Overview of General and Special Jurisdictions

Apart from the special relevance of the highest courts for the review of the constitu­tionality of laws and final judicial acts (see Chap. 11) constitutions should provide for the basic rules and regulations of the judiciary as a whole.

The following expose will focus on essential elements of “general and special jurisdictions” which should be considered for constitutional enshrinement; it will

An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.

A. Weber (*)

Osnabruck, Germany

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 393

W. Babeck, A. Weber, Writing Constitutions, https://doi.org/10.1007/978-3-030-94602-9_12 encompass the structure and delimitation of judicial competences (Sect.

12.1.1 Definition

The term “general jurisdictions” refers to the courts other than constitutional or supreme courts although the latter are generally allocated within the judicial branch. “General jurisdictions” is not necessarily identical with “ordinary jurisdictions” or “ordinary courts” as this term may relate to judicial structures which have developed historically over a long time. Generally the latter term refers to the civil and criminal jurisdiction,^[826] whereas the administrative jurisdictions have developed in Europe in late nineteenth and twentieth century and generally formed a special “jurisdiction” controlling the administrative action of the executive.^[827] Notwithstanding the histori­cal evolution of the administrative jurisdictions and judicial review in Europe and many countries of the world,^[828] the term here is used to define the general competences of courts of lower and higher instances except those which are expressly reserved to special jurisdictions, e.g. in matters of administrative, commercial, labour, social, tax, electoral or military law. The term has only functional relevance for the question which structure and organisation should be regulated by constitutional or subconstitutional texts.

The historical evolution and great variety of jurisdictions in the modern world does not recommend a unique model of judicial state organisation but must neces­sarily leave enough flexibility to the parliamentary legislator. Therefore, we omit a historical overview which could only be superficial and general without specifying the actual problems of organisation and status (to be explained sub 12.1.2.3) and to elaborate in more detail the fundamental principles of the judicial power as funda­mental principles of the rule of law.

12.1.2 Establishment of Courts and Appointment of Judges

Not in all instances the same constitutional body is responsible for both establish­ment of courts and appointment of judges and the respective structural approach need to be separately addressed (Fig. 12.1).

Fig. 12.1 Stuctural approach for the establishment of courts and appointment of judges

12.1.2.1 Establishment of Courts

Constitutions generally refer to the judicial power in general terms under special headings, titles or subtitles (e.g. France: “l’autorite judiciaire” (1958); Spain: “poder judicial” (1978); Italy: “ordine giudiziario” (1947); USA: “Judicial Power” Art. III, Sec. 1, 2 USConst). The differentiated overview on the textual position and norma­tive status of Constitutional/Supreme Courts above (4.1.1) already illustrates the variety of semantical descriptions. Apart from the principles of judicial indepen­dence (cf. infra 4.2.4 ss.) and individual rights of access to justice (see Vol. II: Fundamental Rights) constitutions should attempt to regulate the basic norms on the organisation of the judiciary in competential and territorial aspects.^[829] See Table 12.1.

12.1.2.2 Remarks

The overview illustrates that the organisation and status of the judicial power is strongly diversified and closely linked to the historical legal culture and tradition as well as to a secularized or non-secularized system of law. As our study departs from a secularized system of law developed in the western world the main focus lies on the organisation and structure of general and specialised jurisdictions in the western hemisphere and its influences in Latin America, Asia and Africa.

But what are the basic elements of judicial organisation and structure?

The statements of the Commission in this respect are rather scarce and leave the organisational structure largely to the parliamentary legislator.^[831] This is largely due to the above-mentioned historical evolution of the respective judicial structures and the fact that only recent constitutional amendments—especially in Middle and Eastern Europe - required an answer to the submitted texts or by-laws. In the case of Hungary, the Commission underlined that the Constitution must not define the individual elements of the court organisational structure. “Only the general concept of the organs of the court system deserves to be reflected by the Constitution itself.”^[832]

Table 12.1 | Distribution of competences amongst the judiciary

Table 12.1 (continued)

Table 12.1 (continued)

