On 18 March 2018 the Federal Constitutional Court in Karlsruhe permitted the appointment of judges for a limited time (Richter auf Zeit), but only under specific conditions (Docket 2BvR 780/16).
This decision may affect a pending constitutional complaint against the UPC Agreement (for more information please see “Constitutional complaint against UPC Agreement”), since Article 4 of the Statute of the UPC provides that judges may be appointed for a limited time (six years) and can be re-appointed.
The Federal Constitutional Court examined whether Section 17 Nr 3 and Section 18 of the Rules of the Administrative Courts (which were introduced in 2015 in order to handle the rapidly increasing number of cases filed by migrants) comply with the Basic Law, considering that case numbers are beginning to decline.
Section 17 Nr 3 allows the employment of Richter auf Zeit in a first-instance administrative court. Section 18 provides that, in the case of temporary personnel requirements, a civil servant may be appointed Richter auf Zeit for at least two years.
The main issue was whether the Basic Law prescribes that only judges appointed permanently can be guaranteed to be independent from the executive. While there is no clear provision in the Basic Law in this regard, various state laws permit only judges appointed permanently.
The court found that Section 17 Nr 3 and Section 18 are in accordance with the Basic Law. However, it did not permit the re-appointment of a Richter auf Zeit after the expiry of their mandate.
In light of this decision, the court’s stance regarding the UPC Agreement remains uncertain. While it considers the employment of Richter auf Zeit admissible in principle, there are restrictions (ie, temporary personnel requirements and the prohibition of re-appointment).
However, since the court system proposed by the UPC Agreement is international, the Federal Constitutional Court may not apply its strict national standards.
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