Term and Definition of Impeachment of Judges
Die Impeachment of Judges refers to a special constitutional procedure that provides the possibility to take action against a member of a supreme court in order to remove them from office. The impeachment of judges is, under German law, an instrument of the separation of powers and serves to oversee the judiciary through specially designated bodies. It constitutes an extraordinary procedure with a constitutional connection and particularly strict prerequisites.
Constitutional Principles
Provisions in the Basic Law
The legal basis for the impeachment of judges is found in Article 98 paragraphs 2 ff. of the Basic Law (Grundgesetz – GG). This regulates the cases in which and the process by which impeachment may be brought against members of the Federal Constitutional Court, the Federal Court of Justice, the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court, and the Federal Social Court.
Article 98(2) GG
Article 98(2) GG reads:
“If a federal judge, while in office, culpably violates the Basic Law or a federal law, the Bundestag may impeach the federal judge before the Federal Constitutional Court.”
The subject of the impeachment is therefore a culpable breach of duty by the federal judge in office.
Federal Constitutional Court Act (BVerfGG) and Impeachment of Judges
The essential provisions for carrying out impeachment of judges are found in the Federal Constitutional Court Act (BVerfGG), particularly in sections 13 no. 7 and 63 ff. BVerfGG. These provisions specify the procedure and its conditions.
Impeachment of Judges in State Constitutions
Some state constitutions also contain comparable provisions concerning impeachment of judges at the supreme courts of the states (see, for example, Article 75(4) BayVerf for Bavaria).
Prerequisites for Impeachment of Judges
Factual Prerequisites
The initiation of impeachment proceedings against a judge requires that a federal judge culpably exercises his office in such a manner as to violate the Basic Law or a federal statute. The term “culpable violation” includes both intent and negligence. Not every mistake by a judge justifies impeachment; only particularly serious breaches of duty with sufficiently demonstrable fault qualify.
Formal Prerequisites
The impeachment may only be brought by the Bundestag based on a resolution passed by the majority of its members. The initiation of impeachment is subject to a quorum in order to prevent politically motivated or frivolous proceedings. The impeachment must be filed with the Federal Constitutional Court and must specifically state the alleged breach of duty.
Course of Impeachment Proceedings
Initiation of Proceedings
The proceedings begin with the corresponding resolution of the Bundestag to bring the impeachment. The bill of impeachment must be submitted in writing to the Federal Constitutional Court, which then opens the proceedings.
Hearing and Defense
The accused judge is given the opportunity to comment and defend himself. The procedural rules guarantee the observance of the rule of law, particularly the right to be heard and the appointment of a trusted person for support.
Decision of the Federal Constitutional Court
The Federal Constitutional Court decides after an oral hearing has taken place. If the impeachment is found to be justified, the court may take the following measures:
- Removal of the Judge from Office
- Transfer into retirement
- For minor breaches of duty: no consequences
The decision is made with the necessary majority and is final.
Legal Consequences of Impeachment of Judges
The legal consequences depend on the outcome of the proceedings: If the judge is acquitted, the impeachment has no disciplinary consequences. If removed from office, the judge loses all official rights and, in accordance with statutory provisions, may receive retirement or pension benefits.
Criminal prosecution occurs independently of the outcome of the impeachment and is neither excluded nor influenced by this procedure.
Distinction from Administrative Supervision and Disciplinary Proceedings
Impeachment of judges is strictly to be distinguished from disciplinary supervisory procedures and measures. While disciplinary measures may be imposed for lesser breaches of duty and are conducted within a hierarchy inside judicial administration, impeachment of judges is a solely parliamentary procedure, heard before the Federal Constitutional Court and serves solely the purpose of removal from office.
Unlike general administrative supervision, impeachment stands as a particularly serious instrument of judicial accountability and independence.
Significance and Constitutional Role
Impeachment of judges is an expression of checks and balances in the constitutional system of the Federal Republic of Germany. It ensures judicial accountability and helps safeguard the integrity of the judiciary. At the same time, it guarantees that removal of judges only takes place under the strictest legal requirements and parliamentary oversight.
The procedure emphasizes the independence of the judiciary and at the same time is an important tool against possible violations of the law at the highest level. Arbitrary removal of judges is prevented by strict statutory restrictions and the high quorum requirement.
Historical Development
The institution of impeachment of judges was introduced with the entry into force of the Basic Law in 1949. So far, the procedure has been rarely, if ever, used in the history of the Federal Republic, which is due to the particularly high thresholds and the exceptional nature of this measure.
