“No one is born a judge, and in a democratic constitutional state, office cannot be bought or won in any other way.” Free election as a judge means, on the one hand, selection from among many candidates, and on the other hand, a legitimacy to hold office. A judge may be democratically elected by:

• parliament,
• people (society) or
• authoritatively appointed by the executive.
• Combinations of both elements are also possible.

1. In many countries, a judge is appointed by the head of state and holds his position throughout his life or until a certain age (the so-called “principle of immutability of judges”).

2. Cicero: “a judge is a speaking law, and a law is a numb judge.” There is no more honorable and responsible job in the field of law than a judge. However, his position does not automatically guarantee him the honorable title and position of judge in society. Each judge must obtain it through their work, performed honestly, reliably, without violating professional ethics.

3. In a modern state, a judge is a representative of one of the separated state powers and adjudicates on state’s behalf, therefore the ruling in many countries begins with the words “On behalf of the Republic …”. However, in ancient societies this was not the case: until modern times the judiciary belonged to the monarch, in tribal societies to the chief or council of elders, or to exceptional charismatic persons who had no executive power and relied only on informal social power.

4. With the arrival of the concentrated power of a chief or king, the judiciary passed to him and strengthened his power. This was still the case in Ancient Age and the Middle Ages, but in Europe, from the 12th century, the monarch’s judiciary began to compete with the church judiciary. Already in the Middle Ages, the belief that even the monarch was subject to the laws of his country (John of Salisbury) began to prevail, and in the 17th century there was a demand to limit the monarch’s will, and even to divide the executive, legislative and judiciary powers.

5. The separation of the judiciary was not enacted until the 18th and 19th century Republican constitutions, but efforts to ensure the independence of the judiciary continue to this day.

6. Opinion: “The separation of the judiciary from the executive is related to the civilization development of society.”

1. Bulgaria

1. Judges are elected or appointed, promoted, demoted, transferred and removed by the judging panel.

2. According to Art. 129 of the Constitution: “Judges, prosecutors and investigating magistrates shall be appointed, promoted, demoted, transferred and removed from office by the Supreme Judicial Council. The Chairman of the Supreme Court of Cassation, the Chairman of the Supreme Administrative Court and the Prosecutor General shall be appointed and removed by the President of the Republic upon a proposal from the Supreme Judicial Council for a period of seven years, and shall not be eligible for a second term in office. The President shall not deny an appointment or removal upon a repeated proposal. 

2. Czech Republic

1. It is independent of the government and enforces state power with its decisions. In the Czech Republic, its legal status is determined by the Constitution (Title IV. Judicial Power) and the Law on Courts and Judges.

2. Art. 82 sec. 1 of the Constitution: “Judges are independent in the execution of their function.  Their impartiality must not be threatened by anyone.”

3. The judge on appointment gives the president the so-called promise (oath): “I promise in my honor and conscience that I will obey the laws of the Czech Republic, that it will be interpreted to the best of my knowledge and belief, and which, accordingly, will be decided independently, impartially and honestly.” Then he is appointed by the Minister of Justice to perform his duties before the court.

4. A motion to initiate disciplinary proceedings may be filed by the President, the Minister of Justice or the President of the Tribunal against judges of his own court and judges of lower courts.

5. Special category of judges are Judges of the Constitutional Tribunal. There are 15 of them in total and they are appointed by the President, with the consent of the Senate, for a ten-year term.

3. Denmark

1. Experienced officials of the Ministry of Justice or deputy judges (legal assistants in courts) are most frequently appointed for judges.

2. The judge is appointed by the Queen on the recommendation of the Judges Nominations Council. From a career point of view, the courts have traditionally functioned as a hierarchy in which judges were first appointed to the district courts and from there district judges were recruited, and from there again Supreme Court judges. This still-used form of recruitment is sometimes supplemented by “outsiders”.

4. France

1. They differ from other officials primarily in terms of irreversibility (inamovibilité).

2. Historic mistrust of any form of excessive judicial power prevented the creation of an independent judiciary.

The proximity to the executive is even more evident in the case of administrative judges: they are not even guaranteed to be irremovable.

5. Netherlands 

1. In the Netherlands a life judge is appointed. This strengthens the independence of the judge who does not have to fear losing his job. In this case, “called for life” means “until his seventieth birthday.”

2. The judges are appointed by the government. The choice is made by the National Selection Committee of judges. This committee is mainly composed of lawyers, but may count up to 4 non-lawyers (out of a total of 12).

6. Lithuania

1. [History] People with primary education worked as judges in the Lithuanian SSR in 1940–1941, after 1944, because only their loyalty to the Soviet authorities was assessed. From 1933 (and confirmed in 1990), the obligatory requirement of having a specific (legal) education.

2. In different periods of the Lithuanian state’s existence, the status of courts and judges also varied. From the puppet of state power to the institution of the state legalized in the Constitution – the third power, one of the main structural elements of power.

7. Germany

1. Judges increasingly criticize the political influence exerted on judicial committees (Article 95 (2) (“The federal minister responsible for a given field decides on the appointment of judges of these courts together with a judiciary committee composed of the ministers of the federal states responsible for a given area and with the same number of members elected by the Bundestag) and Rule 98 (4) (“Federal states may decide that the State Minister of Justice decides on the appointment of judges in the federal state together with a selection committee of judges”) of the German Basic Law) and the actual harmful impact of the Supreme Court judgments on courts.

2. Moreover, for years there has been a postulate of self-governance of the judiciary with its own budget and full personnel sovereignty. In this context, in the 2019 Wiesbaden Administrative Court submitted to the ECJ, inter alia, question of whether the national administrative court is a fully independent court. In this case, the referring court challenges its institutional independence with regard to the appointment and promotion of the Hessian judges by the Hessian Ministry of Justice.

3. The procedure for electing judges in the highest federal courts has been criticized many times. In particular, the lack of transparency of the procedure and the fact that, apart from professional qualifications, the party and political orientation of the candidates also plays a role in the elections. Accordingly, the presidents of the higher district courts and the Federal Court of Justice, for example, demanded at their annual meeting in 2002 for federal judges to be appointed in a transparent procedure solely on the basis of their personal and professional predispositions. Former judge of the Federal Constitutional Court Ernst-Wolfgang Böckenförde even speaks of “party patronage” and “personal expansion of party power”.

4. Judges often belong to or support a party. To become chairman of a state district court, one must also pass a separate competence test (“And the higher the position, the more often it is said that political considerations play a role in his appointment”).

8. Norway

9. Slovakia

1. In Slovakia, judges are appointed and dismissed by the President of the Slovak Republic at the request of the Judicial Council of the Slovak Republic indefinitely.

2. The Constitutional Court of the Slovak Republic consists of 13 judges appointed by the President of the Slovak Republic at the request of the National Council of the Slovak Republic for a period of 12 years. The National Council of the Slovak Republic will always propose twice the number of candidates for judges appointed by the President.

10. Slovenia

11. Switzerland

1. A person (defendant) cannot appoint himself a judge, but also the office of judge cannot be inherited. Rather, it is to be elected or appointed by an authorized body (for example, an executive, democratically legitimate for its part). In Switzerland, however, this process is burdened with the fact that party and political considerations are decisive.

2. In Switzerland, the democratic element clearly dominates in the appointment of a judge to office. The judges are elected by parliaments or, at cantonal level, partly by the population. People’s direct elections are likely to give the judge maximum legitimacy, but the criterion for choosing the best in a public vote will probably remain largely an illusion. However, popular elections are not of great practical importance, as political parties usually reach an agreement in advance (consensus on the election of a particular judge).

3. Political parties also have a say at federal level, as elections to the Federal Criminal Court and Federal Administrative Court as well as the appointment of Federal Supreme Court of Switzerland in Lausanne belong exclusively to the Federal Assembly. The Parliamentary Judicial Committee should make the appointment process objective and ensure that neither the most suitable candidates drop out of the procedure nor that unsuitable candidates get the post. However, in the political reality, the applications of highly qualified candidates without party-political succession are prematurely eliminated. Since 1942, no non-party member has been elected to federal court.

4. [Institution of periodic confirmatory elections in which a judge may lose office] Judges must be re-elected periodically. In particular, this circumstance is not conducive to judicial independence, even if there is no fear of the direct influence of political parties on the judiciary.

5. This leads to dependence on the appropriate political constellation in the parliament, which significantly weakens the position of the judiciary as the third power in the state.

6. The fact that a considerable and presumably growing part of society that consciously does not want to belong to any political party is excluded from exercising judicial functions is being overlooked or ignored.

12. Ukraine

1. Since the judiciary reform of 2010 and 2015 (2017), the influence of the executive authority (primarily the President and the Supreme Council of Justice) on the election of judges to posts in common courts (including administrative courts) has generally increased.

2. As a result of continuous reforms of the judiciary (including in 2010, 2015, 2017), it is recognized that: “the levers of influence on the judiciary are transferred from the parliament to the benefit of the President”.

3. The Law of Ukraine “On ensuring the right to a fair trial” is the main legal act of reforming the judiciary of President of Ukraine Petro Poroshenko, adopted on February 12, 2015 in order to raise national standards of the judiciary and ensure the right to a fair trial. It is noted that the act – quoted: “slightly increases the influence of the President of Ukraine on the judiciary”. 

4. “The oaths taken by judges before the President, granting the head of state the power to liquidate the courts, the fact that the president signs the judges’ certificates – all this is noted by the Venice Commission as a factor that to some extent makes the judiciary dependent on the head of state.”

13. USA

1. Judges are often appointed by the head of state. However, in some US jurisdictions, judges are elected through political elections.

2. In the US, the president’s appointment of a Supreme Court judge must be subsequently confirmed by Congress.

3. Judges of the United States Tax Court, United States Court of Federal Claims and United States Court of Appeals for the Armed Forces, like judges of other federal courts, are appointed by the President with the advice and consent of the Senate, but their terms last 15 years. In addition, judges of the Federal Bankruptcy Court are appointed by each Federal Court of Appeals for a term of 14 years.

14. Hungary

1. In Hungary, before World War II, city judges were simply called judges, even though they were officials of the local administration.

2. The judge is independent of the parties, the state – and even the judiciary before, during and after the sentence is passed. A superior in a judicial organization may not instruct a subordinate judge in his judicial work.