Dr Salvija Mulevičienė
Professor at the Institute of Private Law and Head of the Justice Laboratory at Mykolas Romeris University, Lithuania
The judiciary plays a fundamentally important role in any democratic state governed by the rule of law. But in recent years in Europe there has been growing concern that the vague rules relating to the selection and appointment of judges and their promotion to the higher court or managerial positions neither sufficiently guarantee the independence of the judiciary nor respond to the needs of society and the judiciary itself for a transparent system of selection of judges. As the Venice Commission stressed: “It is important that the appointment and promotion of judges is not based upon political or personal considerations, and the system should be constantly monitored to ensure that this is so”. Moreover, the glass ceiling is still a reality and the proportion of women clearly decreases as one moves up through the judicial hierarchy.
Therefore the question arises as to whether it is possible to ensure that only those who are able to achieve judicial excellence due to their personal qualities and professional competence became judges and get promoted to the highest judicial offices. Is there a common understanding in Europe that selection and subsequent promotion to higher courts or managerial positions should not only ensure judicial independence but also be based on non-biased, non-discriminatory and transparent rules?
Currently there are no uniform rules for the selection of judges in Europe. Differences and concrete models depend on the legal culture in and traditions of each country and their need to increase public trust and confidence in the courts and judiciary. But comparative analysis of the selection, evaluation and promotion of judges and on the current criteria and methodology used in the EU and beyond revealed that not only can common ground between European legal regimes be found, but also that core model guidelines regarding the competencies required of a judge with the corresponding indicators and methodology for the selection, evaluation and promotion thereof can be created.
This article aims to present the main results of the comprehensive research aimed at comparative analysis and assessment of existing practices and emerging trends in Europe in developing, reforming and implementing rules on the selection of judges which was carried out by an international team of experts in the framework of the project ‘The Portrait of a Judge – a multi-dimensional model of competencies to be measured during the procedures of selection, evaluation and promotion of judges’ funded by the EEA and the Norway Grants Fund for Regional Cooperation.
I. General standards and principles in the selection of judges at the European and international levels
First, the principles concerning the selection of judges are considered to be those which ensure the independence of the judiciary. The right to have access to an independent and impartial judiciary is guaranteed under the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights (ECHR). Consequently the methods of selection and appointment of judges play a fundamental role in ascertaining the independence of a “tribunal established by law” in the meaning of Art. 6 of the ECHR (e.g. the famous case of the ECHR in Gudmundur v Iceland).
Second, various international organizations have stressed the importance of objectives criteria, merit-based selection and transparency in the appointment of judges. Examples include the UN Special Rapporteur on the Independence of Judges and Lawyers, who in ‘Guarantees of judicial independence / Major developments in international justice’ stated that: “In order to secure the independence of judges and the selection of the most suitable candidates, the Special Rapporteur highlights the importance of the establishment and application of objective criteria in the selection of judges. The principle of objective criteria was also highlighted by the Human Rights Committee and by the Committee against Torture. These objective criteria should relate particularly to qualifications, integrity, ability and efficiency. The Special Rapporteur emphasizes that selection of judges must be based on merit alone <…>”.
The Committee of Ministers of the Council of Europe Recommendation CM/Rec(2010)12 stated that: “The procedures followed by the independent authority should be transparent and the reasons for the decisions made should be provided”.
The Grand Chamber of the ECHR, in its famous case Gudmundur v Iceland, stressed that selection criteria should be based on merit and that there should be safeguards: “ ‘Independence’ refers, in this connection, to the necessary personal and institutional independence that is required for impartial decision-making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit – which must provide safeguards against the undue influence and/or unfettered discretion of other State powers, both at the initial stage of the appointment of a judge and during the exercising of his or her duties (see, mutatis mutandis, Khrykin v. Russia, no. 33186/08, §§ 28‑30, 19 April 2011).”
On 7 February 2018 the Consultative Council of European Judges (CCJE) published a report entitled ‘Judicial independence and impartiality in the Council of Europe Member States in 2017’. The relevant insights from this report on the relevant European standards on the selection of judges can be summarised as follows: candidates for judicial office should be selected according to objective criteria based on merit. Every decision relating to a judge’s appointment and career should be regulated by law, based on objective criteria and be either taken by an independent authority or subject to guarantees, for example judicial review, in order to ensure that it is not taken other than on the basis of such criteria.
