The Legal Status of the Judge in Contemporary Political Systems

In contemporary democratic structures, judicial power is becoming more and more

important. Apart from their basic function, consisting of the execution of justice, judicial

organs play a significant controlling function within the entire structure of state authorities.

Judicial control applies to both the activities of the executive power (administrative justice) as

well as the legislative power (the judicial review of legislation). In particular, the latter causes

courts or tribunals to become one of the most important authorities of the country. It is their

final decisions that determine whether some legal provisions will apply and will be used in

practice. Controlling the legislator, the judge strives to defend a set of standards or values

which have superior status compared with ordinary acts.

The editor of the volume, Piotr Mikuli, expresses the conviction that the existence of

independent judicial power should be perceived as a necessary condition for the

implementation of the idea of a democratic country. The role of judges should consist in

performing arbitration or controlling functions in a cool manner, i.e., as being unaffected by

current policy. It is obvious, however, that the independence of court authorities and judges

may not close any discussion of the legitimization of the third power.

The performance of administrative control functions and an assessment of the

constitutionality of normative acts - nolens volens - involve judges in matters which are more

or less political. Therefore, it is aptly noted in the theory of constitutional law that political

factors still play a more important role in the activities of the highest courts and that the law is

not the only factor affecting their functioning.

Mikuli notices that an increase in the importance of judicial authorities provokes a

closer analysis of the position of the courts in the political system and the legal status of

persons holding the positions of judges. The holding of significant power by judges often

raises emotions and evokes discussions on the scope of various warranties and privileges and

disputes concerning the principles and conditions of those judges responsible for infringing

the law or the dignity of the office.

This collective study is an attempt to present the legal status of judges in selected

political systems. A political system, as Mikuli, argues, can be defined quite broadly, taking

into account not only the system of mutual relations between traditional political authorities -

i.e., the legislative and executive powers (the government system) together with factors such

as political parties, lobbies, trade unions and the mass media - but also including the most

important judicial authorities. The influence on the third power on the process of the actual

exercise of power keeps growing.

The analysis in this book covers both the national political systems of several

countries and supranational systems (the Council of Europe and the European Union).

Nobody needs to be convinced as to the enormous importance of the decisions of the

European Court of Human Rights and the European Court of Justice.

In the foreword to the monograph, Marian Grzybowski, a full professor at the

Jagiellonian University and a former judge of the Polish Constitutional Tribunal, expresses

his conviction that judicial power has been a necessary and commonly occurring component

of a state's mechanism. Its status - regardless of the position in the system of the remaining

powers - was determined by the status and the scope of the authorizations of judges (the basic

holders of offices belonging to the judicial power). It is characteristic that the legal status of

judges (persons performing court functions) has, more frequently, been the subject of the

scientific reflection of historians studying law and political systems than the subject of

comparative legal research.

Grzybowski notices that, in terms of theory, a gap must be noticed between the

monarchical tradition (where the authority of the country represented by the leader of the

country constitutes the element consolidating the legal and system-related function of a judge)

and the democratic and republican position where the position of the judge is based on the

participation of authorities elected (directly or indirectly) by its citizens in the process of its

creation (or legitimized by democratic procedures for determining their composition). The

author of the foreword emphasizes the serious differences in the mode of appointing judges

and in the detailed requirements connected with the selection of candidates for judges. In

particular, relations between elements of the auto-selection environment and the influence of

external authorities are presented in a different way, including - and in particular - the head of

state as the authority responsible for the formal nomination of judicial posts. This issue should

be perceived and solved in the context of the independence principle and the organizational

(systemic) separateness of judicial power including, in particular, courts. Detailed

requirements for candidates for judges - apart for the requirement of a professional legal

education (at the university level) - take different forms, especially as far as the training

period is concerned (also called court practice), the qualification for practice in other legal

professions as the required professional experience in the application for judicial posts, and

the criteria and mode of promotion (vertical) in the judicial profession and circumstances

disqualifying candidates for judges.

Professor Grzybowski also refers to the issues contained in the last two chapters of the

book devoted to the status of the Court of Justice judges in Luxembourg, which is an

authority for resolving disputes in the European Union, and the European Court of Human

Rights in Strasbourg, which adjudicates on matters concerning the protection of human rights

and fundamental liberties after exhausting any national cause of action in countries belonging

to the legal and institutional system of the Council of Europe. According to Professor

Grzybowski, these studies give an idea how distant the model of appointing the members of

these courts have become from the national models of appointing judges in the member states

due to the supranational character of the two aforementioned interstate organizations as well

as the extent to which they have been influenced by traditions of the judge's position in the

internal (national) legal system of the member states of the European Union and the Council

of Europe. These problems, as emphasized by Professor Grzybowski, are not presented in a

comprehensive manner within the Polish legal literature, owing to which the final chapters

and the entire book gain the quality of originality and novelty.

As a result of Chapter I by Przemysław Biskup and Piotr Mikuli, the theory of the

Parliaments' sovereignty prevented the development of the judiciary in the United Kingdom to

a certain extent. The judicial review of legislation was not crystallized - as in the case of the

United States - due to the lack of a codified constitution which could be perceived as a basic

law with a higher legal status within the hierarchy of legal norms. At the same time, however,

the specificity of the legal systems in the United Kingdom resulted in the continuation of the

law-making mission of the courts which developed common law. Courts became the creators

of law, despite the fact that it was always against the theory on the sovereignty of Parliament.

Courts - especially in the 20th century - considerably strengthened their position. This is

connected with the development of the courts’ control of administrative actions and the

possibility of controlling Parliament's legislation due to the application of European law and

the Human Rights Act.

The authors emphasize that warranties have been introduced gradually into British

statutory law since 1701, which have been primarily aimed at guaranteeing the independent

adjudication of judges. Only as a secondary matter did they concern themselves with the

separation of judicial power from the executive and legislative branches; however, this aim

was achieved fully as a result of the reforms of the years 1999-2009.

The authors write that the independence of judges presently results from a range of

statutory and procedural warranties. Since the beginning of the 20th century, the procedure for

candidacy for the position of a professional judge depends on an appropriately rich legal

carrier (in the position of a barrister or a solicitor or a lower-rank judge), while previously

nominations were openly party-related. In the area of nominations, the discretionary power of

the monarch, the Lord Chancellor and the Prime Minister were gradually abandoned to

become replaced with the currently used system of nominations. Since only recently, specially

established nomination committees - separate for England and Wales, Scotland and Northern

Ireland - are to play a significant role in the process of judicial nominations. The aim of the

activities of the aforementioned committees involves the limitation of discretion in taking

nomination decisions and the limiting of the possibility of using political motives in this

respect. The committees’ tasks consist of recommending candidates for judicial positions.

