Constitutional Guarantees of Judicial Independence in Germany

Abstract:     
Judicial independence constitutes one of the fundamental principles of the German Constitution. This paper which was presented as part of the German report to the XVIIth International Congress on Comparative Law in Utrecht in 2006 elaborates on the specific elements of the constitutional guarantee in Germany. Outlining the interpretation by the German Constitutional Court it explains the particular meaning of this concept in the German context. While Italy and Spain understand judicial independence to be one of structural independence the German model with its primary concern for substantive and personal independence differs. Since structural independence applies to judicial functions only, the administration of the judiciary as a matter of democratic accountability is still within the competence of the Ministries of Justice of the federal states. The article explains the appointment process for judges, their tenure and scope of authority, the relevance of their independence in disciplinary proceedings and the limited scope for dismissals. It concludes with the observation that despite the lack of self-governance the constitutional guarantee of judicial independence has been elaborated substantially by the jurisprudence of German courts with the result that in terms of working conditions the German judiciary profits from privileges unknown in foreign countries.

Number of Pages in PDF File: 10

Keywords: Judicial Independence, Rule of Law, German Constitution

Accepted Paper Series