Research Papers

1. All throughout Europe, common fundamental features of a court of law are functional independence and impartiality in judicial practice. Consequently, Art. 6 para. 1 ECHR guarantees an ‘independent and impartial tribunal established by law.’ Its interpretation is based on French, British and German courts`s history (EGMR 21.2.1975 (Golder v. Großbritannien) 18-A, at 14). 2. In France, interestingly, the juge naturel is not a distinct constitutional guarantee of 1789. Rather it has its roots in the pre-revolutionary conflict between monarchic centralism and the estates’ self-administration. Surprisingly, after the restoration of the French crown, pre-revolutionary attitudes towards the juge naturel persisted. From 1790 onwards to modern times, the juge naturel remained a counterpart to judicial commissions. 3. The common law procedure, focusing the judge on case management, makes any provision containing a guarantee of legally competent judges redundant. The rule of law restricts the prerogative: It does not guarantee a certain court or judge for a case, but hinders prerogative courts. 4. In Germany, early constitutional provisions establish the monarchic responsibility to deny not arbitrarily access to ordinary courts to those who seek justice, without, of course, defining the limits of arbitrariness for encroachments by the sovereign. Under the pre-1848 police state reprisals, liberal literature, influenced by Kant’s philosophy, gave rise to the 1849-constitutional concept of the guarantee of legally competent judges and influenced the subsequent constitutional regulations until art. 101 section 1 sentence 2 Fundamental Law of 23rd May 1949. 5. The historical comparison within the art. 6 section 1 ECHR reveals a Common European Tradition of the protection against external interferences with the judiciary, and no consensus about the inner-court organization.