So after we have established the laws, we come to the reality in the FRG:

 

The judges are appointed by the executive.

In comparison: In the USA, judges are appointed by the authorities or, for example, the President of the USA appoints the judges of the Supreme Court, the Supreme Court in Washington. However, the plaintiffs and defendants always have the choice of being heard by a jury. It is not the judge, but the jury that decides. The judge is only responsible for the orderly course of the trial.

 

Members of parliament are not directly elected to parliament, but at least 50% are appointed by the parties. This already violates the Basic Law. According to the Basic Law only direct election is allowed.

 

This has consequences e.g. for the election of the federal constitutional judges. These are determined by a judge election committee of the Bundestag and thus by party soldiers...

 

Extract from our letter to the International Court of Justice in The Hague:

"However, the Basic Law was violated at an early stage, e.g. Article 38 of the Basic Law, in that at least 50% of the delegates of the FRG are not directly elected, but are appointed by the parties. The judges of the Federal Constitutional Court are in turn elected by the deputies. So the Federal constitutional judges would have to send already 50% of the deputies, by whom these constitutional judges were elected themselves, back home".

 

 

3.1.2.1 Statements

 

Statement of the chairman of the Bavarian Judges' Association Walter Groß

 

The reality of the independence of the courts in Bavaria

The Bavarian judges' law is one of the most backward in Germany, says Walter Groß, chairman of the Bavarian Judges' Association. This is because, unlike in many other federal states, the promotion of judges and public prosecutors is decided solely by the state government or those responsible in the respective ministries.

 

"Here it is still as it was described more than 130 years ago by Leonhard, the Prussian Minister of Justice. As long as I decide on the promotion of the judges, I'm happy to give them the so-called independence."

Walter Groß, chairman of the Bavarian Judges' Association

 

 

Statement of the spokesman for legal policy of the SPD in Bavaria Franz Schindler

 

Top positions are not even advertised in Bavaria. These include the presidents of the Higher Regional Courts, the Regional Labor Court, the Regional Social Court, the Finance Courts, the Administrative Court and also the Attorneys General. "I would describe the procedure as a non-transparent lookout procedure", said Groß. A genuine independence of the judiciary is not given thereby, criticizes also Franz Schindler, legal-political speaker of the SPD state parliament faction and chairman of the legal committee in the Bavarian state parliament. He is convinced that nobody will end up in top positions in the public prosecutor's office and the courts unless they meet the professional requirements. Nevertheless, in his view, the room for manoeuvre for the state government is still far too great.

 

"Of course, they will never say we are putting a loyal CSU servant in the place of the president of the state labour court. They will never say that. But the fact that this can play a role in the selection of those who will be considered at all will not be denied. And that's why the CSU and the state government defend this provision in the Bavarian Judges' Act with teeth and claws. Because they want to keep this influence."

Franz Schindler, legal policy spokesman for the SPD in Bavaria

 

 

State government rejects reform

 

For years, the Bavarian state government has refused to even discuss a comprehensive reform of the judiciary. In a statement by the Ministry of Justice, it says

 

"Promotion decisions are based solely on the personal and professional qualifications of the applicant. For judges and public prosecutors, it is crucial that appointment decisions are made quickly and with legal certainty so that vacancies can be filled promptly.

 

 

Statement from the Ministry of Justice

4. independent judiciary

It's remarkable how long such a scandalous state can last without anyone bothering. If the Bavarian rules were to be introduced in Hungary or Poland today, voices would immediately be raised that feared a threat to the rule of law - and rightly so.

 

So the CSU shows a face that reminds more of Strauß than of Seehofer.

 

 

 

3.1.2.2 Appointment of the judges by an authority and thus by the executive

 

Appointments are made according to different procedures in the individual federal states.

In Bavaria, the Ministry of Justice - a political authority - is responsible for the recruitment of judges.

 

See the report of the European Union by GRECO - Group of States against Corruption of 10 October 2014 Greco Eval IV Rep (2014) 1E: Evaluation Report Germany

 

Professional judges in the state service are usually appointed by the Minister of Justice of the respective federal state. In many federal states, the approval of a judge election committee is required for appointment to a lifetime judgeship; in some states this even applies to appointment on probation. The Judges' Election Committee usually consists of members of the Landtag elected by the Landtag and representatives of the judiciary, who are elected directly by the judges in a secret ballot for life. It is usually the case that the members of the Landtag constitute the majority - up to two thirds of the members - in the respective election committees .

 

...Nevertheless, the GET notes that the decision-making competence of the executive branch in Germany has been the subject of controversial debate and that, as mentioned above, the judges' associations are calling for a self-governing judiciary that would also include the appointment of judges. In this context, the GET takes account of the fact that bodies composed mainly of representatives of the judiciary, and in particular the committees for the election of judges and presidential councils, are involved in appointment and promotion procedures or issue opinions and recommendations. On the other hand, however, the GET notes that the powers of these bodies vary considerably from one federal state to another and from the federal to the state level.

 

The GET is concerned that in some Länder and at federal level, these bodies only issue a non-binding opinion in the context of the recruitment procedure and have no co-determination powers. The GET also notes that federal judges are elected by a committee consisting of ministers of the Länder and members elected by the Bundestag. The GET is aware that this mechanism is intended to ensure democratic legitimacy, but the impression could be created that the election of federal judges depends mainly on political considerations.

 

 

 

3.1.2.3 Judges are subject to a political authority in disciplinary proceedings

 

Legal requirements:

 

Bavarian Law for Judges and Public Prosecutors

http://www.gesetze-bayern.de/Content/Document/BayRiStAG/true

(BayRiStAG) dated 22 March 2018 (GVBl. p. 118) BayRS 301-1-J

 

Chapter 2 Disciplinary proceedings

Art. 58 Application of the Bavarian Disciplinary Act

(1) The provisions of the Bavarian Disciplinary Act (BayDG) shall apply mutatis mutandis to disciplinary proceedings against judges, unless this Act provides otherwise.

 

 

Bavarian Disciplinary Act

(BayDG) of 24 December 2005 (GVBl. p. 665)

BayRS 2031-1-1-F), which was last amended by § 1 para. 81 of the Ordinance of 26 March 2019 (GVBl. p. 98)

 

Part 1 Art. 2 Material scope

 (1) This Act shall apply to 

      1. committed by officials during their employment

          Misconduct in the line of duty (§ 47 (1) of the Civil Service Status Act - BeamtStG -)

      2. of retired civil servants

          a. misconduct committed during their civil service (§ 47.1BeamtStG) and

          b. misconduct committed after retirement is considered a misconduct of the service

              acts (§ 47 (2) BeamtStG, Art. 77 BayBG, Art. 33 KWBG).

(2) This Act shall also apply to civil servants and retired civil servants who were formerly employed as civil servants, judges, professional soldiers or temporary staff, in respect of misconduct committed in their former employment or as beneficiaries of a pension under such employment;

 

 

 

Summary:

The judges are dependent. They are appointed by the executive and are subject to disciplinary political authorities.

 

 

Continue to: Biased courts in the FRG