Rule of Law

 

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

EUOECD
 
Justices are appointed in a cooperative appointment process with special majority requirements.
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Denmark
The Danish constitution (sections 3, 62 and 64) states that “judicial authority shall be vested in the courts of justice … the administration of justice shall always remain independent of executive authority … [and] judges shall be governed solely by the law. Judges shall not be dismissed except by judgment, nor shall they be transferred against their will, except in such cases where a rearrangement of the courts of justice is made.”

The judicial system is organized around a three-tier court system: 24 district courts, two high courts and the Supreme Court. Denmark does not have a special Constitutional Court. The Supreme Court functions as a civil and criminal appellate court for cases from subordinate courts.

The monarch appoints judges following a recommendation from the minister of justice on the advice of the Judicial Appointments Council (since 1999) to broaden the recruitment of judges and enhance transparency. In the case of the Supreme Court, a nominated judge first has to take part in four trial votes, where all Supreme Court judges take part, before he or she can be confirmed as a judge.
Citations:
Henrik Zahle, Dansk forfatningsret 2: Regering, forvaltning og dom. Copenhagen: Christian Ejlers’ Forlag, 2004, p. 88.

“Dommerudnævnelsesrådet,” http://www.domstol.dk/om/organisation/Pages/Dommerudn%C3%A6vnelsesr%C3%A5det.aspx (accessed 17 April 2013).
9
Austria
Judges are appointed by the president, who is bound by the recommendations of the federal minister of justice. This minister in turn is bound by the recommendations of panels consisting of justices. This usually is seen as a sufficient guarantee to prevent direct government influence on the appointment process.

The situation is different for the Constitutional Court and the Administrative Court. In these two cases, the president makes appointments following recommendations by the federal government or one of the two houses of parliament. Nonetheless, members of the Constitutional Court must be completely independent from political parties (under Art. 147/4). They can neither represent a political party in parliament nor be an official of a political party. In addition to this rule, the constitution allows only highly skilled persons who have pursued a career in specific legal professions to be appointed to this court. This is seen as guaranteeing a balanced and professional appointment procedure.

The elections of 2017 resulted in a new governing majority. This may have an impact on the recruitment of Constitutional Court members. The rulings of the court, which have been seen over the last few years as more or less “liberal,” could become more “conservative.” However, there does not seem to be any expectation that the basic rules of the appointment of the court’s members will be changed. Though, following the collapse of the ÖVP-FPÖ coalition, a key question for the next government will be: How should the government use its constitutional powers to influence the recruitment of members of, for example, the Constitutional Court?
Belgium
The Constitutional Court is composed of 12 justices who are appointed for life by the king, who selects candidates from a list submitted alternately by the Chamber of Deputies and by the Senate (with a special two-thirds majority). Six of the justices must be Dutch-speaking, and the other six French-speaking. One must be fluent in German. Within each linguistic group, three justices must have worked in a parliamentary assembly, and three must have either taught law or have been a magistrate.

The appointment process is transparent yet attracts little media attention. Given the appointment procedure, there is a certain level of politicization by the main political parties, and indeed most justices have had close links to one of the parties or have previously held political mandates before being appointed to the court. However, once appointed, most justices act independently.
Chile
Members of the Supreme and Constitutional Courts are appointed collaboratively by the executive and the Senate. In recent years, there have been several cases in which the judiciary has acted to check executive power. This has come in the area of environmental policy, for example, in which the Supreme Court has affirmed its autonomy and independence from political influence.
Lithuania
The country’s judicial appointments process protects the independence of courts. The parliament appoints justices to the Constitutional Court, with an equal number of candidates nominated by the president, the chairperson of the parliament and the president of the Supreme Court. Other justices are appointed according to the Law on Courts. For instance, the president appoints district-court justices from a list of candidates provided by the Selection Commission (which includes both judges and laypeople), after receiving advice from the 23-member Council of Judges. Therefore, appointment procedures require cooperation between democratically elected institutions (the parliament and the president) and include input from other bodies. The appointment process is transparent, even involving civil society at some stages, and – depending on the level involved – is covered by the media. In a recent World Economic Forum survey gauging the public’s perception of judicial independence, Lithuania was ranked 53rd out of 141 countries. Based on the EU Justice Scoreboard, the perceived independence of courts and judges among the general public is around the EU average. Around 50% of Lithuanian respondents assessed the independence of courts and judges as very good or good in 2016 and 2017. Public trust was undermined by the perceived interference of government, politicians, and economic and other special interest groups, and respondents’ opinion that the status and position of judges does not guarantee their independence.
Citations:
The 2019 Global Competitiveness Report of the World Economic Forum: http://www3.weforum.org/docs/WEF_TheGlobalCompetitivenessReport2019.pdf
The EU Justice Scoreboard, see http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm
Luxembourg
The Constitutional Court of Luxembourg is composed of nine members, all of whom are professional judges. They are appointed by the Grand Duke upon the recommendation of the members of the Superior Court of Justice and the Administrative Court of Appeals, who gather in a joint meeting convened by the president of the Superior Court of Justice. However, the members of these two bodies are appointed by the Grand Duke on the recommendation of the Courts themselves, so their recommendations cannot be viewed as entirely independent. This principle is enshrined in Article 90 of the constitution and has never been questioned. It gives a great degree of independence to the Constitutional Court, as well as to the Superior Court of Justice and the Administrative Court of Appeals.
Citations:
Loi du 27 juillet 1997 portant organisation de la Cour Constitutionnelle.
Loi du 7 novembre 1996 portant organisation des juridictions de l’ordre administratif.
Loi du 1er juillet 2005 arrêtant un programme pluriannuel de recrutement dans le cadre de l’organisation judiciaire.
Organisation judiciaire, Textes coordonnés Avril 2009.
Norway
Judges are formally appointed by the government. However, decisions are prepared by a special autonomous body called the Instillingsrådet. This independent body, composed of three judges, one lawyer, a legal expert from the public sector and two members who are not from the legal profession, provides recommendations that are almost always followed by the government. Supreme Court justices are not considered to be in any way political and have security of tenure guaranteed in the constitution. There is a firm tradition of autonomy in the Supreme Court. The appointment of judges attracts limited attention and rarely leads to public debate.
Portugal
The Constitutional Court is comprised of 13 judges, who serve for non-renewable nine-year terms. Of these, 10 are selected by parliament on the basis of a two-thirds parliamentary majority. This generally means that the selection of judges requires, at least, an agreement between the PS and PSD, as the two largest parties together make up more than two-thirds of parliament. Typically, there is no other parliamentary configuration that can secure a two-thirds majority. That said, the PS and PSD have voted for the appointment of other parties’ nominees (e.g., Clara Sottomayor, nominated by the BE in 2016; and Fátima Mata-Mouros, nominated by the CDS in 2012), depending on political equilibria. The remaining three Constitutional Court judges are co-opted by the 10 judges elected by parliament. Six of the 13 judges must be chosen from judges in other courts; the others can be jurists.

While criticisms of the Constitutional Court emerge whenever a decision goes against a particular faction or party, the general perception is that that the court operates in a balanced and non-partisan manner. The manner of election of judges, with a two-thirds parliamentary majority, tends to help in this outcome.

