Strasbourg, 18 March 2009

CEPEJ-GT-EVAL(2009)3

European Commission for the Efficency of Justice (CEPEJ)

Working group on the evaluation of judicial systems (CEPEJ-GT-EVAL)

12th meeting, 12-13 March 2009 - Meeting report

Report prepared by the Secretariat

Directorate General of Human Rights and Legal Affairs

The CEPEJ-GT-EVAL: §  agreed to propose that the professional organisations with observer status with the CEPEJ conduct in-depth studies based on the evaluation report on the themes of “single judges and panels of judges” and “lawyers’ role in judicial proceedings”; §  agreed to ask the Association Alumni of the Centre for Interdisciplinary Postgraduate Studies (ACIPS) from Bosnia and Herzegovina to conduct a study on “organisation of court clerk offices”, in close liaison with the EUR; §  discussed the issue of the organisation of courts and their geographical distribution (“judicial map”) and recommended that the CEPEJ look closely at the issue, taking account of the new concepts in the debate about justice systems, in particular the use of new information technologies and the introduction of certain aspects of new public management; §  proposed some marginal amendments to the evaluation scheme and the explanatory note; §  prepared the next cycle of evaluation of judicial systems and the next cycle of peer evaluation of judicial statistics; §  discussed the development on a trial basis of a system for overall measurement of the performance of judicial systems, based on indicators calculated from CEPEJ data; §  was informed about developments concerning the evaluation of justice within the European Union and underlined the need for the CEPEJ to be closely involved here; §  proposed that the theme of the CEPEJ study session (9 December 2009) should be switched to measuring the performance of judicial systems.

1.    The Working Group on the Evaluation of Judicial Systems (CEPEJ-GT-EVAL) of the European Commission for the Efficiency of Justice (CEPEJ) held its 12th meeting at the Council of Europe in Strasbourg on 12 and 13 March 2009 with Mr Jean-Paul JEAN (France) in the Chair.

2.    The agenda and the list of participants appear respectively in Appendices I and II to this report.

1.    Information by the Secretariat, members and the Secretariat

3.    The Chair welcomed the presence on an exceptional basis of a delegation of Spanish court clerks, who were making a study visit to Strasbourg on the initiative of Elsa GARCIA MALTRAS de BLAS.  He underlined the importance of clerks for the efficiency and quality of judicial systems.

4.    He also welcomed the presence of representatives of the European Parliament and the Council of the European Union, which demonstrated the two bodies’ interest in the evaluation of justice and the work of the CEPEJ.  He hoped that close co-operation could continue between the CEPEJ and the interested bodies in the European Union.

5.    The Secretariat pointed out that the plenary meeting of the CEPEJ had confirmed that the evaluation cycle would continue as proposed by the CEPEJ-GT-EVAL.

6.    The Chair announced that he and the CEPEJ Secretary had attended a colloquy held by Aix-Marseille Law Faculty on the emergence of a European judicial culture (Aix-en-Provence, 16-17 January 2009), at which the CEPEJ evaluation report had been presented and discussed.

7.    He would also be taking part in a meeting for the consular corps of EU member states being held by the Consulate of the Czech Republic in Paris on 26 March 2009 during the Czech Presidency of the EU.  The meeting would be an opportunity to present the CEPEJ’s work on the evaluation of justice.

8.    Frans VAN der DOELEN (Netherlands) said that he was co-ordinating the preparation of a scientific journal which would include ten articles by independent experts analysing the data presented by the CEPEJ and the report.

9.    Beata GRUSZCZYŃSKA (Poland) underlined that the CEPEJ’s work served as a benchmark for the activities of the European Commission’s group on criminal statistics.

10.  Pim ALBERS announced that he had represented the CEPEJ at the following meetings:

§  World Bank Conference for Black Sea region countries (Poverty reduction and inclusive growth, 23-24 February 2009, Athens, Greece)

§  World Bank learning sessions (videoconferencing), regional evaluation on the basis of the CEPEJ 2008 evaluation report for Croatia and Serbia (November, December 2008)

§  Working Group on Quality Management of the European Network for Councils for the Judiciary (12-13 February 2009, Riga, Latvia).

