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Separation of powers

Separation of powers, a term coined by French political Enlightenment thinker Baron de Montesquieu, is a model for the governance of democratic states. The model is also known as Trias Politica.

Under this model, the state is divided into branches, and each branch of the state has separate and independent powers and areas of responsibility. The normal division of branches is into the Executive, the Legislative, and the Judicial.

Proponents of separation of powers believe that it protects democracy and forestalls tyranny.

Here the situation of the judiciary in Germany will be compared to the situation in Europe:

Article 10 of the United Nations Universal Declaration of Human Rights states: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." Article 14 of the legally binding International Covenant on Civil and Political Rights confirms this right. The Convention for the Protection of Human Rights and Fundamental Freedoms of 4. November 1950 gives in Article 6 a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time. Judgment shall be pronounced publicly.

"...the recommendation of the Council of Europe (Recommendation No. R (94)12, Art. 2 c) see Appendix A) concerning judges applies for new members for EU:

»The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules«.

That is the case in France, Spain, Italy, Norway, Denmark and Netherlands - not in Germany. Germany - if it was not already member would be a problematic candidate....." (Appendix 6: Die Entfesselung der dritten Gewalt Von Heribert Prantl)

In Germany separation of powers is not yet realized, therefore sometimes "cooperation of powers" ("Gewaltenverschränkung") is used to describe what is done.

In Switzerland and the USA judges are elected by the people. Lawyer (RA) Claus Plantiko has suggested to do the same in Germany.

Historical Development

In the 18th century the Prussian minister of justice Gerhard Adolf Leonhardt said that judges can call themselves independent as long as he decides on appointment and promotion. (Source: Hülle, DRiZ 1976, 18 f. sowie die Hinweise in DRiZ 1975, 341 f.). In principle that's how it is done even today.

When administrative courts were founded, there was no supervision of judges by the government. However the dictator Hitler added supervision of courts. Before the Prussian administrative courts (Preußischen Oberverwaltungsgericht) have been without supervision since 1875, as well as e. g. administrative courts in Saxony. But § 7 sentence 1 of the first regulation ("Durchführungsverordnung) of 29. April 1941 of the decree of the fuehrer ("Führer-Erlass") on the establishment of the administrative court of the Reich ( Imperial Law Gazette RGBl I S. 201: Erste DV = RGBl I S. 224) gave the minister of justice of the Reich supervision rights.

The German judiciary was under the German emperor in the 18th century a part of the government and that remains until today. After 1918 (establishment of democracy) as before 1918. After 1945 (end of WWII) as before 1945. After 1949 (new constitution) as before 1949. Up to the day today.

Graphical illustration of the situation of appointing judges in German states.

Explanation of colours:

"In Germany ministers of justice decide on choice, appointment and promotion of judges - mostly alone, sometimes in some more or less committed cooperation with committees. In Germany ministers supervise judges. " (Appendix 3). For the constitutional court and federal courts are still half of the influence by the executive. Half the members of the Federal Constitutional Court shall be elected by the Bundestag and half by the Bundesrat. The judges of each of these courts 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.

German Judges and Lawyers

The assembly of the Federation of German Judges (Deutschen Richterbund DRB) asks to give the judiciary an independent position as the separation of powers and the constitution demands. The independence of the judiciary becomes smaller and is exposed to the influence of the Executive power. The president of the DRB, prosecutor Christoph Frank says: "The proposition of the DRB shows how to improve independence of the justice system in German, which is realized in Europe and a self-evident part of rule of law standard." (Appendix 4)

Also the New Union of Judges (Neue Richtervereinigung) aks for the independence of judiciary from executive to realize separation of powers.

This demand is more the 50 years old: The 40. gathering of German jurists 1953 has suggested to realize the separation of powers written down in the constitution (Appendix 5):

II.

New laws to give independence to judges, both appointment, promoting and position in regard to administration are necessary to secure constitutional rights (Gesetzgeberische Maßnahmen, um die Unabhängigkeit des erkennenden Richters sowohl durch die Art seiner Auswahl und Beförderung als auch durch seine Stellung gegenüber der Verwaltung institutionell zu sichern, sind notwendig zur Durchführung des Grundgesetzes).

Situation in Europe

Here the situation in Europe showing the decisive influence of the executive on appointment, promotion and supervision of judges:

Independence relates to appointment, promotion and supervision.

In Austria the minister can theoretically put aside the propositions of appointments of judges made by the "Personalsenat". However this is extremely rare. Therefore Austria got the colour orange. But promotion and supervision seems to be done by the ministry. Improved appointment, promotion and supervision is diskussed (Appendix 9).

Literature:

  1. Wikipedia: http://en.wikipedia.org/wiki/Separation_of_powers
  2. Udo Hochschild: http://web.archive.org/web/20140107004837/http://www.gewaltenteilung.de/
  3. Udo Hochschild: GEWALTENTEILUNG IM DEUTSCHEN BEWUSSTSEIN. Versuch einer Kritik: http://web.archive.org/web/20140107004837/http://www.gewaltenteilung.de/einf_druck.htm
  4. Bundesvertreterversammlung des Deutschen Richterbundes hat am 27. April 2007 fordert Gewaltenteilung: http://web.archive.org/web/20140107004837/http://www.gewaltenteilung.de/drb07.htm
  5. Beschluss des 40. Deutschen Juristentages 1953: http://web.archive.org/web/20140107004837/http://www.gewaltenteilung.de/jur_beschluesse.htm
  6. Die Entfesselung der dritten Gewalt Von Heribert Prantl [veröffentlicht in der Süddeutschen Zeitung Nr. 81 vom 6. April 2006, Seite 28]): http://gewaltenteilung.de/prantl.htm
  7. European Commission for the Efficiency of Justice (CEPEJ): Council of Europe Presents Report on the Evaluation of European Judicial Systems (Edition 2006). Chapter 9: The status of judges and prosecuters: http://www.coe.int/t/dg1/legalcooperation/cepej/evaluation/2006/CEPEJ_2006_eng.pdf
  8. Strasbourg, 20 March/mars 2007: CCJE (2007) 1: Replies submitted by States - Consultative Council of European Judges (CCJE): https://wcd.coe.int/ViewDoc.jsp?id=1107003&Site=DG1-JudProf-CCJE
  9. Dr. Gert Schernthanner Internationaler Rechtsvergleich über die Organisation der Spitzen der Justizverwaltung aller 25 EU Mitglieder:  http://www.konvent.gv.at/K/DE/AVORL-K/AVORL-K_00568/fname_025439.pdf
  10. Point 5.4 of Resolution 1685 (2009) Europarat: Allegations of politically motivated abuses of the criminal justice system in Council of Europe member states http://www.assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta09/ERES1685.htm
  11. PACE Press release - 712(2009): The independence of the judicial system is the principal line of defence against political interference in the law: http://assembly.coe.int/ASP/Press/StopPressView.asp?ID=2205

 

 

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