In the United Kingdom, a system of statutory warranties also developed in an

evolutionary manner concerning the non-removability of judges. In light of the regulations of

the Senior Courts Act 1981 and the Constitutional Reform Act 2005, senior court judges in

England and Wales and the judges of the Supreme Court are generally non-removable during

the period of their “good behaviour” (the phrase repeated after the Act of Settlement 1701)

and, if necessary, may be removed from their offices on an address presented to Her Majesty

by both Houses of Parliament . Similar solutions are in force Northern Ireland and Scotland

(however, in the latter case the Scottish Parliament is entitled to pass the aforementioned

address). Taking such a step may require the committing of a crime by the judge or

negligence of their judicial official duties; however, Parliament is not formally obliged to

remove such a judge. The last case of the effective use of this procedure was recorded in

1830. The authors describe in their chapter the new procedures concerning the removal of

higher judicial office holders as well as judges of the inferior courts in which the institution of

special tribunals or review bodies are created to examine the grounds for removal.

Biskup and Mikuli stress that in the UK, financial warranties connected with a high

level of judicial remuneration also serve the purpose of ensuring judicial independence. One

should also remember that British judges of all categories are, by constitutional convention

and statute, entitled to full material immunity in the area of civil responsibility for actions

undertaken in office. Moreover, regulations concerning the incompatibility of offices and

conflicts of interests are aimed at guaranteeing the independence of the judiciary in the United

Kingdom. Pursuant to the incompatibilitas principle, professional full-time judges may not

fulfil the function of legal advisors or attorneys and may not undertake employment in the

entrepreneurial sector. Moreover, they are excluded from being members of the House of

Commons and the House of Lords. Judges may not adjudicate on matters against which they

are biased or in which they have an interest (in accordance with the nemo iudex in causa sua

principle). The independence of the judicial branch is to be protected by constitutional

conventions, pursuant to which debates on matters pending before the court are excluded from

the Parliamentary debate (the sub judice rule) and, also, pursuant to which members of the

government generally may not criticize judgements passed by the courts.

In chapter II and with regard to the legal status of judges in the United States, Tomasz

Wieciech argues that the overwhelming majority of legal controversies in the country are

tried in the state courts. Therefore, federal judges are in a minority among American judges.

In 94 district courts, 13 courts of appeals, the Supreme Court of the United States and the

Court of International Trade, there are currently 874 judgeships. The judges of theses courts

are commonly called “article III” judges because they serve in courts established by Congress

under the authority of article III of the constitution. Other federal courts are established under

the authority of article I (the so-called specialized courts other than the Court of International

Trade, i.e., the Court of Federal Claims) or article IV of the constitution (territorial courts for

federal territories, e.g., the Virgin Islands). Only judges serving in the courts of article III

have constitutional protection with respect to their term in office and their salary.

Federal judges in the US are appointed for a life term. This is the most important

guarantee of judicial independence in the American legal system. According to the

constitution, they “shall hold their offices during good behaviour”. The judge can be removed

from office only “on impeachment for, and conviction of treason, bribery, or other high

crimes and misdemeanours”. In the history of the federal judiciary, impeachment has been

moved against 15 judges, of which only 8 were convicted by the Senate and removed from

office. If a judge engages in conduct prejudicial to the effective and expeditious

administration of the business of the courts or is unable to discharge all of the duties of office

by reason of mental or physical disability, the judicial council of a circuit or judicial

conference of the United States can order that, on a temporary basis and for a certain time, no

further cases may be assigned to such a judge. Apart from impeachment, however, or pressure

for voluntary resignation, there is no way to remove a federal judge from office.

The second constitutional guarantee of judicial independence in the United States is

the assurance of periodical compensation for their service, which cannot be diminished during

their continuance in office. The Constitution does not guarantee any level of judicial salaries,

which has for some time now been under heavy criticism as being adequate for the position.

Among the constitutional guarantees of judicial independence, there is no judicial

immunity. In the US, judicial immunity is an institution of common law. Therefore, its scope

is defined by the courts. Federal judges are immune from liability for monetary damages in

the civil courts. They cannot be held responsible in civil courts for acts done by them as

judges in performing their judicial function. The scope of judicial immunity in the United

States is extensive, although it does not protect judges from responsibility in the criminal

courts. In addition, judicial immunity does not include responsibility for administrative

decisions, such as in hiring and firing court employees.

The judges of the federal courts in the United States are nominated by and with the

advice of the Senate, appointed by the President. There are virtually no formal (prescribed by

law) requisites for the office - even a legal education or training is unnecessary. The

evaluation of the professional qualifications of the candidates for federal judgeships is

provided by the American Bar Association Standing Committee on the Federal Judiciary. The

evaluation procedure guarantees that only the most qualified nominees will be accepted by the

Senate. The rankings provided by the Committee are of the most importance and are highly

valued by senators. For this reason, the criteria used by the Committee amount to de facto

extra-legal requisites for federal judgeships. They have to be met by prospective presidential

nominees if they are to be successful. The President’s freedom of choice among the

candidates for positions in the federal judiciary is also constrained by the custom of

“senatorial courtesy”. Under this, any member of the Senate may block the confirmation of a

nomination by stating that the nominee is personally obnoxious or offensive to him. The

President therefore has to consult his nominations with the senators from the state where the

appointments are being made, provided that they represent the same political party. This leads

to a situation where it is not the president but rather the senators who effectively decide on the

nominations for federal judgeships. The custom of senatorial courtesy most heavily influences

nominations of district judges. Positions in the federal judiciary - and especially in the

Supreme Court - have always been considered political. It is certainly a distinctive feature of

the American judicial system. In the nineteenth and early twentieth century, it was common

for federal judges to be politicians before or even after serving in the federal judiciary. The

prime examples of politicians on the bench include presidents of the Supreme Court: J.

Marshall, Ch. E. Hughes, W. H. Taft and E. Warren. Now, only rarely do judges recruit from

politicians. Nevertheless, political criteria still play a significant part in nominations for

federal judgeships, especially for the Supreme Court judges.

