Strasbourg, 29 January 2007 CCJE REP(2007)26




    Reply submitted by

    the delegation of Germany

    Dr. Otto Mallmann January 24, 2007



    Part I - General context concerning the judiciary

    1. Is there possible interference of the legislative power concerning judges? If yes, please specify.

    2. Is it possible for the legislative power or the Parliament to order investigations or to establish commissions :

    § in general concerning judges? If yes, please specify.

    § concerning judicial performance?

    § concerning facts already submitted to courts?

    § concerning procedural acts (eg. telephonic tapping, police custody)

    3. Is there possible interference of the executive power concerning judges?

    Answers to questions 1-3:

    According to Art. 92 of the Basic Law (Federal Constitution) judicial power is vested in the judges. Judicial power is exercised by the Federal Constitutional Court, by the federal courts provided for in the Basic Law, and by the courts of the Länder (almost all courts except the supreme federal courts are länder courts). The independence of the judiciary is ensured through their monopoly over adjudication, as well as by the organisational independence of the courts and the securing of substantive and personal independence for judges. Hence, for the protection of judicial power, particularly against interference by the legislature and the executive, Art. 97(1) Basic Law provides that judges shall be independent and subject only to the law (substantive independence). This means that both Parliament and the governments and administrations at the federal and Land levels are denied the chance of interfering in proceedings before the courts or of reviewing, amending or revoking a judicial decision. Court decisions can be contested solely by means of the legal remedies allowed by statute, in relation to which equally independent courts are required to render a decision. If there is no legal remedy available against a court decision, the matter will have to rest at that point, i.e. the legal position pertaining as the result of the decision.

    Judicial independence is no privilege of rank, but rather the prerequisite for an objective decision, free from external influence. Judicial independence ensures that a judge is bound by law and justice, and it is from this obligation that judicial independence derives its justification. Given that judges are bound by the law, the legislature will also have an influence on judicial activity - via passing of statutes, e.g. amendments to rules of procedure. But this does not affect decisions rendered in individual instances of litigation pending before the courts.

    According to Art. 44 Basic Law the Bundestag (Federal Parliament) has the right, and on the motion of one quarter of its members the duty, to establish an investigative committee, which shall take the requisite evidence at a public hearing; the public may be excluded. The constitutions of the Länder provide comparable committees. On principle such a committee may also deal with matters of the judiciary. The independence of judges and other constitutional provisions concerning the judiciary must be respected, however. With these restrictions irregularities within the judiciary may be subject to investigations. A court decision may not be examined with the sole object to control its correctness. On the other hand a specific decision may be discussed with the object to point out general shortcomings (e.g. of legislation). Similar principles apply with respect to a situation when facts are already submitted to courts. In practice a reluctance of parliaments can be observed to establish committees with respect to matters of the judiciary. An instructive historical example for such a committee: The Committee of the Bavarian Parliament with respect to the deplorable role of the Bavarian judiciary when dealing with Hitler’s failed coup in 1923. For further details concerning parliamentary investigative committees see Fabian Wittreck, Die Verwaltung der dritten Gewalt, 2006., p. 188, 302.

    Petitions Committees (cf. Art. 17, 45c Basic Law) may not intervene in pending cases and may not circumvent a court decision.

    4. If yes, is it possible for the executive power to interfere:

    in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)

    in designation of presidents of courts? (if yes, please specify which authority from the executive power) in management of courts? (if yes, please specify which authority from the executive power)

    Concerning selection and career see the answers to question 46.

    Initial training: The most important training for the future work as a judge is the period of Preparatory Training (“Vorbereitungsdienst”) after the legal studies at a university and the taking of the first state examination. Trainees have a special status under public law. Whoever concludes the Preparatory Training by taking the second state examination shall be qualified to hold judicial office. This Preparatory Training, which offers certain possibilities of specialization, as well as the second state examination are also the prerequisite to most other legal professions (for example as counsel or civil servant). The period of Preparatory Training shall last for two years. Training shall mainly be given at the following compulsory agencies:

    - at a court of ordinary jurisdiction in civil matters,
    - at a court with jurisdiction in criminal matters or at a public prosecutor’s office,
    - at an administrative authority,
    - with counsel.

    The main principles of Preparatory training are regulated by federal law (cf. sec. 5 – 6 of the German Judiciary Act. Details are regulated by land law. Responsible for supervisory measures is - generally spoken - the president of the court the person concerned belongs to as well as the Minister of Justice.

