A. Introduction
The relationship between the judiciary and politics has historically been a challenging one. The independence of judges is a fundamental pillar of the rule of law and public trust in the judiciary. Based on this principle, it could be argued that only individuals without political views should be appointed as judges. However, it is unlikely that any judge will be an island without political views of their own. Should judges—in the spirit of a strict understanding of the separation of powers—at least be politically neutral and thus not allowed to be politically active? Alternatively, should they—in the spirit of democracy—be permitted to express their political opinions, join political parties, and even stand for election? If so, how can the public be assured that such judges will act neutrally in their office, particularly if these judges belong to authoritarian right-wing parties? These questions have become pressing since 2022, when two right-wing Members of Parliament (MPs) demanded to return to their original posts as judges in Germany. They had been unsuccessful in holding onto their seats as MPs for their political party, the Alternative for Germany (Alternative für Deutschland) (AfD), during the federal elections of 2021.Footnote 1
In 2024, when Germany marked the 75th anniversary of its Basic Law, and in 2025, when the authoritarian right-wing party won an unprecedented number of votes in the early federal elections in February, these events have formed part of a broader discussion about the resilience of democracy and the rule of law in Germany. The discussion not only addresses the implications of right-wing judges in the judiciary, but also the potential for authoritarian political forces to utilize and abuse the constitution as a tool for exercising power. Despite an extensive body of research in the broader field of “militant democracy,” there has often been a lack of findings relating to concrete measures. In order to address potential and specific challenges, the Verfassungsblog—a forum at the nexus of legal academia and journalism—initiated the “Thuringia Project” (Thüringen Projekt)Footnote 2 and the “Judiciary Project” (Justiz Projekt),Footnote 3 illustrating that after the authoritarian right-wing party won a blocking majority in the state election of Thuringia in September 2024, it immediately started blocking the judicial selection committee of the Thuringian Constitutional Court.Footnote 4 The two initiatives aimed to assess the implications of an authoritarian populist party assuming power in one federal states and on the federal level. In this context, a number of legal measures designed to enhance the resilience of the rule of law are being considered.Footnote 5 These include inter alia enshrining the regulations of the constitutional courts of the federal statesFootnote 6 and the regulations of the Federal Constitutional CourtFootnote 7 in the constitution, introducing new disciplinary measures,Footnote 8 and reforming the process for electing judges.Footnote 9 At the end of 2024, some legal and political measures were taken to strengthen the resilience of the Federal Constitutional Court of Germany (BVerfG) by amending Articles 93 and 94 of the German Basic Law (Grundgesetz, GG).Footnote 10 Still, questions regarding further measures persist.
The aim of this Article is to contribute to the broader discussion on strengthening the resilience of the rule of law in Germany by focusing on how to protect trust in the judiciary and judicial independence against possible radicalized judges. The Article will discuss cases of judges who have been MPs for the right-wing party, Alternative for Germany (AfD), and wanted to return to their judicial posts after losing their seats. The Article will also discuss an example of a judge who may be “just” a supporter of that party. This Article provides an introduction to the current legal situation in Germany regarding judges’ active involvement in politics, as well as an overview of the historical background. It addresses the regulations governing the right to return to a post as a judge after having been an MP and disciplinary rules regarding appropriate behavior of judges. It illustrates the current legal status quo and considers possible consequences for judicial independence and public trust in the judiciary. We wish to highlight, through this discussion, how important, but also how difficult, it is to strike the right balance between preserving the status of individual judges in the interests of their independence, and preserving trust in the independence of the judiciary in general. Still, with greater comprehension and insight, attacks against the rule of law and democracy can be more effectively defended against, and potential reforms—including those for an independent judiciary—can be proposed. We therefore conclude with proposals to improve aspects of the German judiciary.
In light of the prevailing authoritarianism and the threats to democratic institutions that are observable in Germany and elsewhere, it is important to include the judiciary and its role in the discussion on strengthening the rule of law. With scenarios of potential threats to the existing constitutional system and the rule of law becoming frighteningly real, it is increasingly important to develop strategies to make the rule of law more resilient.
B. Political Engagement of Judges in Germany
I. Political Engagement of Judges in Germany: Current Regulations
It is expected that judges will act impartially in accordance with Article 97(1) GG. Still German law does not require judges to abstain completely from politics.Footnote 11 Consequently, judges who engage with the democratic process are typically regarded as more desirable than those who reject democratic principles. Jutta Limbach, a professor of law, politician, and former president of the BVerfG, has expressed this view.Footnote 12 The assertion that “judicial independence cannot be abused against democracy” highlights the significance of a robust democracy that engages active civil servants and judges.Footnote 13 The German legal system is designed to ensure the separation of powers between the judiciary and the executive, while also maintaining the independence of the judiciary itself. This is also achieved by requiring judges to uphold the principles of democracy. While judges may be party members, they are obliged to refrain from any action that might erode public confidence in their independence. Judges are permitted to remain politically active while in office and may even stand in elections.Footnote 14 This exemplifies a conflict between the acceptance of the concept of a “political judge” and the preservation of judicial independence. Balancing these two factors poses a significant challenge. It is possible for judges to stand for election, yet they, like all members of the public service, remain subject to the general duties of the judicial office.
1. The Right to Stand for Election and its Consequences
As a judge, an individual may be elected to the German Federal Parliament (Bundestag) or a parliament of any one of Germany’s sixteen states. Being elected as an MP leads to the suspension of the judge’s duties and rights, including those arising from salaried membership of the permanent civil service, because judges are not expected to remain neutral while engaging in political debates. Thus, in the event that a member of the civil service is elected to parliament, specific obligations, such as the obligation of impartiality, the responsibility to exercise moderation and restraint in political activity, and the duty to obtain permission for secondary employment—Section 5(1) of the Members of the Bundestag Act (AbgG)—no longer applies.Footnote 15
Section 4(1) of the German Judiciary Act (DRiG) stipulates that judges may not simultaneously perform adjudication duties and legislative or executive roles.Footnote 16 In order to guarantee the separation of powers, judges are obliged to take leave of absence during an election campaign and must be suspended during their tenure as an MP. Footnote 17 However, although legislative documents prohibit dual activity, they do not prohibit dual status. Footnote 18 This implies that although individuals are unable to occupy positions in different branches of government concurrently, the underlying status of the position in question, for instance the judgeship (Richteramt), may persist even while the judge is suspended.