2.    In-depth studies to be based on the 2008 evaluation report

Single judges and panels of judges / lawyers’ role in judicial proceedings / organisation of court clerk offices

11.  The Secretariat announced that it had not received any research projects concerning the themes of “single judges and panels of judges” and “lawyers’ role in judicial proceedings”.  It was agreed that the Secretariat would make direct contact with the relevant professional associations, ie the European Association of Judges and the MEDEL on the one hand and the CCBE on the other, and propose that they conduct the studies directly, if necessary with researchers with whom they were in the habit of co-operating.

12.  Frans VAN der DOELEN also proposed consulting the Netherlands Council for the Judiciary, which might be interested in providing input on the issue of “single judges and panels of judges”.

13.  The Secretariat presented the study project submitted by the Association Alumni of the Centre for Interdisciplinary Postgraduate Studies (ACIPS) from Bosnia and Herzegovina concerning the organisation of court clerk offices.  The CEPEJ-GT-EVAL agreed to ask the research team to continue its work as proposed, in close liaison with the European Union of Rechtspfleger (EUR), whose representative confirmed his organisation’s interest in the study and willingness to contribute.

It was agreed that the “Green paper for a European Rechtspfleger” prepared by the EUR would have to be taken into account in the study.  The CEPEJ-GT-EVAL agreed that Adis HODZIC, Elsa GARCIA MALTRAS de BLAS and Georg STAWA would be the contact experts for the researchers conducting the study.

Jean-Paul JEAN said that the former director of the French clerks’ college, Claude ENGELHARD, was also willing to contribute to the study.

14.  It was proposed that CEPEJ-GT-EVAL members should send the Secretariat any studies in their countries concerning the whole range of study themes selected.

Court organisation: “judicial map”, size and specialisation of courts, allocation of tasks and case categories among the courts, internal organisation of courts

15.  Jean-Paul JEAN presented the reform of the geographical distribution of courts (“judicial map”) in France.

16.  In the ensuing discussions, the experts underlined that the issue now needed to be tackled from the angle of the new concepts in the debate about justice systems, in particular the use of new information technologies and the introduction of certain aspects of new public management.  For instance, it was no longer necessarily correct to believe that the justice system was not close to the public unless there was a dense network of small courts.

Frans VAN der DOELEN said that the Netherlands Council for the Judiciary had conducted a forward study on the future of the justice system.

17.  The experts underlined the trend in Europe towards a reduction in the number of courts, which had been highlighted in the evaluation report.  However, they agreed that the report did not provide enough information to enable a detailed analysis to be conducted at present.  The issue ought to be treated differently from the process adopted for the in-depth studies, as it was fundamental to the efficiency and quality of justice.

18.  They recommended that the CEPEJ regard it as a separate area of activity:

§  they noted the desirability for the CEPEJ of promoting the approach of “one-stop” service counters in court entrances, where users could be advised and informed about the procedures that concerned them;

§  the focus could be on an ideal outline for justice in 10 years’ time, with a distinction being made between judicial services as a whole and actual hearings.

19.  The themes of the CEPEJ’s next study session could be adapted to take account of the above.

3.    Comparison of judicial systems by clusters of countries

20.  The CEPEJ-GT-EVAL agreed that the CEPEJ evaluation report should primarily remain a general presentation of the operation of the justice system in all member states.  Analysis of groups of comparable countries could be conducted on a secondary basis:

§  within the report itself to illustrate the fact that only comparable countries should be compared;

§  in regional studies.

4.    Adaptation of the evaluation scheme and the explanatory note

21.  In the light of the comments prepared by the expert, Marta ZIMOLAG, and other remarks from the previous evaluation cycle, the CEPEJ-GT-EVAL made some marginal amendments to the evaluation scheme and the explanatory note.  The revised versions would be submitted to the CEPEJ’s plenary meeting (10-11 June 2009).

22.  The Secretariat would go through the electronic version of the scheme to deal with the bugs which had been noted during the previous cycle.  An attempt should also be made to display the explanatory notes corresponding to individual questions in visual form so that the correspondents could consult them when reading or replying to the questions.

5.    Implementation of the next evaluation process

23.  The CEPEJ-GT-EVAL recommended that the Secretariat issue a call for candidatures in autumn 2009 for a statistician who could work on processing the data in Strasbourg from January to June (or September) 2010 under arrangements similar to those adopted for Marta ZIMOLAG during the previous cycle.

