results may become a judge.
2. Are judges recruited on competitive examination, on the basis of a professional examination or on the basis of their qualifications?
Both on the basis of the above mentioned examinations and of their qualification.
3. What level of studies is required to become a judge?
See above No. 1.
4. Is previous professional experience required?
Frequently for specialised courts (e.g. Administrative Court, Finance Court), not for ordinary courts (civil and criminal cases).
5. Are there any age requirements?
There is no general minimum age requirement (exception e.g. for Constitutional Court).
6. - 8. Are judges elected? Or are they appointed? Or are they selected in any other way?
In general, judges are appointed by the competent Land minister. Several German Laender (states) provide that judges shall be chosen jointly by the competent minister and a committee for the selection of judges. There are considerable differences between the respective Land provisions. The committees typically are composed of members of Parliament, judges (in most cases elected by the judges) and a lawyer. In two Laender the committee includes some members of Government. The main feature of most Land provisions is that the committee may decline the competent minister’s suggestion for appointment of a candidate. In this case the candidate may not be appointed. There is a continuing discussion about such solutions. Some suggestions raise constitutional questions. The constitution requires democratic legitimation of the decisions of such committees. A majority of judges may not elect or appoint judges.
The judges of the Federal Constitutional Court are elected half by the Bundestag (Federal Parliament) and half by the Bundesrat (Representation of the Laender). The judges of the Supreme Federal Courts are chosen jointly by the competent Federal Minister and a committee for the selection of judges consisting of the competent Land ministers and an equal number of members elected by the Bundestag.
9. In general, the competent Land Minister. For Federal Judges see above.
10. Does any authority independent of the government and the administration take part in the selection or promotion process?
For committees for the election of judges see above 6.-8.; the above mentioned Laender committees in most cases also take part in the promotion process.
As far as federal courts are concerned, a council for judicial appointments, which consists of the president of the court and judges elected partly by the judges and partly by the presidium (see above I.2.), delivers a written opinion on a candidate’s personal and professional aptitude. Similar councils are also provided by Land law with respect to appointment and/or promotion of judges in other courts. The written opinion is not binding. The competent minister, however, should be aware of (sometimes public) criticism if he diverges from the councils´ opinion.
11. How and by whom are judges promoted?
In most cases applications for a position are invited (e.g. by publication). On principle the competent minister decides about promotions. The council for judicial appointments (see above 10) and - if provided by Land law - the committee for the election of judges (see above 6.-8.) participate in the promotion process.
12. What are the criteria for promoting judges? Are they objectively defined?
The criteria are aptitude, qualifications and professional achievements. In practice, tenure of office also plays an important role. Decisions are mainly based on testimonials. Criteria used in the testimonials are usually specified by regulations.
13. In what cases can a judge be removed from office?
In cases of severe criminal offenses and disqualification from holding public office. Besides, where he requests his own dismissal in writing or where he has reached the age-limit or is unfit for service and the service relationship has not ended in his retirement. Other provisions seem to have little practical relevance.
III. The funding of the courts
1./2. How are the courts’ activities funded? Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.
The budget passed by Parliament contains an item „judiciary“. There are two subtitles: labour costs and costs of material. Before the budget is passed the competent minister prepares the respective part of the budget draft. Negotiations within the cabinet follow.
3. Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
There is a tendency to leave a certain margin within a given framework concerning managing the budget up to the decision of the president of the court.
Usually there is no direct influence of other judges. An indirect influence may be exercised by the councils of judges for participation in relation to general and social matters, because some of these matters (e.g. acquisition of computers or furniture) are connected with certain costs.
4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can work efficiently and without undue delay?
A general answer is hardly possible. Working conditions are not the same in all courts, partly due to the fact that most courts are Land courts. Even if especially at lower courts complaints are not rare, the average situation may still be described as adequate. An increasing number of courts is equipped with data processing facilities.
5. Do judges encounter other material difficulties which prevent them from acting efficiently?
6. Are appropriate measures taken to assign non-judicial tasks to other persons?
Normally yes, although organisational structures and methods used frequently seem out-dated. Efforts are taken to modernize court administration.
7. General comments on the funding of the courts
Reduction of financial resources is an increasing problem. Frequently there is a tendency to reduce the budget both for labour costs and costs of material.