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Provisions governing the appointment of temporary administrative court judges are compatible with the Constitution
Press Release No. 38/2018 of 18 May 2018
Order of 22 March 2018
2 BvR 780/16
It is compatible with the Basic Law to appoint career civil servants with life tenure as temporary judges at the administrative courts of first instance in the event that exceptional circumstances create an increased temporary demand for personnel. Judges appointed under these conditions meet the requirements deriving from the right to one’s lawful judge under Art. 101(1) second sentence of the Basic Law (Grundgesetz – GG). There is no violation of the principle of the separation of powers nor of the principle of judicial independence and impartiality. The provisions governing the appointment of temporary judges must, however, be interpreted in conformity with the Basic Law to the effect that a civil servant may not be appointed as temporary judge more than once. This decision was rendered by the Second Senate of the Federal Constitutional Court in an order published today, rejecting as unfounded a constitutional complaint directed against a decision issued by a temporary judge. Justice Hermanns submitted a separate opinion.
Facts of the case:
The Act for Expediting Asylum Proceedings (Asylverfahrensbeschleunigungsgesetz) of 20 October 2015 amended the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO), introducing the possibility of appointing, as temporary judges, civil servants with life tenure and the qualification to hold judicial office (§ 17 no. 3, § 18 VwGO). The VwGO requires that temporary judges be appointed for at least two years. For the duration of their specified term of service, the civil servant status of temporary judges is suspended; upon expiry of their judicial term, they automatically resume the status of civil servant. Temporary judges may only serve at the administrative courts of first instance. Under the applicable statutory framework, the appointment of temporary judges is permissible only in the event of a “solely temporary increased demand for personnel”. The primary aim of these measures is to ensure that the sharp increase in the number of asylum proceedings pending before the courts may be swiftly resolved. Nonetheless, temporary judges may be assigned cases other than asylum proceedings. To date, only the Land Mecklenburg-Western Pomerania has made use of the option to appoint temporary judges to the administrative courts.
The complainant had requested preliminary legal protection from the administrative courts, against the rejection of his asylum application, which had been held to be unfounded, and against the decision of the administrative authorities ordering his deportation to Italy, where he was already the beneficiary of international protection. By way of non-appealable order, his application for preliminary legal protection was rejected; the decision was issued by a temporary judge, sitting as a single judge (Einzelrichter). The constitutional complaint at hand challenges this decision.
Key considerations of the Senate:
1. Requiring that all career judges be appointed for life does not rule out the appointment of temporary judges if such temporary appointments are limited to situations of exceptional demand. The normative model of the Basic Law, and the relevant basis for ensuring that the judiciary adheres to the principle of the rule of law and provides effective legal protection, is the notion that judges be appointed definitively to regularly established positions of primary occupation, as enshrined in Art. 97(2) first sentence GG. Nonetheless, the guarantee of judicial independence does not require that judges generally be appointed for life. Nor is it ascertainable that the traditional principles of public service (hergebrachten Grundsätze des öffentlichen Dienstrechts) give rise to a requirement of life tenure for judges, at least not without exception. It is imperative, however, that the appointment of temporary judges remain the exception, and that judicial positions be filled primarily by way of lifetime appointment. Thus, the statutory condition of “temporary demand for personnel” must be interpreted in a strict manner; it can only be fulfilled where a situation of exceptional pressure is at hand that cannot be resolved by means of the regular instruments of personnel planning and management.
2. Temporary judges are accorded the status of judge. They are assigned regularly established positions. Their principal occupation must be their judicial work. Their term of service cannot be terminated prematurely. Insofar, the appointment of temporary judges fulfils the Basic Law’s normative model of judges appointed definitively to regularly established positions of principal occupation. For the duration of their term of service, temporary judges are guaranteed personal independence in accordance with Art. 97(2) first sentence GG and, in consequence, enjoy strict protection against dismissal, removal from office or transfer.
3. Ultimately, the appointment of civil servants with life tenure as temporary judges, whereby the civil servant status is merely suspended and then automatically resumed upon expiry of the term as temporary judge, is compatible with the Basic Law.
a) The prohibition of cross-tenure (Verbot personeller Verflechtungen) between organs of the judicial and the executive power, deriving from the principle of the separation of powers, bars officials from exercising functions in the two branches of government simultaneously. Yet it does not bar the consecutive exercise of functions in both branches of government. Even the fact that there is certainty that temporary judges will automatically resume the civil servant status upon expiry of their judicial term does not, in principle, give rise to objections under constitutional law given that both positions are clearly separated in time.
b) Moreover, the appointment of civil servants with life tenure as temporary judges does not violate the guarantee of judicial independence. The certainty temporary judges have that they will return to their former posts in public administration does not jeopardise the requisite transition from the role of the civil servant bound by instructions to the role of independent judge, at least if the term as temporary judge is subject to a specified minimum duration. Given the established political culture in Germany that upholds respect for judicial independence, it is unlikely that the foreseeable return of temporary judges to the status of civil servant – a status which does not afford the same guarantee of stability as the status of judge and in which, for example, transfers are possible – might potentially have advance effects whereby judicial decisions could be retroactively sanctioned; besides, there are sufficient structural safeguards in place to avoid such risk.
c) The appointment of temporary judges to the administrative courts does not violate the guarantee of judicial impartiality. It is, however, imperative that a certain “distance requirement” be observed: temporary judges are barred from sitting on cases that involve, as parties to the proceedings, the administrative authority at which the judge in question previously served as civil servant, or its respective supervisory authority. These requirements must be already be factored into the roster for allocating court cases (Geschäftsverteilungsplan); for the rest, a strict interpretation and application of the provisions governing the challenge of judges on the grounds of possible bias in the applicable code of procedure provide sufficient safeguards.