The most important constitutional function of American judges is the judicial review

of legislation. Since the famous case Marbury v. Madison decided by the Supreme Court in

1803, which established the precedent that federal judges may rule on the constitutionality of

acts before deciding the case and - should they find a given act unconstitutional - refuse to

give it effect. In time, judicial review made the Supreme Court an equal partner of the

President and Congress. It strengthened the constitutional position of the federal judiciary in

the United States, which in the constitution-making era was considered the weakest branch of

government.

Radosław Pucha, in Chapter III, about French judges,, reminds us that according to

Article 16 of the Declaration of the Rights of Man and Citizens of 1789 - which has

constitutional value in the French legal system - a society in which the observance of the law

is not assured - nor the separation of powers defined - has no constitution at all. Since the

Revolution of 1789, the French legal doctrine has assigned the task of protecting citizens’

rights to the Judicial Authority (autorité judiciaire). Nowadays, this principle is expressed in

Article 66(2) of the French Constitution of 1958, which specifies that the Judicial Authority

remains the guardian of the freedom of the individual. The accomplishment of this task

requires adequate guarantees of independence and impartiality. As has been confirmed several

times in the case law of the French Constitutional Council, the principles of the independence

and the impartiality of judges seem to be inseparably connected with the exercise of judicial

powers.

The chapter by Puchta is an attempt to clarify the French legal rules concerning the

status of persons appointed to the exercise judicial powers. This proves to be quite difficult

for at least three reasons. Firstly, the structure of the court system, being divided into two

separate orders (administrative courts and common courts), implies the non-existence of a

single occupational group of judges who are the subject to one set of legal norms. As far as

administrative judges are concerned, their legal status is determined by different provisions to

those which regulate the status of persons appointed to be judges in common courts.

Secondly, several occupational groups whose legal status is governed by different sets of legal

norms exist within one branch of the court system. In the common courts, judicial powers are

vested not only in professional judges, being part of one occupational group (the so-called

magistrature) together with public prosecutors and court assistants, but also in non-

professional judges, whose status clearly differs from the status of the members of the

magistrature. In the administrative courts, the set of legal norms governing the status of the

members of the Council of State arises from provisions other than those provisions applicable

to judges who exercise their judicial powers in the administrative courts of appeal and

administrative tribunals and who constitute a separate occupational group. Thirdly, the legal

rules determining the status of French judges are derived not only from normative acts but

also from the case law of the Constitutional Council and – especially in the case of

administrative judges – from legal customs.

The principle of judicial independence in France is enshrined in Article 64(1) of the

Constitution of 1958, according to which the President of the Republic shall be the guarantor

of the independence of the Judicial Authority. As the term “Judicial Authority” has been used

in the wording of this provision, the scope of its application is interpreted in French scholarly

circles as limited only to the group of judges appointed to exercise their judicial powers in the

common courts. Consequently, it may not be seen as a basis for the guarantee of the

independence of either administrative courts or non-professional judges adjudicating in the

common courts. However, as the Constitutional Council has confirmed in its case law, the

principle of the independence of administrative judges arises from the so-called fundamental

principles recognized by the statutes of the Republic and – as one of those fundamental

principles – it has constitutional value in the French legal system. The independence of non-

professional judges has been guaranteed in the legislative provisions.

Article 64(4) of the French Constitution also provides for the principle of the

irremovability of judges exercising their judicial powers in the common courts. The Act on

the Status of Magistrature specifies that each transfer to another bench or position requires

the consent of the judge concerned, even in the case of promotion. As far as administrative

judges are concerned, the principle of the irremovability of judges appointed to the

administrative courts of appeal and the administrative tribunals arises from legislative

provisions, while the irremovability of the members of the Council of State seems to be

guaranteed only by virtue of the customary rules.

Puchta emphasizes that the status of the French judges is protected by some

institutional guarantees. The Constitution (vide its Articles 64 and 65) establishes the High

Council of the Judiciary. No candidate for the position of judge in one of the common courts

may be appointed by the President of the Republic without a prior positive opinion of the

section of the High Council of the Judiciary with jurisdiction over judges. In addition, no

judge of the common courts may be recalled from office without being sentenced by the

section of the High Council of the Judiciary with jurisdiction over judges, acting as a

disciplinary tribunal. By virtue of various legislative provisions, the High Council of

Administrative Tribunals and Administrative Courts of Appeal has been established with

competence in the field of matters concerning judges who exercise their judicial powers in

these courts; however, the said competence is merely consultative in character. Decisions on

appointing administrative judges or recalling them in the context of disciplinary infringements

- taken by the President of the Republic - do not require any prior consent on the part of this

High Council (unlike in the case of rules governing procedures concerning the judges of the

common courts).

In Puchta’s chapter, attention has also been paid to the problem of special professional

training in France, which is in general obligatory for everyone who intends to become a judge

and which is provided by the National School for the Judiciary, located in Bordeaux (as

regards candidates for judges of the common courts), and the National School of

Administration, located in Paris (as far as candidates for administrative judges are concerned).

After having completed this training, the candidates are subjected to special procedures aimed

at verifying their aptitude for the profession of judge. Some candidates are appointed as

judges without completing the training; however, in those instances, the fulfilment of special

requirements has to be proved (particularly the requirement of a career in another legal

profession or public administration for a period of time prescribed in statutes).

Moreover, Puchta refers to legal rules governing procedures for promotion, evaluation

and disciplinary action that apply to judges in France. In addition, some detailed remarks have

been included on the terms for performing judicial duties, especially as regards remuneration

and the obligation to reside within the borders of a court circuit. Moreover, the chapter by

Puchta contains a brief analysis of the special sets of legal norms governing the status of non-

professional judges appointed to perform their duties in the common courts (the so-called

juges de proximité) and the status of the members of the Constitutional Council.

The next chapter, by Przemysław Florjanowicz-Błachut, is devoted to the legal

status of judges in Germany. The author analyses the Federal Constitution – both the “Basic

Law” and the federal laws. The main issues examined in the study are outlined below. The

legal status of judicial power and the judges has been regulated in Chapter IX “Judiciary”

(Articles 92-104) of the Constitution of the Federal Republic of Germany, the so-called Basic

Law. Pursuant to article 92 of the Constitution, judicial power is vested in independent judges

being subject only to the law and it shall be exercised by the Federal Constitutional Court and

the federal courts provided for in the Basic Law: the Federal Court of Justice, the Federal

Administrative Court, the Federal Finance Court, the Federal Labour Court and the Federal

Social Court as the supreme courts of the ordinary, administrative, financial, labour and social

jurisdictions and the courts of the Länder.