Table 12.1 (continued)

Table 12.1 (continued)

^aThe Venice Commission has adverted that the organisation of the judiciary should not necessarily follow the territorial structure: “while the overriding criteria determining the territorial structure of the court system should be the needs of court system itself and the facility of access by people to the courts..Venice Commission (2013b), CDL-AD (2013)034; the Draft on the Court system was too complex with 4 levels of jurisdiction; see Venice Commission (2010a), CDL-AD (2010)003, §§ 20-23

^bThis regulation avoids intentionally a constitutional distribution of competences and leaves it entirely to the discretion of the legislator (Grand Assembly) dominated by the governing party which is not recommendable

^cThe special structure and organisation of the CC is due to the peace-making role of international intervention after the civil war (Dayton Agreement) and the lack of a constitutional regulation beyond the CC is understandable under the exceptional post war circumstances

^dSee Venice Commission (2013c), CDL-AD (2013)015, §§ 21, 23: “Organising courts along ethnic lines would be wrong, counterproductive and damaging to the credibility of the judicial institutions...”

^eSee infra sub remarks

^fThe Supreme Court rejected the territorial alteration of the High Court Division, Anwar Hossein Chowdury v. Bangla-Desh, Dec 1989,18 CLC(AD)

^gThe recent Thai constitution shows a very detailed organisation of the Courts which is risky because the Parliament might not be flexible enough to modify the court structure if needed, and thus must amend the constitution; see also Chang et al. (2014), p. 389

^hThe “dualistic” system with own subject matter jurisdictions of the Union and the States however does not provide exclusive jurisdictions of both entities; see Kischel (2015), p. 297 ⁱThe Provinces have the competences to establish their own administration of justice (provincial courts) but the system of appointment is partly federal (Supreme Court & High Courts in the provinces), see Canadian Encyclopedia, sub Judiciary, Appointment

^jThe constitution leaves the establishment of the Court structure to an “organic constitutional law” to be voted by a 4/7 majority in Congress which is slightly higher than the absolute majority; it might be recommendable to regulate the basic structure in the constitution itself ^kThe wording of the respective “judicial clauses” is highly complex and appears “overloaded” ^lThe structure of courts and their basic competences should be regulated in the constitution, including secular and sharia courts

Besides general statements on the nature of the Judiciary (e.g.: “the judicial power is vested in the Courts” and delivered “in the name of the People” or “The Crown” respectively) the constitution should regulate—apart from the Constitutional Court and its competences (see above 11.2.2.4)—the basic structure of the jurisdictions in competential, territorial and personal aspects.

This comprises the competences of the “general” and “special jurisdictions”, i.e. the assignments of civil, criminal and administrative courts; if the latter are not assigned as a special section of the Supreme Courts (e.g. as in Spain and many countries in Latin America) they may adjudicate as highest Courts (e.g. in France: “Conseil d’Etat” and francophone countries in Africa; Italy: “Consiglio di Stato”; Spain: “Consejo de Estado”) and lower courts as administrative tribunals.

The territorial apportionment differs from state to state and is mainly influenced by the historical and cultural background. The overview differentiates primarily between monistic and dualistic systems, i.e. whether the system has one judicial branch established for the whole country (eventually with decentralized structures) or a dualistic structure, i.e. two (separate) jurisdictions on the federal and state level (e.g. USA), with a Supreme Court as ultimate instance on the federal level (“dualistic federal system”). The decentralization of the Court system depends on the territorial structure of the state but is not necessarily identical with administrative entities.

The notion tries to distinguish between “decentralized” or “regionalized” systems according to the administrative territorial structure (to be dealt with in Chap. 13) if the territorial organisation presumably follows administrative structures.

Specialised jurisdictions should also be directly defined in the constitutional texts, like e.g. Administrative Tribunals, Labour Courts, Commercial Courts, Social Law Courts; Tax Law Courts, Military Courts (for punishment of military personnel in times of war), Disciplinary Courts (for state officials; military personnel in times of peace or as separate chambers of the respective Highest Courts on central and/or regional level). The special status of judges requires a prudent handling of disciplin­ary measures to be regulated by law or—as the case may be—by organic law (see infra independence and dismissal).