    In-service training is mainly run by special training institutions. The two nationwide Judges' Academies ("Richterakademien") at Trier and Wustrau (near Berlin) offer training seminars of usually one week, some times 1 ½ or two weeks. Every judge and prosecutor receives the yearly program of these Academies in advance and may apply for participation in one ore several seminars. The director of the Judges' Academy (normally a judge) is appointed for a three years term. The topics of the seminars are selected by a "Program Conference" consisting of the Federal and Laender Ministers of Justice and representatives of Judges Associations. Similar training schemes are offered by training institutions on Laender level and sometimes also by Judges Associations.
    Section 26 (1) of the German Judiciary Act provides that judges are under administrative supervision only to the extent that this does not interfere with their independence. Administrative supervision does not apply to determining a legal position on a matter, which is a core area of judicial service, but instead entails only those duties of a judge which have to do with ancillary forms of the fulfilment of public service (e.g. conducting meetings in conference rooms, the use of uniform documents etc.). Administrative supervision is undertaken by the presidents of the courts and by the competent ministers – as a rule, these are the ministries of justice. In the event of a judge’s misconduct, administrative supervision includes only two possible measures pursuant to sec. 26 (2) of the German Judiciary Act: The judge may be reprimanded for misconduct in the performance of his official duties, and he may be warned that he must properly and immediately fulfil such duties. In this case the judge has recourse to the disciplinary court (service court). Further disciplinary measures may only be imposed in the course of a formal disciplinary proceeding conducted by the disciplinary court; this is intended to ensure the most extensive possible independence of judges from executive bodies.

    The designation of presidents of courts follows the rules concerning promotion, see the answers to question 46.

Courts management may be interfered by the responsible Minister of Justice concerning matters of administration, for instance providing the necessary equipment (e.g. buildings, IT equipment) and the necessary personnel. Directives given by the Minister of Justice in this context may not interfere with professional and personal independence of judges. A judge may not be given any instructions by anyone – including the Minister of Justice, for instance – prior to, or while arriving at, judgements of disputes. Insofar judges are solely bound by the law.

    5. Is the judicial staff working under the authority of:

    - a judge?

    - the president of the court?

    - the Ministry of Justice?

    On principle the president of the court.

    6. What are the competences of the president of the court:

    - to evaluate the work of the judges of the court?

    Yes. The president writes a testimonial. Especially in larger courts the testimonial is frequently based on a draft of another judge (for instance the presiding judge of the unit the judge concerned belongs to). The judge concerned may object to the testimonial and seek redress in the Administrative Court.

    - to distribute the work between judges?

    No. The allocation of cases is carried out in accordance with certain principles that are annually laid down in advance by the Presidium. A Presidium is established at every court. It consists of the president and judges elected by all judges of the court concerned. The Presidium decides in complete judicial independence about the rules according to which cases are conferred to a judge or a division of the court (schedule of responsibilities). This system of judicial self-administration ensures that the executive cannot decide which judge is to give a legal decision in a concrete individual case nor has the president of the court such a right. He has only one vote as the other members of the Presidium when deciding on the allocation of cases.

    By these requirements effect is given to the institutional guarantee of the “lawful judge” under the constitution (Art. 101[1] Basic Law: No one may be removed from the jurisdiction of his lawful judge <gesetzlicher Richter>) and, at the same time, to the independence of judges as required pursuant to Art. 97(1) Basic Law.

    - to act as a disciplinary authority vis-à-vis judges?

    See above answer to question 4.

    - to intervene in the career of judges?

    The president of the court evaluates the work of judges and may suggest one of several candidates for promotion. His testimonial is the main basis

    for the decisions concerning promotions.

    § other? If yes, please specify.

    Part II – General concerning Councils for the Judiciary

    7. Is there a Council for the Judiciary in your judicial system?


    8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)

    See below answers to question 46 - 48

    9. What is the legal basis for the Council for the Judiciary:

    § the Constitution?

    § the law?

    § other? If yes, please specify.

    10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)

    The German system is one of checks and balances. The development has increasingly led to a situation, where none of the three powers may decide alone on appointment and promotion of judges (see for details answers to questions 46 and 47). There is not much public criticism of this system. If the media from time to time criticise the judiciary they are usually focusing on aspects like efficiency and speed of decisions without - apart from exceptions - putting in question the whole system of recruitment of judges.