In May 2019, in a rare resignation, Clara Sottomayor resigned from the Constitutional Court. In September 2019, she explained that she had resigned in protest to the process of elaborating an opinion, which fails to sufficiently safeguard dissenting views within the court.
Citations:
Magalhães, P. C. (2003). The limits to judicialization: Legislative politics and constitutional review in the Iberian democracies (Doctoral dissertation, The Ohio State University).

Maria Clara Sottomayor (2019), “Quem guarda o guardador?,” in Público online, available at: https://www.publico.pt/2019/09/23/politica/opiniao/guarda-guardador-1887519
Sweden
The cabinet appoints Supreme Court (“regeringsrätten”) justices. The appointments are strictly meritocratic and are not guided by political allegiances. Although the cabinet almost always makes unanimous decisions, there are no special majority requirements in place for these decisions.

There is only modest media coverage of the appointments, mainly because the Swedish Supreme Court is not a politically active body like the Supreme Court in countries such as Germany and the United States.
 
Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
8
Czechia
The justices of the Constitutional Court, the Supreme Court and the Supreme Administrative Court are appointed by the Senate, the second chamber of the Czech parliament, on the basis of proposals made by the president. Within the Senate, no special majority requirement applies. The process of appointing judges is transparent and adequately covered by public media. The involvement of both the president and the Senate increases the likelihood of balance in judges’ political views and other characteristics. President Zeman’s proposals have continued to be uncontroversial.
Germany
Federal judges are jointly appointed by the minister overseeing the issue area and the Committee for the Election of Judges, which consists of state ministers responsible for the sector and an equal number of members of the Bundestag. Federal Constitutional Court judges are elected in accordance with the principle of federative equality (föderativer Parität), with half chosen by the Bundestag and half by the Bundesrat (the upper house of parliament). The Federal Constitutional Court consists of sixteen judges, who exercise their duties in two senates of eight members each. While the Bundesrat elects judges directly and openly, the Bundestag used to delegate its decision to a committee in which the election took place indirectly, secretly and opaquely. In May 2015, the Bundestag unanimously decided to change this procedure. As a result, the Bundestag now elects judges directly following a proposal from its electoral committee (Wahlausschuss). Decisions in both houses require a two-thirds majority.

In summary, judges in Germany are elected by several independent bodies. The election procedure is representative, because the two bodies involved do not interfere in each other’s decisions. The required majority in each chamber is a qualified two-thirds majority. By requiring a qualified majority, the political opposition is ensured a voice in the selection of judges regardless of current majorities. In November 2018, Stephan Harbarth, previously a member of the German Bundestag, was elected as a new vice-president of the Federal Constitutional Court. This election received substantial press coverage, with discussions as to whether a former member of parliament who worked as a lawyer has the right profile for this position. This example seems to indicate that the new and open procedure has had a positive effect on public awareness.
Israel
According to Israel’s basic laws, all judges are to be appointed by the president after having been elected by a special committee. This committee consists of nine members, including the president of the Supreme Court, two other Supreme Court judges, the minister of justice (who also serves as the chairman) and another government-designated minister, two Knesset members, and two representatives of the Chamber of Advocates that have been elected by the National Council of the Chamber. Since the law was amended in 2008, it was held that in order to appoint a justice to the Supreme Court, the nominated candidate should have the support of a majority of seven committee members. This amendment has since further intensified struggles between committee members.

The cooperative procedure balances various interests and institutions within the government in order to ensure pluralism and protect the legitimacy of appointments. The process receives considerable media coverage and is subject to public criticism, which is usually concerned with whether justices’ professional record or other considerations (e.g., social views, loyalties, and political affiliation) should figure into their appointment.

Since the establishment of the Judicial Selection Committee in 1953, various initiatives have sought to change it. In 2019, the former minister of justice, Ayelet Shaked, presented a proposal to change the committee. According to her proposal, a justice of the Supreme Court will be nominated by the government and approved by the Knesset following a public hearing, similar to the U.S. system for choosing justices to the U.S. Supreme Court. This proposal aims to reduce the Supreme Court’s judicial activism. Elected officials – including some ministers, such as Ayelet Shaked – have sought to appoint judges with a conservative judicial view who, they hope, would be less activist. In her term, however, Shaked pushed for the appointment of conservative judges. Her success on these grounds was attributed to her partnership with the former head of the Israeli Bar Association, Efi Naveh. In 2019, he was arrested under a sex-for-judgeship scandal, according to which he tried to appoint and promote judges in return for sexual favors.

The spirit of judicial independence is also evident in the procedure for nominating judges and in the establishment of an ombudsman for the judiciary. This latter was created in 2003, with the aim of addressing issues of accountability inside the judicial system. It is an independent institution that investigates public complaints and special requests for review from the president of the Supreme Court or the secretary of justice. The Ombudsman issues an annual report detailing its work, investigations and findings from all judicial levels, including the rabbinic courts.
Citations:
Bob, Yonah Jeremy. “Will Nave replacement end Shaked’s judicial revolution? - analysis.” The Jerusalem Post, 12.6.2019: https://www.jpost.com/Israel-News/Will-new-lawyers-president-end-Shakeds-judicial-revolution-Analysis-592167

Gueta, Yasmin and Efrat Newman, “Like the ‘Big Brother’: The Procedure to Judge Nomination,” The Marker, 15.2.2016: http://www.themarker.com/law/1.2851297

Hovel, Revital. “Minister, Chief Justice Agree on Israel’s Next Supreme Court President,” Haaretz, 10/7/2017: https://www.haaretz.com/israel-news/.premium-1.800449

Jerusalem Post Staff, Yonah Jeremy Bob. “Efi Nave, Head of Israeli bar, arrested in sex-for-judgeship scandal.” The Jerusalem Post, 16.1.2019: https://www.jpost.com/Breaking-News/Senior-lawyer-arrested-on-suspicion-of-illegal-appointment-of-judges-577580

Lurie, Guy. “The Judicial Selection Committee.” Jerusalem: Israel Democracy Institute, 2019.

Rubinstein, Amnon, “The constitutional law of the state of Israel,” Shoken, 2005.

Shoken, 2005. “The Ombudsman on judges office: Annual report 2011,” 2012. (Hebrew), http://index.justice.gov.il/Units/NezivutShoftim/pirsomeyhanaziv/Doch/Documents/2012.pdf

“The Ombudsman of judges office: Annual report 2013,” Jerusalem 2014 (Hebrew), http://index.justice.gov.il/Units/NezivutShoftim/MainDocs/Report2013.pdf.
Italy
According to the present constitution, members of the Constitutional Court are appointed from three different and reciprocally independent sources: the head of state, the parliament (with special majority requirements) and the top ranks of the judiciary (through an election). Members of this institution are typically prestigious legal scholars, experienced judges or lawyers. This appointment system has globally ensured a high degree of political independence and prestige for the Constitutional Court. The Constitutional Court has frequently rejected laws promoted by the government and approved by the parliament. The court’s most politically relevant decisions are widely publicized and discussed by the media.
Latvia
Judges are appointed in a cooperative manner. While the parliament approves appointments, candidates are nominated by the minister of justice or the president of the Supreme Court based on advice from the Judicial Qualification Board. Initial appointments at the district court level are for a period of three years, followed either by an additional two years or a lifetime appointment upon parliamentary approval. Regional and supreme court judges are appointed for life (with a compulsory retirement age of 70). Promotion of a judge from one level to another level requires parliamentary approval.