Literature and Further References
- Bader, Brosius-Gersdorf (eds.): “Handkommentar zum Grundgesetz”, Article 98 GG
- Federal Constitutional Court Act (BVerfGG)
- Basic Law for the Federal Republic of Germany, Article 98
The impeachment of judges is a central element of judicial accountability and is subject to particularly high legal standards. It provides an effective, constitutionally grounded review of the exercise of judicial office at the highest level and thereby proves itself as a rarely needed but fundamental instrument of the separation of powers.
Frequently Asked Questions
How is an impeachment proceeding against a judge initiated?
Impeachment proceedings are initiated according to Article 98 of the Basic Law (GG) by an application. The body responsible for the application is, as a rule, the body appointed to elect or appoint the judge concerned or—in the case of federal judges—either the Bundestag or the Federal Government. The application must be sufficiently substantiated and include specific facts that justify impeachment. During the initiation process, the judge concerned fundamentally has the right to access the files and participate in the proceedings. The competent court—located at the Federal Court of Justice for federal judges or at the state constitutional courts for state judges—first examines the admissibility and initiation of the main proceedings.
Which legal foundations apply to the impeachment procedure?
The relevant legal basis for the impeachment procedure is provided by the Basic Law, in particular Articles 98 for federal and state judges. For federal judges, the procedure is supplemented by the Impeachment of Judges Act (RichteranklG) as well as procedural rules of the Code of Criminal Procedure (StPO) or the Administrative Court Code (VwGO), as applicable. In the state constitutions, there may be diverging or additional provisions for state judges that specify the design of the proceedings, responsibilities, and mode of implementation. These rules in particular determine the requirements for justification of the application, the rights of the judge accused, and the structure of the judicial proceedings.
What grounds can justify an impeachment of a judge?
The grounds for impeachment of a judge are exhaustively regulated in the Basic Law and the relevant implementing acts. Typically, impeachment of a judge is possible when the judge has intentionally or grossly negligently breached his duties and thus sustainably undermined confidence in the proper exercise of office. This includes serious violations of the principles of the rule of law, criminal acts in connection with official conduct, grave breaches of official duty, or actions incompatible with the office of judge. Trivial offences or minor breaches of duty, however, are not sufficient to justify impeachment.
How does the main proceeding of impeachment of a judge proceed?
In the main proceedings, which follow the approval of impeachment, the facts are extensively heard before the competent court. The parties to the proceedings have the right to be heard, evidence may be requested, and witnesses may be examined. For federal judges, the main hearing takes place before the impeachment court, which consists of judges of the Federal Court of Justice and members of the Federal Constitutional Court. The proceedings are usually public, unless there are special reasons for excluding the public. The decision is rendered by judgment, applying the principles applicable to criminal proceedings—in particular, the presumption of innocence and thorough assessment of evidence.
What sanctions can result from the impeachment of a judge?
If the judge is found guilty as a result of impeachment, the Basic Law provides for transfer into retirement or removal from office as the main sanctions. A milder disciplinary measure is not provided for in the context of impeachment. Upon removal from office, the judge usually loses all rights associated with the office, including entitlement to benefits, unless statutory exceptions are provided. In addition, if criminally relevant acts are present, a separate criminal investigation may be conducted, which is independent from the disciplinary procedure.
Is there an option for appeal or review against the impeachment judgment?
The impeachment procedure is designed in many legal systems as a single-instance process, in which, as a rule, no ordinary legal remedies such as appeals or revisions are provided against the decision of the competent court. An application for retrial can only be filed under narrow conditions, such as procedural errors or new evidence. This is intended to ensure legal certainty and a speedy clarification of whether the judge concerned may continue in office. The exact procedure is regulated in the respective laws, e.g., the Impeachment of Judges Act.
What is the significance of impeachment of judges for judicial independence?
Impeachment of judges is an extraordinary instrument of state oversight and serves to protect the rule of law and the integrity of the judiciary. At the same time, it safeguards judicial independence by providing for strict formal and material prerequisites for such proceedings, and by allowing initiation and implementation only in particularly serious cases. The requirement for clear statutory provisions and for a judicial decision ensures that no political or other undue influences are exerted on the performance of judges’ official duties. Impeachment of judges is thus to be understood as a guarantee for a balanced equilibrium between judicial autonomy and governmental legal supervision.