Section 6(1) and Section 8(1) of the AbgG establishes the right to reinstatement following the expiration of a political mandate.Footnote 19 A general legal right to reinstatement remains in effect if the individual files for reinstatement within three months of the termination of their parliamentary mandate.Footnote 20 This means that the underlying—albeit temporarily suspended—judicial office can be reactivated, and the individual can resume their position as a regular judge.
2. General Duties of Judges in Office
Judges must uphold the free, democratic, federal, and social basic order and dedicate themselves fully to their profession. They must maintain confidentiality and may not accept any rewards or gifts related to their office.Footnote 21 The aforementioned duties are enshrined in Article 33(5) GG and Section 9(2) of the DRiG, which stipulate that judges must adhere to the constitution.Footnote 22 Judges are obliged to safeguard the free, democratic, federal, and social basic order, yet this does not require alignment with the prevailing politics of the current government.Footnote 23 While political activity is permitted and encouraged under the GG, the DRiG includes regulations that protect the separation of powers and the independence of judges—Article 20 and Article 97 GG.Footnote 24
Section 39 of the DRiG stipulates the duty of political caution, which applies to both official and non-official duties.Footnote 25 This duty complements Section 9 of the DRiG.Footnote 26 The duties are based on the principle that the independence of the judge should not be compromised.Footnote 27 The legislative documents argue that the public expects judges to exercise a higher degree of internal independence and restraint than other public servants.Footnote 28 In order to ensure the impartiality and independence of the judiciary, judges must abstain from personal, political, and economic ties, as well as political relations. In addition, judges must not only be impartial in their judgment but must also present the “required appearance of independence.”Footnote 29
So, how did this system evolve and what motivated the decision to allow judges to stand for election and engage in moderate political activity while being in office? For some this may be a remarkable feature—at least from a comparative legal perspective.Footnote 30
II. Political Engagement of Judges in Germany: Some Historical Remarks
A general anti-democratic tendency within the population and specifically among conservative intellectuals and the political elite during the Weimar Republic,Footnote 31 the coup d’état in 1933 and the totalitarianism, arbitrariness, and inhumanity of the Nazi regime between 1933 and 1945Footnote 32 highlight two fundamental historical aspects that influenced the drafting of the German constitution after 1945. Although the institutional framework of the Weimar Republic included elements of a “militant democracy” (Wehrhafte Demokratie)—a term which describes constitutional provisions that defend constitutional government against internal enemiesFootnote 33 —anti-democratic forces were strong.Footnote 34 Consequently, after 1945 there was a desire for regulations to prevent a recurrence of the injustice that characterized the years between 1933 and 1945.Footnote 35 The GG, which came into force in 1949, is “thoroughly pervaded by this desire.”Footnote 36 A constitution that cannot be easily amended, should be binding for all state powers and establish a democratic order to comprehensively protect fundamental rights. These are key characteristics of a social, democratic, constitutional state under the rule of law. The GG protects fundamental rights—Article 1 to Article 19 GG—and stipulates the principle of the rule of law (Rechtsstaatsprinzip),Footnote 37 all of which are safeguarded by Article 79(3) GG, known as the “eternity clause” (Ewigkeitsklausel).Footnote 38 Article 79(3) GG prohibits amendments to Articles 1 and 20 of the GG.Footnote 39 Some argue that this clause is based on the idea of a strong and “militant democracy” that requires the state to actively oppose individuals and groups who seek to use the rights and institutions of a free society to undermine or destroy democracy.Footnote 40 It should entail provisions “to ensure enemies of democracy will never again be able to exploit the freedoms inherent in democracy,”Footnote 41 such as Article 21(2) and (3) GG.Footnote 42 Despite these dominant narratives which still shape the understanding of militant democracy today, it should be kept in mind that the violent and illegal coup d’etat of the National Socialist Party in 1933 should have indicated a robust control and containment of executive power.Footnote 43
After 1945, there was a need to implement constitutional and other legislative acts. Questions arose—again in 1958—regarding the regulation of the German judiciary and how the relationship between judges and the other two state powers should be structured, especially concerning the political activity of judges.Footnote 44 This issue was also discussed during the drafting of the GG in 1948. These discussions took inter alia place during the drafting of the GG, where Dr. de Chapeaurouge during the 11th meeting of the Combined Committee October 7, 1948 noted: “I see this exclusion of civil servants and judges from the right to stand for election as a very serious impairment of the German people’s political rights, and above all I see in it the danger of parliamentary work being stunted” and “let me remind you that ever since German parliaments have existed, judges have always played a very important role in the parliaments, and civil servants in general have done so since 1918 in any case, and that without this cooperation, I am convinced that the proper functioning of parliaments is simply impossible, even more so today than in the past.” The involvement of judges during the Nazi regime was only worth a side note: “I am in favor of giving judges and civil servants the right to stand for election under all circumstances. I do not deny that certain slight abuses developed in the representation of the interests of mid-level judges and civil servants in the Weimar period and that there were connections from the extreme right to the extreme left which were not always entirely desirable for judges and civil servants. However, these minor disadvantages cannot be considered decisive in comparison with the many considerations that speak in favor of granting civil servants this passive eligibility again.” Footnote 45 Legislative documents, which can be a resource for determining the intent of the legislator in German law, engage in a comparative debate on the extent of political activity among judges during the reform of the DRiG.Footnote 46 The documents discuss the legal situation in Switzerland, Ireland, the United Kingdom, and Canada, all of which have established different regulations concerning the political activity of judges.Footnote 47 Switzerland permits political engagement and membership. The latter is even “needed” for nominations and elections to the Federal Supreme Court.Footnote 48 Additionally, judges are expected to make donations to their party after the election.Footnote 49 Unlike Switzerland, Ireland prohibits any political activity, as stated in Article 35(3) of the Irish Constitution.Footnote 50 The regulations in the United Kingdom and Canada are even stricter. The House of Commons Disqualification Act 1975 disqualifies individuals from membership of the House of Commons if they currently hold judicial officesFootnote 51 and recommends avoiding “improper entry into the political arena.”Footnote 52