Parliamentarians vote on the appointment of every judge and are not required to justify refusing an appointment.

Judges are barred from political activity. In 2011, the Constitutional Court lifted immunity for one of its own judges, Vineta Muizniece, enabling the Prosecutor General to bring criminal charges for falsifying documents in her previous position as a member of parliament. Muizniece’s appointment to the Constitutional Court was controversial because of her political engagement and profile as an active politician. The court has convicted Muizniece, but the case is under appeal. Muizniece was initially suspended from the Constitutional Court pending judgment and then removed from office in 2014 after a final guilty verdict.

A new system for evaluating judges has been in place since January 2013, with the aim of strengthening judicial independence. While the government can comment, it does not have the power to make decisions. A judges’ panel is responsible for evaluations, with the court administration providing administrative support in collecting data. The panel can evaluate a judge favorably or unfavorably and, as a consequence of this simple rating system, has tended to avoid rendering unfavorable assessments.

In 2018, amendments to the Law on Judicial Power reduced the influence of executive power on the organization of court work and extended the competence of the Council for the Judiciary in appointing chairs of the courts.

Nevertheless, a European Networks of Councils for the Judiciary (ENCJ) survey of judges from 26 European countries found that Latvia scored relatively poorly in terms of Latvian judges’ evaluation of judicial independence (scoring between 6.5 and 7 on a 10-point scale). 11% of Latvian judges reported being subjected to inappropriate pressure. In rank order, the main sources of pressure were the media, political parties and their lawyers, and court management (including a court president).
Citations:
1. The Constitutional Court of Latvia (2011), Ruling on Initiation of Prosecution against Constitutional Court Judge Vineta Muizniece, Available at (in Latvian): http://titania.saeima.lv/LIVS11/saeimalivs_lmp.nsf/0/AB89B4FC4C69868DC22579410042BEF9?OpenDocument, Last assessed: 01.11.2019

2. Supreme Court Senate (2018), The competence of the Council for the Judiciary in appointing chairs of courts and in transfer of judges shall be expanded, Available at: http://www.at.gov.lv/en/jaunumi/par-tieslietu-padomi/the-competence-of-the-council-for-the-judiciary-in-appointing-chairs-of-courts-and-in-transfer-of-judges-shall-be-expanded-9374?year=2018&, Last assessed: 01.11.2019
Mexico
Mexican Supreme Court justices are nominated by the executive and approved by a two-thirds majority in the Senate. However, if no candidate achieves a majority, the president can appoint a justice without Senate approval. The system of federal electoral courts is generally respected and more independent and professional than the criminal courts. The situation is worse in lower courts, as judges are implicated in corruption or clientelist networks.

With the support of a majority in the legislative, AMLO has appointed two new judges to the Supreme Court, with a third one to follow soon, and three judges to the Consejo de la Judicatura Federal. The opposition has criticized all the appointments arguing that the candidates are loyal allies of the president, which would undermine judicial independence. Until 2021, AMLO will be able to appoint at least one more judge. In addition, a reform project proposed the creation of a new anti-corruption chamber in the Supreme Court, giving AMLO the option to appoint a further five judges.
Citations:
DW 2018. México: “El sistema anticorrupción está entrampado.” https://www.dw.com/es/méxico-el-sistema-anticorrupción-está-entrampado/a-42567912
Mexico Evalua 2019: Diagnostico inaugural, https://www.mexicoevalua.org/diagnostico-inaugural/
Latin News 2019: Weekly Report – 10 October 2019 (WR-19-40), MEXICO: Judicial autonomy under threat?
New Zealand
All judicial appointments are made by the governor-general based on the recommendation of the attorney-general. The convention is that the attorney-general recommends new appointments, with the exception of the chief justice, Māori Land Court and court of appeal judges. Appointment of the chief justice is recommended by the prime minister.
The appointment process followed by the attorney-general is not formally regulated. That said, there is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the attorney-general acts independently of party political considerations. There is a prior process of consultation, however, that is likely to include senior members of the judiciary and legal profession. Judges enjoy security of tenure and great judicial independence. In 2012, a review by the New Zealand Law Commission recommended that greater transparency and accountability be given to the appointment process through the publication by the chief justice of an annual report, as well as the publication by the attorney-general of an explanation of the process by which members of the judiciary are appointed and the qualifications they are expected to hold. So far, however, the recommendations of the Law Commission have not been implemented.
Citations:
Paul Bellamy and John Henderson, Democracy in New Zealand (Christchurch: MacMillan Brown Centre for Pacific Studies, 2002).
New Zealand Law Commission, ‘Review of the Judicature Act 1908: Toward a New Courts Act’ (R126, Wellington, 2012).
Benjamin Sutter. 2015. Appointment, Discipline and Removel of Judges: A Comparison of the Swiss and New Zealand Judiciaries. 46 VUWLR, pp. 267-306.
Stuff. 2018. Justice Helen Winkelmann appointed Chief Justice. December 17. https://www.stuff.co.nz/national/politics/109416961/justice-helen-winkelmann-appointed-chief-justice
Slovenia
In Slovenia, both Supreme and Constitutional Court justices are appointed in a cooperative selection process. The Slovenian Constitutional Court is composed of nine justices who are proposed by the president of the republic and approved by the parliament by absolute majority. The justices are appointed for a term of nine years and select the president of the Constitutional Court themselves. Supreme Court justices are appointed by parliament by a relative majority of votes based on proposals put forward by the Judicial Council, a body of 11 justices or other legal experts partly appointed by parliament and partly elected by the justices themselves. The Ministry of Justice can only propose candidates for the president of the Supreme Court. Candidates for both courts must meet stringent merit criteria and show a long and successful career in the judiciary to be eligible for appointment. In March 2017, four new Constitutional Court justices were appointed by the National Assembly, all with an overwhelming majority of votes, a rare example of party cooperation. By contrast, in the case of the two most recent appointments of Constitutional Court justices in late 2018 and June 2019, the governing coalition ignored and over-voted the opposition.
7
Croatia
The Constitutional Court of the Republic of Croatia has 13 judges who are elected for a term of eight years. Judges are appointed by the Croatian parliament (Sabor) on the basis of a qualified majority (two-thirds of all members of the Sabor). Prescribed by a constitutional law, the eligibility criteria are rather general and represent a minimum that candidates need to fulfill in order to apply. Candidates are interviewed by the parliamentary committee tasked with proposing the list of candidates to the plenary session. There is a notable lack of consistency in this interview process, as the committee does not employ professional selection criteria. The latest round of appointments in 2016 included many judges with dubious backgrounds.
Cyprus
The judicial system functions on the basis of the 1960 constitution, albeit with modifications to reflect the circumstances prevailing after the collapse of bicommunal government in 1964. The Supreme Council of Judicature (SCJ), composed of all 13 judges of the Supreme Court, appoints, promotes and places justices, except those of the Supreme Court. The latter are appointed by the president of the republic upon the recommendation of the Supreme Court. By tradition, nominees are drawn from the ranks of the judiciary. GRECO 2016 recommendations to deepen participation in the SCJ by including trial court judges and rendering the procedure and criteria for selecting judges more transparent were at best only partially implemented. Similarly, the recommendation to institute a process for representation within the judiciary was also not followed. In late 2018, claims of nepotism and the corruption of justices were lodged; GRECO is expected to publish a special report regarding these claims.
In 2019, the EU recommended that Cyprus accelerate the pace of reforms in the judicial system (e.g., establish a commercial court, promote e-justice and strengthen the enforcement of decisions).