    Among Judges associations there are different views on this subject. The "Deutsche Richterbund" is presently discussing which suggestions should be made with respect to self administration/participation of judges. Final suggestions are expected in the coming months. The "Neue Richtervereinigung" (NRV) demands the establishment of Committees for the Election of Judges in all German Länder (with two thirds of the members to be elected by Parliament and one third by judges). In addition, the NRV requires that Councils of the Judiciary (with one third of the members elected by parliament and two thirds by judges) should be established in all Länder replacing the present administration of the judiciary by the Länder Ministers of justice. The "Bund Deutscher Verwaltungsrichter und Verwaltungsrichterinnen" (BDVR = Judges of Administrative Courts) does not call for a complete exchange of existing structures (no Councils for the Judiciary), but is in favour of an improved participation of judges within a system of checks and balances. The BDVR doubts that an independent body has sufficient political influence to accomplish an adequate funding of the courts in the typical conflict with competing interests.

    The discussion about Councils for the Judiciary raises questions of constitutional law. Pursuant to Art. 20 (2) Basic Law all state authority is derived from the people; it shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies. According to the prevailing opinion that means that both administrative and judicial authority need sufficient democratic legitimation (”demokratische Legitimierung”) by the people, the sovereign of the democratic state. On principle there must be an uninterrupted “chain of democratic legitimation” leading from each administrative or judicial authority to the voting public (Federal Constitututional Court <Bundesverfassungsgericht>. Decision of February 15, 1978 – 2 BvR 134, 268/76, BVerfGE 47, 253, 275): The Minister of Justice acts under the responsibility of the head of the government and may be dismissed by him. The head of the government is elected and may be dismissed by parliament that derives its responsibility directly from the people. It is stated that a body which consists of a majority of judges (elected by their colleagues) and decides about the appointment and promotion of judges would not be in conformity with this principle. A “cooptation” of judges is considered as unconstitutional. In addition it is stated that the Minister of Justice can be called to account for his discharge of office while it is unclear how the necessary responsibility of a Council for the Judiciary – whose members are mainly judges who may in principle not be removed from office - towards parliament could be established (for further details of the prevailing opinion see Fabian Wittreck, Die Verwaltung der dritten Gewalt, 2006; c.f. a different view Axel Tschentscher, Demokratische Legitimation der dritten Gewalt, 2006).

    Part III - Composition

    11. What is the composition of the Council for the Judiciary:

    § Number of members?

    § Qualification of the members?

    § For the “judges” members, do they need specific qualifications or experiences?

    § Can non-judges be members of the Council? Please specify (number, qualification/specific functions)

    12. Please describe the whole procedure of appointment:

    § Who designates the members (judges or other institutions or authorities – please specify)?

    § What is the appointment system (voting, individual candidates, designation, etc.)?

    13. How is appointed the President and/or Vice-President of the Council?

    14. What is the term of office for a member of the Council?

    15. May a member be removed from office against his/her will and, if so, under what circumstances?

    Part IV - Resources

    16. Where does the Council receive its financial resources?

    17. Does the Council have its own staff?

    18. If not, is the personnel provided by:

    § the Ministry of Justice?

    § the Supreme Court?

    § other institution? Please specify

    19. What is the staff number?

    20. What are the qualifications of the staff?

    21. Must the staff be composed, albeit only in part, by judges?

    22. What are the tasks of the staff of the Council:

    § preparing materials for the Council members?

    § providing them with analysis and evaluation of the courts’ practice?

    § other? Please specify.

    Part V - Tasks

    23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):

    § in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?

    See answers to questions 46-47

    The number of judges and the location of courthouses: The Ministry of Justice on the base of the budget. A Judge appointed for life can be transferred without his written consent only under very narrow conditions (mainly in disciplinary proceedings and by the Ministry of Justice in the case of changes of court organisation).

    § in area of initial and/or continuous training for judges and/or courts’ staff1?

    See answer to question 4.

    § in area of courts’ performance in general (assessment of quality of court performance2, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?

    § in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements3)?

    See answer to question 6.

    § in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?

    See answer to question 4

    § in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?

    § in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify

    In the law drafting process courts are frequently asked for comments.

    24. Does the Council have investigation powers? If yes, please specify

    25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe

    26. What are the types of norms that the Council can issue:

    § opinions on the functioning of the judiciary?

    § recommendations?

    § instructions to the courts?

    § decisions?

    27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.

    28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

    29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?

    30. Does the Council handle external relationships of the courts:

    § has it a public relations department?

    § how does it ensure the transparency of its functioning and organisation?

    31. Are decisions of the Council published and available to all?

    Part VI – Assessment of the self-governance and the independence of the judiciary

    32. To what extent is the work of the Council influenced by:

    § the executive power?

    § the legislative power?

    33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?

    34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?

    35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?

    36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?

    37. Who decides which the priorities of actions of the Council are?

    38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?

    39. Which instruments or practices are used by the Council:

    § to guard the independence of judges?

    § to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?

    § to intervene in case of attacks against its own interests4?