4. A court composition that comprises judges of different statuses does not result in a violation of the guarantee of judicial independence. In this respect, the legislature did not leave the executive branch with latitude to choose, at liberty, between the different status forms attached to judicial office; rather, it provided that the appointment of judges for life be the general rule whereas the appointment of temporary judges remained limited to exceptional cases, permissible only in the event of a temporary increase in demand for personnel.
5. The power afforded the executive branch to create and fill, when the need arises, judicial positions for a specified term does not violate the guarantee of judicial independence. The increased power of influence conferred upon the executive as a result is still within the limits set by constitutional law, given that the matters assigned to temporary judges are not restricted exclusively to cases of the type that created the need for their appointment in the first place, and that the applicable roster for allocating court cases is decided on by the presidium of the relevant court [consisting of the court’s president and a specified number of members elected from among the other judges].
6. Ultimately, the statutory provisions governing the term of service of temporary judges do not raise objections under constitutional law. By setting a minimum term of service, and by linking the duration of the term for which temporary judges are appointed in the actual case to the projected duration of the exceptional demand for personnel, the legislature has put it in place a sufficiently specific statutory framework; it was not required to regulate the term of service for temporary judges exhaustively. However, the two-year minimum term of service laid down in the applicable provisions just barely reaches the lower limit of what is constitutionally permissible.
7. What would not be justifiable under constitutional law, however, is to allow for the same civil servant to be appointed as a temporary judge more than once. If temporary judges could be re-appointed upon expiry of their term of service, the executive could gain a controlling influence by way of deciding whether to extend their judicial term; this could undermine the prohibition of dismissal, removal from office or transfer (Art. 97(2) first sentence GG) applicable to judges as part of the guarantee of judicial independence. Therefore, § 18 VwGO must be interpreted in conformity with the Basic Law to the effect that the re-appointment of temporary judges upon expiry of their specified term of service is not permissible.
Separate Opinion of Justice Hermanns:
§ 18 VwGO is incompatible with the principle of judicial independence guaranteed under Art. 97 GG and the requirements pertaining to the judicial power under Art. 92 GG. Therefore, the constitutional complaint is well-founded.
1. Art. 97 GG guarantees freedom from external influence exerted by the executive, and enjoins the legislature to put in place safeguards ensuring that judicial independence is realised in the most effective manner possible. The statutory framework governing the appointment of temporary judges pursuant to § 18 VwGO falls short of the level of protection that is constitutionally required with regard to safeguarding judicial independence.
Temporary judges are exposed to the risk that the executive branch might exert influence over the exercise of their judicial functions given that their personal independence is only temporarily protected under the guarantees attached to the status of judges, and that upon expiry of their judicial term the progress of their career hinges, to a larger extent, on government decisions. This risk could be avoided by way of assigning judges appointed for life or judges in subsidiary office (Richter im Nebenamt) [pursuant to § 16 VwGO] to the relevant positions instead. Even though temporary judges enjoy security in terms of status rights and financial remuneration given that they automatically resume the status of civil servant, their specific assignment following the end of their judicial term is uncertain; in addition, their career track as civil servants is subject to a much stricter hierarchy than the career track of judges. This creates incentives that, by way of advance effects, allow the executive to exert influence, at least in an indirect and informal manner, over the exercise of judicial functions by temporary judges. The shorter the specified term of service of temporary judges, the more conceivable such incentive effects become.
The guarantee of judicial independence under Art. 97 GG provides the normative bedrock for the evolution of a political culture that upholds respect for the independence of the judiciary; conversely, a weakening of the normative framework that safeguards judicial independence may undermine this very culture.
2. Temporary judges, moreover, lack the neutrality and distance vis-à-vis the parties to the proceedings that is required under Art. 92 GG, given that they automatically resume civil servant status upon ceasing to hold judicial office and are thus exposed more than absolutely necessary to external influencing on the part of the executive, the very branch whose acts they are called upon to review as administrative judges. The fact that the executive branch temporarily “lends” judges to the judiciary may give rise, even upon a reasonable assessment of all relevant circumstances, to the apprehension on the part of parties to the proceedings that the judge had “partisan ties” to the opposing party and thus lacked neutrality. This holds true even if a public entity other than the administrative authority in which the temporary judge previously held a civil servant position, or its respective supervisory authority, is a party to the proceedings.
3. Decisions on values enshrined in the Constitution that could, as conflicting interests, justify the interference with the guarantees of Art. 92 and Art. 97 GG are not discernible and, in particular, cannot be derived from Art. 19(4) GG. Effective legal protection is only possible where judges are independent.