The gender balance within the judiciary as a whole is approximately 60% male to 40% female. Four (five until October 2019) of the 13 Supreme Court justices and five of the seven Administrative Court justices are female.
Citations:
1. Council of Europe, GRECO fourth evaluation round, published September 2018, https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/16808d267b
2. Greco suggestions ‘not optional,’ Cyprus Mail, 9 February 2019, https://cyprus-mail.com/old/2019/02/09/greco-suggestions-not-optional/
Ireland
The constitution states that judges are appointed by the president on the advice of the government (Articles 13.9 and 35.1).

The key government actors involved in making senior appointments are the taoiseach, the minister for justice, the attorney general and (in the case of a coalition government) any other party leader(s). This means that paper qualifications are not enough; “a crucial factor is being known personally by one of the key players” (Gallagher 2018, citing MacNeill 2016). Until 1996, this was an informal procedure.

In theory this all changed following the creation in 1996 of the Judicial Appointments Advisory Board (JAAB), which acts in an advisory capacity in appointments to the Supreme Court. The government has the power to appoint a person who has not applied to, and has not been considered by, the JAAB. Nevertheless, the JAAB acts as a kind of short-listing committee. It has now become known that “within around five years of its establishment, the JAAB, perhaps over-cautiously, deferred to legal advice that it might be infringing on the government’s constitutional right to appoint judges by doing anything more than simply forwarding the entire list of applicants to the government minus those that it deems unsuitable” (Gallagher 2018, 72, citing MacNeill 2016, 33). Thus, the JAAB in practice has been about weeding out unsuitable applicants. Suggested reforms, which would return the JAAB to its originally intended role, might involve requiring it to rank-order a short list of three or five names (see Cahillane 2017).

In May 2018, the Dáil passed a new bill to establish a Judicial Appointments Commission to replace the JAAB. The new body is to be composed of five judges, three lawyers representing the attorney general and nine lay members (The Irish Times, 31 May 2018). The proposal is that the new body would recommend three candidates to fill any judicial vacancy and the government would choose one of them. The bill has been supported by the minister for transport, Shane Ross, who argued it would help to end “cronyism” in appointments. The bill has attracted opposition from some judges and opposition politicians who claim that it may undermine judicial independence. As of December 2018, the bill has still not passed the Seanad. The bill had been at committee stage in the Seanad, where 191 amendments have been tabled (The Irish Times, 28 November 2018). An Irish Times story was titled: “Taoiseach slates ‘Seanad filibuster’ of judicial appointments law.” The bill finally passed the Seanad in December 2019 and was returned to the Dáil.

While the process does not require cooperation between democratic institutions and does not have majority requirements, appointments have, in the past, not been seen as politically motivated and have not been controversial.

However, changes made in April 2012 to the system of regulating judges’ pay and pensions, and the appointment of judges provoked controversy. Judges’ pay and pensions had been shielded from the cuts in public sector pay implemented during the economic crisis, but a huge majority of voters in a referendum in October 2011 voted to remove this protection (almost 80% voted for this change). The Association of Judges of Ireland has called for the establishment of an independent body to establish the remuneration of judges, and improve lines of communication between the judiciary and the executive.
Citations:
David Gwynn Morgan (2012), ‘Government and the Courts,’ in Eoin O’Malley and Muiris (eds) Governing Ireland: From Cabinet Government to Delegated Governance. Dublin: IPA.

Jennifer MacNeill (2016). The Politics of Judicial Selection in Ireland. Dublin: Four Courts Press.

Laura Cahillane (2017), ‘Judicial Appointments in Ireland: the Potential for Reform,’ in Laura Cahillane, James Gallen and Tom Hickey (eds), Judges, Politics and the Irish Constitution. Manchester University Press.

Michael Gallagher (2018), ‘Politics, the Constitution and the Judiciary,’ in John Coakley and Michael Gallagher (2018, eds) Politics in the Republic of Ireland, 6th edition. Routledge.
South Korea
The appointment process for Constitutional Court justices generally serves to protect t the court’s independence. Judges are exclusively appointed by different bodies without special majority requirements, although there is cooperation between the branches in the nomination process. The process is formally transparent and adequately covered by public media, although judicial appointments do not receive significant public attention. All nine judges are appointed by the president, with three of the nine selected by the president, three by the National Assembly and three by the judiciary. By custom, the opposition nominates one of the three justices appointed by the National Assembly. The head of the court is chosen by the president with the consent of the National Assembly. Justices serve renewable terms of six years, with the exception of the chief justice. The National Assembly holds nomination hearings on all nominees for the Supreme Court and the Constitutional Court.
Citations:
Article 111 of the Korean Constitution
Croissant, Aurel (2010) Provisions, Practices and Performances of Constitutional Review in Democratizing East Asia, in: The Pacific Review 23(5).
Jongcheol Kim, The Rule of Law and Democracy in South Korea: Ideal and Reality, EAF Policy Debates, No.26, may 12, 2015
Korea Herald. “Moon names new nominee for Constitutional Court Chief.” October 27, 2017. http://www.koreaherald.com/view.php?ud=20171027000588
Spain
Under current regulations, appointments to both the Constitutional Court (the organ of last resort regarding the protection of fundamental rights and conflicts regarding institutional design) and the Supreme Court (the highest court in Spain for all legal issues except for constitutional matters) require special majorities in the parliament. These majorities can be reached only through difficult and politicized extra-parliamentary agreements between the major parties, which generally lack a cooperative attitude toward one another. During the period under review, the General Council of the Judiciary, which is an autonomous body composed of judges and other jurists that aims to guarantee the independence of the judges, could not be renewed due to the political deadlock.

At the political level, a parliamentary debate focused on a strategy aimed at enhancing the judiciary’s impartiality, talent and efficiency. A code of conduct has been adopted, and a consultative Commission of Judicial Ethics has been established.
Citations:
GRECO (2018), Fourth evaluation round, Spain: https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680779c4d

El diario, November 2018, El Consejo de Europa lleva desde 2014 criticando a España por la politización del sistema que designa al Poder Judicial
https://www.eldiario.es/politica/Consejo-Europa-Espana-Poder-Judicial_0_836066745.html

El pais, October 2019, El Supremo rechaza paralizar los nombramientos del Poder Judicial en funciones
https://elpais.com/politica/2019/10/01/actualidad/1569950347_255722.html
Netherlands
Justices, both in civil/criminal and in administrative courts, are appointed by different, though primarily legal and political, bodies in formally cooperative selection processes without special majority requirements. In the case of criminal/civil courts, judges are de facto appointed through peer co-optation. According to the Council for Jurisprudence (Raad voor de Rechtspraak), “…[I]n the Netherlands, political appointments don’t exist. Selection of judges is a matter for judges themselves, of the courts and the Supreme Court, on the basis of expertise alone. You cannot even raise the issue of political or confessional convictions.” This is also true of the lower administrative courts. Only Geert Wilders, parliamentarian for the right-wing populist Party for Freedom, has proposed (in 2011) to substitute a five-year term for judges’ current lifetime appointment.

