Systems of Selection and Appointment of Judges and the Issue of Judicial Independence: American, English and German Experiences

Abstract

The article aims to investigate the influence of different systems of selection and appointment of judges adopted in the legal systems of the United States, England and Wales, and Germany on judicial independence. In these countries, the following methods are used for the selection of judges: appointment by the executive, appointment by the career or civil service judiciary, shared or parity appointments and appointment by judicial committees. Comparative law analysis shows that the adoption of a particular method for the selection of judges, especially in connection with the term of office, may have an impact on their independence and impartiality. Especially risky seems to be the American justice system, which rooted in the idea of “popular constitutionalism” methods of election and re-election of judges could jeopardize fair trial guarantees. In England and Wales, of great importance in strengthening the independence of the judiciary was the introduction of the Constitutional Reform Act of 2005 and the institution of the Supreme Court. In Germany, independence of the judiciary is guaranteed by the Constitution and the Constitutional Court. Further observations indicate that both in common and continental law, the universal guarantee of independence of the judiciary is for judges to follow ethical and professional dignity principles.