24.  To make up for the departure of Pim ALBERS, a call for a secondment could be issued.  If that proved to be impossible, it would be necessary to employ the services of an expert to prepare the analytical part of the 2010 report.

25.  The CEPEJ-GT-EVAL experts were asked to study the possibility of approaching relevant experts in their countries.

           

6.    Peer evaluation co-operation process

26.  Following the discussions held at the 12th plenary meeting of the CEPEJ and in the light of the contacts between the Secretariat and the member states to which evaluation visits might be made in 2009, the CEPEJ-GT-EVAL agreed that three peer visits to evaluate judicial statistics could be conducted in 2009:

§  to Malta on 18-19 May; the visit would also provide an opportunity to implement the targeted co-operation activity requested by Malta to evaluate the operation of its judicial system;

§  to the Russian Federation, if possible in the autumn; the Russian Federation had confirmed its agreement in principle to such a visit;

§  to Germany, subject to confirmation by the German authorities; failing that, it was proposed that it be suggested that the Moldovan authorities receive a visit during 2009.

27.  The CEPEJ-GT-EVAL believed that the “peers” conducting the evaluation should be CEPEJ-GT-EVAL members, who were most familiar with the process.  They agreed that, at the specific request of the countries to be visited in the course of the year, an expert from one of the three countries could take part in the two other annual visits.

7.    Definition of CEPEJ court performance indicators

28.  Adis HODZIC presented a research activity which he had conducted on a trial basis with 27 indicators defined and calculated using data from the CEPEJ report – in particular, the replies to question 88 in the scheme.  These were performance indicators calculated for judicial systems, not gross variables or statistics compared with one another.  With this system, which incorporated deviations from the average, it was possible to smooth out interpretation errors related to the comparison of gross data.

29.  The experts acknowledged that it would be useful to include the concept of deviations from the average in the next evaluation report and also to work by quantile or quartile in relation to the average.

30.  They indicated their great interest in the project, which would make it possible to measure, compare and analyse the performance of judicial systems using an unparalleled method.  However, they underlined the need never to lose sight of the imperatives of the quality of judicial systems when analysing indicators of this kind.

31.  They agreed to continue the pilot activity to measure performance using the proposed method so that it could be tested in greater depth.  It was proposed that the method be presented and discussed at the CEPEJ’s next study session.

8.    Co-operation with the European Union

32.  The Secretariat reported on the debate under way in the European Union concerning the evaluation of justice systems.  This area would probably be included in the Stockholm Programme, which would set out the European Union’s next priorities in the area of justice, freedom and security in December.  This priority was also reflected in the initiative by the Minister of Justice of the Netherlands[1], which was discussed by EU member state JHA/JFS advisers in the presence of the CEPEJ Secretariat on 18 February 2009.  The CEPEJ’s activities were set out in detail at the meeting.

33.  The experts agreed that the CEPEJ needed to take a clear stance here at the earliest opportunity, making sure that the various stakeholders involved in preparing and adopting the Stockholm Programme were duly informed of the CEPEJ evaluation process and the work of the SATURN Centre.  It was necessary to be proactive and generate political will to take full account of the CEPEJ mechanisms in national capitals and among the technical experts responsible for drawing up the Stockholm Programme.

34.  It was underlined that the mechanisms developed by the CEPEJ should serve as benchmarks for developing a process for evaluating justice specific to the European Union.  The European Union would need to be able to draw maximum benefit from these mechanisms which had already been successfully put in place.

35.  The Secretariat said that it was in close contact with the Ministry of Justice of the Netherlands, the Swedish authorities (next EU Presidency) and the European Commission concerning the matter.

36.  It was proposed that the CEPEJ President write to the CEPEJ members in the 27 EU member states asking them to make appropriate contacts in their capitals and the national delegations in Brussels so as to inform them of the CEPEJ’s work.  A specific debate could be held at the CEPEJ’s plenary meeting on 10 and 11 June, to which representatives of the appropriate level from the Swedish EU Presidency, the Ministry of Justice of the Netherlands, the European Commission, the Council of the EU and the European Parliament could be invited.