The Netherlands’ highest court, the Council of State, is subject to relatively strong political influence, mainly expressed through the appointment of former politicians, and through a considerable number of double appointments. Only state counselors working in the Administrative Jurisdiction Division (as opposed to the Legislative Advisory Division) are required to hold an academic degree in law. Appointments to the Supreme Court are for life (judges generally retire at 70). Appointments are generally determined by seniority and (partly) peer reputation. Formally, however, the Second Chamber (House of Representatives) of the States General selects the candidate from a shortlist presented by the Supreme Court. In selecting a candidate, the States General is said never to deviate from the top candidate.
Citations:
Andeweg, R.B. and G.A. Irwin (2014), Governance and Politics of the Netherlands. Houdmills, Basingstoke: Palgrave Macmillan (page 210).

De Volkskrant, “Worden in andere EU-landen ook rechters door politici benoemd, zoals Polen beweert? Nou nee,” 23 July 2017

NRC Next, 8 March 2011. Wilders pareert kritiek op plan tijdelijke benoeming rechters (nrs.nl, accessed 4 November 2019)
UK
The judicial appointments system reflects the informality of the constitution, but it has undergone substantial changes in recent years, which formalize a cooperative process without a majority requirement. Since the Constitutional Reform Act 2005, the powers of the Lord Chancellor have been divided up. Furthermore, the supreme court of the United Kingdom has been established, which replaces the Appellate Committee of the House of Lords and relieves the second chamber of its judiciary role. The queen appoints 12 judges to the supreme court based on the recommendation of the prime minister who is advised by the Lord Chancellor in cooperation with a selection commission. It would be a surprise if the prime minister ignored the advice or the Lord Chancellor or selection commission or the queen ignored the recommendations of the prime minister. The queen has a formal, ceremonial role and she is bound to impartiality. In contrast, the Lord Chancellor has a highly influential role and consults with the legal profession.

There is no empirical basis on which to assess the actual independence of appointments, but there is every reason to believe that the appointment process will confirm the independence of the judiciary.
USA
Federal judges, including Supreme Court justices, are appointed for life by the president and must be confirmed by a majority vote in the Senate. Historically, they have generally reflected the political and legal views of the presidents who appointed them. Over the last 30 years, however, judicial appointments have become more politicized, with conflicts over Senate confirmation eventually becoming almost strictly partisan.

With one additional vacancy during his first two years, President Trump has appointed and the Senate confirmed two Supreme Court justices. With the obstacle of the filibuster removed, the Republican Senate has declared a firm commitment to confirming Trump-nominated conservative lower court judges. In a departure from past practice, the Republican Senate has confirmed several Trump nominees whom the American Bar Association had rated “not qualified.”

Given the fact that federal judges are appointed for life, the courts’ independence from current elected officials is well protected. However, federal judges increasingly reflect the ideological preferences of the president and the Senate at the time of their appointment, often decades earlier. Within the Senate, voting on the confirmation of Supreme Court judges is a partisan manner as bipartisan consensus has all but vanished. All of the Trump administration’s federal judge appointees have demonstrated allegiance to the president, and some have few credentials beyond their hardline conservative views.
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Australia
The High Court is the final court of appeal for all federal and state courts. While the constitution lays out various rules for the positions of High Court justices, such as tenure and retirement, there are no guidelines for their appointment – apart from them being appointed by the head of state, the governor-general. Prior to 1979, the appointment of High Court justices was largely a matter for the federal government, with little or no consultation with the states and territories. The High Court Act 1979 introduced the requirement for consultation between the state attorneys-general, which are the chief law officers at the state level, and the federal attorney-general. While the system is still not transparent, it does appear that there are opportunities for the states to nominate candidates for a vacant position. However, there has never been a High Court judge from either South Australia or Tasmania, which has been a long-standing bone of contention. Considering the importance of the High Court for the settlement of federal-state relations, there has been concern that judges with a strong federal perspective are regularly being preferred. From the perspective of the public, the appointment process is secret and the public is rarely consulted when a vacancy occurs. In recent years, a debate has emerged whether diversity, as well as representativeness, should be considered during the selection of judges.
Citations:
http://www.smh.com.au/federal-politics/political-opinion/easier-to-pick-a-melbourne-cup-winner-than-next-high-court-judge-20120312-1uwds.html

http://www.hcourt.gov.au/justices/about-the-justices

https://www.ruleoflaw.org.au/australia-high-court-appointment/
Canada
It can be argued that the current process for judicial appointments in Canada, which is at the complete discretion of the prime minister, does not represent good governance, since the appointment needs no approval by any legislative body (either the House of Commons or the Senate). Indeed, potential candidates are not even required to appear before a parliamentary committee for questioning on their views. The prime minister has the final say in appointing chief justices at the provincial level, as well as for Supreme Court justices. The appointment process is covered by the media.

Despite their almost absolute power regarding judicial appointments, however, prime ministers have consulted widely on Supreme Court nominees, although officeholders have clearly sought to put a personal political stamp on the court through their choices. Historically, therefore, there was little reason to believe that the current judicial-appointment process, in actuality, compromised judicial independence. The current Liberal government has set up an independent, non-partisan advisory board to identify eligible candidates for Supreme Court Justices in an effort to provide a more transparent and inclusive appointment process. The first Supreme Court Judge nominated by Prime Minister Trudeau through this process was Justice Malcolm Rowe of Newfoundland and the second was Sheilah Martin from Alberta. Both appointments were widely praised.
Citations:
Nadia Verrelli, ed. (2013) The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal: McGill-Queen’s University Press)

International Commission of Jurists (2014), Response to concerns about interference with integrity and independence of the judiciary in Canada, posted at http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2014/07/Canada-JudicialIndependenceAndIntegrity-CIJL-OpenLetter-2014.pdf
Greece
Before the onset of the crisis, the appointment of justices was almost exclusively managed by the government. Today, candidates for the presidency of the highest civil and criminal law court (Areios Pagos) and administrative law court (Symvoulio tis Epikrateias) as well as the audit office are nominated by justices themselves. Then the lists of candidates are submitted to a higher-ranking organ of the parliament, the Conference of the Presidents of the Greek parliament. This is an all-party institution which submits an opinion to the Cabinet of Ministers, the institution which appoints justices at the highest posts of the courts mentioned above. Between 2011 and 2014, the government applied the seniority principle in selecting justices to serve at the highest echelons of the justice system. In 2015, the principle of seniority was partly curbed as the new president of the Areios Pagos court was not the court’s most senior member. The same occurred in fall 2017 when the same government appointed a new president, selecting a younger justice over older candidates for the presidency. Meanwhile, the previous president, who had been selected by the Syriza-ANEL government in 2015, had retired and in the summer of 2017 joined the office of Prime Minister Tsipras (the Prime Minister’s Office) as a legal adviser. Under Syriza-ANEL’s rule, the selection and appointment of judges has probably become more politicized.

