The Third Step of the Guðmundur Test and the Importance of a Seamless Implementation of the Principle of Separation of Powers Into the Process of Appointment of Judges for Independent Tribunals Established by Law

Independent commissions and other bodies take ever-growing importance in the process of the selection and appointment of judges, but they are not a cure against all threats to judicial independence. Starting from the Guðmundur case in a comparative perspective yet focused on the Hungarian model the paper will investigate other elements of the selection process that also play a role in guaranteeing judicial independence, as the question of judicial appointments is of great importance for an independent tribunal being established by law. The paper argues based on recent case-law that the requirement of judicial review against breaches of the appointment process will lead to a judicialization of this now rather political question and can enhance the system of checks and balances in this field. This will again probably entail the need for more defined selection criteria. The Hungarian model shows weaknesses, the analysis of which may help to avoid some “faux-pas” and trigger a more systematic European response. The paper uses the comparative legal method and relies on the analysis of legal texts, mostly from European and national courts and other European fora within the Council of Europe.