37.  The representative of the Secretariat of the European Parliament Civil Liberties, Justice and Home Affairs Committee (LIBE) said that a proposal for a recommendation on the development of criminal justice within the European Union, which made specific reference to the work of the CEPEJ and the need not to duplicate the work on the evaluation of justice, should be adopted at the end of April.

The representative of the Secretariat of the Council of the European Union underlined the strategic importance of the CEPEJ’s work for the future development of the evaluation of justice within the EU.  The CEPEJ would be welcome to submit a contribution in connection with the preparation of the Stockholm Programme.

9.    Preparation of the study session (9 December 2009) on the funding of courts

38.  The CEPEJ-GT-EVAL proposed that the theme of the CEPEJ’s study session scheduled for 9 December 2009 should be switched to measuring the performance of judicial systems, which involved some degree of change in culture for judicial practitioners.

 

39.  The session could focus on the following issues:

§  how could the performance of courts and judicial systems be measured and compared?

§  was there a link between the size of courts and the performance of the judicial system (debate concerning the geographical distribution of courts)?

40.  In particular, the programme could include the following:

§  Jean-Paul JEAN offered to prepare the introduction to the session, based on the application to justice of new public management methods employed in other parts of the public sector;

§  Frans VAN der DOELEN and Georg STAWA could explain the systems for measuring court performance implemented in the Netherlands and Austria;

§  a CEPEJ-GT-QUAL expert could make a presentation on how to measure the quality of courts;

§  an expert from the Steering Group of the SATURN Centre could make a presentation on measuring the performance of courts in terms of time management;

§  Adis HODZIC could present the concepts of clearance rate and distribution time, as well as an experimental analysis tool for overall measurement of the performance of judicial systems.

 

Annexe I

AGENDA / ORDRE DU JOUR

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

11.          Information by the Secretariat / Information du Secrétariat

12.          In-depth studies to be conducted from the 2008 Evaluation Report / Etudes approfondies à conduire sur la base du rapport d'évaluation 2008

a.     Single judge and panels of judges / the role of lawyers in judicial proceedings / the organisation of the court clerk office: hearing of the representatives of the research teams

Juge unique et collégialité / le rôle des avocats dans les procédures judiciaires / l’organisation des greffes: audition des représentants des équipes de chercheurs

b.    Court organisation: judicial map, size and specialization of courts, allocation of tasks and case categories among the courts, internal organisation of courts: organisation of the work to be carried out by the experts of the CEPEJ-GT-EVAL  

L’organisation des tribunaux : carte judiciaire, taille et la spécialisation des juridictions, distribution des tâches et des catégories d’affaires entre les juridictions, organisation interne des juridictions: organisation du travail à réaliser par les experts du CEPEJ-GT-EVAL

13.          Comparison of judicial systems according to clusters of countries / Comparaison de systèmes judiciaires en fonction de groupes de pays

14.          Adaptation of the Evaluation scheme and its explanatory note / Adaptation de la Grille électronique d'évaluation et de sa Note explicative 

15.          Implementation of the next evaluation process / Mise en oeuvre du prochain processus d'évaluation

           

16.          Peer evaluation cooperation process / Processus de coopération à travers une évaluation par les pairs

17.          Towards the definition of CEPEJ court performance indicators / Vers la définition d'indicateurs CEPEJ pour la performance des tribunaux

18.          Cooperation with the European Union / Coopération avec l'Union européenne

19.          Preparation of the Study session (9 December 2009) on the funding of courts / Préparation de la session d'étude (9 décembre 2009) sur le financement des juridictions

20.          Any other business / Questions diverses

Annexe II

List of participants / Liste des participants

EXPERTS

Fausto de SANTIS, Directeur Général au sein du Bureau de l’organisation judiciaire, Ministère de la Justice, ROME, ITALIE (President of CEPEJ / Président de la CEPEJ)

Elsa GARCIA-MALTRAS DE BLAS, Procureur, Conseillère à l’Unité d’entraide, Direction Générale des Relations avec l’Administration de la Justice, Ministère de la Justice, MADRID, ESPAGNE ;   

Beata Z. GRUSZCZYŃSKA, Institute of Justice, Ministry of Justice, WARSAW, POLAND

Adis HODZIC, Head of the Budget and Statistics Department, Secretariat High Judicial and Prosecutiorial Council of Bosnia and Herzegovina, SARAJEVO, BOSNIA and HERZEGOVINA

