Opaque arrangements and personal preferences: whether Ukraine to choose judges, as in Germany
Judges are representatives of a third power in Germany. They are independent and to some extent untouchable. Against their will they cannot even transfer to another place of work. How did they get such a great position?
Justice is nothing more than the voice of the law, considered the French theoretician of state and law, Charles-Louis de Montesquieu (1689-1755). It was he who formulated the classic concept of separation of powers in the state, according to which the judicial power alongside the legislative and Executive, is the third branch that has a clear-cut role. 250 years later the reality is somewhat different.
Poroshenko praised the competition for new judges, which was won by ambiguous candidates
In Ukraine July 27, the Highest qualification Commission of judges announced the list of 120 winners of the competition for posts in the new Supreme court of the country in the framework of judicial reform. The results of the competition has been criticized representatives of public organizations.
In Germany, which in this world always respected the rule of law, independence of the judiciary in recent years has also been somewhat discredited. Hear accusations that legal proceedings, they say, is sometimes the same policy by other means. Whether so it actually?
Elections or auctions?
In Germany more than 20 thousand judges. In their activities they are “not constrained by instructions.” Judges in Germany assigns each of the 16 Federal länder, as a rule, its Ministry of justice. When it comes to appointing Federal judges should apply the principle of “selecting the best candidate.” This is required by the Constitution. In fact, the procedure of selection of judges is opaque.
The largest of the five judges of the Federal courts (Federal Supreme court, Federal social court, the Federal administrative court, Federal Finance court and the Federal court for labour, but not the constitutional court) shall appoint a Committee for the selection of judges. It is a body that decides by secret ballot and is composed of 32 members.
It consists of 16 land Ministers of justice and 16 are intended by the Bundestag of experts who do not necessarily have to be members, but must have a legal qualification.The decision of the Committee shall be a simple majority.
Have videovisual the names of the winners of the competition for the membership of the new Supreme court of Ukraine
In accordance with the political scenario at the state and Federal levels, virtually all decide now ruling in Germany the Christian democratic / Christian social Union (CDU/CSU) and Social democratic party of Germany (SPD).
These parties formed a broad coalition in the current Parliament, and most of the land Ministers of justice. Other parties of the Bundestag playing Committee, at best, a secondary role. Every year the question arises of a number of assignments in the five Federal judges, so that the two major parties, as a rule, in advance of discussing “personnel packages”.
Green and the Left have long considered such things nonsense. The former Chairman of the Bundestag Committee on legal Affairs, representative of the current opposition Green party, Renate künast (Renate Künast) in 2014, clearly articulates his outrage: “Who prevents or for some reason do not like (leading parties – Ed.) not choose”.
The complaints of competitors accumulate
This could feel a well-known lawyer, who in 2015 have applied for the post of judge of the Federal Supreme court, but her candidacy twice rejected. The post is proposed by the Minister of justice of Lower Saxony from Green Antje Nevis-Lennartz (Antje Niewisch-Lennartz). Was appointed instead, the candidate is close to the CDU.
Subsequently, the lawyer lost the case even in the higher administrative court in Lüneburg, where she filed a complaint about the violation of the principle of “selecting the best candidate.” For such cases, smaller parties, are in urgent need of reforms in the selection process of judges. In their opinion, the arrangements are opaque. According to documents, decisions are made without conducting personal interviews with the candidates. Prohibition of disclosure after the election, as critics believe, makes the situation even worse.
Heavy selection and 120 finalists. Poroshenko summed up the contest in the Supreme court
More candidates-losers who claimed the office in five Federal courts have expressed doubts about the objectivity of the decisions of the Committee for the selection of judges and protect yourself.
Already in 2014, the magazine Der Spiegel quoted anonymous lawyer directly involved in the selection process of judges, who explained that “some persons are not desirable, but their failure to openly declare”.
Controversial appointments to the constitutional court
The object of public criticism from time to time becomes even personnel policy of the highest German court – the Federal constitutional. In contrast five Federal courts, judges of the constitutional court shall elect body, consisting of 12 deputies. And here is the process to the public.
Worthy of criticism this situation believes even the current President of the constitutional court Andreas Foscoe (Andreas Voßkuhle). He years ago wrote in a commentary on the Constitution: “the rule in large parts of the professional literature rightly called unconstitutional”.
The President of the Bundestag, the CDU representative Norbert Lammert (Norbert Lammert) in 2012 was surprised how few “legitimate” need for the judges to get to the constitutional court.
Videoscale know the names of the winners in the new Supreme Court
As he found “a little strange” that the requirements for the selection of judges of the constitutional court is lower than in the case of selection of the Commissioner for personal data protection or the Commissioner for military personnel.
However, the party-political “excessive control” over the appointment of judges in the main courts of the country are still rarely subjected to open criticism. The historical rationale for political control – as an abuse of the judicial Vlad during the Nazi dictatorship – has long outlived its function. Now parties use that privilege well as in their own interests.
The Chairman of the Union of judges of Germany Jens Gnisa (Jens Gnisa) indirectly noted in my comments to Deutsche Welle about the situation in Poland: there are planned reforms “will allow the national-conservative government parties to extend the power of the judicial system of Poland, and to determine the new composition of the courts discretion”.