CCJE-GT(2018)2

Strasbourg, 22 May 2018                                                                                                 

WORKING GROUP OF THE

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE-GT)

Report of the 34^th meeting

Strasbourg, 21 – 23 March 2018

Document prepared by the Secretariat

Directorate General I - Human Rights and Rule of Law

I.          INTRODUCTION

1.         The Working Group of the Consultative Council of European Judges (CCJE-GT) held its 34^th meeting in Strasbourg from 21 to 23 March 2018. The meeting was chaired by Ms Nina BETETTO (Slovenia), Vice-President of the CCJE.

2.         The agenda and the list of participants are appended to this report (Appendices I and II respectively).

II.       COMMUNICATION BY THE PRESIDENT, MEMBERS OF THE BUREAU AND WORKING GROUP OF THE CCJE

 

3.         Mr Duro SESSA (Croatia), President of the CCJE, opened the meeting by informing the members of the Working Group on the Bureau meeting, earlier in the morning, and the topics discussed. He informed in particular about his participation in the workshop organised by the European Network of Councils for the Judiciary (ENCJ) on 14 March 2018 in Brussels focusing on the assessment of the methodology and indicators used by the ENCJ to measure the independence and accountability of judicial systems in the EU member States[1].

4.         Mr Gerhard REISSNER (Austria) mentioned the study carried out by the ENCJ in this respect and the results presented – judges of all participating countries responded – there was a perception that independence was in danger, even in the countries which did not expect such answers. He underlined the importance of timely reaction by the CCJE, in cooperation with its observers, to attempts of undermining judicial independence in various member States.

5.         Mr Raffaele SABATO (Italy) mentioned that he was invited by a study group established by the Osnabrück University in Germany. With participation of members of the Constitutional Courts from Germany and other countries, as well as other participants, a strong concern was raised about the situation of the judiciary in Poland. He suggested that the CCJE Bureau should continue monitoring the situation in Poland.

6.         Mr SESSA also briefed the members of the Working Group on discussions of the Bureau regarding the responses to the questionnaire for gender equality, the preparation by the Secretariat of their compilation, and decision by the Bureau to forward the compilation to the Council of Europe’s Gender Equality Unit for their attention and coordination with them of further actions.

7.         As regards the forthcoming plenary meeting of the CCJE on 7-9 November 2018 in Zagreb, within the framework of the Croatian Chairmanship of the Committee of Ministers of the Council of Europe, Mr SESSA informed that it would be organised in the plenary hall of the City Council in Zagreb. The Working Group members thanked Mr SESSA[2] for this initiative and organisational efforts.

III.      PREPARATION OF THE CCJE OPINION NO. 21 ON JUDICIAL INTEGRITY – PREVENTING AND FIGHTING CORRUPTION IN THE JUDICIAL SYSTEM

 

8.         Ms BETETTO presented to the Working Group the analysis of responses to the questionnaire for the preparation of the Opinion No. 21, prepared by the CCJE expert, Dr Rainer HORNUNG^[3] (document CCJE(2018)2Prov2), as well as the draft structure for the Opinion, prepared by the Secretariat and revised by the Bureau (document CCJE-BU(2018)2Prov1). The Working Group members agreed that that these documents provided a good starting point for developing the text of the Opinion.

9.         Ms BETETTO also described the substance of discussions on the Opinion in the course of the Bureau meeting[4]. It was then decided to start with the general discussion followed by more substantive analysis.

10.      Dr HORNUNG introduced the main findings of the analysis of responses to the questionnaire: all member States refer to statutes, judicial integrity as a concept is composed of many rules, elements and behaviour lines. There is actual corruption which in fact may be quite low compared to the number of judges working in the country, and there may also be perceived corruption. The minority of member States are fortunate to have a long-standing tradition of being free from corruption. There are countries with few cases of corruption not affecting the public trust in the justice system. And there are countries where there is widespread perception of corruption among judges which may even be larger than the actual existing corruption. The vast majority of member States do not have specific statute on acceptance of a bribe by a judge – it’s the same as acceptance of a bribe by any other public official. There are different understandings of what are administrative sanctions. Instruments and mechanisms to safeguard judicial integrity may include specialised police and prosecutors and even specialised courts. The vast majority of member States have Councils for the Judiciary. The codes of ethics do not exist everywhere. Too low salaries of judges seem to be a major reason for corruption. There are also cuts of salaries and pensions in some member States. In the majority of member States, there is a prohibition for judges to be members of political parties.