Jean-Paul JEAN, Avocat Général près la Cour d’Appel de Paris, Professeur associé à l’Université de Poitiers, Parquet Général, PARIS, FRANCE (President of the CEPEJ-GT-EVAL / Président du CEPEJ-GT-EVAL)

Georg STAWA, Public Prosecutor, Directorate for Central Administration and Coordination (Dept. PR1), Federal Ministry of Justice, VIENNA, AUSTRIA

Dražen TRIPALO, Judge, Criminal Department, Supreme Court of the Republic of Croatia, ZAGREB, CROATIA

Frans van der DOELEN, Programme Manager of the Department of the Justice System, Ministry of Justice, THE HAGUE, THE NETHERLANDS

OBSERVERS / OBSERVATEURS

European Union of Rechtspfleger / Union européenne des greffiers de justice et Rechtspfleger

Harald WILSCH,  Treasurer of E.U.R., Amstgericht München, MÜNCHEN, GERMANY

EUROPEAN COMMISSION / COMMISSSION EUROPEENNE : Apologised / Excusée

EUROPEAN PARLIAMENT(LIBE COMMISSION) / PARLEMENT EUROPEEN (COMMISSION LIBE)

Claudia GUALTIERI, Parlement européen, LIBE Secretariat, BRUXELLES

COUNCIL OF THE EUROPEAN UNION / CONSEIL DE L’UNION EUROPEENNE

Luca De Matteis, Secrétariat Général du Conseil de l'Union européenne, DG H - Unit 2 B, BRUXELLES

World Bank / Banque mondiale: Apologised/ Excusée

DELEGATION OF COURT CLERKS FROM SPAIN / DELEGATION DE GREFFIERS D'ESPAGNE

Maria Jose Lourdes ESCOBAR BERNARDO, Greffier, Legal Adviser, Centre for Judicial Studies

Nuria Martin GARCIA: Greffier, Juvenile Court 4, MADRID

Angela CASADO DIAGO, Greffier en Chef, LEON

Socorro Aguado RAMO, Greffier Investigative Court 26, MADRID

Pedro Lozano MUÑOZ  Greffier, Investigative Court 1, MURCIA

Jose Jaime DOPEREIRO RODRIGUEZ, Greffier, Labour Court 2, OURENSE

SECRETARIAT

Directorate General of Human Rights and Legal Affairs /

Direction générale des droits de l’Homme et affaires juridiques

Justice Division / Division de la Justice

Fax: +33 3 88 41 37 43 - E-mail: [email protected]

Stéphane LEYENBERGER, Secretary of the CEPEJ / Secrétaire de la CEPEJ, Tel : +33 3 88 41 34 12, e-mail: [email protected]

Pim ALBERS, Special Advisor to the CEPEJ/ Conseiller spécial auprès de la CEPEJ, Tel: +33 88 41 47 74, e-mail: [email protected]

Jean-Pierre GEILLER, Documentation / Documentation Tel : +33 3 88 41 22 27, e-mail : [email protected]

Sandrine MAROLLEAU, Communication / Communication, Tél: +33 3 90 21 52 08, e-mail: [email protected]

Elisabeth HEURTEBISE, Assistante, Tel : +33 3 88 41 35 54, Fax : +33 3 88 41 37 45, e-mail: [email protected]

Interpreters / Interprètes

Rebecca BOWEN-YOBE

Sally  BAILEY-RAVET

Didier JUNGLING

Annexe III

Meeting of Experts on evaluation in the JHA area: 18 February 2009 Dutch contribution

Enhancing rule of law assessment in the field of EU judicial cooperation in criminal matters

1. Introduction

The principle of mutual recognition in the field of EU judicial cooperation in criminal matters is operationally premised on the continuing confidence of the authorities of each Member State that the authorities of other Member States act within a common conception of the rule of law. In order to validate this mutual trust, various monitoring and evaluation mechanisms exist, both within the EU and the Council of Europe. Indeed, different aspects of Member States’ performance with regard to themes such as access to justice, integrity of judicial and other public officials, and the fight against corruption and respect for individual rights more generally are being assessed on a continuing basis. This thematic and treaty/legislative instruments-based monitoring and evaluation within the scope of the EU field of judicial cooperation in criminal matters, and particularly that carried out by the Council of Europe, has led to very valuable information about aspects of the national state of the rule of law. Any future monitoring and evaluation activities should therefore cooperate with these Council of Europe mechanisms, and build upon their rich experience.