In contrast to these approaches, the German legislative documents for the DRiG emphasize that judges have been active in German politics since 1848Footnote 53 and that consequently the path to Parliament shall not be prohibited.Footnote 54 After 1945, Germany has sought judges who identify with the free, democratic, federal, and social basic order (freiheitlich demokratische Grundordnung) governed by the rule of law.Footnote 55 The decision in favor of a “political judge,” who advocates for the free, democratic, federal, and social basic order, is designed to reinforce the concept of a “militant democracy.”Footnote 56 This principle aims to prevent enemies of the constitution from endangering, impairing, or destroying the constitutional order by invoking the freedoms granted by the GG and protected under it.Footnote 57 The BVerfG therefore considers it essential that the free, democratic, federal, and social basic order under the rule of law does not allow its destroyers to take control. There is still an understanding today that it must be ensured that enemies of the constitution do not infiltrate the civil service apparatus.Footnote 58 However, this approach was not consistently applied after 1945 because personal continuity within the judiciary was strong.Footnote 59 In the GDR the judiciary was purged and—like in other socialist and communist countries—new judges were quickly educated to replace former judges. After the reunification, however, almost all Eastern German judges were replaced by judges educated in Western Germany.Footnote 60 While this enabled a full purge of the judiciary after the transition, which was not possible partly due to a lack of educated judges, it led to a judiciary dominated by Western judges in Eastern Germany.Footnote 61
III. Political Engagement of Judges in Germany: Significance of the Regulations Today
This section presents an analysis of the current legal situation in Germany regarding judges who are, or have been, politically active. It includes historical observations. Sections 5 and 6 of the AbgG outline the procedure by which judges and other public servants who were originally part of another branch of the state may be elected as MPs.Footnote 62 Nonetheless, this concept also presents a challenge. This is because a former MP who has been politically active may return to their judicial office, which requires independence and political moderation—as outlined in section 39 DRiG. This poses a crucial question: How can a former political MP transform once more into an independent judge? The issue may become more pressing when a former MP wishes to return to their former position as a judge after making authoritarian right-wing political statements that deny equal rights for all. The concept enshrined in Sections 5 and 6 of the AbgG, which was not designed with authoritarian right-wing cases in mind, is vague, and does not provide sufficient guidance.Footnote 63 Maintaining an independent judiciary and public confidence in it involves striking a delicate balance. Articulating right-wing authoritarian positions can make this task challenging. Nonetheless, there is also a risk of punishing members of opposition parties and judges for their political views. In general, the right to express political opinions is a fundamental aspect of a free and democratic society. The fight against enemies of the constitutional order can sometimes lead to suppression of the opposition.Footnote 64 This tension is inherent within the concept of a “militant democracy.”Footnote 65
Having outlined some general remarks on the political engagement of judges in Germany, the question remains: How are these concepts, tensions, and the delicate balancing act dealt with in practice?
C. Three Case Studies from Germany
To demonstrate the relevance of the debate in Germany and the legal uncertainties surrounding the application of regulations in the context of disciplinary measures against judges, this Article will highlight two cases from 2022. They have garnered significant media attention,Footnote 66 and opened a broader discussion on how to handle right-wing civil servants and judges. Although two of the examples represent authoritarian right-wing cases, they illustrate the tension between constitutional principles.Footnote 67 Additionally, this Article will present a third case from 2024 to provide a less straightforward example for discussion.
I. Explicit Manifestations of Racist and Antisemitic Ideologies – Undermining Equality
The first example concerns a former MP and judge in Saxony. Jens Maier was previously the chairman of the far-right faction of the AfD, known as the “Flügel,” which has since been officially dissolved by the party.Footnote 68 Despite its official dissolution, the faction remains relevant in practice. In January 2024, a secret meeting of far-right groups and neo-Nazis, including AfD MPs, sparked discussions of a potential ban on the AfD,Footnote 69 which is still ongoing but the ban does not yet have the backing of a political majority in the Bundestag.Footnote 70 The State of Saxony’s Office for the Protection of the Constitution (Verfassungsschutz Sachsen) classifies Maier specifically as an authoritarian right-winger. Maier himself has publicly and repeatedly expressed racist, antisemitic, and other unconstitutional views, both inside and outside of parliament. Footnote 71 Prior to his time as an MP, while he was a judge, several disciplinary proceedings were initiated against him.Footnote 72
Following his application for reinstatement, Saxony’s State Minister of Justice requested a preliminary decision from the Judges’ Disciplinary Court, which are courts solely concerned with disciplinary measures and regulations on judges’ duties. After the controversial legal debates surrounding formal competence and the inclusion of statements expressed both inside and outside the Bundestag and its committees,Footnote 73 coupled with public criticism of the minister’s reluctance to act,Footnote 74 the minister submitted a legal request to prohibit Maier from performing official judicial duties.Footnote 75 This is in accordance with Section 46 of the Judiciary Act of Saxony, in conjunction with Sections 35, 30, 31, and 39 of the DRiG. In March 2022, the Judges’ Disciplinary Court of Saxony granted the application in a preliminary decision.Footnote 76 The court ruled that Maier’s extra-parliamentary statements during his tenure as an MP could be considered when deciding whether his actions upon returning to office could potentially erode public confidence in his impartiality as a judge.Footnote 77 At the same time, the minister filed an application for Maier’s early retirement based on Section 