Generally speaking, the constitutional wording should not be too complex or overloaded and the regulation of details should be left to the “organic” or “ordinary” legislator—preferably with qualified majorities. The organisational structure must comply with the idea of transparency for the citizen in order to be able to read and understand the essential features and branches of the judiciary. As the case may be a reference can be made to Arbitration Tribunals for private litigation or even between the state and private persons (e.g. investment disputes) respecting the framework of the constitution and subsidiary protection of national courts under certain circumstances.^[833]

As one recent example the constitution of Georgia (2017/2018) for a balanced wording may be quoted here: art. 59 par. 3 Georg Const reads: “Justice shall be administered by the Common Courts. The specialized Courts may be created only within the system of common courts. The creation of extraordinary courts shall be inadmissible”, followed by a detailed regulation of the competences of the Constitu­tional Court, Supreme Court and High Court.^[834]

12.1.2.3 Appointment of Judges

The nomination and appointment of constitutional judges has been discussed in chapter 11.1.3 (nominating organs; appointment) which is highly relevant for reasons of democratic legitimation by other constitutional organs (Parliament; Exec­utive; Judiciary). The procedures for proposal and participation of nomination and appointment of judges of the general and specialised jurisdictions however must not be identical or similar taking into account the different status and function of “ordinary courts” and specialised courts. The requirement of democratic legitima­tion—either indirectly or directly—is much less relevant for judges of other courts even if the exercise of their functions may politically be sensitive or controversial. The nomination and appointment procedures also depend on the kind of law system (Common Law Courts and Civil Law Courts) and the different models of judicial review. As has been shown above the eminent position of Supreme Courts in Common Law systems requires a well-balanced and democratically legitimated participation of other constitutional organs (e.g. USA: Senate) but does not neces­sarily include the legitimation by Parliament (e.g. Supreme Court judges in UK, Canada or Australia).^[835]

The Venice Commission rightly states in this respect that the executive power in older democracies has sometimes a decisive influence on judicial systems: “Such systems may work well in practice and allow for an independent judiciary because these powers are restrained by legal culture and traditions, which have grown over a long time”.^[836]

Figure 12.2 consequently focuses mainly on the appointment of judges in “gen­eral and specialised jurisdictions” excluding partly those Supreme Court judges which have already been described in Sects. 11.1.2 and 11.1.3 of Vol I of Writing Constitutions.

12.1.2.4 System of Appointment

As the systems of judicial organisation, aspects of competence and territorial apportionment differ from country to country it is evident that this also concerns the systems of appointment, tenure and participating/nominating institutions. Con­sequently, the overview is limited to basic aspects which in no way can match with the multiplicity of models and solutions found.

Basically, two models of appointment prevail: the elective system and the direct appointment system.^[837]

Fig. 12.2 Structural approach when drafting an appointment of judges’ clause

Elective appointments for example are found in Switzerland (on the federal and cantonal level),^[838] former Slovenian constitution,^[839] or a majority of states in the USA.^[840] The arguments in favour of “elective judges” for the common courts are much less convincing, i.e. direct legitimacy by the will of the people against the ever­existing influence of political parties and changing parliamentary majorities. The neutrality and objectivity of the profession of the judge should not be unduly endangered by direct or indirect political influences on appointment and promotion of judges. In the light of European standards the selection and career of judges should be based “on merit having regard to qualifications, integrity, ability and efficiency”.^[841] The Venice Commission therefore rightly concludes: “Appointments of ordinary judges are not an appropriate subject for a vote by Parliament because the danger that political considerations prevail over the objective merits of a candidate cannot be excluded”.^[842]

The distinction between both models sometimes may be fluent or “hybrid” as Table 12.2 will illustrate but the distinctive criteria should be whether the Parliament has the decisive power and final word on proposal and nomination of candidates.

