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Slow or Just Diligent? The Tale of Germany’s “Slow Judge”

The case of so-called “slow judge” Thomas Schulte-Kellinghaus, a judge at the Higher Regional Court Karlsruhe (OLG Karlsruhe), Germany, has kept the courts busy since 2012. And there does not seem to be an end in sight. In 2012, he was reprimanded by the then-President of the Higher Regional Court for “not properly executing his official duties.” (German Judiciary Act, § 26.)  At issue is judicial independence vs. the right to receive a decision within a reasonable time. The case went through all instances and was referred back to the appeals court by the German Federal Court of Justice, the highest court in civil and criminal matters. That decision is still pending. However, “slow judge” Schulte-Kellinghaus has already stated that he would appeal again on questions of law if the court rules against him.

Due process of law. Ehrhart, S. D., creator. Approximately 1862-1937. Library of Congress Prints and Photographs Division. //hdl.loc.gov/loc.pnp/ppmsca.25806.

The Court Decisions

So why exactly was he reprimanded? The reprimand stated that he did not make decisions in his cases within a reasonable time, because his numbers were well below the average number of decisions that his colleagues wrote in the same amount of time and occasionally even below the numbers of part-time judges. In addition, according to the reprimand, the insufficient work of “slow judge” Schulte-Kellinghaus infringed the parties’ right to a fair and speedy trial. “Slow judge” Schulte-Kellinghaus on the other hand argued that the reprimand infringed his judicial independence, and that he was not slow, but diligent. (German Judiciary Act, §26, para. 3). In his opinion, in order to produce more decisions, he would have to change the way he approaches a case, thereby affecting his judicial independence. The Disciplinary Tribunal of the Regional Court Karlsruhe ruled against him. (Docket nos. RDG 5/12RDG 6/12RDG 7/12). The appeals court also denied his appeal. (Docket nos. DGH 1/13DGH 2/13DGH 3/13.) The Federal Court of Justice on appeal referred the case back to the court of appeals to determine whether the court administration incorrectly determined the average number of cases that other judges finished in the same amount of time.

Can a Judge Be “Too Slow”?

It is undisputed by the parties that the “slow judge” puts in as many hours as his colleagues. So what are the standards that need to be applied to determine whether he failed to properly perform his official duties in a timely manner?

“Slow judge” Schulte-Kellinghaus objected to the reprimand, because he contends that it compromises his independence. Judicial independence in Germany is guaranteed by article 97 of the Basic Law, the country’s constitution, the German Judiciary Act (§25), and the Courts Constitution Act (§1). It is divided into substantive independence and personal independence. Personal independence means that judges can only be involuntarily dismissed, permanently or temporarily suspended, transferred or retired before the expiration of their term of office by judicial decision and only for the reasons and in the manner specified by law. (Basic Law, art.97, para.2). Substantive independence means that judges are only subject to the law and that the other two branches of government cannot interfere with judicial decisions. (Id. art.97, para.1.) Judges are not subject to instructions and are only subject to supervision in so far as it does not compromise their independence. (BVerfGE 14, 56, para. 44; German Judiciary Act, §26, para.1.)

The Federal Court of Justice in its decision stated that a supervisor may generally urge a judge to properly execute his/her official duties in a timely manner and reprimand him or her for a failure to do so. According to settled case law of the Federal Court of Justice, reproaching a judge with backlogs and calling upon him/her to properly and timely executive his/her duties from now on therefore generally does not infringe judicial independence. The judge is requested to change his or her working methods, but not to decide in a certain way or to perform his or her duties in a certain way. The goal is to ensure the proper functioning of the court system. However, according to other settled case law of the Federal Court of Justice, judicial independence is infringed when a judge is forced, directly or indirectly, to meet a quota which generally cannot be reasonably expected to be met, meaning also not by other judges. What a reasonable quota is has to be determined in comparison to other judges in a similar capacity. In the case at issue, the “slow judge” contended that the court administration did not properly determine the average number of cases.

A Never-Ending Story?

The tale of “slow judge” Schulte-Kellinghaus seems to be far from over. Decide for yourself whether there is such a thing as a “slow judge” and let us know in the comments. We will keep you updated on the fate of “slow judge” Schulte-Kellinghaus here on the blog. If you are interested in receiving automatic updates, you can subscribe to our e-mail updates or the RSS feed.

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