The relationship between the judiciary and politics has always been challenging: Should judges – in spirit of a strict understanding of the separation of powers – be politically neutral and thus not allowed to be politically active? Or should they – in respect of a democracy including their civil servants and judges – be allowed to express their political opinions, be members of politically parties or even stand for election? In 2022 these questions became particularly relevant when two (extreme) right-wing Members of Parliament (MP) demanded (and partly succeeded) to return to their original office as judges in Germany. They had failed to re-win their seats as MP for their political party Alternative for Germany (AfD) during the federal election 2021. In an area of worldwide political polarisation, the topic of radicalised judges is not limited to Germany. In addition, they also commenced questions surrounding the principle of independence as well as reforms in respect of the selection of judges.

Some of those initial questions have been address in a blog entry on the Verfassungsblog (Sanders / Faltinat, Judges, Political Mandates and Judicial Independence in Germany: How to Deal with Radicalised Judges?, VerfBlog, 2023/1/20). In order to further comparative and interdisciplinary debates (many other countries prohibit the political engagement of judges, see Schimdt-Ränsch, Deutsches Richtergesetz, 6th ed. 2009, § 39 recital 17 et seqq. 9), the paper as well as the following presentation shall engage deeper with the topic: After a short overview of the current regulations on judges engaging actively in politics in Germany and the regulations’ historic background (Wittreck, Dritte Gewalt im Wandel, in: Volkmann, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 2015, 115 (145)), the latest most prominent cases of extreme right-wing judges, the political and judicial legal response will be illustrated and possible consequences for the judicial independence and public’s trust in the judiciary discussed.

The two recent events caused a controversial political debate, demanding a tougher approach against extreme right-wing judges and considering reforming the selection of judges. Furthermore, the debate opened a more general discussion of the central principle of judicial independence (Burghardt, Richter und parteipolitisches Engagement, DRiZ 2010, 351, (354)), whereby a two-folded characteristic of judicial independence became again apparent: The independence of the individual judge who might be confronted with disciplinary measures and the independence which must be ensured by each individual judge, who is part of the German judicial system. The latter can be infringed if extreme right-wing judges, who actively support inhuman, racists and antidemocratic views, remain in active office. Here, interconnection to trust and acceptability of the public – as interdisciplinary concepts – in the judicial system come into play.

The paper shall close with an analysis of the current legal and political debate and a suggestion for further (possibly empirical) research into and about the German Judiciary; e.g. on how different legal actors perceive the state of judicial independence and situation of (extreme) right-wing judges in Germany – taking current reports as for example the “Roland Rechtsreport” into account – and how this may differ in the perception of the wider public.

There are twenty-six cantons in Switzerland and seven of them have established a cantonal council for the judiciary. These councils are fulfilling their responsibilities in the areas of administrative and disciplinary judicial supervision, as well as in preparing for the selection of judges. There is no council for the judiciary at the federal level yet. This has been discussed several times in the past. But currently the discussion receives less attention.

This contribution aims to illustrate the constitutional fundamentals of councils for the judiciary in Switzerland. These fundamentals are examined based on the following elements: competence for the establishment, functions, tasks in the field of judicial supervision and judicial selection, legal protection, organizational assignment in the power-sharing system, organizational design and legal implementation.