12.1.2.5 Remarks

The appointment system depends largely on the historical and political background of the respective legal culture. However, even if older and firmly rooted democracies still practise direct appointments by the Executives (e.g. UK; Canada; Australia) the tendency goes towards forms of participation either of parliamentary chambers or

Table 12.2 | Direct appointment: nominating and participating bodies

Table 12.2 (continued)

^aSee Favoureu et al. (2013), n. 852

^bSee Report (fn. 11 supra), p. 4; in Russia federal judges of the ordinary courts are appointed by the President on nomination by the Chairmen of the Supreme Court & Higher Arbitration Court on recommendation of qualification boards; ibid

^cThe appointment of SCt Judges resembles the USA but formalizes the proposal, approval and rejection procedure with a 2/3 majority of the Congress; Mexico represents a “hybrid model”, see infra for federal district and circuit court judges

^dThe nomination and appointment procedure for Supreme Court Judges follows a recommendation of a Selection Commission and decision by the Lord Chancellor, sec. 26-29

^eThe Japanese clause seems to be rather unique as it admits a control/review by “first general elections of the people” (art. 79 par. 2 JapConst)

self-governing bodies of the judicial powers (High Councils of Judges or similar). Even if the former overview may not be representative, it becomes clear that an appointment system respecting the separation of powers and its inherent checks and balances corresponds basically to the ideal of an independent and objective judicial

power. However, the distinction between parliamentary and presidential (or “semi- presidential systems”) should be kept in mind.

12.1.2.6 Relevance of Political Forms of State on the Appointment

In presidential systems the Head of State should only be able to appoint judges on proposals of parliamentary chambers or self-governing councils of judges in order to counterbalance the presidential-executive power and secure as far as possible the autonomy and independence of the judiciary. This is the more necessary if the President is directly elected by the people and has wide executive powers as illustrated above. As the Venice Commission rightly underlines: “What matters most is the extent to which the Head of State is free in deciding on the appoint- ment”^[843]; therefore, the President should not be free to nominate and appoint judges of the general and specialised jurisdictions but be bound by the proposals either submitted by parliamentary chambers or councils of judges. As a decisive impact of the judiciary on the whole appointment procedure by self-governing representative bodies is highly recommendable the function of the latter should not be limited to a purely consultative role but secured by an active part either in proposing candidates on a list submitted to Parliament or to the Head of State respectively.^[844] But also proposals and appointment may only be assigned to a High Council of the Judiciary (as many countries listed above) which represents “clearly a valid model”.^[845]

Other models based on appointments by Government (Sweden, Netherlands, UK, some Commonwealth countries) or on a mixture of nomination by the executive and formal appointment by the Head of State may be acceptable insofar as this is rooted in firm democratic structures and traditions.

12.1.2.7 The Role of Self-Governing Bodies ("High Councils of Judges”) The participation of autonomous or quasi-autonomous bodies of the judiciary and its organisational structure are of high importance for the legitimation of the judiciary and the independence of judges. The Venice Commission repeatedly stressed that the active role of a High Judicial Council should be clear and unambiguously fixed in the constitution or subconstitutional texts (if not regulated in the former).^[846] Concerning the composition and function the pure existence of a High Council does not a priori exclude political considerations on the appointment process.^[847]

Regarding the composition of these institutions a balance should be struck between judicial independence and self-administration of justice and the necessary accountability. Also, the Consultative Council of European Judges (CCJE) underlines the importance of the independence of a judicial authority in the selection and appointment process of judges.^[848]

In the case of Bulgaria the Venice Commission acknowledged the involvement of other branches in the composition of the “Supreme Judicial Council” justified by the “social content” of the latter’s activities.^[849]

The participation of elected members of Parliament in the self-governing bodies of the judiciary may be advisable (because otherwise the sole power would rest with the Judicial Councils) but these members should not exceed the majority in order to avoid undue influence from political pressures.^[850] Although several countries provide for a participation of ministers of Justice (e.g. Bulgaria; Romania; Turkey) or the “ex officio” membership of the President and minister of Justice (e.g. in France) this influence should be reduced to a minimum in order not to intervene in the nomina­tion and decision making process: “However, it is advisable that the Minister of Justice should not be involved in decisions concerning the transfer of judges and disciplinary measures against judges, as this could lead to inappropriate interfer­ence by the Government”.^[851]