Yet, the evaluation and monitoring practice, and in particular its follow-up, also faces obstacles. These obstacles merit a renewed exchange of views. Evaluation and monitoring mechanisms have been largely developed on a measure-by-measure and theme-by-theme basis, and in different institutional contexts. As a result, the assessment system as a whole now shows signs of being a somewhat partial, disconnected and fragmented set of flanking measures of the mutual recognition principle. Therefore, it is questionable whether the substantial relevance of, and practical follow-up to the existing evaluation and monitoring efforts reflects the consensus as to the importance of mutual recognition. The elaboration of the Stockholm Programme offers an opportunity to create a more coherent, more focused, more effective and more operational rule of law assessment practice in the future.

This discussion paper first characterises the current situation with regard to rule of law assessment concerning EU judicial cooperation in criminal matters. It then goes on to provide some first ideas regarding how, and on what basis, the current system of monitoring and evaluation could be enhanced.

2. Current monitoring and evaluation within the scope of EU judicial cooperation in criminal matters: the need for enhancement

Inter-related aspects of the national rule of law that are relevant for mutual trust in field of EU judicial cooperation in criminal matters could be distinguished as follows:

1.         effectiveness of judicial process and system, including integrity of judicial and other public officials (e.g. access to justice, length of procedure, fight against corruption).

2.         protection of individual rights (e.g. treatment in prisons).

These various topics are already being assessed by various monitoring and evaluation systems that function in parallel. Apart from the UN and OSCE context, in particular the Council of Europe accommodates various different monitoring and evaluation mechanisms, such as the ECtHR, European Commission for the Efficiency of Justice (CEPEJ), GRECO, CPT, Venice Commission. The existence, overlaps and relevance of each of these non-EU rule of law assessment activities has been well-documented, particularly in the context of the European Commission consultation on the setting up of the EU Fundamental Rights Agency[2].

In parallel, various monitoring and evaluation activities exists in the specific context of EU judicial cooperation in criminal matters. In some instances, evaluation and monitoring is instrument-based (e.g. in the case of the European Arrest Warrant, mutual legal assistance). On other occasions, evaluation and monitoring takes place on a thematic basis evaluation (e.g. in the case of evaluation at national level of Union and other international acts and instruments in criminal matters[3], Schengen cooperation, information exchange of Member States with Europol and Member States with each other, etc.).

Finally, evaluation of aspects of the rule of law relevant to cooperation in criminal matters may take place through national human rights institutions. However, any findings are not usually communicated across borders.

The need for reinforcing mutual trust in the field of EU judicial cooperation in criminal matters has often been stressed[4]. Moreover, the need for a form of enhanced assessment as flanking measure of mutual recognition has been frequently repeated in the context of (reactions to) specific legislative proposals and discussions of mutual recognition more generally[5]. Clearly, the need for enhanced rule of law assessment is widely felt. In particular, although particularly Council of Europe monitoring work (such as that of CEPEJ and CPT) has led to very valuable findings concerning aspects of the national rule of law, the follow-up to the findings of these evaluation and monitoring exercises has not been sufficient. There is considerable scope for improvement here.

Meeting of Experts on evaluation in the JHA area: 18 February 2009 Dutch contribution

In other words, the various aspects of the national rule of law that underlie mutual recognition in EU judicial cooperation in criminal matters could be better assessed if the current evaluation and monitoring efforts would become:

1. more focused, more coherent, and more comprehensive: The current assessment efforts in the field of EU judicial cooperation in criminal matters make for a fragmented picture[6].5 Different topics and aspects of the rule of law are assessed by way of different methods. Comparability of data to be used for the assessment should be ascertained, and data requested should be harmonised with a particular eye on the usefulness of the assessed data for practice. Repeatedly identified obstacles should be addressed more comprehensively. 2. more operative, and more effective through a better follow-up: Overlapping issues subject to various different assessments could be evaluated jointly. Duplication with other monitoring and evaluation efforts should however be avoided and administrative burdens at the national level minimised[7]. