Judicial Accountability and Public Liability—The German “Judges Privilege” Under the Influence of European and International Law
By Jörg Philipp Terhechte
The emergence of an independent judiciary and the associated consistent implementation of the separation of powers principle are major achievements of modern times and important characteristics of the transition to the rule of law. Against this background, any attempt at reforming the independence, control structure or liability of the judiciary must be viewed critically, because reform efforts in this area often constitute modifications to the deep layers of a legal and political system. These changes are ultimately not easy to survey and the results are difficult to control. Consequently, those who seek to touch upon the liability of judges enter a rough and sometimes even downright hostile terrain. Does such liability not inevitably lead to an impairment of judicial independence, therefore damaging the “last bulwark against the erosion of law?” Does it even perforate the traditional system of the separation of powers? Will not a circulus vitiosus in the sense of a never-ending flood of cases be created if after any legal proceedings the question of judicial liability remains to be asked (or even, from the lawyer’s perspective, has to be asked to avoid recourse)? These questions can take on an even more dramatic tone and show that the area is to be treaded on lightly. Therefore, important clarifications have to be made in advance in order to put the following observations into perspective: The German judicial system is not at all a bad judicial system—the opposite is true. In a global comparison, the German system is easily able to compete with any other system in terms of speed of proceedings, judicial facilities and reputation of the courts. So then why even be concerned at all with state liability for judicial wrongs?