    § to improve the working methods of judges?

    Part VII – Future trends of Councils for the Judiciary

    40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.

    41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.

    42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?

    43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:

    § concerning the national actions of your Council?

    § concerning international co-operation?

    44. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.

    Part VIII – Countries without a Council of the Judiciary

    45. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?

    The principle of the separation of powers is one of the central principles of the German constitution (see Art. 20 (2) Basic Law). The independence of the judiciary is ensured through the exclusive competence for adjudication, as well as by the organisational independence of the courts. For the protection of judicial power, particularly against interference by the legislature and the executive, the Basic Law guarantees judges judicial independence; judges are subject only to the law (Art. 97[1] Basic Law).

    46. How and by whom are judges appointed and promoted?

    The general criteria for appointment to any public office - this includes any position in the civil service and any judicial office - are laid down in Art. 33 (2) Basic Law. According to this provision all German citizens have equal access to public office according to their aptitude, qualifications and professional ability. In addition, sec. 9 of the (federal) German Judiciary Act prescribes that judicial tenure may only be given to a German national, who is prepared to at all times uphold the free democratic basic order within the meaning of the Basic Law and who is qualified to hold judicial office (according to sec. 5 to 7 of the act). In most cases applications for a position are invited).

    The process of promotion is quite formalised. It resembles the process of initial recruitment and selection. As regards the criteria of promotion, final marks reached in the evaluations play a decisive role in the decision, and generally a person with a lower final result than another applicant may not be promoted. In the event that several applicants hold the same result of evaluation, additional criteria may be brought in. This may be the period of time for which the relevant result has been achieved by the applicants; further criteria are the time served in the judiciary, age, gender (laws asking for preferential treatment of female applicants).

    According to Art. 95 (2) Basic Law the judges of the supreme federal courts are chosen jointly by the federal minister competent for the court concerned and a committee for the election of judges. This committee consists of the competent Land ministers (16) and 16 members of the Federal Parliament (Bundestag).

    With respect to the Länder courts (almost all courts except the supreme courts are Länder courts) judges are appointed by the competent land minister. Nine of the sixteen Länder provide that judges shall be chosen jointly by the competent minister and a Committee for the Selection of Judges (Richterwahlausschuss). This committee may decline the minister's suggestion for appointment and/or promotion of a candidate (veto right). Such committees are parliamentary committees. Their members are appointed for a parliamentary election period and, as a rule, chosen by a parliamentary vote, frequently on the basis of nominations of relevant professional groups (e.g. the judiciary, the bar). The recruitment is only valid with the concurring votes of the competent minister and the electoral committee. There are some differences between the electoral committees of each Land in regard to composition. They consist mainly of members of the respective Land parliament and persons elected by parliament (judges are frequently nominated by their colleagues before and in practice elected by parliament).

    Baden-Württemberg 15 members:
    6 members of the Land parliament,
    6 judges (permanent members),
    2 judges (of the jurisdiction concerned),
    1 lawyer
    Chairperson: minister (no voting right)

    Berlin 14 members:
    7 members of the Land parliament ,
    5 judges
    1 public prosecutor
    1 lawyer
    Chairperson: minister (no voting right)

    Brandenburg 12 members:
    8 members of the Land parliament,
    2 judges (permanent members),
    1 judge (of the jurisdiction concerned),
    1 lawyer
    Chairperson: minister (no voting right)

    Bremen 11 members:
    5 members of the Land parliament ,
    3 ministers (Minister of Justice and 2 other ministers)
    3 judges
    Chairperson: minister competent for the court concerned

    Hamburg 14 members:
    6 members of the Land parliament ,
    3 ministers (Minister of Justice and 2 other ministers)
    3 judges
    2 lawyers
    Chairperson: minister appointed by the Land government

    Hessen 13 members:
    7 members commissioned by the Land parliament,
    5 judges
    1 president of the Bar
    Chairperson: Minister of Justice (no voting right)

    Rheinland-Pfalz 11 members
    8 members of the Land parliament
    1 judge (permanent member)
    1 judge (of the jurisdiction concerned),
    1 lawyer
    Chairperson: minister (no voting right)

    Schleswig-Holstein 12 members:
    8 members of the Land parliament,
    2 judges (permanent members),
    1 judge (of the jurisdiction concerned),
    1 lawyer
    Chairperson: Minister of Justice (no voting right)

    Thüringen 12 members:
    8 members of the Land parliament,
    2 judges (permanent members),
    1 judge (of the jurisdiction concerned),
    1 president (of the jurisdiction concerned)
    Chairperson: Minister of Justice (no voting right)

    47. Does any authority (body) independent5 of the government and the administration take part in the appointment and promotion process:

    Yes; for the Committees for the Selection of Judges see above no. 46.