The President or Chair of the Council should preferably be elected by the self­governing organ itself, i.e. among the members of the Council (like in the practice of some constitutional and Supreme Courts), or at least from the judicial members in order to secure the dominance of the judiciary.^[852]

Two recent examples may be illustrative:

In Hungary art. 25 par. 5 and 6 HungConst provided for the performance of the administration of justice by the “President of the National Office for the Judiciary” (PNJO).The Venice Commission in various opinions strongly criticised the exten­sive powers of the PNJO even “constitutionalizing” its position by the 4th Constitu­tional Amendment whereas the National Council of the Judiciary (NJC) was not even mentioned in the constitution.^[853] The transferral of cases by the Chairman of PNJO was likewise criticised by the Commission (“right to a lawful judge”).

Reviewing a compound of judicial reform acts 2017 in Poland (“Draft Act on the National Council of Judiciary”—NCJ—; “Draft Act on the Supreme Court” and the “Act on Ordinary Courts”) the Commission stated that the situation of the appoint­ment procedure for the NCJ before the Reform Act(s) was in conformity with constitutional principles: art. 187 PolC defined the NCJ consisting of 25 members from whom 15 should be elected among judges; the method of election of the latter was referred to a law. The revised draft on the NCJ however provided that the 15 members will be elected in the first round by a 3/5 majority of the Parliament (Sejm), in an eventual second round by a so-called “roll-call” (counting votes in favour and against a candidate). As the election procedure in the first round was deemed to comply with the rule of law securing a special qualified majority among the MP, the “second round model” might lead to a NCJ dominated by candidates proposed by the governing party; therefore the opinion of the Venice Commission rightly concluded that “the European standards are clearly in favour of the currently existing model which is also constitutionally acceptable”.^[854]

Also, the European Commission in its reports on the Rule of Law 2020 and 2021 clearly rejected the continued practice of the nomination procedure of the NJC.^[855] In March 2021 the ECJ in a preliminary ruling confirmed this opinion stating that the degree of independence of the NJC(KRS) in respect of the Polish legislature and the executive is relevant for the evaluation whether the judges meet the requirements of independence and impartiality.^[856] The absence of legal remedies against decisions of the NJC may foster doubts in the minds of individuals as to the impartiality of judges.^[857]

Additionally, the situation was aggravated by the early termination of the current members (“joint term of office”) undermining the independence of the NCJ: “Against the background of other reforms in the field of the judiciary (...) this measure contributes to a weakening of the independence of justice as a whole. Therefore, the Venice Commission urges the Polish authorities to abandon this proposal and keep the current system, which combines election of lay members by Parliament and election of the judicial members of the NCJ by the judges themselves”.^[858]

The ECJ also clearly rejected the Polish law reform of lowering the retirement age of acting judges: “The principle of irremovability requires in particular the judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate...,While it is not wholly absolute there can be no exceptions to the principle unless they are warranted by legitimate and compelling grounds,subject to the principle of proportionality...”34