31(3) DRiG.Footnote 78 It has been ruled by courts that due to the independence of judges guaranteed in Article 97(1) GG, judges should be dismissed only in exceptional cases. When interpreting Article 97(1) GG, strict standards must be applied. The court can only declare a measure permissible if it has been objectively established that the facts of the case show a serious impairment of the judiciary. This is the case if the public’s trust in a judge or their conduct of office has been damaged to such an extent that their jurisdiction no longer appears credible, and remaining in the judiciary would diminish or destroy the public’s confidence in an independent and unprejudiced judiciary. The judge’s intent is immaterial, as Section 31(3) DRiG protects the reputation of the judiciary. This cannot, therefore, be categorized as a disciplinary sanction for conduct violating judicial duties.Footnote 79 In 2022, the court of first instance granted the application for early retirement.Footnote 80 The judge’s comments during his time as a MP had damaged the public’s trust to such an extent that his jurisprudence no longer appeared credible. If he were to remain in judicial office, the public’s trust in an independent and unbiased judiciary would be destroyed or diminished. The court ruled that a judge’s duty of loyalty to the constitution—Section 9(2) DRiG—still applies even during their time in the Bundestag, despite their active status being suspended.Footnote 81 The judge’s integrity must be maintained continuously while they are a member of a legislative body, although specific duties—Section 39 DRiG—are suspended during their time as a MP.Footnote 82 Consequently, Section 31 DRiG remains applicable, as the basic status is not terminated.Footnote 83 The judge violated his duties with racist, antisemitic, and antidemocratic comments, making it unacceptable for him to continue in a judicial position.Footnote 84 Therefore, the transfer to early retirement was necessary and proportionate.Footnote 85 The Federal Court of Justice (BGH) upheld the decision in October 2023.Footnote 86
Meanwhile, the decision based on Section 31 DRiG has no bearing on Maier’s eligibility for pension benefits. This situation has been the subject of criticism on the grounds that, in his capacity as a suspended judge, he has demonstrated his opposition to the democratic state. This results in a situation in which the state is responsible for remunerating a judge who has contravened fundamental principles.Footnote 87 To reduce or prevent this consequence, another disciplinary proceeding is needed, which was initiated but rejected by the Judges’ Disciplinary Court of Saxony in November 2024. The court argued that there was insufficient evidence that the judge’s comments had intentionally violated the duty to be loyal to the constitution or the duty to behave in a respectful and trustworthy manner, or had intentionally jeopardized public trust in the independence of the judiciary.Footnote 88
II. Participation in Planning a Far-Right Government Coup
The second case involves a former MP for the AfD. Birgit Malsack-Winkemann was able to return to the Berlin judiciary as a judge in 2021, despite an attempt by the Berlin’s State Minister of Justice to apply for her early retirement in Spring 2022. During the 2017 election campaign, Malsack-Winkemann advocated for closed borders and emphasized the need to “fight for [our] country.”Footnote 89 As an MP, she displayed a strong tendency towards conspiracy myths and was associated with the far-right wing of the AfD.Footnote 90 Unlike the case of Jens Maier, the Judges’ Disciplinary Court of Berlin ruled in October 2022 that there was no serious threat to the judiciary.Footnote 91 The court’s decision to apply Article 46 GG in the context of Section 31 DRiG has been criticized for its high threshold, which disregarded the authoritarian activities and racist and antisemitic statements of Malsack-Winkemann.Footnote 92 However, in December 2022, Malsack-Winkemann and other suspects were arrested for planning a far-right coup to overthrow the government.Footnote 93 The suspects belong to the “Citizens of the Reich” (Reichsbürger), a group that rejects the legitimate existence of the German state. They believe that the German Reich still exists and that the Federal Republic of Germany is merely a firm.Footnote 94 After new allegations concerning Malsack-Winkemann’s involvement in planning the coup, Berlin’s Ministry of Justice triggered Sections 74 and 75 of the Judiciary Act of Berlin (RiGBln).Footnote 95 These Sections allow for preliminary decisions regarding the early retirement and removal of a judge from office without entitlement to a retirement pension. The Judges’ Disciplinary Court of Berlin upheld the application for early retirement and removal, in contrast to its previous decision. According to Section 38 and Section 9(2) DRiG, a judge who participates in a secret alliance with the aim of carrying out a violent coup d’état has seriously breached their duties and must be removed from office.Footnote 96 In April and May of 2024, criminal proceedings were initiated against 27 suspects accused of involvement in the far-right coup.Footnote 97 These proceedings are being heard before three distinct higher regional courtsFootnote 98 and are still ongoing.Footnote 99
III. Attendance at AfD Election Parties, Political Expression in Exclusive Online Forums, and Statistical Deviations
To conclude this section, the Article considers the case of a judge at the Administrative Court in Gera, who has made a significantly higher number of unfavorable asylum decisions than the national average.Footnote 100 He was also spotted at election parties of the AfD in Thuringia in 2018Footnote 101 and, more recently, a number of newspapers have published allegations against him, asserting that he had made racist and anti-gay comments in various online forums. While Bengt Fuchs has denied authorship of the posts in question, the leaked forum histories revealed a reference to the author’s role as vice-president of an administrative court, and showed that the profile in question was linked to the judge’s work email address at the time.Footnote 102 Taking a closer look at these events, several aspects must be taken into consideration. Unlike the other two cases, Bengt Fuchs was not a MP, meaning that the obligation contained in Section 39 DRiG applied to him continuously. However, participating in electoral parties, engaging in moderate political activity, and expressing political opinions are not prohibited in general. Freedom of expression constitutes one of the essential foundations of a democratic society, extending to judges and civil servants.Footnote 103 In the absence of a direct reference to a specific legal dispute, the judge is at liberty to engage in discourse or writing on any subject, including legal policy issues, in a manner that is objective and moderate. Such discourse may be presented in a variety of formats, including academic journals, presentations, and conferences. Moreover, the judge may also make a reference to their role as a judge.Footnote 104 Nonetheless, judges are subject to a legal duty of restraint according to Section 39 DRiG that aims to preserve judicial independence, impartiality, and public confidence.Footnote 105 This applies to behavior within the judicial office as well as outside it,Footnote 106 although stricter standards are applied in the case of disciplinary measures directed against a judge’s behavior during the judicial decision-making process.Footnote 107 In the context of social media, the distinction between the private and public spheres is becoming increasingly blurred. The decision of whether or not to make their office public on social media is at the discretion of the judge. Nevertheless, should judges choose to make their office public, they are bound by the specific duties of moderation outlined in Section 39 DRiG for their entire online presence.Footnote 108