    The Council for Judicial Appointment (Präsidialrat) participates as a representative organ of the judges in the event of the nomination of a judge. The council delivers a written opinion on the aptitude of candidates for appointment and/or promotion. The written opinion is not binding. The competent minister, however, should be aware of - some times public – criticism if he diverges from the council's opinion.

    · If yes, how is this authority composed? Is a certain share of judges fixed?

Sec. 74 of the German Judiciary Act provides for judges in Land service:

(1) A council for judicial appointments shall be established for every jurisdiction. Statutory provision can be made for the establishment of a joint council for judicial appointments for several jurisdictions.

(2) A council for judicial appointments shall be composed of the president of a court, acting as chairman, and of judges, of whom at least one half are to be elected by the judges concerned.

    Sec. 54 of the German Judiciary Act provides for judges in federal service
    (1) A council for judicial appointments shall be established at every supreme court of the Federation. The council for judicial appointments at the Federal Court of Administration shall also be competent for the military service courts. The council for judicial appointments shall,
    1. at the Federal Court of Justice, be composed of the president acting as chairman, his permanent deputy, two members elected by the presidium from amongst their number and three further members;
    2. at the other supreme courts of the Federation, be composed of the president acting as chairman, his permanent deputy, one member elected by the presidium from amongst their number and two further members.

    Where a permanent deputy is not appointed, his place shall be taken by the most senior presiding judge, and in a case of equal seniority by the oldest presiding judge. The remaining members shall be elected, in a secret and direct election, by the judges of the court where the council for judicial appointments is established….

    · How are the members selected?

    See above

    · What are the detailed competences of the authority with respect to the appointment and promotion of judges?

    The legal situation for judges in Land service is as follows:

Sec. 75 of the German Judiciary Act provides:

(1) The council for judicial appointments shall be asked to participate in the appointment of a judge to an office with a final basic salary that is higher than the final basic salary of an initial office. It shall deliver a written opinion, with reasons, on the judge's personal and professional aptitude.

(2) Further duties can be assigned to the council for judicial appointments.

    The legal situation for judges in Federal service is as follows:
    Section 55 of the German Judiciary Act provides:
    Before a judge is appointed or selected the council for judicial appointments at the court where the judge is to be employed shall be asked to participate in the matter. The same shall apply where a judicial office is to be conferred on a judge at a court of a different jurisdiction.

    48. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

    The executive - mainly the Ministries of Justice of the Länder (for the courts of the Länder) as well as the Federal Ministry of Justice (for the federal courts) - are responsible for the financial resources (funding) of the courts on the base of the budget passed by parliament. There are direct negotiations with the Ministries of Finance with regard to the respective budgetary appropriations for the judiciary, and allocations are made to the courts in accordance with the tasks the courts are required to perform. Thereafter the allocations assigned to the various courts are spent by each court administration, acting on its own responsibility (and in accordance with the general budgeting principles laid down by the executive). Consideration is also given, as far as possible, to the wishes and suggestions coming from the judges themselves – for instance regarding the question of equipment.

    49. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?

    Federal and Länder parliaments and governments do not intend the creation of a Council of the Judiciary. See also answer to question 10.

1 Please consider the following statements contained in the CCJE’s Opinion No. 4:

    - para. 17: "In order to ensure proper separation of roles, the same authority should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judiciary or other independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.";

    - para. 18: "Those responsible for training should not also be directly responsible for appointing or promoting judges. If the body (i.e. a judicial service commission) referred to in the CCJE's Opinion N° 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks.".

2 Please consider the following statements contained in the CCJE’s Opinion No. 6:

    - para 34: “The CCJE strongly emphasises, first of all, that the evaluation of "quality" of the justice system, i.e. of the performance of the court system as a whole or of each individual court or local group of courts, should not be confused with the evaluation of the professional ability of every single judge. Professional evaluation of judges, especially when aiming at decisions influencing their status or career, is a task that has other purposes and should be performed on the basis of objective criteria with all guarantees for judicial independence”.

    - para 47: “The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that appropriate procedures allow a ready adjustment of the organisation of courts to changes in the caseloads. In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring should be the independent body (…); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.”

3 Please consider the following statements contained in the CCJE’s Opinion No. 1:

    - para 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long-entrenched and democratically proved systems.”

    - and para 34 of CCJE’s Opinion No. 6 (see footnote 4 above).

4 Please consider the following statements contained in the CCJE’s Opinion No. 7:

    - para 55: “When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases. “

5 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).



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