12.1.2.8 Independence of Judges

Most constitutions contain clauses referring to the more individual aspect of the independence of the judiciary, i.e. the independence of judges. The independence of judges is an indispensable element for administering justice and comprises subjec­tive and objective ingredients. Objective elements are—besides the appointment procedure and period of tenure (which generally are life time appointments for professional judges of the ordinary jurisdictions and many specialised jurisdictions)—remuneration, retirement and pensions; immunities, irrevocability and final character of decisions as safeguards against external influence; subjective elements comprise the functional status, for example qualification, impartiality or neutrality, safeguards against internal influences (e.g. against disproportional disci­plinary measures, discretionary transfer or assignment of cases by the presiding judge or court president). The preestablished allocation of cases by legal or sublegal rules for courts is an indispensable element of the so-called “right to a lawful judge” (or “right to a natural judge”; see also “Justiciable rights”). The subjective funda­mental right of the individual to a lawful judge contains an “objective side”, i.e. the objective allocation of cases along rational rules and protection against wilful transfers of judges to other judicial functions or positions. Thus, the fundamental right of the citizen is complemented and strengthened by an objective “organisational” element; the latter itself may be interpreted as a subjective element of the judge as a fundamental right securing the independent position of the judge. Opinions of the Venice Commission as well as court decisions of the ECJ and ECHR in Europe and overseas (IACHR) reveal this aspect. A case of premature dismissal of the vice-presidents of ordinary courts by the Minister of Justice in Poland^{[859] [860] violated the judicial independence as the ECJ stated because it was neither reasoned nor examined either by an ordinary court or another body with judicial duties thus infringing the right of access to a court (ECJ 29/6/2021; Appl 26691/18; p. 6).[861]}

The overview focuses on “objective” elements (immunities; irrevocability, final character of decisions; remuneration and pensions) and more “subjective” elements (e.g. qualification standards; probation; impartiality and neutrality; right to allocation of cases). The sensitive issue of “disciplinary measures” against judges rather meets objective and subjective criteria for safeguarding the judge against wilful external and internal pressure or influence.

The overview outlined in Table 12.3 cannot be representative due to the variety of judicial systems and structures and due to predominantly subconstitutional regulations. The question is rather what “minimum standard” should be concluded from the overview when drafting new constitutions or amending older ones.^[862] The overview includes articles, recommendations, statements or opinions of international institutions or associations on basic aspects of judicial independence without claim to completeness.

12.1.2.9 Budget of the Judiciary

In order to guarantee the independence of the judiciary as separate state institution as well as the independence of the individual judge the courts must be equipped with sufficient financial means and a separate item within the state budget. Several constitutions mention the allocation of resources to the third power but generally it is left to the political discretion of the executive and legislative powers. However, as the CCJE and the Venice Commission rightly underline, it is the duty of the state to provide adequate financial resources for the judicial system. “Courts should not be financed on the basis of discretionary decisions of official bodies but in a stable way on the basis of objective and transparent criteria”.^[863]

As the CCJE in its Opinion No. 2 also points out that, in order to guarantee a stable and independent judiciary it might be advisable to give an independent authority a dominating or a least cooperating role in preparing the budget proposal. Even if representative self-governing institutions might not be directly legitimated by the will of the people they can play an important role in the process of proposing and elaborating the judicial budget to be submitted to the Ministries of Justice and/or the legislative chambers respectively.^[864] We cannot but follow the conclusions of the Venice Commission in this respect which should be reconsidered for constitutional drafting: “Decisions on the allocation of funds to courts must be taken with the strictest respect for the principle of judicial independence and the judiciary should have an opportunity to express its views about the proposed budget to parliament, possibly through the judicial council”.^[865]

12.1.2.10 Remarks

The independence of judges comprises a plethora of objective, subjective and “institutional” elements, which only in a combined manner will ensure the indepen­dence of the judiciary as a separate power vis a vis the other state powers.

The appointment system with guarantees for life tenure, retirement age, remuner­ation and pensions is only one pillar which has been explained above (Sects.

Table 12.3 | | Independence of judges

Table 12.3 (continued)

Table 12.3 (continued)

^aThe Venice Commission rightly concludes at No. 64: “In order to shield the judicial process from undue pressure, one should consider the application of the principle of ‘sub judicewhich should be carefully defined...”