The alleged activities of Fuchs fall into several different spheres. A documentary journalist was able to identify an unusual fact concerning Fuchs’s judicial office from a response to a parliamentary question asked by DIE LINKE, the left-wing opposition party. The government response indicated that, statistically, asylum seekers have a significantly lower chance of winning their case at this particular administrative court when compared to the national average.Footnote 109 It is possible that judges’ sentencing practices may diverge from the national average, given that this is an integral aspect of the principle of judicial independence.Footnote 110 According to court documents, specific judges have been identified as being responsible for the significantly lower success rates at this court.Footnote 111 However, a mere statistical deviation alone does not provide a sufficient basis for the imposition of severe restrictions on judicial independence. When considering the individual’s activities outside of the courtroom, the case acquires an additional dimension. While the judge’s attendance at an AfD election party may be a cause for concern,Footnote 112 particularly in Thuringia,Footnote 113 it too is insufficient to justify disciplinary measures on its own. It is essential that society strikes a balance between ensuring judges are democratically engaged, while also maintaining their independence in order to prevent unequal treatment. The activities ascribed to Fuchs on multiple online platforms may indicate that the boundaries of restraint set out in Section 39 DRiG have been crossed. In July 2024, the president of the court initiated disciplinary proceedings on the basis of a potential violation of Section 29 DRiG, after the court presidium had already assigned him to another chamber, where he would no longer be responsible for asylum cases.Footnote 114 In December 2024 it was confirmed that Fuchs was no longer working at the administrative court but had been seconded to the Thuringian Ministry of Justice.Footnote 115
The combination of these three elements—statistical deviation, involvement with the AfD in Thuringia, and the alleged statements on social media—could, collectively, provide the evidence required for disciplinary proceedings. This case represents a more complex scenario than the other two and may prove instructive for future challenges in which statements and potential infringements of judicial impartiality may be less overt, extreme, or verifiable. The three cases presented illustrate the need for a procedure characterized by complexity and accuracy in order to ensure the independence of the judicial system.
D. How to Deal with Radicalized Judges
I. Legal Status Quo
The three cases we have presented show the range of ways in which judges can be involved with right-wing parties. We shall start this discussion with a focus on the first two cases, before turning to the last case. When Maier and Malsack-Winkemann returned to their judicial positions, it immediately sparked a public debate that focused on identifying effective legal ways to deal with the return of such known authoritarian right-wing judges. Four approaches dominated the public debate: (1) reinstatement and a parallel application for transfer/retirement in the interests of the administration of justice, Section 31 DRiG; (2) disciplinary measures, Section 71 DRiG in conjunction with the Civil Service Status Act (BeamtStG); (3) an impeachment procedure, Article 98(2) GG; or (4) expansion and/or reinstatement of the “routine inquiry” (Regelanfrage) to the Offices for the Protection of the Constitution.
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(1) Both the Berlin and Sachsen state ministries have chosen to adopt the approach outlined in Section 31 no. 2 and no. 3 DRiG. Although this approach has rarely been challenged in court, there have been at least two published cases that have resulted in decisions by higher courts.Footnote 116 While Section 31 DRiG can lead to early retirement, the entitlement to a retirement pension still remains.Footnote 117
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(2) The second alternative involves disciplinary measures. The problem, however, is that the actual office of judge and the specific duties that go with it are suspended during the individual’s time as a MP. The legal community is still debating whether the duty of loyalty to the constitution—Article 33(5) GG, Section 9 no. 2 DRiG—should be treated as one of the explicitly mentioned exempted duties in Article 5 AbgG.Footnote 118 If it were to be treated as one of the exempted duties in Article 5 of the AbgG, the duty of loyalty would undoubtedly continue to apply during their time as an MP period of office. As a consequence, disciplinary measures relating to a failure to comply with the duty of loyalty could also be taken, even if the individual was not actively working as a judge at the time.
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(3) An impeachment procedure according to Article 98(2) GG, as a third possibility, has not yet been attempted.Footnote 119 The procedure was initially included in the GG after 1945, and is intended to combine the political responsibility of judges to support democracy with the idea of judicial independence.Footnote 120 The prerequisite for carrying out an impeachment is the violation of constitutional principles or of the constitutional order of a state (Bundesland), as prescribed by Article 98(2) GG. Within German academia, it is recognized that this entails the free democratic basic order within the meaning of Article 21(2) GG.Footnote 121 There is no requirement for a disciplinary offense to have been committed.Footnote 122 The threshold for impeachment is, nevertheless, extremely high. A federal judge may be impeached by a motion of the Bundestag before the BVerfG on an allegation that she or he has violated the federal constitution or the constitution of a federal state. The BVerfG may then decide, with decisions requiring a two-thirds majority.Footnote 123 In practice, the impeachment procedure has been discussed publicly only three times: once in 1995Footnote 124 and again in 2021/22, with regard to Jens Maier and Andreas Höfer, a judge at a German administrative court.Footnote 125 In all three cases, however, the procedure was not applied.