In May 2012 the General Assembly of the European Network of Councils for the Judiciary adopted a declaration (the Dublin Declaration) setting out the minimum standards for the recruitment, selection, appointment and promotion of members of the judiciary. The relevant extracts from the declaration read as follows:
“1. Judicial appointments should only be based on merit and capability. There requires to be a clearly defined and published set of selection competencies against which candidates for judicial appointment should be assessed at all stages of the appointment process.
2. Selection competencies should include intellectual and personal skills of high quality, as well as a proper work ethic and the ability of the candidates to express themselves.
8. Diversity in the range of persons available for selection for appointment should be encouraged, avoiding all kinds of discrimination, although that does not necessarily imply the setting of quotas per se, adding that any attempt to achieve diversity in the selection and appointment of judges should not be made at the expense of the basic criterion of merit.
9. The entire appointment and selection process must be open to public scrutiny, since the public has a right to know how its judges are selected.
10. An unsuccessful candidate is entitled to know why he or she failed to secure an appointment; and there is a need for an independent complaints or challenge process to which any unsuccessful applicant may turn if he or she believes that he or she was unfairly treated in the appointment process.”
As such, the main requirement is to have a merit-based model. There seems to be consensus in various countries at the European level that if there are no objective selection criteria and transparent procedures, then we cannot talk about merit-based appointments.
II. Selection of judges: main principles, guidelines and examples of best practice
In general, there are three models of acquisition of (access to) a professional position of judge in European states, specifically:
1st model: This is candidacy to a position of judge based on many years of professional activity in other legal professions (the so-called recognition model). Becoming a judge is not simply a career choice, but rather a highlight of a lawyer’s career achieved after a significant number of years spent in other legal professions (e.g. it is required of a future judge that he or she has worked for a certain number of years (e.g. at least seven years as an attorney-at-law) prior to their candidacy. This model is applied in England, Ireland, Wales and Malta.
2nd model: The so-called career or competition model, where the emphasis is not on the previous experiences of candidates but on predetermining the ability of each candidate to be a good judge via selection procedures by a certain body and/or after the completion of organised training. This system is prevalent in the majority of civil law countries in Europe.
3rd model: The so-called mixed model, which is based on a competition examination on the one hand and on other legal practice on the other. This applies in Germany, the Netherlands, Portugal, Slovakia, Lithuania, Poland and the Czech Republic.
However, in order to obtain a more thorough assessment of judiciary selection procedures it is useful to start by identifying the various selection phases relevant to each model. In general, there are four main phases:
1) Deciding on the eligibility and selection criteria (focussing on the formulation of clear rules and indicators and making them publicly available)
2) Recruiting and creating a poll of candidates (focussing on creating the largest possible pool of eligible candidates with the aim of diversifying the judiciary)
3) Getting the persons shortlisted for the position(s) (focussing on methods for checking which candidates among the eligible persons listed are best suited)
4) Appointing the selected person(s) (focussing on who makes the final decision)
II.1. Deciding on the eligibility and selection criteria
First we need to distinguish between basic formal eligibility criteria (for persons to even be considered as candidates for the judicial position) and material selection criteria.
The most common eligibility criteria are as follows:
- Education in law: Master’s level or equivalent degree. These prerequisites should be stated in law. The requirement for a higher law degree is considered justified. For example, in Lithuania it is clearly stated in primary law that the candidate should have both Bachelor in Law and Master in Law degrees or equivalent (i.e. five consequent years of Law degrees if there is no differentiation between Bachelor’s and Master’s studies).
- Good reputation/Integrity check (not having been convicted of criminal offences etc.): A candidate must not have been dismissed from public office (the position of a judge, prosecutor, lawyer, notary, bailiff, police officer or employee of the state’s system of the interior or from the public service) for violating professional ethics or malfeasance and if less than five years has passed since their dismissal (Lithuanian example).
- Health check (physical and mental, including mental diseases, alcohol or drug abuse or dependence, etc. Example methodology: A certificate from a medical institution including information on dependence (abuse) of alcohol or addictive substances)
II.1.2. Selection criteria
There are no unified rules or best practice here, because the need for the thoroughness of criteria depends on a country’s traditions and society’s needs. Nevertheless, we can distinguish certain common rules on how these criteria should be developed:
- The selection of candidates for judicial office should be based on objective criteria pre-established by law or by independent judicial authorities.
- The criteria should be based on merit, having regard to the qualifications, skills and capacity required for the adjudication of cases by applying the law.
- The substantive and procedural rules of the selection should also be clearly established and publicly available in advance.
- The weight of the criteria or different stages of the selection procedure towards the final result should be clear to the candidates.
- Selection should entail transparent procedures, and reasons for the decisions taken should be provided.