In this respect, it is telling that just prior to the July 2019 parliamentary elections, the Syriza-ANEL government appointed new heads for the Areios Pagos Court and the General Prosecutor’s Office. This initiative provoked an additional last-minute conflict with the government in waiting, the New Democracy party, which had long held a clear lead in the polls. Eventually, the president of the republic refused to sign off on the Syriza-ANEL government’s decisions just before elections were held. The process of selecting and appointing these high-level judges and prosecutors was repeated in the parliament that was convened after the elections.
Citations:
Law 2841/2010 stipulates that the appointment of presidents and vice-presidents of the highest courts requires the non-binding opinion of the high-ranking parliamentary committee titled Conference of the Presidents of the Greek parliament.

WJP Rule of Law Index 2017-8 https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-rule-law-index-2017%E2%80%932018
Slovakia
The justices of the Constitutional Court (CC) are selected for 12 years by the president on the basis of proposals made by the parliament (National Council of the Slovak Republic), without any special majority requirement. From 2014 to the end of 2017, the selection of justices was paralyzed by a struggle between President Kiska, who had made judicial reform a priority in his successful presidential campaign in 2014, and the Smer-SD-dominated parliament. Ignoring a decision by the CC, Kiska blocked the appointment of new justices, arguing that the candidates greenlighted by the National Council lack the proper qualifications for Constitutional Court justices. As a result, three out of 19 seats in the CC remained vacant until Kiska eventually gave in in early December 2017. Kiska’s retreat was favored by recommendations by the so-called Venice Commission (Council of Europe’s European Commission for Democracy Through Law) in March 2017. While the latter criticized Kiska for blocking the appointments, it sided with him in calling for stricter criteria for nominated judges. Despite a broad consensus on the need for changes, an amendment proposed by Justice Minister Gál failed to muster sufficient support in parliament in October 2018.

In February 2019, the tenure of nine out of the court’s 13 justices expired. The process of replacing the justices was highly polarized, especially after former prime minister Robert Fico was nominated as a candidate. The recently introduced public hearings for candidates attracted a lot of media and public attention, but probably discouraged several qualified candidates from standing. In April 2019, the first three justices were appointed, but it took another nine months and five votes in parliament to finalize the other six appointments.
Citations:
Ovádek, M. (2019): Drama or Serenity? Upcoming Judicial Appointments at the Slovak Constitutional Court, in: Verfasssungsblog, January 29 (https://verfassungsblog.de/drama-or-serenity-upcoming-judicial-Appointments-at-the-slovak-constitutional-court/).

VIA IURIS (2019): Non-election of the sufficient number of 18 nominees for constitutional judges mean that Constitutional Court will function with difficulties, March 4, Banská Bystrica (https://viaiuris.sk/en/news/via-iuris-non-election-of-the-sufficient-number-of-18-nominees-for-constitutional-judges-mean-that-constitutional-court-will-function-with-difficulties/).

VIA IURIS (2019): The election of constitutional judges – incomprehensible hazard with the protection of citizens’ rights, May 22, Banská Bystrica (https://viaiuris.sk/en/news/via-iuris-the-election-of-constitutional-judges-incomprehensible-hazard-with-the-protection-of-citizens-rights/).
Switzerland
The judges of the Federal Supreme Court are elected for a period of six years in a joint session of both chambers of parliament, with approval requiring a majority of those voting. A parliamentary commission prepares the elections by screening the candidates. Unwritten rules stipulate a nearly proportional representation of the political parties then in parliament. By tradition, judges voluntarily pay part of their salary to the political party to which they are affiliated. This is considered a tax on their salary, which they would not have without the support of their party. In 2017, a committee of the Council of Europe criticized this arrangement and recommended: “the system should be backed up by safeguards to ensure the quality and objectivity of the recruitment of federal judges. Once judges have been elected it is important to sever the ties with the political powers by doing away with the practice whereby judges pay part of their salary to their party” (GRECO 2017:4).

Another unwritten rule demands representation of the various linguistic regions. There is no special majority requirement.

Comparative analyses found that Swiss Federal judges are at the bottom of international rankings with regard to formal independence, but at the top with regard to actual independence.

The collection of signatures for a popular initiative aiming to have federal judges selected by lottery rather than through election in parliament began in 2018. In September 2019, the Federal Administration concluded that the required number of signatures for the initiative had been collected.
Citations:
Group of States against Corruption (GRECO/Council of Europe) 2017: Fourth Evaluation report. Corruption prevention in respect of Members of Parliament, Judges and Prosecutors. Switzerland, GERCO: Strasbourg, https://www.coe.int/en/web/greco/evaluations/switzerland

Adrian Vatter and Maya Ackermann 2014: Richterwahlen in der Schweiz: Eine empirische Analyse der Wahlen an das Bundesgericht von 1848 bis 2013, Zeitschrift für Schweizerisches Recht, 133, 517-537.
 
Justices are exclusively appointed by different bodies without special majority requirements.
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Bulgaria
The procedures for appointing Constitutional Court justices in Bulgaria do not include special majority requirements, thus enabling political appointments. This is balanced by the fact that three different bodies are involved, and appointments are spread over time. Equal shares of the 12 justices of the Constitutional Court are appointed personally by the president, by the National Assembly with a simple majority, and by a joint plenary of the justices of the two supreme courts (the Supreme Court of Cassation and the Supreme Administrative Court), also with a simple majority. Justices serve nine-year mandates, with four justices being replaced every three years. In 2018 there were four new appointments: one by parliament (a single candidate), one by the president, and two by the supreme courts’ joint plenary (elected among 10 candidates).

The chairs and deputy chairs of two supreme courts are appointed with a qualified majority by the Supreme Judicial Council. Over recent years, these positions have been held by both people with highly dubious reputations and political dependencies, and people with very high reputations and capacity to maintain the independence of the court system.
Finland
There are three levels of courts: local, appellate and supreme. The final court of appeal is the Supreme Court, and there is also a Supreme Administrative Court and an Ombuds office. The judiciary is independent from the executive and legislative branches. Supreme Court judges are appointed to permanent positions by the president of the republic. They are not subject to political influence. Supreme Court justices appoint lower-court judges. The ombudsman is an independent official elected by parliament. The ombudsman and deputy ombudsman investigate complaints by citizens and conduct investigations. While formally transparent, the appointment processes do not receive much media coverage.
France
Appointments to the Constitutional Council, France’s constitutional court, have been highly politicized and controversial. The Council’s nine members serve nine-year terms. Three are nominated by the French president, who also chooses the Council’s president, and three each by the presidents of the Senate and of the National Assembly. Former presidents (at the time of writing, Valéry Giscard d’Estaing, Nicolas Sarkozy and François Hollande) are de jure members of the council but do not usually attend meetings. Up to the Sarkozy administration, there were no checks over council appointments made by these three highest political authorities. Now respective committees of the two parliamentary chambers organize hearings to check the qualifications and capacity of proposed council appointments. From this point of view, the French procedure is now closer to the process by which Supreme Court justices are appointed in the United States than to usual European practices. Contrary to U.S. practice, however, the French parliament has not yet exerted thorough control over these appointments, instead pursuing a rather hands-off approach, particularly when appointees are former politicians. In 2017, a Senate president’s nominee for the council (a senator and former minister of justice) was forced to withdraw after he had passed all the necessary parliamentary checks. This was prompted by a newspaper report that he had recruited (and paid with public money) his children as personal assistants. While not forbidden by law, the public disapproval following Fillon scandal proved to be a sufficient deterrent. The case underlined the leniency of parliamentary control vis-à-vis former politicians.

