Elections in the German Constitutional Court
By: Geraldine Gonzalez de la Vega
The Federal Constitutional Court or Bundesverfassungsgericht (Germany) has a new member to fill the vacancy left by its current President, Hans-Jürgen Papier, whose term ended this March. The selection process of constitutional judges has raised once again, criticism and praise from academics and experts. From April the Court will judge the president and the youngest in its history.
The BVerfG, abbreviated in German as the long name of the Court, is composed of 16 judges divided into two senates with 8 judges in each and six cameras, 3 by Senate with 3 judges each, and have different skills (there are judges who belong to two cameras). The first Senate was engaged to review or habeas corpus and the second Senate Verfassungsbeschwerde reviews all resources related to organizational matters of state, namely, controversies, abstract review of rules, prohibition of political parties and electoral issues, basically.
According to data in the late nineties, received about 5.000 BVerfG REURSA of protection or Verfassungsbeschwerde each year. For 2006, the Court had already exceeded 6,000 annually. 90% of them are not admitted, and 10% of those admitted, only between 1 and 2% is successful. An interesting fact is that although the action is "free", its abuse is punishable by fines rather high which can be up to € 2,600. The penalty was introduced in 1962 and has been used 2.719 times. The total amount obtained by abuse of the writ of amparo is € 479.761. The percentage of fines for abuse respect of all appeals is 0.26%
Originally (1951) each senate was composed of 12 judges, ie judges BVerfG was 24, but thanks to a reform of 1963 reduced these numbers and this was politically motivated:
In 1952 he appeared before the BVerfG the first dispute against the government of Konrad Adenauer, as the Court got in the way of German rearmament and the establishment of military corporations. The first Court after the enactment of the Basic Law in 1949 and the Basic Law in September 1951, held its first meeting the historic September 28, 1951. For the appointment of its judges the ruling party (CDU) took care not equitable integration in both senates, for he thought that the Senate would be the second strong, dedicated to the constitutional and unconstitutional actions, because under their perspective, problem of constitutional interpretation would be more in the distribution of powers between the federation and the states. In this way, the first Senate was left to the opposition party, the SPD. However, the transition from the early years, the CDU realized that the first Senate, dedicated to reviewing issues of fundamental rights, was actually which has become more important, especially on the issue of rearmament. With the first decisions of the Constitutional Adenauer suffered several setbacks, as the reforms to the reinstatement of the army caused a serious clash between the Government and the Opposition. It called on both senates to provide an opinion on the subject. The first Senate had 7 judges appointed by the SPD and the CDU 5, responded to the arguments of the Opposition (SPD). While the second group and 8 appointed by the CDU and the SPD 4, retaliated against the Government's arguments (CDU). The plenary session also presented a study in which they opposed the government, but only on issues formales y no en la cuestión de fondo. Esta resolución del Tribunal causó zozobra en el Gobierno y en la misma Academia, pues se tenía la sensación de que el Tribunal estaba oponiéndose al camino democrático ¡El “temido” gobierno de los jueces! El Gobierno gozaba de mayoría en el Pleno del Tribunal y se sintó defraudado, pero ésto significó en realidad un triunfo para la autonomía judicial, indispensable para garantizar la autoridad de sus decisiones.
Hoy todavía se dice que tal o cual juez es de tal o cual partido, pero la realidad es que el hecho de que se ubique a los jueces por los partidos que los nominan, no implica there is some link between them. The judges are independent and often resolved against the party that nominated them. Judges are linked directly to the Constitution and nothing else. Still, as in the United States, each party has preferences for certain people for his career, whether judicial or academic, they demonstrate a certain political affiliation or leanings on certain controversial issues. Constitutional judges from half court and the other races, academia or the offices. Half are elected by the Bundestag (lower house) the other by the Bundesrat (upper house representation or federal). Your order lasts 12 years without possibility reelection.
elections were held in 1953 and Konrad Adenauer won easily, he dedicated his second term in part to fight the court and try to change the majority within it, seems to understand the Constitution as a political assembly of judges or something similar. In 1961 Adenauer was reelected for a third time, and before leaving office in 1963, finally managed to reduce the presence of judges nominated by the opposition through a reform that would reduce the number of judges to 8 by the Senate, or 16 in total. Since then, the CDU was in both senates, a 5:3 majority. In the Senate called red, the first Senate dropped 4 places in the SPD, being 5:3 for the CDU and the Senate called black, the second, attempted to negotiate a 4:4 tie, what went wrong at the time of voting, being equal to 5:3 ratio the CDU. Black and red colors relate to the colors used by the two major German parties, the Christian Democrats (CDU) and Social Democrats (SPD), respectively.
