The constitutional position of the High Council of Justice |
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| The High Council was created by the constitutional legislator specifically on
20 November 1998 with the passage of the new Article 151 of the Constitution. This constitutional
foundation places the High Council beyond the reach of the ordinary legislator, which is intended
to enable it to execute the assigned tasks in all independence. |
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| The political compromise consisted in placing the broad outlines of this new
institution in the Constitution and in leaving the details to an implementation law. This law
became the Law of 22 December 1998, which amended a number of stipulations of Part II of the
Judicial Code concerning the High Council of Justice, the nomination and appointment of
magistrates, and the introduction of an evaluation system. To which of the three classic
branches of government does the High Council now belong? |
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| Here, too, the functional autonomy of the
magistrates must be observed. Such an investigation may not be prescribed or continued
if it would be the object of a penal or disciplinary dossier. The Judicial Code, indeed,
provides for the possibility of two kinds of investigation: one of the internal type and
another of the external type. In the two cases, the report of the joint commission has to
be approved by a 2/3 majority of its members. |
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| The new Article 151 of the Constitution makes it clear that the High Council is not subject
to the King and that it must not receive instructions from, or need to justify itself to, any
existing administrative authorities. It is crystal clear that it does not belong to the
executive branch. |
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| Although the High Council might show certain affinities with the
Parliament, it is certainly not an ad hoc institution of it, which can be said of the Court
of Auditors, the P Committee, and I Committee, and the federal ombudsmen. Therefore, the
High Council certainly does not belong to the legislative branch. |
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| The High Council also does not belong at all to the judicial
branch. The independence of the High Council, which is also manifest from its financial
statute - it is funded in the budget of the grants, like that of the Court of Arbitration -
excludes this possibility. Moreover, in the establishment of the High Council, its belonging
to the judicial branch was expressly denied because half of it consists of non-magistrates
and because it exercises no jurisdictional functions. Therefore, the High Council does not
belong to any of the three branches. |
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| This point of view has been expressly emphasized in Parliament
in the establishment of the new Article 151 of the Constitution and of the organic law of 22
December 1998. Indeed, it has been repeatedly stated that the High Council of Justice is an
institution sui generis that can be subordinated to none of the three branches of the State.
In the explanatory memorandum accompanying the bill, which was approved on 22 December 1998,
we read that the High Council must bridge the judicial branch, the independence of which it
must respect, and the executive and legislative branches. The High Council can best fulfill
this function as an institution that is completely independent of each of the three branches.
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