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(4) The ongoing debate includes calls for tougher action against right-wing judges. It also includes discussions on the reintroduction of the Regelanfrage to the Offices for the Protection of the Constitution—a background check carried out on applicants to public service posts to check their loyalty to the constitution.Footnote 126 In recent years, some states have implemented this background check.Footnote 127 It is a controversial tool because in the 1970s, civil servants with left-wing or progressive views faced challenges due to a similar provision included in the Anti-Radical Decree (Radikalenerlass). This decree, issued during a time of heightened fear of communism, allowed for a systematic review of applicants’ political views by the Office for the Protection of the Constitution.Footnote 128 The use of the Regelanfrage as an executive tool with a broad, baseless, general approach must be viewed critically in light of the principle of proportionality.Footnote 129 Additionally, this approach focuses solely on initial recruitment and disregards the radicalization processes that can occur after recruitment.Footnote 130 Furthermore, it is hard for parliament or the judiciary to control Offices for the Protection of the Constitution and, in view of the independence of the judiciary and the separation of powers, having a secret service as part of the executive branch to monitor the hiring practices of the judiciary is a highly questionable practice. Several incidents raise concerns that these offices tend to overlook right-wing structures, despite high numbers of right-wing motivated criminal and violent offences.Footnote 131 This is accompanied by a German debate culture that often operates within the framework of the “horseshoe theory,” which claims that there is no clear distinction between the far left and the far right, as they share similarities and also assumes that the “middle ground” does not contain any authoritarian, nationalistic, or right-wing ideas.Footnote 132
II. Judicial Independence and Public Trust
Despite these very concrete and practical legal questions, the cases sparked a more general discussion on the central principle of judicial independence. Here, the two-fold characteristic of judicial independence became apparent: the independence of the individual judge who might be confronted with disciplinary measures and the appearance of independence of the German judiciary, for which each judge is also individually accountable.Footnote 133 The former can be violated if internal or external measures are taken against a judge. The latter can be violated if, for example, authoritarian right-wing judges who actively support inhuman, racist, and anti-democratic views remain in active office.
This balance can be seen in the context of the cases and the standards applied: Section 31 of the DRiG provides that a transfer or retirement may only be made if such a measure is imperative in order to avoid serious prejudice to the administration of justice.Footnote 134 According to previous case law, this is to be assumed, inter alia, if public confidence in the judge or in their conduct in office has been damaged. In this case, the damage must be so severe that their jurisdiction no longer appears credible and remaining on the bench would diminish or destroy public confidence in an independent and impartial judiciary.Footnote 135 The retirement or transfer measures provided for in Section 31 DRiG are an exception to the principle of judicial independence.Footnote 136 If such a measure is taken, the individual independence of the judges enshrined in Article 97(2) GG could be violated. Nevertheless, previous court decisions have declared that Section 31 DRiG does not violate the legislative discretion provided for in Article 97(2) GG, does not affect Article 97(2) GG, and is constitutional if applied proportionately.Footnote 137
These complex structures demonstrate, above all, the balance which must be struck when deciding cases touching upon the independence of judges. The provisions and their regulatory structure reinforce a cautious approach in cases where the independence of the judiciary is restricted. At the same time, they call for increased attention to the independence of the German judiciary as a whole, a critical view of the existing and supposedly well-functioning system, its underlying self-image, and a balanced rather than a generally tougher approach to authoritarian right-wing judges.Footnote 138
Looking at the independence of the judiciary in its broader, structural context, case law has highlighted a close link between independence and public confidence or acceptance. The BVerfG has stated: “the persuasiveness of judicial decisions is not only based on the legal quality of their reasons. It is also based to a large extent on the trust placed in judges by the public. This trust is mainly based on the external and internal independence of the judge, the judges’ neutrality and distance, which must remain perceptible in current political disputes. If expressions of opinion by judges on political issues are likely to shake this trust, they contradict the role of the judge as enshrined in the GG.”Footnote 139
During the debate on the first two cases referred to above, several authors stressed the aspect of public confidence, which could be undermined if swift action was not taken.Footnote 140 The independence and impartiality of judges—according to Rainald Gerster—are indispensable prerequisites for their integrity and for public acceptance of their decisions.Footnote 141 Trust and acceptance thus appear as relevant concepts. Despite, or perhaps because of, the abundance of academic literature,Footnote 142 these are broad and vague concepts that appear in case law without prior explanation and without having been defined in legal standards.Footnote 143 In essence, they leave us with open questions: What do they mean in concrete terms and in a specific legal context? Is judicial independence, as the case law and others suggest, a condition for acceptance and trust?Footnote 144 What other factors and conditions of trust and acceptance can be identified and how do they relate to judicial independence? Public trust and judicial independence play an important role in political science as well.Footnote 145 This raises the question of how should the interdisciplinary aspect of the two concepts be understood and integrated? How can trust and acceptability be measured in qualitative and possibly quantitative terms in order to address conflicts in the balanced approach mentioned above?
Since 2010, the Allensbach Institute for Public Opinion Research has conducted the ROLAND Rechtsreport, an annual survey that seeks to measure, amongst other things, trust in public institutions, including the judiciary.Footnote 146 The survey shows a consistently high level of trust in the law and the courts: 70% of respondents have a fair amount of trust in the law and 69% trust the courts.Footnote 147 A similarly high level of trust was found in a survey conducted by the Friedrich Ebert Foundation on behalf of the BVerfG.Footnote 148 Although the surveys provide a broad and general overview, they do not reveal in detail what the survey and its authors themselves or the respondents actually mean by the term. In order to better understand the concepts of trust and acceptance and to refine the relationship between public trust and acceptance and the principle of judicial independence, further research could be beneficial.Footnote 149
