In Hungary, the prohibition of political activity for judges is regarded as a historical achievement. The ‘conflict of interest’ rule was set out for the first time in Section IV of Act IV of 1869 on Judicial Power.

However, this prohibition is not applied in many countries of the European Union. Moreover, political affiliation, if appears in party membership or in political functions, can even promote a judicial advancement. This phenomenon which has a high importance in the issue of judicial independence, is out of view within the individual countries, but at a European level as well. That makes the written paper of German trainee judges published with the above title interesting.

The paper mentions firstly the example of the former Prime Minister and Minister of Justice of Saarland State, who jumped from the ministerial seat to the Federal Constitutional Court. It also brings up as an opposite the example of a criminal judge known from his merciless judgements who founded a political party after his resignation. However, these cases were criticized by the public at that time. Meanwhile, such an uproar was not made in the autumn of 2018, when the second leader of the CDU/CSU faction - now the presidential chairman - was transferred to the Federal Constitutional Court and was elected as its deputy president within a few days. The Federal Constitutional Court itself dealt with the political activity of judges. It rendered that it is allowed for judges to form and express their political opinion in public, without a breach of their appearance of impartiality. According to the working paper, in practice, political commitment is important in selecting judges to higher-level courts. Judges may therefore feel that it is beneficial for their career path if they are members of a political party.

In Sweden, political activity of judges is allowed as well. They had two Prime Ministers who had previously served as judges. In Italy, it is not forbidden for a judge to be a member of parliament. In Switzerland, judges are elected for a definite period, and in the election political party membership plays a decisive role. In contrast, in Eastern Europe the political activity of judges is typically forbidden. Such a prohibition, however, does not exist in Austria where the judges themselves made a declaration in 2007 called ‘Welser Erklärung’ which advised judges not to be members of political parties and to refrain from political activity during their services. In the UK, a Guide was given to judges with even stricter guidelines than the Austrian declaration.

The paper takes account of international and European guidelines on the subject. It also presents arguments for and against the political activity of judges.

Source:
Full text of the written paper: Team Germany: Political activity of judges in the light of judicial ethics. THEMIS semi-final D, 2015