Other top courts (penal, civil and administrative courts) are comprised of professional judges, and the government has more limited influence on their composition. In these cases, the government is empowered only to appoint a presiding judge (président), selecting this individual from the senior members of the judiciary.
Romania
According to Article 142 of Romania’s constitution, every three years three judges are appointed to the Constitutional Court for nine-year terms, with one judge each appointed by the Chamber of Deputies, the Senate and the president of Romania. Since there are no qualified-majority requirements in either the Chamber of Deputies or the Senate, and since these appointments occur independently (i.e., they do not need to be approved by or coordinated with any other institution), Constitutional Court justices are in practice appointed along partisan lines.

The two nine-year appointments in May 2019 have confirmed this pattern. First, President Klaus Iohannis appointed his former adviser, Simina Tanasescu, to replace judge Lazaroiu whose nine-year term expired. Tanasescu was the subject of controversy after being forced to resign as Iohannis’ adviser following a meeting with Lazaroiu in June 2018. The meeting was perceived by members of the public and the media as an attempt by the president’s office to pressure Lazaroiu following the judge’s involvement in the decision to dismiss Laura Kovesi as head of the National Anti-corruption Directorate in 2018. After the meeting, which resulted in Tanasescu’s resignation, Lazaroiu stated that his discussion with Tanasescu could have been an attempt by the president’s office to create a conflict over his mandate in order to cast doubt on the Constitutional Court’s decision that forced the president to dismiss Kovesi. The second appointment, made by parliament, replaced judge Stefan Minea with Gheorghe Stan, the head of the Section for Investigating Magistrates. Nominated by the ruling Social Democratic Party, Stan played a key role in the criminal investigation of Laura Kovesi and declared publicly that recommendations made by the Cooperation and Verification Mechanism and the Venice Commission are non-binding. Stan was confirmed with 174 votes in the house through secret ballot.
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Malta
Superior Court judges and magistrates are appointed by the president, acting in accordance with the advice of the prime minister. The independence of the judiciary is safeguarded through a number of constitutional provisions, including the security of tenure of judges and magistrates and the inviolability of their salaries. The constitution also states that an appointee must be a law graduate from the University of Malta with no less than 12 years of experience as a practicing lawyer. Magistrates need to be similarly qualified, but are required to have only seven years of experience. Today, all candidates who apply for the post are vetted by the Commission for the Administration of Justice before they can be appointed. However, the lack either of formal calls to fill judicial positions or of a ranking system to assess applicants impedes the process, and the final decision continues to lie with the executive. Numerous bodies have called for further reform. In 2019, the justice minister stated that the government was planning further changes to the process, which would ultimately ensure that the executive was no longer involved in the appointment of judges and magistrates. Instead, a reformed Judicial Appointments Committee would be empowered to act independently in the selection process. However, a number of new judges and magistrates were appointed under the current system in 2019. These appointments have been challenged in court by Repubblika, a civil society organization. The first Hall of the Civil Court has referred the case to the European Court of Justice, which has been asked to rule on whether the powers accorded to the prime minister in the appointment process are in conformity with European laws. The justice minister appointed in 2020 has stated that the judicial-appointment reforms are imminent.
On another issue, a recent law on the suspension of judges has been criticized by the dean of the law faculty at the University of Malta, on the basis that suspended judges have no right to challenge the suspension, and that the removal or dismissal of a judge should not be done by a body that is part of the legislature.
Citations:
European Council calls on Malta to improve transparency of Judicial Appointments. Independent 10/02/14
http://www.timesofmalta.com/articles/view/20150517/local/government-ignored-bonello-commission-recommendations-on-appointments.568405
http://www.timesofmalta.com/articles/view/20150819/local/minister-warns-against-reforming-judicial-appointments-system-for-the.581166
http://www.timesofmalta.com/articles/view/20150518/local/bonnici-we-will-reform-way-judiciary-appointed.568596
Judicial appointments and the executive: Government cannot continue to delay reform Independent 2/10/2015
http://www.timesofmalta.com/articles/view/20160225/local/judicial-commission-to-vet-nominees-to-bench.603674
http://www.timesofmalta.com/articles/view/20160718/local/historic-constitutional-amendments-on-judicial-appointments-discipline.619296
http://www.timesofmalta.com/articles/view/20160720/local/judiciary-welcomes-judicial-reform-legislation.619498
Interview with Professor Kevin Aquilina
Malta Independent 20/01/19 Government will have no say in judicial appointments in upcoming reform – Owen Bonnici
https://www.maltatoday.com.mt/news/national/93687/magistrate_yana_micallef_stafrace_not_recommended_for_promotion_to_judge_by_the_judicial_appointments_committee#.XZxKpWAzbIU
Times of Malta 25/11/2019 Foundation of Justice system in serious doubt says maltese judge in urgent reference to European Court
Times of Malta 11/02/20 Judiciary reform on the way
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Iceland
To date, all Supreme Court and district court judges have been appointed by the minister of the interior, without any involvement from or oversight by parliament or any other public agency. However, all vacancies on the Supreme Court were advertised and the appointment procedure was at least formally transparent. As part of the appointment process, a five-person evaluation committee was appointed and tasked with recommending a single applicant. A 2010 change to the Act on Courts restricted the minister’s ability to appoint any person not found to be sufficiently qualified by the committee unless such an appointment is approved by the parliament. This was meant to restrain the minister’s authority by introducing external oversight.

A new Act on Courts was passed by parliament in June 2016, authorizing the minister to ask parliament to authorize the appointment of judges other than those recommended by the evaluation committee. The act was criticized, among other things, for taking inadequate steps concerning the minister of the interior’s ability to make judicial appointments subject to significantly weaker restraints than those stipulated in the constitutional bill approved in the 2012 referendum.

In 2009, the European Union expressed concern over the recruitment procedures for judges. The Group of States against Corruption (GRECO) has also criticized the process for appointing judges in Iceland. The 2011/2012 constitutional bill proposes that judicial appointments should be approved by the president or a parliamentary majority of two-thirds.

Many appointments to the courts continue to be controversial. In many cases, the scrutiny of Supreme Court candidates seems superficial. A retired Supreme Court justice, whose own appointment was controversial, published a book in 2014 criticizing his former court colleagues for their alleged opposition to his appointment as well as for some of their verdicts that he deemed misguided. He has since directed further attacks at his former colleagues for violating rules regarding conflict of interest, among other things.