E. What to Do?
The two 2022 case studies resulted in a wider, public debate on how to deal with authoritarian right-wing MPs who seek to return to their former position as judges. The third case presented was the subject of a public debate, although it has not yet resulted in the same legal consequences. The immediate legal debate and administrative actions for the two former AfD MPs focused mainly on how the existing provisions could be applied and which legal questions remained unanswered. Following the initial reactions, the debate proceeded to encompass more academic and practical discussions on the development of a “culture of independence”—whereby “the term aims at describing the informal rules on acceptable behaviour and respect of other powers of state towards the judiciary”Footnote 150 —and critical reflexivity within the judiciary.Footnote 151 The importance of informal structures and values have already been discussed in relation to the democratization and recent movements of de-democratization of middle European countries such as Slovakia and Poland. Informal structures may strengthen but also weaken the rule of law.Footnote 152 In this context, it was argued, that judicial resistance has no normative value—acts of judicial defiance are also possible of authoritarian judges against democratic institutions.Footnote 153 A shift towards a more comprehensive understanding of potential authoritarian right-wing judges is needed, encompassing structural elements instead of targeting merely so-called isolated cases. This entails a critical examination of instruments and approaches, contextualized within historical events. Disciplinary procedures against judges are permissible only under stringent safeguards, which have been even increased by international courts during the rule of law crisis of the last decade.Footnote 154 Moreover, it is appropriate to consider that instruments implemented now may be employed in reverse. This is particularly relevant in the context of evolving political landscapes and authoritarian expansion.Footnote 155 Thus, each newly introduced regulation should be subjected to a “stress-test.”Footnote 156 Such a test could consist of three stages. At stage one the “current playbook for subverting judicial independence” should be examined, taking recent experiences in which forms and ways judicial independence has been attacked in different countries.Footnote 157 Stage two and three should include scenarios that analyze the “techniques and approaches employed for subverting judicial independence.”Footnote 158 An example of needed critical historical contextualization of instruments and approaches within the German context refers to the fourth approach, displayed above under Section D.I., calling for tougher actions against right-wing judges through the inclusion of the “routine inquiry”. The basis of this “routine inquiry” was the Radikalenerlass which targeted specific groups and had historical consequences.Footnote 159 Continuing the historical reflection on the Radikalenerlass, the basic duty of loyalty to the constitution and the duty to stand up for the free democratic basic order as elements of “militant democracy” should be examined more closely and in greater detail.Footnote 160 A first legal definition was discussed and implemented in the 1950s during the introduction of the Act on the Federal Constitutional Court (BVerfGG) and the reforms of the Penal Code (StGB) and its “political criminal law” (politisches Strafrecht).Footnote 161 The BVerfG subsequently adopted this rationale in its decision to ban the Socialist Reich Party (SRP), a West German political party with an openly neo-Nazi orientation.Footnote 162 This was a period characterized by the East-West conflict, clear opposition to the left and communism, and the repression of National Socialism and its institutional remnants.Footnote 163 Notwithstanding these structural vestiges, the BVerfG’s 2017 ruling represented a further evolution of the principle of the free democratic basic order. The ruling underscored that the free democratic basic order is primarily anchored in the dignity of the human being, Article 1(1) GG.Footnote 164 The guarantee of human dignity encompasses, in particular, the safeguarding of personal individuality, identity, integrity, and elementary equality before the law. This clarification established that human dignity is egalitarian and that the prohibition of discrimination in Article 3(3) GG can be understood as a specific aspect of human dignity. The court elaborated as follows: “Anti-Semitic concepts or concepts aimed at racist discrimination are therefore incompatible with human dignity and violate the free democratic basic order.”Footnote 165 This explicit shift could be a fruitful point of referenceFootnote 166 when discussing the adequacy of measures to protect the independence of the judiciary. Rather than focusing on the historically ambiguous and ultimately indeterminate and broad concept of the free, democratic, federal, and social constitutional order, the application of instruments should, inter alia, be centered on Article 3 GG.Footnote 167
One of the key findings is that no simple, straightforward solution should be proposed too quickly. Simple approaches can have unintended consequences. Historical perspectives of instruments should not be ignored. And sensitivity with a critical eye for structural elements are essential, especially in the context of judicial independence. Therefore, a multifaceted approach on several levels, including different perspectives, is needed to grasp the complexity of the issue. This can include action within the current framework as well as actions to reform the existing system. We would like to propose some possible actions, which should not be considered as complete.
I. Actions within the Current Framework and Reforms
1. Focus on Procedural Law and Court Administration
The judiciary itself, as a form of self-control,Footnote 168 must acquire the competence to identify members of staff who do not identify with the principles of human dignity and equality, Article 1(1), Article 3 GG,Footnote 169 as well as the competence to identify authoritarian, and especially right-wing arguments and codes of litigants.Footnote 170
To promote more reflection on cases and their facts, it may be helpful to re-strengthen procedural instruments that have been weakened in recent years in the interests of cost efficiency. It would be beneficial to have more cases decided by a full panel of judges, rather than transferring the majority of cases to a single judge’s decision.Footnote 171 In a collective decision-making process, several judges have to agree on a decision and judgment. Consequently, multiple perspectives are exchanged, and views need to be justified in front of colleagues and are discussed in greater depth.Footnote 172 In asylum cases, like those decided by Bengt Fuchs, colleagues would be able to challenge views which currently form the basis of a decision made by one judge alone.Footnote 173 The exchange and discussion of cases can also take place through more informal channels, such as weekly meetings of the respective chambers. Nevertheless, these may not completely replace the formal chamber principle, as it is possible to disengage from informal discussions. Additionally, it is recommended that the system of appellate remedies be appreciated and reinforced as the most significant safeguard within the existing system. After all, the appeals process represents the foundation of judicial accountability.Footnote 174 Consequently, the obstacles to filing an appeal should not be too stringent. Moreover, the reasoning of the written judgments must be sufficiently detailed to allow for an effective review by the court of appeal.
2. Focus on Legal Traineeships, and the Recruitment, Appointment and Promotion of Judges
It is similarly important to consider the legal education and professional career system in the context of resilience-building efforts.