- Both a competitive examination and the hiring of experienced lawyers are regarded as possible selection methods.
- An interview is a recommended tool in the overall selection process.
- The possibility to challenge the decision of a selection body should be available.
The main findings from comparative research into various European countries show that despite the variety of approaches there is a clear tendency in countries undergoing reforms in the area of the judiciary towards transparency and ensuring the principle of non-discrimination. In countries which have recently undergone or are undergoing judiciary reforms there is a tendency to set very high and very detailed requirements (criteria) for the selection of judges, but lesser focus is given to the methodology for checking these requirements.
Regarding the selection criteria (or competences), the Dublin declaration states that the selection competencies should include intellectual and personal skills of high quality, as well as a proper work ethic and the ability of the candidates to express themselves.
Based on comparative and legal research, experts suggested dividing all competences relevant for selection (besides the aforementioned formal eligibility criteria) into three main groups:
1. Professional knowledge and skills
- Good general legal knowledge which includes awareness of current policy issues, the ability to interpret and apply legislation in practice, the ability to structure a decision (task/work) using case law and literature and the ability to perceive facts and distinguish the essential from the insignificant
- Reasoning and persuasion skills
- Ability to decide (decisiveness)
- Ability to remain impartial and independent (ability to resist undue influence)
- Ability to conduct self-directed learning
- IT skills
- Case management skills (required if the selection includes preliminary training) etc.
2. Personal and psychological competences and skills
- Analytical thinking
- Logical thinking
- Emotional stability
- Oral expression
- Sense of duty and responsibility
- Ability to cope with the workload
- Ability to manage and organise work
- Curiosity to learn
- Awareness of personal strengths and weaknesses
- Ability to think creatively
3. Social competences and skills
- General social competencies
- Awareness of the environment
- Communication skills
- Conflict resolution skills
- Service orientation
- Team management
- Ability to work in a team
- Respectful treatment of others
- Ability to mediate
More on the methods available to check if a candidate for judicial office possesses these skills and competences is set out in a later part of this paper (II.3). However, it is important to stress that during the selection procedure all three of these competence groups should be assessed.
II.2. Recruiting and creating a poll of candidates
Until recently, this phase was mostly overlooked because the entire selection procedure was historically based on the presumption that being a judge is a highly desirable position and a highlight of a lawyer’s professional development path. The current reduction in the professional attractiveness of this judicial profession in some European countries due to uncompetitive wages and increasing workload requires this mindset to be challenged and ways of proactively increasing the pool of eligible candidates to be found. Otherwise, if there are insufficient candidates to choose from, then sophisticated criteria and procedures will be an end in themselves.
The following are the most important points to consider:
- Periodically evaluate the recruitment and selection system from the perspective of potential applicants (surveys of law students; evaluation of the clarity of applicable rules and procedures).
- It is important to ensure a high level of perceived fairness among those undergoing selection procedures. Otherwise, people may be deterred from participating in lengthy procedures they do not necessarily perceive to be fair, which will result in an even smaller pool of candidates in the future.
- Check whether the selection procedures are too cumbersome for potential candidates (e.g. if one of the steps is passing an exam for the judicial position, the exam should be of a practical nature, not a test of memory requiring extensive preparation).
- Think outside the box on how to target various groups of potential candidates in advance (e.g. the Netherlands, inspired by examples from professional recruitment for private firms, is actively targeting various groups of candidates via adverts in the main media etc.).
- Describe the tasks of a judge in a published profile in an attractive way, publish video interviews with prominent judges on why they enjoy their work and outline what a typical day looks like for a judge from the observer’s point of view (e.g. after organising a ‘Day with a Judge’ for law students).
II.3. Getting the persons shortlisted for the position
This is the main stage, which focusses on ways of checking which candidates among those eligible correspond to the detailed selection criteria, have the required competence and skills and are best suited to judicial office.
If this stage is not thoroughly thought through then even the most sophisticated list of criteria and competences will prove useless. Set out below are the most important guidelines for the creation of an up-to-date selection procedure and examples of best practice from various European countries.
First, alongside the criteria, all other aspects of the selection procedure (including the methods) need to be made public in advance. For example, if an exam will be used, an example of the exam should be provided on the website of the body responsible for selection. Such transparency will not only boost the credibility of justice, but also encourage people to participate in selection procedures. Each candidate and society as a whole should be convinced that any system for the recruitment, selection and appointment of judges is independent, fair, open, transparent and based on merit. Attention to requirements but not to methodology can cause doubts about the objectivity of procedures (e.g. raising the question of how ‘integrity’ is measured and how it can be ensured that these procedures are transparent and non-discriminatory in nature).