-secret negotiations "between parties to nominate judges, were released by the negotiator of the SPD, Adolf Arndt, in his article" Shadows of Karlsruhe (Karlsruhe über Schatten). Arndt has in his note that before the election of judges, the parties negotiated both the Bundestag and the Bundesrat, and this is because the nominations must be approved by a majority of two thirds.
The crisis between 1953 and 1963 served to strengthen institutional autonomy of the Court, as before the reform, the judges were assigned to the Ministry of Justice, which lacked financial and administrative autonomy. After the Minister of Justice made statements against the decision of the Court on rearmament, judges began to lobby their independence from any constitutional body, same after many obstacles, obtained. The new status of the Federal Constitutional Court meant financial independence, higher wages and a constitutional body. Oh sure! also scarlet robes with white jabot, which were a quirk of the constitutional judges to differentiate from other judges who have black robes. The red robes were made following the Florentine magistrates model used in the XV and XVI century.
The election of constitutional judges is not an open process, as would be expected in a constitutional democracy such as Germany, in reality it is a negotiation between parties, depending on the judge who leaves and the formation of government, and have clear contributions to cover. The new judge who joins the Court in Karlsruhe was nominated by the junior partner in the coalition that currently governs Angela Merkel, the Liberal Party (FDP) and that 2010 out two other judges of the second senate, a post that will surely occupy the SPD CDU and another, by respecting the allocation of places available.
The media just speculate what will happen? Who will? The election is closed by a Committee in the Bundestag or the Bundesrat, depending on the judge comes out. The president of the Bundestag Committee on Justice, Wolfgang Neskovic of the Left Party (Die Linke) was already annoyed at the lack of news, as there were nominated and the term is approaching. On 25 February, it was announced that the international faculty of the University of Göttingen, Andreas Paulus, the FDP would be the candidate to fill the vacancy on the Court. Negotiation took a week to accept the new President of the Court but has always followed the tradition that the Vice President of this post. Surely the delay was due to the negotiation of the next Vice.
On Thursday 4 March, it was announced that the Vice President and member of second senate Vosskuhler Andreas (by SPD) will be the new President of the Court, that Judge Ferdinand Kirchhof (the CDU), the first Senate, will be new Vice-President, and that the Professor Andreas Paulus was already chosen by the committee as the new constitutional court to join the first Senate. Vosskuhler (born 1963) became the President of the Court's youngest and first postwar generation, which implies a generational change, important data in Germany. Paulus (born 1968) is by far the youngest judge who has held a seat on the Court of Karlsruhe. To Vosskuhler "the German Basic Law is a case of good fortune in the country's history "and said that" the Germans must recognize that along with the Supreme Court of the United States, the Bundesverfassungsgericht is one of the most recognized constitutional courts in the world, "has served as an example for others. "
Papier Judge of the Court is dismissed as" rights hero. " Repeatedly demonstrated through your decisions liberal vision, "the state is to protect freedom." During his tenure, Judge Papier (the CDU) paradigmatic cases resolved in German doctrine, such as the Law Aviation Safety (Luftsicherheitsgesetz), the case of secret surveillance (Große Lauschangriff), the Company Law of Coexistence (Lebenspartnerschaftsgesetz) or case which recognizes interpret the law to computer security (IT Grundrechte) or recently the case of pensions for the unemployed (Hartz IV). On Tuesday, the judge announced Papier, for the last time on behalf of the German people, "a protector of rights important decision declaring unconstitutional a law that regulates the storage of data.
Paulus's appointments and the new President and Vice revived criticism have always done the procedure, which is that nominated 16 judges are half and half by each House, but according to the Organic Law of the Court, the 12 members of the Justice Commission of the Bundestag are those who choose to form a majority representative of 2 / 3 to the judge. In the Bundesrat vote the full whole and requires a majority of 2 / 3. Many legislators and scholars have advocated a change this procedure in which all members can vote and who is also in both chambers, a procedure such groups, interviews or appearances, so that society can take a picture of them . Prefer to approach the model.
On the other hand, others argue the German procedure, they say: if it works, and the proof is that "98% were excellent judges" - what judges will be in that 2%? do not know -. is said that the legislators of the Commission are entitled to vote, and that the quality of their vote is decisive. It is about quality over judges voters quantity. "In just over 50 years of life of the Court, not bad judges were sent to Karlsruhe, copy the procedure of the United States would be that we focus only on the person and not their abilities, which Many judges would cause discomfort, but excellent defense of the constitutionality, they were not elected. "
What procedure for electing judges is better? I believe that in any case requires a method that is in fact respected, and not as in Mexico, it is assumed that the ministers are nominated by triads and open public procedures, but in reality it is pre-candidates negotiated behind the scenes by political parties. In theory, the method is closer to the Mexican United States, but in reality is like in Germany, the problem is that we get to that 98% of infalibilidad, del que los alemanes presumen.
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