The German Judiciary Act (the DRiG) expands the constitutional clause and stipulates

that the exercise of judicial power belongs to professional and honorary (lay) judges. The

Federal Law regulates inter alia the qualifications for judicial office, preparatory training

before appointment, judicial tenure, the legal forms of judicial service (appointment for life,

for a specified term, on probation or by commission), disciplinary measures, dismissal, and

transfer and discharge from service. The Act, as such, applies only to professional judges (in

the service of the Federation and of a land). Honorary judges are generally the representatives

of the society in administration of justice.

The central constitutional clause of the German Basic Law (article 92) distinguishes

between two elements: personal (the vesting of judicial power in the judges) and institutional

(the exercise of judicial power by the courts). The guarantees enshrined in the Constitution are

applicable to the individual judge as an office bearer, not as an individual. Both constitutional

clauses concerning independence (article 97) and sub-constitutional provisions concerning

official status have subsidiary and complementary character to article 92. Personal

independence in Germany is guaranteed for professional and lay judges. It is an expression of

the principle of separation of powers and a core element of the concept of Rechtsstaat. It

distinguishes judges - being only subject to the law - from civil servants who are bound to

respect and execute instructions from superiors.

Pursuant to Article 97 paragraph 2 of the Basic Law, judges appointed permanently to

full-time positions may be involuntarily dismissed, permanently or temporarily suspended,

transferred or retired before the expiration of their term of office only by virtue of judicial

decisions and only for the reasons and in the manner specified by the laws. The legislature

may set age limits (usually the age of 65) for the retirement of judges appointed for life. In the

event of changes in the structure of the courts or in their districts, judges may be transferred to

another court or removed from office provided they retain their full salary. The Constitution

and the German Judiciary Act formulate the principles of irremovability and immovability.

The Federal Constitutional Court (The FCC) found in its case-law that the third element of

judicial independence is adequate remuneration and pension. The exceptions from

irremovability and immovability are: the judge’s own written consent, a judicial decision for

the reasons and in the manner specified by the laws (i.e., retirement on account of unfitness

for service), expiration of the term of office, changes in the organization of the courts’

structure or their districts with the retention of a full salary, judicial impeachment

(infringement of the Basic Law or a constitutional order of the land confirmed by the FCC

decision on transfer, retirement or, in case of an intentional infringement, dismissal).

Florjanowicz-Błachut emphasizes that the substantive independence of the judge in

Germany includes judicial activity directly concerning the administration of justice as the

concretization of the rights and obligations of the parties in the course of proceedings. The

judicial activities not protected by judicial independence are: administrative tasks, the courts’

administration, the training of the Rechtspfleger, the implementation of the budget of the

court, the enforcement of the law on the civil service and labour to public officials and other

employees. The judicial independence is directed against all parties to court proceedings, the

executive and the legislature and must also be respected within the Judiciary. Independence

from the executive is a crucial element of judicial independence.

Pursuant to the DRiG, every judge shall be subject to supervision only insofar as there

is no detraction from his substantive and personal independence. The supervisory authority

has the right to censure an improper mode of executing an official duty and to urge proper and

prompt attention to official duties. The official duties of the judge are enshrined in the judicial

oath (the exercise of the judicial office in conformity with the Basic Law and with the law,

adjudication to the best of one’s own knowledge and beliefs, without distinction of person,

serving the cause of truth and justice alone) and in other DRiG provisions (e.g., secrecy of

deliberations and voting). Besides this, every single judge both within and outside his office

should also conduct himself, in relation also to political activity (judges in Germany can be

members of political parties), in such a manner that the confidence in his independence will

not be endangered.

Florjanowicz-Błachut pays attention to the Federal Service Court – one of the

Chambers (Senat) of the German Federal Court of Justice - being aware of the limitation of

supervision (independence) - developed in its case law the concept of two spheres covering

judicial activity: the core sphere (Kernbereich) and the outer sphere (äußere

Ordnungsbereich). The core sphere includes all those functions related to the finding of

justice. The outer sphere includes: the manner and form of the decisions, the timeliness of the

setting of a court hearing, the summons to explain any excessive duration of court

proceedings, the assessment of the number of cases settled by the judge compared to the other

judges adjudicating in the same court.

Every judge in Germany, as a citizen, also has the constitutional right to express freely

and disseminate their opinions in speech, writing and pictures. In its case-law (accepted by the

FCC), the Federal Administrative Court imposed a clear separation between the exercise of

judicial authority and use of the freedom of opinion within democratic political discourse,

since neutrality, impartiality, distance and self-restraint are inseparable from the constitutional

concept of a judge, who must - within his judicial activity - always be able to ensure the law’s

validity and application in such a manner that it is free from extralegal influences or pressure.

Pursuant to the DRiG (article 4, paragraph 1), a judge should not simultaneously

perform duties of adjudication and legislative or executive duties, except for in some areas

(performing duties: involving the court’s administration, in matters concerned with

examination, assigned by statute to the courts or judges; undertaking research and giving

instructions at a scientific institution of higher education, at a public teaching institution or at

an official teaching institution; acting as a chairman in conciliation agencies and in

corresponding with independent agencies specified in the Federal Employee Representation

Act). The membership of a judge in the Bundestag, the land parliament or in a federal or land

government is prohibited. If he or she accepts their election to any of these bodies he must

resign from holding judicial office. However, in practice, the taking over by judges of

unsalaried avocational municipal functions has been tolerated.

In the case of judges of the Federal Constitutional Court, they may not be members of

the Bundestag, the Bundesrat, the Federal Government or of any of the corresponding organs

of a Land. On their appointment, they shall cease to be members of such organs. The only

allowed professional activity besides are the functions of a lecturer of law (Lehrer des Rechts)

at a German institution of higher education - but judicial functions take precedence over the

function of such a lecturer.

Florjanowicz-Błachut also stresses that neither the Basic Law nor the federal law

provide for the participation of judges in the procedure for the selection of federal judges or a

constitutional body like the national council of judiciary (e.g., in Poland and in Spain), having

the character of self-government that would safeguard the independence of the courts and

judges.