11.      Upon start of general discussion, Mr REISSNER underlined two points: salaries and career; if somebody outside the judicial power tries to effectively influence these points, this should firmly be ruled out. The means to fight the corruption should be highlighted; we have to address the systemic corruption, both low and high level corruption.

12.      Mr Mats MELIN (Sweden) advised to highlight how the bodies fighting corruption were structured at national level, how judges themselves can be organised and act to combat corruption. There are several aspects to take into account, such as the mechanism introduced: having an internal court mechanism - somebody to report to as regards the corruption issues, interlocutor for judges for raising sensitive issues in the course of their everyday work. Perception of corruption in view of unfounded allegations of corruption is also another aspect. Finally, the culture of discussion and organised exchanges at regular intervals between judges – what challenges do we face, what means to overcome them etc. should also be examined.

13.      Mr Nils ENGSTAD(Norway) mentioned that fair assessment of public opinion among the court users should be made. The problem of systemic corruption must be addressed in a general way; the problem of corruption depends on how the corruption is in the society in general – the corruption is never isolated.

14.      Ms Anke EILERS (Germany) mentioned measures against perceived corruption which relate to the reaction of the public: the questions of transparency and better information to the public must be considered. Measures to be taken as regards the perceived as well as the actual corruption.

15.      Ms Aneta ARNAUDOVSKA (“The former Yugoslav Republic of Macedonia”) recalled that the Council of Europe Group of States against Corruption (GRECO) had done a lot of useful work, but we need to tackle this issue from the CCJE perspective, with reference to the Article 6 of the European Convention on Human Rights. What is really important is that the judiciary cannot only work on improving the culture but should also tackle the issue of public perception because there are judges who work properly but who still don’t have public trust.

16.      Mr SABATO supported the idea that it should be underlined that judges were responsible for corruption. Many of the corruption cases in Italy arise from colleagues’ reports. Many countries do not foresee specific statistics of judicial corruption but put in general crime. What is best for fighting corruption among judges? Transparency in particular is very important.

17.      Dr HORNUNG mentioned that it was fully understandable why the point in the  recommendations should be to get to judges themselves, promoting culture etc., countries should be invited to have judicial self-governing bodies with judges being more than a half in their composition.

18.      Ms BETETTO mentioned the concepts of so called soft and hard corruption and the question of delineation of where the soft corruption stops and the hard corruption starts. Perception of corruption should be studied: it seems that in new democracies with widespread perception of corruption, the corruption may be overstated (perceived as higher than it actually exists), whereas in old democracies, the corruption may be understated.

19.      Ms Kathrin KLETT (Switzerland) underlined that transparency was a very core issue, as well as its perception, linked to the transparency of the judicial decision-making process.

20.      At the end of the meeting, the Working Group agreed on the improved structure of the Opinion and entrusted Dr HORNUNG to prepare the first draft of the Opinion by 18 May 2018, after which it would be forwarded to all members of the Bureau and of the Working Group and would be considered during the meeting of the Working Group on 13-15 June 2018 in Porto.

IV.     OTHER ITEMS

21.      The members of the Bureau and of the Working Group expressed their appreciation for the invitation of the Supreme Court of Justice of Portugal and its generous support for the forthcoming meeting of the Working Group in Porto, and discussed the modalities of this meeting on 13-15 June 2018, as well as other events planned within this framework by the Supreme Court of Justice of Portugal.  