In 2017, the minister of justice appointed 15 new judges to a new intermediary court between the district court level and the Supreme Court, including four judges deemed less qualified than other available applicants according to the review committee’s assessment of the applications. Two of the applicants who were bypassed sued and were awarded damages by the Supreme Court. A third applicant has announced that he will also sue for substantial damages. The Supreme Court has ruled that the minister of justice broke the law when she bypassed the recommendations of the review committee. In March 2019, the European Court of Human Rights ruled that the Icelandic state was guilty of breaking the law when 15 judges were appointed to the Landsréttur (a new intermediary court).

For all but 10 years between 1927 and 2017, control of the Ministry of Justice and the authority to appoint judges alternated between the Independence Party and the Progressive Party.
Citations:
Act on Courts. (Lög um dómstóla nr. 15 25 March 1998, revised 7 June 2017).

Change of the Act on Courts. (Lög um breyting á lögum um dómstóla nr. 15 1998 með síðari breytingum (skipun dómara) nr. 45 26. maí 2010).

Gunnlaugsson, Jón Steinar (2014), Í krafti sannfæringar, Forlagið, Reykjavík.

GRECO (2013), Report on Iceland, http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/ReportsRound4_en.asp. Accessed 22 December 2018.

GRECO (2015), Report on Iceland, http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/RC4/GrecoRC4(2015)3_Iceland_EN.pdf. Accessed 22 December 2018.
Turkey
To be appointed to the Constitutional Court, a candidate must be either a member of the teaching staff of an institution of higher education, senior administrative officer, lawyer, first-degree judge or Constitutional Court rapporteur who has served at least five years; be over the age of 45; have completed higher education; and have worked for at least 20 years. Constitutional Court members serve 12-year terms and cannot be re-elected. A recent scholarly article stated that the Constitutional Court is highly politicized, its reviews have an ideological bias and its judges are not independent, as can be also seen in previous recruitment patterns. The appointment of Constitutional Court judges does not take place on the basis of general liberal-democratic standards, such as cooperative appointment and special majority regulations. The Constitutional Court has 17 members, as outlined by Article 146 of the 2010 constitutional referendum, whose members are nominated or elected from other higher courts by the country’s president, the parliament and professional groups. Under current conditions, this creates opportunities for the president and his political network to directly influence the executive, the parliament and the judiciary. In addition, the armed forces continue to wield influence over the civilian judiciary, as two military judges are members of the Constitutional Court.

Following the 2017 constitutional amendments, four members of the new Council of Judges and Prosecutors (HSK) were appointed directly by the president and seven members were elected by parliament. The HSK does not offer adequate safeguards for the independence of the judiciary and considerably increases political influence over the judiciary.

Since the coup attempt of 2016 and the subsequent transition from a state of emergency (OHAL) toward presidentialism, the Constitutional Court has not performed consistently in terms of defending political stability, and human and civil rights. The court declared its non-jurisdiction over presidential decrees during OHAL, and cases in which it failed to defend the rights of detained journalists and other oppositional forces went viral. In the case of the detained journalist Ahmet Altan, the European Court of Human Rights delivered a landmark decision in April 2019, which strongly disagreed with the Constitutional Court’s justification of Altan’s arrest.
Citations:
European Commission, Turkey 2019 Report, Brussels, 29.5.2019, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-turkey- report.pdf (accessed 1 November 2019)

Yargı Reformu Strateji Belgesi 2015, http://www.sgb.adalet.gov.tr/yargi_reformu_stratejisi.pdf (accessed 27 October 2015)

European Commission for Democracy Through Law (Venice Commission) Turkey Opinion on the Amendments to the Constitution Adopted By the Grand National Assembly on 21 January 2017 and to Be Submitted to A National Referendum on 16 April 2017, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2017)005-e (accessed 1 November 2018)

HSK 2018 Yılı Faaliyet Raporu, http://www.hsk.gov.tr/Eklentiler/Dosyalar/2018-FAALiYET%20RAPORU.pdf (accessed 1 November 2019)

03.09.2019 Tarihi İtibariyle Hakim ve Savcılara İlişkin İstatistiki Bilgiler, https://www.hsk.gov.tr/Eklentiler/Dosyalar/a062014e-6b7b-4ff7-bc47-4ba6a4478b6b.pdf (accessed 1 November 2019)

T. Çetin and A. Pişkin, “Judicial Independence under Political Conflict: An Empirical Investigation of Constitutional Review in Turkey,”, January 2018, https://www.academia.edu/35753423/Judicial_Independence_under_Political_Conflict_An_Empirical_Investigation_of_Constitutional_Review_in_Turkey (accessed 1 November 2019)

Al-Monitor.com (2019) Turkish Constitutional Court caught red-handed, 24 April 2019, https://www.al-monitor.com/pulse/originals/2019/04/turkey-turkish-constitutional-court-caught-red-handed.html
 
All judges are appointed exclusively by a single body irrespective of other institutions.
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Estonia
Justices of the Supreme Court are appointed by the national parliament, on the proposal of the chief justice of the Supreme Court. The chief justice of the Supreme Court is appointed to office by the national parliament on the proposal of the president of the republic.

While transparent and legitimate, the appointment processes rarely receive public attention or media coverage. Supreme Court justices are rarely, if ever, criticized for being politically biased.
Hungary
The 2012 constitution left the rules for selecting members of the Constitutional Court untouched. Its justices are still elected by parliament with a two-thirds majority. As Fidesz regained a two-thirds majority in the 2018 parliamentary elections, it has complete control over the appointment of Constitutional Court justices.
Japan
According to the constitution, Supreme Court justices are appointed by the cabinet, or in the case of the chief justice, named by the cabinet and appointed by the emperor. However, the actual process lacks transparency. Supreme Court justices are subject to a public vote in the lower house elections following their appointment, and to a second review after 10 years (if they have not retired in the meantime). However, in all of postwar history, no justice has ever been removed based on this procedure. In response to calls for more transparency, the Supreme Court has put more information on justices and their track record of decisions on its website. The Tokyo District Court ruled in 2019 that voters living overseas cannot be denied the right to review Supreme Court justices, strengthening the role of the constitution.
Citations:
Indictment of Diet inaction over rights to review justices, Editorial, The Asahi Shimbun, 4 June 2019, http://www.asahi.com/ajw/articles/AJ201906040042.html
Poland
Formally, the Constitutional Tribunal has 15 justices which are elected individually by the Sejm for terms of nine years, on the basis of an absolute majority of votes with at least one-half of all members present. The president of the republic then selects the president and the vice-president of the Constitutional Tribunal from among the 15 justices, on the basis of proposals made by the justices themselves.

The appointment of justices to the Constitutional Tribunal has been a major political issue since PiS came to power in 2015. The PiS government questioned the appointment of the five justices elected in the final session of the old parliament. Conversely, the sitting justices did not accept the justices appointed by the new parliament. The resulting stalemate took until December 2016 when the term of Constitutional Tribunal President Andrzej Rzepliński expired and the government succeeded in installing Julia Przyłębska as his successor by legally dubious means. In November 2019, the Sejm elected two highly controversial justices. Both of whom are former PiS members of parliament, were initially considered too old and have previously shown disrespect for civil rights.
Citations:
Sadurski, W. (2019): Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralyzed Tribunal, to a Governmental Enabler, in: Hague Journal on the Rule of Law 11(1): 63-84.
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