The German Federal Constitution provides that the judges of the supreme courts of the

Federation shall be 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. The constitutional provisions have been specified by the

Federal Act on the selection of judges (the RiWG). This procedure met with the criticism of

scholars (with allegations of politicization and a lack of transparency) but was accepted by its

majority as constitutional and proven in practice. In the case of constitutional federal judges,

half of the members of the Federal Constitutional Court shall be elected by the Bundestag and

the other half by the Bundesrat. The constitutional clause concerning constitutional judges has

been expanded in the provisions of Federal Constitutional Court Act. Both categories of

judges shall be appointed by the Federal President.

Florjanowicz-Błachut emphasizes that the Federal Constitution provides that the

Länder may provide that Land judges be chosen jointly by the Land Minister of Justice and a

committee for the selection of judges. The federal constitutional clause has been variously

implemented at the Lands level – there are different models and appointment procedures

which differ considerably from Land to Land. Based on this constitutional clause, the

judiciary takes part to a limited extent in the process of the selection of judges in these

Länder, where the committee for the selection of judges consists inter alia of the judges.

It can be seen from Florjanowicz-Błachut’s paper that the only judicial body that

generally takes part indirectly in the process of the selection of federal and state (land) judges

in Germany is the so-called Präsidialrat – the council for judicial appointments (established

for every jurisdiction: the supreme courts of the Federation and courts of the Länder) that

shall deliver a written opinion, with reasons, on the judge’s (candidate’s) personal and

professional aptitude at the request of the competent minister or a committee for the selection

of judges.

Florjanowicz-Błachut emphasizes that the German judge shall be subject only to the

law and is bound by law as a ground for adjudication – it refers only to valid statutes, formally

and substantially compatible with the law (including the Federal Constitution). In

consequence, it appears necessary for judicial review (richterliches Prüfungsrecht) – a power

that is not enshrined directly in the Basic Law but which results from the constitutional

tradition and case-law of the Weimar Republic (1925) that has been confirmed by the FCC

case-law (1952). Because of article 100 of the Basic Law, if a court concludes that a law on

whose validity its decision depends is unconstitutional, the proceedings will be stayed and a

decision from the FCC will be obtained. The FCC in its case-law found that this duty is

excluded in the case of statutes promulgated before the entry into force of the Federal

Constitution (24th May 1949). In consequence, every adjudicating judge has the right to prove

the “constitutionality” of “pre-constitutional” laws and declare them null and void or even

interpret their provisions contra legem if such an interpretation is compatible with the values

and grounds of the constitutional order determined by the Basic Law. This is the only allowed

example of the interpretation in conformity with the constitution against the wording and ratio

legis of the statute.

The status of judges in the Kingdom of Spain is presented in Chapter V, written by

Janusz Karp. The Spanish constitution of 1978 declares that justice emanates from the

people and that it is administrated in the name of the king by judges and magistrados (which,

in Spain’s case, means higher judicial office holders). With reference to the constitutional

principle of the democratic state, the judiciary is independent and subject only to the rule of

law. This essential principle is developed by a system of guarantees which is necessary for the

correct functioning of the judiciary. According to the constitution, jurisdictional power should

be exercised by independent courts and tribunals and should be impartial, which means that it

assures effective judicial trusteeship to all citizens by the Constitution. The highest judicial

body in Spain is the Supreme Court. The Constitution prohibits special courts and limits the

jurisdiction of military courts to members of the armed services, except during a state of

siege. The Constitutional Court is the highest judicial body with the power to determine the

constitutionality of the acts and statutes of the Spanish Government.

The correct functioning of the judiciary is also guaranteed by a number of legal

requirements related with the status of the judges. The Spanish Judiciary is a professional

judiciary whose members are public servants divided into the three categories: judges

(jueces), magistrados and Supreme Court judges (magistrados del Tribunal Supremo). Entry

into the judiciary is limited to Spanish nationals who hold a Bachelor’s Degree in Law, issued

by a Spanish university, and who are not legally disbarred from applying. Applicants must

pass a competitive state exam. Selected applicants enter the Judiciary School where they take

mandatory courses over a year, as well as carrying out practical courses as associate judges in

the courts and tribunals of the different jurisdictional orders. Candidates successful on this

course are then sworn in as judges.

Judges and magistrados are banned from membership of political parties and trade

unions, from issuing messages of congratulations or censuring public powers or official

corporations, and from attending public meetings or rallies in their role as members of the

judiciary. Judges and magistrados are irremovable and cannot be moved, suspended,

separated or retried without grounds and with guarantees established by the law. They are

personally responsible for their disciplinary infractions and crimes committed in the exercise

of their office. In the exercise of their function, judges and magistrates are subject to the

Constitution and to the rest of the laws.

Karp also describes the Spanish General Council of the Judiciary, which is a

constitutional body responsible for overseeing the work of all courts and tribunals of Spain.

The General Council is composed of twenty members - twelve of them must be judges and

magistrates and the remaining eight other jurists of renowned competence and with more than

15 years of professional experience. The primary functions of the Council are to participate in

the process of appointing judges as well as maintaining ethical standards within the legal

professions. The abovementioned Council proposes the appointment of the President of the

Supreme Court and of the General Council of the Judiciary. The President is appointed by the

King, through a Royal Decree ratified by the President of the Government. The Council

appoints, through a Royal Decree ratified by the Ministry of Justice, the judges of the High

Court, the presidents of the Courts and Halls of Justice and higher judicial office holders.

Other judges are appointed by the Council, through an order, after a process of selection and

training in the Judicial School. Karp also describes the status of the Constitutional Court

judges. The Spanish Constitutional Court consists of twelve members appointed by the King.

According to article 159 of the Constitution of these, four are nominated by the Congress

through a majority of three-fifths of its members, four are nominated by the Senate with the

same majority, two are nominated by the Government and two are nominated by the General

Council of the Judicial Power.

Bartłomiej Starzec’s paper (Chapter VI) deals with the position of judges within the

Russian judiciary. The constitutional regulations adopted in Russia are, to a large extent,

similar to those in the majority of European countries. The structure of the Russian judiciary

is defined by the Constitution and the Federal Constitutional Act on the Judiciary in the

Russian Federation of 31 December 1996. This act established the uniform character of the

judiciary in Russia.

The aforementioned act created the division of the court system into federal courts and

regional courts (the courts of the Subjects of the Russian Federation). The federal courts

consist of: the Constitutional Court of the Russian Federation, the Supreme Court of the

Russian Federation, the supreme courts of the republics, the courts of krais (territories), the

courts of oblast (provinces), the courts of federal cities (presently, these are Moscow and St.

Petersburg), the courts of the autonomous oblast (autonomous province) and the autonomous

okrugs (autonomous districts), local district courts, martial courts and specialist federal courts.

Also, in that category, there are: the High Arbitration Court, the federal arbitrary courts of

okrugs, the arbitrary courts of appeal and the arbitrary courts of the Subjects of the Russian

Federation.

Among the regional courts of the Subjects of the Russian Federation there are: the

constitutional (charter) courts of the Subjects of the Russian Federation and the justices of the

peace who are the judges of the general jurisdiction of the Subjects of the Russian Federation.

In order to become a judge in Russia, one has to be a Russian citizen, be over 25 years

old, hold a masters degree in law and have practiced the law for an appropriate period of time.

The period of time required varies in accordance with the judicial post one seeks. As such, in

order to become a judge of the Constitutional Court, one has to be 40 years of age and have

practiced the law for at least 15 years. In order to become a judge of the Supreme Court or the

High Arbitration Court, one has to be at least 35 years old and have practiced the law for at

least 10 years.

To become a judge of the supreme court of a Russian Federal Subject, one has to be at

least 35 and have practiced the law for 10 years. An age of 25 and work experience of 7 years

in the law is required for the post of a judge of the arbitrary court of a Russian Federal

Subject, a constitutional court of a Russian Federal Subject, a district court, a martial court or

a justice of the peace.

It is of the utmost importance that the independence of the courts and the judges is

guaranteed. Russia lacks a tradition of the independence of the judiciary and, therefore,

attempts to establish one have tended to encounter a variety of problems.

The regulations on judicial self-government come from the Federal Act on the Organs

of the Judicial Community in Russia. According to its regulations, the Judicial Community

comprises all the judges and the justices of the peace from the moment they take their oath.

The organs of the Judicial Community are: the All-Russia Congress of Judges, the Council of

Judges, the Conferences of the Judges of the Russian Federal Subjects, plenary sessions, the

High Qualification Collegium of Judges, the Qualification Collegium of the Judges of the

Russian Federal Subjects.

There are a number of regulations concerning the organization of the Russian judiciary

and the status of judges that are, formally, in accordance with the standards adopted by most

democratic countries nowadays. However, it is important to note that there remain a range of

problems in the Russian judiciary. Among these, the most prominent are: the unlawful

influencing of judges’ rulings, the under-financing of the courts (which results in corruption),

the particularism of the judges and a lack of public trust in the judiciary.

The functioning of the judiciary is negatively influenced by political factors. The late

1990s saw the introduction of a number of beneficial changes in the law. However, recent

years have seen a considerable decline in the development of the judiciary with such actions

as the transferring of the headquarters of the Constitutional Court from Moscow to St.

Petersburg, an increase in the President’s role in appointing the Head of the Constitutional

Court and a rise in the number of complaints made by Russian citizens at the European Court

of Human Rights in Strasbourg, which is indicative of the failures of the Russian judiciary to

provide legal protection.

Chapter VII, written by Jacek Czajowski, undertakes the problem of legal status as

well as the rights and duties of judges in the Second Polish Republic, which is not a very

popular topic in the literature devoted to constitutional law. The study pertains to common

court judges, jurors and magistrates.

Czajowski makes an attempt to present the status of judges - especially common court

judges - in light of constitutional solutions in the period under analysis (the March

Constitution of 1921 and the April Constitution of 1935). Each of these Constitutions shaped

the political system of the country in a completely different manner. Despite these differences,

the legal status of judges remained basically unchanged. In the Ordinance of the President of

the Republic of Poland of 1928 (the Law on the Common Court System) constituting

secondary legislation to the provisions of the March Constitution and also applicable after the

April Constitution became effective, certain solutions were included which, as it seems, did

not fully correspond with the intentions of the authors of the 1921 Constitution. These

regulations, however, did keep the basic principles of the independence of courts and judges.

Moreover, the basic guarantees of these principles were kept, namely the non-infringement of

final court decisions, judges being subject only to statutory acts and the protection of judges

by means of formal immunity. On the other hand, however, a solution was introduced which

gave the Minister of Justice the possibility of exerting influence on courts and judges

exceeding - in my opinion - those competencies with an exclusively administrative character.

They were concerned, among other things, with issues such as supervision rights over courts

and judges, the influence on disciplinary proceedings against judges and the influence on their

retirement or transfer to another location without their consent. The author concludes that the

Ordinance of 1929, and in particular the solutions discussed in the article, corresponded to the

provisions of the March Constitution; they were, however, against the spirit of this

constitution and against the intentions of the provisions concerning judicial power. The

ordinance did correspond with the provisions and the spirit of the April Constitution.

The principles of independence referred both to the judges of the common courts and

jurors and magistrates. The article characterizes the scope of the properties of each of these

categories of judges, the principles of their appointment, their terms of office (referring to

magistrates and jurors), the conditions enabling their appointment and the conditions

preventing a candidate from being appointed or selected. Judges' rights and responsibilities

are also discussed in the article.

In the conclusion, Czajowski indicates that despite the basically different concepts of

the state recorded in the constitutions of 1921 and 1935, the courts and judges of the Second

Polish Republic were independent. In practice, the competencies of the Minister of Justice

were not used to undermine the aforementioned principles and did not lead to such a situation.

In Chapter VIII, Grzegorz Kuca analyses the legal status of judges in the Third Polish

Republic, pursuant to the Constitution of the Republic of Poland of 1997, and judicial power

in terms of the organization is identified with certain structures and people employed within

them. The definition of the legal status of these persons should be used for the proper

execution of judicial power in functional terms.

The structure of judicial power was generally defined in article 10 of the Constitution

of the Republic of Poland, establishing the principle of the separation of powers. Chapter VIII

of the Constitution of the Republic of Poland, entitled "Judicial Power" (articles 173 - 201),

develops article 10 of the Constitution. This chapter includes three separate titles: "Courts",

"Constitutional Tribunal" and "State Tribunal". The principle of independence and

separateness of courts and tribunals plays the leading role in the legal regulations of Chapter

VIII (article 173 of the Constitution of the Republic of Poland). In accordance with the

established judicial practice of the Constitutional Tribunal, the separateness of the courts and

tribunals primarily means the organizational and functional separateness of courts and

tribunals from other authorities so as to ensure full independence in the areas of examining

cases and making judgements. The independence of courts and tribunals, on the other hand,

consists of their separation from the other powers in order to guarantee independent

adjudication.

Kuca argues that the proper shaping of the status of the judges would not be possible

without considering the principle of judicial independence. The povoir constituant applies this

principle to both the judges of the court segment (article 178, paragraph 1 of the Constitution

of the Republic of Poland) and the tribunal segment (article 195, paragraph 1 of the

Constitution of the Republic of Poland - Constitutional Tribunal, article 199, paragraph 3 of

the Constitution of the Republic of Poland - State Tribunal) of judicial power. Judicial

independence includes a range of historically-shaped guarantees with the qualities of the

existing tradition and confirmed by numerous acts of international law. They include in

particular a judge's independence from other authorities, including court authorities, their

independence from political factors (especially political parties), their impartiality towards the

participants of proceedings and their internal independence.

Kuca stresses that the Constitution of the Republic of Poland of 1997 differentiates the

legal status of judges from the individual segments of judicial power. Court judges are

appointed by the President of the Republic of Poland upon a motion of the National Judicial

Council for an indefinite period of time. They take advantage of formal immunity,

professional independence and apoliticality (independence from political parties). They are

entitled to special material status and principles of remuneration. They may not hold other

offices or state functions. In addition, citizens participating in exercising judicial power can be

employed at courts (jurors). Activities in the area of legal protection, on the other hand, can be

performed by court referendaries (senior court referendaries) and educational and social

rehabilitation and preventive activities can be performed by court-appointed guardians. They

use certain warranties granted to judges. In turn, Constitutional Tribunal judges are elected by

Parliament for 9 years and they cannot be re-elected. They are irrevocable and their mandate

expires in strictly defined cases. They use formal immunity and, during their term of office,

they may not belong to a political party, trade union or else conduct public activities which

cannot be reconciled with the principle of the courts’ and judges’ independence. They are

provided with appropriate working conditions and remuneration and their return to the same

position or a position equivalent to the one they held before being elected to the Tribunal is

guaranteed.

The First President of the Supreme Court of Poland is ex officio the Chairman of the

State Tribunal. Two deputy chairmen and 16 members are elected by Parliament from outside

the Members of Parliament and senators during the term of the Parliament. The deputy

chairmen and at least a half of the members of the State Tribunal should have the

qualifications required to hold judicial office. Members of the State Tribunal are irrevocable

and loss of position is possible only in strictly defined cases. They use formal immunity.

An analysis of the legal regulations of the Constitution of the Republic of Poland and

the appropriate ordinary statutory acts makes it possible to identify some significant

differences in the legal status of court judges and tribunal judges (members). These

differences result mostly from the functional differentiation of judicial power and, in

consequence, the necessity of their appropriate organizational adaptation (including structural

and personnel adaptation) to their activity. The principle of the independence of the courts and

judges remains the basic factor combining the status of court judges and tribunal judges

(members) with this difference; however, the latter gains special importance only with

reference to Constitutional Tribunal courts, making them subject to the Constitution only and

not - as in the case of court judges and judges (members) of the State Tribunal - also to

statutory acts. The procedure for shaping the composition of the personnel of the courts and

tribunals is the basic element differentiating the status of court judges and the judges

(members) of tribunals. The appointment of judges for an indefinite period of time - which

constitutes one of the guarantees of the proper performance of judicial functions - loses its

warranty properties with reference to the judges (members) of tribunals selected for a strictly

defined term of office. Some of the adopted solutions also raise justified doubts. The

procedure for creating the personnel make-up of the Constitutional Tribunal or the issue of the

apoliticality (independence of a political party) of the judges (members) of tribunals can be

quoted, here, as examples of such doubts.

The last two chapters of this collective book are devoted to the position of

supranational judges. Monika Florczak-Wątor’s paper concerns the European Court of

Human Rights (ECtHR). It operates on a permanent basis and is made up of full-time judges

resident in Strasbourg. The number of judges is equal to that of the State Parties to the

European Convention on Human Rights (47 at present). The judges are elected by the

Parliamentary Assembly of the Council of Europe by a majority of votes cast for a non-

renewable term of 9 years. The terms of office of the judges expire when they reach the age of

70. They should be of high moral character and must possess either the qualifications required

for appointment to high judicial office or be jurisconsults of recognized competence.

The judges of the ECtHR are elected from a list of three candidates nominated by each

Contracting Party. They should be eminent jurists, since they bear a heavy responsibility for

maintaining the quality of judgments and the authority of the Court. In order to ensure the

election of judges of the highest calibre to the Court, the Assembly has, over a number of

years, taken additional steps to improve its own procedure for examining candidates. To this

end, it has adopted a number of different resolutions and recommendations on the nomination

of candidates and the election of judges to the Court. It creates some additional requirements

that the States should comply with when selecting and subsequently nominating candidates to

the Court. To assist it in making its decision, the Assembly invites a specially constituted

Sub-Committee on the Election of Judges to make confidential recommendations based on

personal interviews with all the candidates and the assessments of their curriculum vitae. If

the gender requirement is not complied with or if there exists no real choice among the

candidates submitted, the list of candidates is rejected by the Assembly without any vote

being taken. As part of the on-going reform process, an expert panel has been established to

advise Contracting Parties on national candidates for the position of judge at the Court before

the nominees are sent to the Parliamentary Assembly for scrutiny. Florczak-Wątor stresses

that the judges perform their duties in an individual capacity and they do not represent the

State from which they were elected. They are independent and cannot engage in any activity

that would be incompatible with their independence, impartiality or with the demands of a

full-time office. They should declare to the President of the Court any additional activity. In

the event of a disagreement between the President and the judge concerned, any questions

arising are decided by the Plenary Court. The judges are entitled, during the exercise of their

function, to the privileges and immunities provided for in article 40 of the Statute of the

Council of Europe and in the agreements based on this provision. In order to secure freedom

of speech for them and their complete independence in the discharge of their duties, they have

immunity from the legal process in respect of any words spoken or written and all acts done

by them in discharging their duties. Privileges and immunities are accorded to judges not for

the personal benefit of the individuals themselves but in order to safeguard the independent

exercise of their functions. No judge of the Court can be dismissed from his or her office

unless the other judges decide, by a two-thirds majority, that the judge ceased to fulfil the

required conditions. The procedure for dismissal from office can be set in motion by any

judge. However, before making a decision, the judge must first be heard by the plenary Court.

