Accountability e Transparência da Justiça Civil - Ed. 2019

Accountability And Transparency In The Course Of Civil Justice In Germany - Parte II. Perspectivas Nacionais

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Christoph Kern, Johannes Kist e David Carnal

A.Judicial Independence 1

I.Introduction and Basic Principles

Judicial independence is a fundamental principle of democratic states under the rule of law and underpins the entire German legal system. In Germany it is of particular importance because of the events during the Third Reich 2 when the judiciary was used to enforce the inhuman policies of the Nazis. 3 Today, within the constitutional system under the rule of law, the German judiciary is tasked in particular with providing effective legal protection and thereby contributing to the realization of material justice. 4 Besides, there is a general consensus that being a judge implies being uninvolved as well as independent, 5 and judicial independence as an immanent part of the role of the judge is considered to be a crucial prerequisite to provide citizens with effective legal protection 6 . Thus the principle of judicial independence is laid down in the Basic Law (Grundgesetz, GG) 7 , i.e., the federal constitution of Germany, and additionally protected by the German Judiciary Act (Deutsches Richtergesetz, DRiG) 8 as well as the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG) 9 which apply to federal and state judges 10 .

Judicial independence is closely related to the independence of the judiciary. Together they shape the principle of the separation of powers and put it into effect. 11 The separation of powers is a cornerstone of the democratic order in the Federal Republic of Germany. 12 However, the division of governmental authority into three branches of government – legislative, executive and judicial – can only prevent the abuse of power and meaningfully protect the people against tyranny if state authority is exercised by distinct and independent organs. 13 For this purpose the Basic Law builds on the division of powers and guarantees the institutional independence of the judiciary as a “specific judicial body” 14 by vesting the judicial power exclusively in the judges 15 . Insofar as both are manifestations of the separation of powers they are protected by the eternity clause (Ewigkeitsklausel or Ewigkeitsgarantie) of the Basic Law 16 meaning amendments are inadmissible. 17

German legal doctrine distinguishes between three dimensions of judicial independence: substantive, personal and structural independence. 18 First, judges have to be protected against any external or internal attempts to influence the decision of a specific case. Hence a judge is “independent and subject only to the law” 19 and thereby substantively independent if the judicial decision-making is free from instructions 20 and he can adjudicate without any preventable interference 21 . Second, judges’ use of their substantive independence would be at stake if they had cause to fear that they could suffer personal disadvantages after adjudication. 22 Therefore the guarantee of personal independence, the second dimension, requires safeguards against sanctions concerning the judge’s professional status 23 and thus institutionally ensures substantive independence 24 . Moreover, judicial independence needs to be assured by the remuneration of judges. 25 Finally, structural independence as the third dimension is based on the separation of powers as well as the independence of the judiciary as a whole and primarily proscribes to a great extent to exercise judicial and executive or legislative functions at the same time. 26

II.Administration of the Judiciary

1.The Refusal of Full Judicial Autonomy

Beyond the Federal Constitutional Court and the Constitutional Courts of the states which, as constitutional organs, are largely self-administrated, 27 the characteristic features of judicial administration in Germany are the ministerial competence within a hierarchical structure and the refusal of full judicial autonomy. According to the proponents of the current model, the principle of the separation of powers and the guarantee of institutional independence of the judiciary does not require a complete separation and full judicial autonomy. 28 Rather, the German concept of separation of powers is one of mutual checks and balances that only asks for a separation of judicial from legislative or executive competences 29 and does not contain any specifications with regard to the administration of the judiciary 30 . Therefore a certain degree of overlapping is permitted as long as the judiciary as a whole is organizationally separated to a sufficient extent from the political branches of government and the separation prevents an undue interleaving. 31 The proponents also acknowledge that the purpose of judicial independence requires adjudication without external or internal influences, but do not consider judicial self-administration a necessary prerequisite for it and emphasize that the scope of the guarantee of judicial independence only embraces duties of adjudication in a narrow sense and does not encompass duties involving court administration. 32 Furthermore, they are willing to tolerate in the interest of democratic accountability that administrative decisions by the executive might indirectly affect adjudication. 33 The refusal of judicial autonomy has often been criticized and was the topic of recurring debates. 34 However, it is controversial whether the demand for more judicial self-governance can be reconciled with the Basic Law and the principle of democratic accountability. 35

