An independent judiciary is one of the basic conditions for the functioning of a state governed by the rule of law. The manner in which the judiciary is constituted is therefore important. A number of binding and non-binding international legal instruments, which address the appointment of judges, imply the common requirement that the appointment of judges be based on objective, transparent and exclusively professional (i.e. non-political) criteria. The ECtHR and the CJEU also developed the same requirement. Four systems of appointment of judges can be found in European comparative law, and even among those the system of direct election of judges constitutes and exception that is established only in Switzerland. The three most common systems for the appointment of judges are thus 1) a system wherein judges are appointed by the executive, 2) a system wherein judges are appointed by the legislature, and 3) a system wherein judges are appointed by the judicial council.
In Slovenia, judges are elected by the National Assembly, i.e. the legislature, upon the proposal of the Judicial Council. This system ensures, in principle, that the positions of the ECtHR and the CJEU as well as the requirements or recommendations arising from international legal instruments are respected. However, the appointment of judges by the National Assembly, which is a political body par excellence, enables the possibility of politicisation of the appointment of judges. As a result, the constitutional regulation of the election of judges has often been the subject of criticism and attempts to amend it. In terms of ensuring a more balanced influence of all three branches of power within the judicial appointment process, compared to the system currently in force, in particular a system wherein judges would be appointed by the President of the Republic upon the proposal of the Judicial Council, as well as a system wherein the Judicial Council would be responsible for both the selection and the final appointment of judges, appear more appropriate. If the latter were selected, an amendment of the composition or the method of appointment of the Judicial Council would also be feasible. The doctoral thesis proposes solutions which constitute a de lege ferenda basis for a more appropriate regulation of the appointment of judges. These proposals have been developed taking into account international legal standards and comparative legal experience in selected European countries.
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