By: Judge Roland Kempfle
Judge Roland Kempfle is a civil law judge at the Regional Court of Munich. He currently represents the German Judges Association (DRB) at the International Association of Judges (IAJ). Since 2018 , he has been Vice President of the First Study Commission of the IAJ. All opinions expressed in this piece are solely those of the author as an external expert and do not necessarily reflect the official position of UNODC.
Judicial immunity has always been a highly relevant issue for judges around the world. In recent years, however, judicial immunity has become an even more crucial, even existential, question for judges in many countries.
While different legal systems may approach the concept of judicial immunity in slightly different ways, the underlying principles of this concept are the same. While acting in a judicial function, a judge must enjoy a substantial level of protection from civil lawsuits or criminal proceedings in relation to the judge's work.
Under the rule of law, a fair system of appeals must be installed to ensure that judicial decisions can be challenged by anyone who might be negatively affected by them. This purports to rectify mistakes as much as possible. On the other hand, judges must be able to make their decisions without fear of being sued or prosecuted. While it is generally accepted that there are limitations to the concept of judicial immunity, such as willful breaches of the law or human rights violations, judicial immunity is an indispensable pillar of judicial independence.
Judicial independence is vital, as it ensures that a judge is able to make the right decision while free from external pressure and irrespective of the personal interests or economic and political implications involved. Judicial independence, hence, is not a privilege of judges for their own sake. Rather, judicial independence, and judicial immunity in turn, protect everyone who comes to court. It ensures that judges make their decisions based only on law, without the influence of fear or other external factors.
Beyond protection from civil and criminal liability, however, judicial immunity must also include protection from unjustified disciplinary proceedings. In recent years, it has become a global phenomenon for governments to seek ways to gain more influence over individual judges, as well as over the judiciary as a whole. A major tool to gain such influence is the extensive use of disciplinary proceedings. There is an undeniable global trend of bringing disciplinary proceedings against individual judges in relation to their work and even because of the contents of their decisions. The abuse of disciplinary proceedings against individual judges, especially where influenced by the executive, can create a "chilling effect" within the judiciary as a whole. The severe consequence of this can be a judiciary in which judges do not decide their most sensitive cases based on the law, but based on the expectations of others, such as the other state powers.
Even an independent judiciary can be silenced if judges fear being sued, prosecuted or subjected to disciplinary proceedings for merely acting within their judicial functions. In some countries, legal "reforms" happen quickly, are cataclysmic and come with lightning and thunder. In others, the situation of the judiciary changes slowly, gradually and is hardly noticed. In both cases, however, judicial immunity must serve as a benchmark. Where judges fear negative consequences for delivering unfavourable decisions, they are - in the end - not independent. Where judges are not independent, the door is open for arbitrariness and tyranny.
Therefore, judicial immunity should be recognized as a principle of the rule of law.