How does Germany choose its judges? Always the best pick?

Judges must be “no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigour,” said the French enlightenment political philosopher, Baron de Montesquieu (1689-1755). The initiator of the separation of powers assigned the third branch of government – the judiciary – a clearly defined role of servitude.

More than 250 years later, the reality is far different. Even in Germany, respected around the world for its adherence to the rule of law, the judiciary’s independence has come under scrutiny in the last several years. Jurisprudence has been accused of being politics by other means.

Read more: Germany’s Basic Law is a flexible yet stable constitution

The selection: Free choice or horse trade?

Germany’s more than 20,000 judges are not “bound by directives.” Germany’s federal states – normally their respective justice ministries – choose judges. Federal judges are selected on a “best choice” principle, as set forth by the constitution. In practice, judge selection is as transparent as a black hole.

A judicial selection committee exists for Germany’s top five federal courts (the Federal Court of Justice, Federal Social Court, Federal Administrative Court, Federal Fiscal Court and Federal Labor Court – but not the Constitutional Court – the highest in the land).

This body votes in secret and consists of 32 members: The 16 state justice ministers and 16 Bundestag appointees, who need not be parliamentarians, but should have legal expertise.

Read more: German judge Kabisch removed from Auschwitz trial for bias

Decisions are made by simple majority.

Germany’s largest parties, Chancellor Angela Merkel’s Christian Democrats (CDU), their Bavarian sister party CSU and the Social Democrats (SPD), have the most say.

The Bundestag’s smaller parties play at best a smaller role. In the course of a year, the five top federal courts may see multiple judicial reappointments, which are generally decided upon in advance between the major parties.

The Greens and Left Party have long been against this policy. “Whoever is a bother or for whatever reason is not favored, does not get selected,” said Renate Künast of the Green Party in 2014 when she was chair of the Bundestag’s judicial committee.

Read more: AfD judge barred from ruling on ‘political cases’

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  Strange cases in German social courts

  Don’t copy his example

  One claimant tried to sneak in a quick alcohol-free beer while at the copy machine. But it starting foaming beyond control, and in the hectic rush to drink it off, he chipped a number of teeth. Is that considered a workplace accident? Not according to Dresden’s social court – food and beverage consumption is not insured, and copy-making isn’t believed to leave employees especially thirsty.

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  Strange cases in German social courts

  Slippery situation

  One woman fell down the stairs on her way from her home office to grab some water – and her case made it all the way up to Germany’s national social court. It ruled that, while what happens at work on the trip to eat or drink is insured, the way is subject to the procedures of the company. Because home workers decide their own procedure, it was on her.

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  Strange cases in German social courts

  Ice cream gone bad

  Enjoying ice cream on his way home from a work appointment, one man swallowed a chuck as he entered a subway car. It got lodged in his esophagus, setting off a lightning jolt of pain – that was later determined to have been a heart attack. Berlin’s social court ruled though that it didn’t count as a work-related accident. Ice cream is consumed for pleasure, not work.

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  Strange cases in German social courts

  And when sex goes wrong

  Speaking of pleasure. One civil servant’s sex got a bit out of hand on a business trip. A lamp was ripped out of the wall and its shards injured her. She demanded compensation, including for the post-traumatic stress syndrome she developed in the event’s aftermath. But the court ruled against her claim, saying sex was not expected by the employer.

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  Strange cases in German social courts

  Look before you leap

  At breaktime during an occupational training course, a 27-year-old’s collegues tried to soak him with an animal squirt gun. Fleeing to safety, he jumped out of the window. In hindsight, this may have been a poor decision: he crashed through a plexiglass awning. The social court of the German state of Hesse ruled against his claim, saying the jump was not necessitated by workplace conditions.

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  Strange cases in German social courts

  Falling asleep on the job

  A bar worker fell asleep at the counter – and then fell off her chair, injuring herself. Was it a workplace accident? The social court ruled no, because overwork wasn’t the reason she fell asleep.

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  Strange cases in German social courts

  Choose your battles wisely

  One claimant was on a business trip in Ibiza and met customers at a beachside club, which he left drunk past midnight. He later wanted to go back in, but instead got into a fight with the bouncer, who struck the man a blow. He ended up with serious head injuries. But, while business travelers are protected by insurance, this doesn’t apply when they’re drunk at night, the social court ruled.

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  Strange cases in German social courts

  And look both ways before you rescue a cow

  A cow got caught in its chain and was at risk of suffocating. The brother of the cow’s owner came to the rescue, but in the process was stepped on by a different cow, who broke his leg. The court ruled that – although the brother wasn’t on the job while injured – neither are people who help out after a disaster, granting his claim.

Ever more counterclaims

In 2015, a candidate put forward by the Greens sued when she twice failed to secure a position at the Federal Court of Justice, and a CDU ally won it instead. To add insult to injury, she was unsuccessful in the legal proceedings as well.

She claimed the process violated the “best choice” principle. It was another example the smaller political parties use to push for reforming judicial selection, which they claim lacks transparency.

Decisions are made based on candidate’s files, without interviewing them.

The secrecy required following a vote is also dangerous, opponents say.

Judicial candidates who fail to secure their appointments are increasingly calling into question the selection committee’s objectivity in its decision-making. “Certain people are undesired,” a lawyer told German news magazine Der Spiegel in 2014 on condition of anonymity. “But are not told why they have been rejected.”

Read more: Five-year neo-Nazi trial collapses as judge retires

The Constitutional Court, based in Karlsruhe, is Germany’s highest court

Constitutional court also under scrutiny

Germany’s highest court, the Constitutional Court, is also vulnerable to public criticism. Judges for this court are chosen by a closed-door panel of 12 parliamentarians.

It is a method that has long been under fire, including by the current president of the court, Andreas Voßkuhle. “A not insignificant amount of study has shown that this method can quite rightly be described as unconstitutional,” he wrote in an opinion piece.

Norbert Lammert (CDU), a lawyer and long-time president of the Bundestag, criticized how little “legitimacy” judges have for gaining a seat on the country’s highest court, calling it “astounding” that the selection process has a lower bar than that for Germany’s data privacy or armed forces commissioners.

Read more: Man who exposed Nazi judiciary honored in Berlin

Rarely criticized is the party-political control of judicial placement, which was implemented as a response to the abuse of the judiciary by the Nazis. However, it seems to have run its course.

The chair of the German Association of Judges, Jens Gnisa, suggested as much to DW when referring to the Polish government’s attempt to reform its own judiciary. These would have “enabled the ruling nationalist party to deeply influence Poland’s judiciary and direct courts according to its own wishes.”

Read more: What are the Polish judicial reforms?

Article source: http://www.dw.com/en/how-does-germany-choose-its-judges-always-the-best-pick/a-39846970?maca=en-rss-en-ger-1023-xml-atom