Legal education practitioners, academics, and legal professionals, would be well advised to examine more closely the historical and structural elements, including structural discrimination. It is of great importance that the aforementioned Section 5a(2) DRiG be included in the historical analysis, in order to facilitate a more comprehensive understanding of the law: “… the teaching of the compulsory subjects also includes a critical analysis of the injustices of the National Socialist regime and of the Communist dictatorship in Germany ….” Consequently, universities should prioritize the education of future legal practitioners who are able to engage in critical and reflective thinking. This should be achieved through the introduction of compulsory and additional courses.Footnote 175 In light of the aforementioned considerations, educators should consider reducing the teaching of content relating to substantive law in order to accommodate the additional courses.
Upon completion of a law degree at university and successful completion of the initial state examination, students who aspire to become judges, public prosecutors, or attorneys have to complete a two-year legal traineeship (Referendariat).Footnote 176 This professional training involves receiving practical instruction at a civil court, a criminal court or prosecutor’s office, an administrative agency, and a law firm. Furthermore, the trainees must pass a second state examination. Upon successful completion of the traineeship and exam, individuals are deemed qualified to work in any legal profession.Footnote 177 Training placements during the Referendariat should include a more diverse program than the current focus on learning substantive and mere procedural law. The program could include more insights into the historical development of legal practice in Germany. Additionally, it could provide an opportunity for an exchange of views with judges and lawyers who have experienced authoritarian regimes. Finally, it is important to emphasize the social and psychological skills that are required for those wishing to pursue a career in legal practice. Here, further training should be included at professional judicial academies (Richterakademien), which offer courses for sitting judges.
It would be preferable if authoritarian right-wing candidates, who oppose the principle of equality, could be excluded from the legal traineeship. Identifying them is not an easy task if such candidates do not share their views openly during the Referendariat or on social media. Nevertheless, it would be highly problematic to demand a comprehensive background check and investigation of political views. Such background checks conducted by secret services have been the subject of criticism by bodies of the Council of Europe, especially when these checks are applied to sitting judges.Footnote 178 Furthermore, these issues are particularly problematic when viewed in the context of German history and the Radikalenerlass.Footnote 179 Rather than relying on information gathered by secret services that cannot be reviewed by the individual concerned, the focus should be on the legal education of future judges and on fostering a climate of reflection and critical thinking among judicial staff.
The issue of recruitment, appointment, and promotion of judges, and the staffing of the Judges’ Disciplinary Courts are relevant as well. While there is currently a shortage of qualified candidates in many areas, promotion to the highest positions can be subject to political considerations.Footnote 180 This issue was addressed by the German Jurists’ Conference (Deutscher Juristentag, DJT) in 2022 with regard to the highest courts in Germany.Footnote 181 On the whole, the members of the DJT considered the current system to be sufficient.Footnote 182 Proposals to make the selection and especially the promotion procedures more independent and transparent throughout Germany and to establish independent, diverse selection bodies in order to include different perspectives on the qualities of future judges were not supported by a majority of members.Footnote 183 This decision should be re-evaluated, especially in the light of developments in 2022, 2024, and 2025.Footnote 184 If an authoritarian right-wing party were to win the post of Minister of Justice in a German state, it would give them considerable opportunities to boost the careers of like-minded jurists, gradually pushing the judiciary of that state in a more authoritarian direction. In this context, it is worth taking note of the empirical socio-legal studies of Vogel. He noted that judges and prosecutors today see themselves as empathetic, competent, and open-minded members of a pluralistic society, frowning upon the ideas of their uncompromising and authoritarian predecessors. He also noted the fear of a risk of a backlash and a return to authoritarian ideals if the progress of the past few decades was not carefully secured.Footnote 185 Reforms should include striving for more independence, transparency, and plurality in the selection and promotion of judges. They could also include a more complex understanding of the professional qualities of judges,Footnote 186 not focusing only on purely legal qualities, which are supposedly reflected in an outstanding state examination grade. When discussing such proposals, it should be kept in mind that a Minister of Justice might have considerable influence over how such soft factors are interpreted, whereas the German state exam—with all its considerable flaws—still offers the promise of an objective criterion. A Minister of Justice from an authoritarian right-wing party may, for example, consider membership of certain like-minded youth organizations a much better indicator of the right mindset than good grades.
II. Further Research
Finally, further research is needed for a more comprehensive understanding of the concepts of judicial independence, trust and acceptance, right-wing judges, and attitudes and their legal reality. Neither qualitative nor quantitative empirical studies on the judiciary in Germany are very common, at least from the perspective of legal academia. Nevertheless, the sociology of law allows for a nuanced and multifaceted description of legal and social processes. Openness to and curiosity about new empirical perspectives can expand the classical method of legal scholarship and jurisprudence.Footnote 187 The current state of empirical studies on the German judiciary indicates a necessity for further in-depth research.Footnote 188
F. Closing Remarks
The foregoing considerations illustrate the need to identify potential threats to the rule of law and democracy in the context of the rising influence of right-wing parties all over Europe, including in Germany. They also demonstrate the importance of taking legal action—although not only thisFootnote 189 —at different levels. Initiatives such as the Verfassungsblog projects, which subject states to a “stress-test” to identify threats to the rule of law, are important. It is evident that Germany has long upheld a high standard of the rule of law, which is also enshrined in the GG. Furthermore, Germany’s strong courts and decentralized, federal structures are not susceptible to immediate alteration by the outcome of one national election. Nevertheless, it must be acknowledged that the system’s overall efficacy is contingent upon a multitude of informal practices and a political culture that prioritizes the rule of law. Consequently, the reason certain actions have not been carried out is not because they are strictly unlawful but because of a culture that favors judicial independence and the rule of law. In the context of heightened polarization, it is unrealistic to assume that these conditions will persist indefinitely. While no legal system can preserve the rule of law without the support of the public, legal and systemic rules can and should be used to strengthen the system—by judges from within and by legislators and society from the outside. Reevaluating the system, including its rules on disciplinary procedures, is a necessary next step. In this context, comparative experiences from different European systems facing the challenge of populist and right-wing shifts should be brought together to help protect the rule of law.
Acknowledgements
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