2.Ministerial Judicial Administration and Its Limits

The current German model of judicial administration distinguishes according to the nature of the relevant matter, i.e., the nature of the relevant activity of the judge. 36 The process of judicial decision-making is, of course, not an administrative matter and is exclusively in the hands of the judges. Less clear is the solution with respect to administrative matters. On the one hand, general administrative matters being more or less purely organizational are not considered to be adjudicatory by nature. They are not perceived as posing a threat to judicial independence and therefore do not require judicial autonomy. On the other hand, administrative matters that are closely related to adjudication and concern the jurisprudence in its narrow sense have to be within the exclusive competence of the judicial branch. In between are some matters in which the judges have participatory or consultative competences.

A) Budget, Education and General Court Management

The budget of the judiciary, legal education and training as well as general court management are not directly related to the adjudication of cases. For this reason, they are not in the hands of the judges. The judiciary does not have an own budget. Rather, its expenses are included in the budget of the competent ministry, for most courts the ministry of justice on the federal or state level. The budget of this ministry is proposed by the executive branch and adopted by the legislator. 37 The state governments are also responsible for the administration and funding of the legal education at the universities and the postgraduate legal training as well as the organization and contents of the state examinations. 38 The competence for general court management is exercised by the federal government for federal courts and the state governments for state courts. 39 The responsibility lies at the federal-level courts as well as at the state-level courts in the hands of the competent minister who is usually the minister of justice 40 and is accountable to parliament 41 . General court management especially embraces the administration of staff (e.g. recruitment, education, supervision and disciplinary authority), infrastructure (e.g. construction and maintaining of court buildings, acquiring of materials such as furniture, stationery and IT equipment), office operations (e.g. secretaries, record and security), training of judicial apprentices and comments on draft legislation. 42

In fact, the day-to-day management is delegated to the respective court presidents who are assisted by other judges and administrative personnel. 43 Pursuant to the German Judiciary Act judges may perform duties involving court administration besides their duties of adjudication. 44 Furthermore, the Federal Constitutional Court holds that the Basic Law does not call for a complete and rigid isolation of all governmental duties from members of the judiciary. 45

The administrative duties of the court presidents are regulated by various laws and the differences between the federal judiciary and the judiciary of the states as well as the differences between the different state judiciaries are subtle and complex. In general, at the state-level a major part of the general court management is handled by the presidents of the higher courts. 46 Their responsibility encompasses, among other things, the organization of the offices of the court and their staff, the grant of annual leave, the permission for secondary jobs and the initiation of disciplinary proceedings. 47 They are also responsible for the evaluation of the judges which is a very important and time-consuming task. 48 By contrast, the presidents of the federal courts have fewer administrative tasks than the presidents of the higher state courts; in particular they have no authority over the state courts of lower instance. 49

Since the guarantee of judicial independence does not protect duties involving court administration, the court presidents and the other judges are, like other civil servants, subject to unlimited supervision as far as they perform these duties. 50 The judges are subordinated to the respective court president who is, in turn, subordinated to the minister. 51 Therefore these judges, in particular the court presidents, have a hybrid status. 52 On the one hand, they take part in adjudication and to that extent belong to the judicial branch.

On the other hand, they exercise administrative functions relating to court management and insofar are part of the executive branch. Similar to other employees, judges are also bound by the decisions of the court presidents on employment-related matters like equipment, office operations and the grant of the annual leave. 53 They are also obligated to take part in the training of judicial apprentices. 54

However, judicial councils (Richterräte) for the representation of the judges in general and social matters (except for matters relating to judicial selection, appointment and promotion) must be established at the federal and state courts. 55 This kind of judicial …

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Disponível em: https://thomsonreuters.jusbrasil.com.br/doutrina/secao/1188257154/accountability-and-transparency-in-the-course-of-civil-justice-in-germany-parte-ii-perspectivas-nacionais-accountability-e-transparencia-da-justica-civil-ed-2019