
Contents
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A. Introduction A. Introduction
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B. The Design of the Appointment Procedure B. The Design of the Appointment Procedure
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1. The Authority to Appoint Justices 1. The Authority to Appoint Justices
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a) The Bodies with the Authority to Appoint Justices a) The Bodies with the Authority to Appoint Justices
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b) The Distribution of Authority for Judicial Selection among Several Institutions b) The Distribution of Authority for Judicial Selection among Several Institutions
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c) In Particular: The Appointment of the President c) In Particular: The Appointment of the President
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2. Committee Participation 2. Committee Participation
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3. Hearings 3. Hearings
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4. Publicity of the Appointment Process 4. Publicity of the Appointment Process
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5. Majority Requirements 5. Majority Requirements
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6. Special Forms of Appointment (Co-Optation, Ex Lege Memberships) 6. Special Forms of Appointment (Co-Optation, Ex Lege Memberships)
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7. Factual Decision-Making Power Beyond the Competences of the Institutions 7. Factual Decision-Making Power Beyond the Competences of the Institutions
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8. Provisions in Case of Conflicts and Delays 8. Provisions in Case of Conflicts and Delays
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C. Material Requirements for Office C. Material Requirements for Office
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1. Citizenship 1. Citizenship
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2. Minimum Age 2. Minimum Age
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3. Legal Qualifications 3. Legal Qualifications
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4. The Minimum Period of Judicial or Legal Practice Before Appointment 4. The Minimum Period of Judicial or Legal Practice Before Appointment
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5. Ethical and Moral Standards 5. Ethical and Moral Standards
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D. The Effect of the Design of the Office on Judicial Appointment D. The Effect of the Design of the Office on Judicial Appointment
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1. The Attractiveness of the Office as a Result of its Prestige and Material Resources 1. The Attractiveness of the Office as a Result of its Prestige and Material Resources
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2. Incompatibility with Other Offices or Political Activities 2. Incompatibility with Other Offices or Political Activities
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3. The Culture of Appointment and Distancing from Politics 3. The Culture of Appointment and Distancing from Politics
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E. The Composition of the Court E. The Composition of the Court
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F. Requirements and Structural Conditions of European Law F. Requirements and Structural Conditions of European Law
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1. Articles 6 and 34 of the European Convention on Human Rights 1. Articles 6 and 34 of the European Convention on Human Rights
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2. Union Law (Article 267 TFEU, Article 47 CFR) 2. Union Law (Article 267 TFEU, Article 47 CFR)
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3. Soft Law from the Practice of the Venice Commission 3. Soft Law from the Practice of the Venice Commission
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G. The Selection and Appointment of ECJ and ECtHR Judges as a Reflection of National Requirements G. The Selection and Appointment of ECJ and ECtHR Judges as a Reflection of National Requirements
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1. Selection of the Judges of the ECJ 1. Selection of the Judges of the ECJ
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2. Selection of the Judges of the ECtHR 2. Selection of the Judges of the ECtHR
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3. Conclusions for the Study of the National Courts 3. Conclusions for the Study of the National Courts
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H. Objectives and Principles in the Constitutional Design of Judicial Appointment H. Objectives and Principles in the Constitutional Design of Judicial Appointment
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1. Concrete Objectives 1. Concrete Objectives
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a) Justices’ Experience a) Justices’ Experience
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b) Legal Expertise b) Legal Expertise
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c) Independence and Impartiality c) Independence and Impartiality
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d) Pluralism d) Pluralism
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e) Distancing from Political Decision-Makers e) Distancing from Political Decision-Makers
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2. General Constitutional Principles 2. General Constitutional Principles
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a) The Rule of Law a) The Rule of Law
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b) Democratic Legitimacy b) Democratic Legitimacy
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c) The Separation of Powers c) The Separation of Powers
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I. The Case of Poland: Flouting the Rules of Appointment as a First Step in Dismantling a Court I. The Case of Poland: Flouting the Rules of Appointment as a First Step in Dismantling a Court
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1. The Constitutional Framework 1. The Constitutional Framework
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2. The Background 2. The Background
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3. The Election of Justices in 2015 3. The Election of Justices in 2015
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4. The Amendments of December 2015 and Their Effects 4. The Amendments of December 2015 and Their Effects
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J. Conclusion J. Conclusion
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3 Judicial Appointments in Comparative Perspective
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Published:May 2023
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Abstract
The chapter examines the appointment of constitutional justices in the European legal space by systematically comparing the design of the appointment procedure, the bodies with authority to appoint justices, the factual power to appoint judges for other than constitutional bodies, and material requirements for holding office. It continues analysing the selection of judges at the ECJ and the ECtHR in the context of national requirements and presents from a comparative perspective the general objectives and principles governing the design of the appointment procedure with a focus on the rule of law, democratic legitimacy, and separation of powers. Finally, the chapter applies the framework on the constitutional crisis in Poland since 2015 and uses it as a case study for how a government can dismantle a constitutional court by disregarding the principles of judicial appointment.
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