^bRecommendable and concise formulation: “Members of the judicial power who shall be indepen­dent, shall have fixity of tenure; shall be accountable for their acts and subject only to the rule of law”

^cPrecise and very recommendable: “The Courts are independent and subject only to the constitution and the law, which they must apply impartially and without fear, favour or prejudice” ^dIbid. at No. 49: The Commission favours the power of judicial councils or disciplinary courts and also proposes the possibility of an appeal to a court against decisions of disciplinary bodies

Table 12.3 (continued)

^eAt 60: “(a) that the irrevocability of judges should be an element at the highest internal level” ^fNo. 43: “The Venice Commission has consistently supported the principle of irremovabilty in constitutions: Transfers against the will of the judge may be permissible only in exceptional cases” ^g “Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of the term of office”

^h“40.... setting probationary periods can undermine the independence of judges, since they might feel under pressure to cases in a particular way”, but at 41:. a refusal to confirm a judge should be made according to objective criteria where a judge is to be removed from office”

'Art. 216 par. 1 combines various aspects: security of tenure, reservation by law for transferral, retirement or removal of office and par. 2ss. specifies other elements of judicial independence like immunity, indemnity and incompatibility ^jEuropean Charter at 3.4.: “An exception to this principle is permitted only in the case where a transfer is provided for and has been pronounced by way of a disciplinary measure, in the case of a lawful alteration of the Court system, and in the case of a temporary assignment being strictly limited by the statutes without prejudice to the application of the provisions at par. 1.4. herof” ^kVenice Commission (2010b), CDL-AD (2010)004, No. 43

^lThe Constitution however leaves open impeachment procedure originating from the legislative or judicial power

^mThe regulation is very detailed and provides maximum safeguards for the position of judges which in continental laws systems will be left to the legislative

ⁿ “All decisions concerning the professional carrier of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficacy”

^oBoth categories raise questions and may possibly be combined; see Venice Commission (2007), CDL-AD (2007)028, § 36 ^pSee at Weber (2004), pp. 971ss

12.1.2.4) in order to safeguard the independence of the judiciary as such and the individual status of the single judge as well.

Another “institutional” element is an “adequate ” budget of the Judiciary which cannot be quantified in constitutional or subconstitutional texts, but an important role can be assigned to representative self-governing bodies (e.g. “High Councils of Judges”) in proposing the items of the budget for the General and Specialised jurisdictions. Where no similar institutions are existent in the judicial system other forms of mixed commissions or consultative bodies might be advisable.

As “subjective” element the role of an impartial, objective or neutral judge is essential which is generally mentioned in the constitutions as a legal and moral principle. However, a general statement is not sufficient but must be complemented by objective and subjective safeguards. They should comprise aspects of tenure and probation, immunities against criminal prosecution for official acts, irrevocability with limited exceptions (mental or physical incapacity; criminal offences for external activities),^[866] procedural safeguards against disciplinary measures including participation of representative bodies of the judiciary and adequate judicial remedies, incompatibilities with political functions or activities, conflicting economic interests or the exercise of liberal professions (with certain exceptions for teaching and scientific activities).^[867]

An indispensable element is the final character of decisions rightly underlined by the Venice Commission^[868] except ordinary appeal procedures or constitutional complaints as provided for by constitutional or statutory texts.

A further element is the freedom from instructions of higher instances, committees or councils supervising judicial activities or promotions insofar as it relates to the judicial decision-making process and its outcome. As many constitutions and international texts declare that “judges are subject only to the law” this involves a protection against external and internal influence. As the Venice Commission sums up in its “Report on the Independence of the Judiciary”: “... that the principle of internal judicial independence means that the independence of each individual judge is incompatible with a relationship of subordination of judges in their judicial decision-making activity”.^[869] This is also an inherent feature of the Human Rights case law.^[870]

And finally, the right to a lawful judge (“natural judge ”) as enshrined in many constitutions and conventions worldwide is an essential subjective and objective element to ensure the personal and independent status of the judge. This includes - from the view of the citizen as well as from the individual judge - procedural safeguards against wilful allocation or transfer of cases by the court or chamber president. However, as the ECHR rightly states the assignment to other functions within the court's organisational structure is not prohibited.^[871]

The right to a lawful judge may even be enforced by an individual complaint procedure (“constitutional complaint”) of the citizen before a national Constitutional Court (e.g. art. 101, s. 2 BL. § 90 par. 1 BVerfGG (LCC)) but the norm only requires a general-abstract assignment of competences of the court, decision-making author­ity or single judge.^[872]

12.2