APPENDIX I

AGENDA / ORDRE DU JOUR

1.      Opening of the meeting / Ouverture de la réunion

2.      Adoption of the agenda / Adoption de l’ordre du jour

3.      Communication by the President, members of the Bureau and the Secretariat / Communication du Président, des membres du Bureau et du Secrétariat

4.      Preparation of the draft Opinion No. 21 on « judicial integrity – preventing and fighting corruption in the judicial system » / Préparation du projet de l’Avis No. 21 sur « l’intégrité judiciaire - prévenir et combattre la corruption dans le système judiciaire »

5.      Any other business / Divers

APPENDIX II

LIST OF PARTICIPANTS

MEMBERS OF THE CCJE-GT / MEMBRES DU CCJE-GT

Mr Orlando AFONSO, Juge à la Cour Suprême, ALMADA, PORTUGAL

Ms Aneta ARNAUDOVSKA, Judge, Director of the Academy of Judges and Prosecutors, SKOPJE, “THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” / “L’EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE” (Gender equality rapporteur / Rapporteur pour la questions de parité)

Ms Nino BAKAKURI, Judge, Supreme Court, TBILISI, GEORGIA / GÉORGIE

Ms Anke EILERS, Presiding Judge, Court of Appeal, COLOGNE, GERMANY / ALLEMAGNE

Mr Nils ENGSTAD, Judge, Hålogaland Court of Appeal, TROMSØ, NORWAY / NORVEGE

 

Mr Viktor GORODOVENKO, Judge, Constitutional Court, KYIV, UKRAINE

Ms Kathrin KLETT, Juge fédéral suprême, 1ère Cour de Droit Civil, LAUSANNE, SWITZERLAND / SUISSE

Ms Canòlic MINGORANCE CAIRAT, Juge, Seu de la Justicia Av Tarragona, ANDORRA LA VELLA,  ANDORRA / ANDORRE

Mr Gerhard REISSNER, President of the District Court of Floridsdorf, VIENNA, AUSTRIA / AUTRICHE

Mr Raffaele SABATO, Judge, Supreme Court of Cassation, ROME, ITALY / ITALIE

OTHER PARTICIPANTS / AUTRES PARTICIPANTS

Ms Maja ROZMAN, Judge, Secretary of the Ethical Commission attached to the HJC of Slovenia, LJUBLJANA, SLOVENIA / SLOVENIE

Ms Erin JACKSON, Researcher, Faculty of Law, Economics and Governance, Institute of Jurisprudence, Constitutional and Administrative Law, Utrecht University, UTRECHT, NETHERLANDS / PAYS-BAS

SCIENTIFIC EXPERT / EXPERT SCIENTIFIQUE

Dr Rainer HORNUNG, Deputy Chief Prosecutor, Lörrach Prosecution Office, Former Director of the German Judicial Academy, LÖRRACH, GERMANY / ALLEMAGNE

MEMBERS OF THE CCJE-BU / MEMBRES DU CCJE-BU

Mr Duro SESSA, President of the Supreme Court, ZAGREB, CROATIA / CROATIE

(President of the CCJE / Président du CCJE)

 

Ms Nina BETETTO, Judge, Supreme Court, LJUBLJANA, SLOVENIA / SLOVENIE

(Vice-President of the CCJE / Vice-Président du CCJE)

Mr George BIRMINGHAM, Judge, Court of Appeal, DUBLIN,IRELAND / IRLANDE

Mr Mats MELIN, President of the Supreme Administrative Court, STOCKHOLM, SWEDEN / SUEDE

COUNCIL OF EUROPE’S SECRETARIAT /

SECRETARIAT DU CONSEIL DE L’EUROPE

Directorate General I – Human Rights and Rule of Law / Division for the Independence and Efficiency of Justice

Direction générale I – Droits de l’Homme et Etat de Droit / Division pour l’indépendance et l’efficacité de la justice

E-mail: [email protected]

Mr Stéphane LEYENBERGER, Head of the Division, Secretary of the CCJE / Chef de la Division, Secrétaire du CCJE

Tel: + 33 (0)3 88 41 34 12, E-mail: [email protected]

Mr Artashes MELIKYAN, Co-Secretary of the CCJE / Co-Secrétaire du CCJE

Tel: + 33 (0)3 90 21, E-mail: [email protected]

Ms Despina TRAMOUNTANI, Assistant / Assistante

Tel. +33 (0)3 90 21 62 95, E-mail: [email protected]

Ms Annette SATTEL, Administration and Networks / Administration et réseaux

Tel: +33 (0)3 88 41 39 04, E-mail: [email protected]

TRAINEE / STAGIAIRE

Ms Fiona MALAJ

INTERPRETERS / INTERPRETES

Ms Chloé CHENETIER

Mr Nicolas GUITTONNEAU

Ms Bettina LUDEWIG