The main findings from comparative research of various European countries show that despite the variety of approaches there is a clear tendency towards transparency and ensuring the principle of non-discrimination.
The comparative research also confirms the need to seek balance between the transparency and objectivity of selection and appointment procedures vs the effectiveness and efficiency of the formation of the judicial corpus. Procedures which are too complex (as, for example, in the case of Lithuania) and too technocratic in their approach (e.g. Ukraine) can become an obstacle to effectively recruiting judges and ensuring the effective functioning of the judicial system.
In practice, procedures which are too long and difficult and which involve many stages, testing, examinations and interviews risk the best lawyers being reluctant to apply for judicial positions.
Professional knowledge and skills are best evaluated with the help of different methods depending on the selection model:
- Where judicial training (training in situ) is not a pre-requisite for the next stage of selection (e.g. in Lithuania), the best way of checking professional skills is a practical exam (in the form of writing a decision on common practical case situations, modelling court proceedings, references from previous workplaces, a test of analytical skills, interviews before a specific commission, etc.). However, it must be borne in mind that whether a person will be a good judge can only be established with more certainty after the person experiences what it means to render decisions on a day-to-day basis and to fulfil all judicial duties. In a system where there is no judicial training before becoming a judge, a thorough evaluation system for new judges needs to be installed in order to allow them to develop the required competences and understand their strengths and weaknesses.
- Where the prerequisite to becoming a judge is the practical training of the candidate, the best ways of selecting future judges are the opinions of their tutors, supervisors and trainers, regular interview with the trainee during the training, monitoring practical skills by filling in specific questionnaires, final interviews before specific commissions and more.
In order to increase the level of objectivity and eliminate conscious and/or unconscious bias, the subjects involved in the decision-making procedures of selecting judges also need to undergo specific training on how to conduct these procedures in a fair, transparent and non-discriminatory way, based on merit and quality information.
Personal skills such as motivation are best checked at first via a motivation letter. In order to avoid unconscious bias, the assessment of applicants’ motivation letters should be made in an anonymous (blinded) way (as is done in the Netherlands). Upon the first evaluation of motivation letters, the assessors should not know the age or gender of the applicants so as to allow them to concentrate on the motivation of the applicant, the facts of their previous legal practice and other experience in the field of law. Certain other information may be taken into account as well, such as if a candidate does not entertain political ambitions (judge independence).
Regarding other personal and psychological skills, the best scientific methods to check are deep psychological assessment, including an analytical thinking test, psychological assessment and interviews with specialists. It is important that if these competences are to be assessed in a more thorough manner, then this can only be done by specialists with the relevant expertise (either in-house or outsourced), but not by assessors or other non-professional personnel. The outsourcing of specialists for psychological assessment is currently used in Lithuania and the Netherlands. The use of specialised expertise is more costly, but provides a less biased portrait of candidates (although it should be not the main determinant in deciding who has the ability to be a judge).
If personal and psychological skills are not evaluated by the professional psychological evaluators, then the list of skills should be reduced to main competences and a clear explanation should be added on how compliance with the requirements will be measured. For example, pre-trained commission members will monitor roleplay and fill in unified questionnaires, references will be sought (in the same way for each candidate, using templates with instructions for those filling them out) and interviews (with questions decided on in advance). If there is no clarity on how to check one or another competence, then it is better to not use this competence as a criterion in the selection procedure in order to avoid bias and accidentally creating a non-merit based system which is easy to manipulate.
Social competences and skills are also best checked by trained personnel using dilemma tests, discussion simulations, roleplaying exercises, references and interviews.
In conclusion, the selection of judges should be based on merit and qualifications. It should be carried out by an independent body of experts, including members of the judiciary and, preferably, experts from other spheres so that the evaluation of candidates is comprehensive.
II.4. Appointing the selected persons
The final appointment from the list of selected candidates best suited to the job of a judge was not the focus of this research, because this is mostly a political question. The CCJE has noted different methods of appointment of judges in the Member States of the Council of Europe. These include appointment by a council for the judiciary or another independent body, election by parliament and appointment by the executive. All of these methods are viable but they should be accompanied by safeguards ensuring the independence of the judiciary. For example, the Dublin declaration states that if the government or head of state plays a role in the ultimate appointment of members of the judiciary, the involvement of a minister or the head of state does not in itself contend against the principles of independence, fairness, openness and transparency if their role in the appointment is clearly defined and their decision-making processes clearly documented, and the involvement of the government or head of state does not impact upon those principles if they give recognition to decisions taken in the context of an independent selection process. Moreover, it has also been defined as a standard in this field that where whoever is responsible for making the ultimate appointment (the government or head of state) has the right to refuse to implement the appointment or recommendation made in the context of an independent selection process and is not prepared to implement the appointment or recommendation, it should make known such a decision and state clearly the reason for it.