In turn, the chapter by Mirosław Wróblewski analyses three European judicial

institutions in the post-Lisbon era. The Treaty on the European Union and the Treaty on the

functioning of the EU - changed by the Lisbon Treaty - together with the Statute of the Court

of Justice of the EU and the Rules of Procedure define the legal position of judges in the

Court of Justice, the General Court and the Civil Service Tribunal. In some areas, these

changes - which are analysed and commented upon below in a more detailed manner - are

more significant and they affect not only judges themselves but the whole of judicial

protection in the European Union.

Wróblewski argues that it is necessary to place European judges in the context of the

evolution and development process of the legal protection system in the EU. One of the most

frequently discussed problems in the course of European integration was the principle “one

country – one judge”. The competing interests of member states, the need for judicial

efficiency and dialogues between intergovernmental and community concepts have fuelled

debates for years. At the end of the day, this principle has been respected until today.

After the accession of Bulgaria and Romania in 2007, the Court of Justice has

consisted of 27 judges, one judge from each member state. The same principle applies, but

only on a statutory basis, to the General Court’s judges. The presentation of this principle -

still questioned in the literature - is assessed as enhancing the Court’s legitimization and the

dialogue between the member states and their differing national legal orders. Article 2 of the

Annex to Statute states that the Civil Service Tribunal consists of 7 judges. Only if the Court

of Justice so demands may the Council - by qualified majority voting - increase the number of

judges in the Tribunal.

The chapter written by Wróblewski also analyses the organizational structure of the

Court of Justice of the European Union. Special attention is paid to the organization of

chambers, the position and tasks of their presidents and the provisions governing the

functioning of the system. The efficiency of adjudicating lies primarily in the hands of judges

rapporteurs, and so their position is explained in light of legislation and empirical data and

statistics concerning the Count of Justice’s jurisprudence. The jurisprudence of the Court is

analysed in the wider context of the changes introduced by the Lisbon Treaty.

The description and explanation of the requirements set up for European judges as

stipulated in the treaties constitutes a very important part of Wróblewski’s paper. It is worth

noting that, at the beginning of the process of European integration, those requirements were

not very demanding and were completely clear. This is why it was possible for, e.g.,

economists, to adjudicate on behalf of the European Communities.

According to the European treaties, the judges of the Court of Justice are chosen from

persons of undoubted independence, having the qualifications suitable for the highest judicial

functions in their respective home countries or else they are lawyers of established

competence. They are nominated on common accord by member states for six years terms.

One has to underline the importance of the committee established in article 255 of the Treaty

on the functioning of the European Union. The committee, which was already foreseen by the

Treaty establishing the Constitution of Europe, and taking inspiration from the Council of

Europe’s recommendations, verifies the competencies of the candidates. The Committee

consists of seven personalities chosen from former members of the Court of Justice and the

General Court, members of national supreme courts or else lawyers of recognized

competence. One person is proposed by the European Parliament. The committee analyses

whether the legal conditions are met by the candidates by functioning as a specific filtering

mechanism. It is too early to assess the achievements of this new institutional mechanism, but

initial comments were made where possible.

Wróblewski emphasizes that the European treaties set different conditions for the

judges of the Court of Justice. Since the Nice Treaty, it is not enough for a candidate that

he/she be a national judge. The Nice reform raised the necessary qualifications for the

position of a high judge in the national legal order. The members of the specialized courts

must have unquestionable independence and they have to be able to hold a judicial position

according to a national legal order. Wróblewski, from time to time, not only analyses the

EU’s regulations but also looks into the Polish normative system and the interference between

them. This also refers to sociological and legal research, which shows and explains the

national strategies for the nomination of judges and the evolution of their attitude towards the

nomination process.

Wróblewski argues that - despite the fact that the equal treatment principle is one of

the key general principles of EU legal order - the “gender issue” was introduced into the

nomination process only recently. Compared with other international courts - and especially

the European Court of Human Rights in Strasbourg - there is, unfortunately, a normative

gender gap in the European system of justice. One cannot find even soft regulations obliging

member states to take gender into account while nominating European Union judges.

During their six year terms, the judges of the Court of Justice cannot be dismissed and

cannot be replaced with another candidate by a member state. Except for death and normal

rotation, a term may be terminated only by resignation. Nevertheless, a judge of the Court

may be dismissed as a result of a unanimous decision of all the other judges. This is possible

only when a judge has ceased to meet all the necessary conditions or else if they infringe the

obligations of a judge (trial by one’s peers).

An important part of the Wróblewski’s chapter is devoted to the institutional and legal

guarantees of judicial independence. One of the most important legal institutions is that of

judicial immunity. Such immunity is of formal character and is restricted to the protection of

professional judicial activity. It can be revoked by a decision of the Court of Justice alone.

The article also discusses problems concerning the responsibility of judges at the national

level after the revocation of an immunity. There are also other important guarantees and

privileges for the judges of the Court of Justice as enshrined in the treaties. These are inter

alia a separate system of social insurance and taxation as foreseen by the EU protocol on

immunities and privileges.

Wróblewski stresses that, having the above mentioned regulations in mind, it is

possible to assess the real observation of the concept of judicial independence and

impartiality. The majority of commentators assess the influence of member states as being

very limited. One can also add the ethical values shared by European judges, which were

codified in 2007. The provisions of the Rules of Procedure - such as the secrecy of judicial

deliberations and the prohibition of dissenting opinions - play an important part in the high

profile of European judges.

The final part of the paper by Wróblewski is dedicated to the reform proposals

presented by the Court’s President in March 2011. The purpose of these proposals is to make

adjudicating more efficient and to shorten judicial proceedings. One should pay special

attention to the introduction of the vice-President of the Court of Justice, the proposed reform

of the great chamber’s functioning and other ideas affecting the position of European Union

judges. One of the most visible proposals concerns the possibility of increasing the number of

the General Court’s judges up to 39 and the establishment of ad interim judges in the Civil

Service Tribunal.