Our research shows that the majority of countries analysed have introduced a system for the appointment of judges in which a significant role has been designated to councils for the judiciary as a safeguard to the political influence of the executive and legislative in the procedure. The key principles of the appointment procedures are mostly established at the level of primary legislation.
Comparative research confirms the existence of a multitude of approaches to the selection, evaluation and promotion of judges in EU countries and abroad. Despite the variety of approaches there is a clear tendency towards transparency and ensuring the principle of non-discrimination.
Currently there is clear consensus in various countries at the European level that the selection of judges should be based on merit. This means that there should be objective selection criteria and transparent procedures ensuring a non-biased approach and safeguarding the independence of the judiciary.
Comparative research also confirms the need to seek balance between the transparency and objectivity of selection and appointment procedures vs the effectiveness and efficiency of the formation of the judicial corpus. Procedures which are too complex (as, for example, in case of Lithuania) and approaches which are too technocratic (e.g. Ukraine) can become an obstacle to effectively recruiting judges and ensuring the effective functioning of the judicial system. Another risk in procedures which are too long and difficult and which involve many stages, testing, examinations and interviews is that the best lawyers may be reluctant to apply for judicial positions.
In countries facing the new challenge of enlisting the best lawyers for judicial office, more focus should be placed on expanding the pool of potential candidates and making the selection procedures more attractive to them.
In order to avoid unconscious bias, ‘blind’ selection steps should be introduced wherever possible. Diversity in the range of persons available for selection should be encouraged, avoiding all kinds of discrimination.
Most countries acknowledge the importance of soft competences (psychological and social) in the selection of judges.
Selecting the best people is not the final step. Alongside the system of recruitment of judges, which ensures the selection of the best candidates with the best qualities, no less important is establishing a system for the monitoring of judges’ performance and the development of their skills in order to help judges avoid risks (including psychological burnt-out) and shortcomings and to take measures to manage these risks and improve their performance. To this end, the effective regular evaluation of judges’ performance is necessary.
 This article was developed within the framework of Project No. 2018-1-0662 ‘The Portrait of a Judge – a multi-dimensional model of competencies to be measured during the procedures of selection, evaluation and promotion of judges’ funded by the EEA and the Norway Grants Fund for Regional Cooperation. More information can be found online at https://judgeportrait.eu/.
 The Rule of Law Checklist (CDL‑AD(2016)007) adopted by the Venice Commission at its 106th Plenary Session (11-12 March 2016). Endorsed by the Ministers’ Deputies at the 1263th Meeting (6-7 September 2016) and by the Congress of Local and Regional Authorities of the Council of Europe at its 31st Session (19-21 October 2016). https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)007-e
 Project No. 2018-1-0662 ‘The Portrait of a Judge – a multi-dimensional model of competencies to be measured during the procedures of selection, evaluation and promotion of judges’ funded by the EEA and the Norway Grants Fund for Regional Cooperation. More information can be found online at https://judgeportrait.eu/. The project is ongoing, so the results are preliminary only. The final results of the project will be presented on its website on 30 January 2024 and summarised in the book Portrait of a Judge, which will be available through the website in e-format and on paper on request (subject to availability).
 ECHR Grand Chamber. CASE OF GUÐMUNDUR ANDRI ÁSTRÁÐSSON v. ICELAND (Application no. 26374/18). 1 December 2020.
 UN Human Rights Council, document A/HRC/11/41 of 24 March 2009.
 Committee of Ministers of the Council of Europe Recommendation CM/Rec(2010)12, para. 48. https://rm.coe.int/cmrec-2010-12-on-independence-efficiency-responsibilites-of-judges/16809f007d
 ECHR Grand Chamber. CASE OF GUÐMUNDUR ANDRI ÁSTRÁÐSSON v. ICELAND (Application no. 26374/18). 1 December 2020.
 See e.g. the statement of the Public Defender of Georgia, Ms Nino Lomjaria, to the ECHR in the case Gudmundur v Iceland . This statement provided an overview of the recent process for the selection and appointment of judges to the Supreme Court of Georgia, which had been subject to criticism both by her office and by various international bodies. The criticisms mainly centred around the lack of transparency in the appointment procedure and the absence of objective selection criteria, which seriously undermined the possibility of merit-based appointments.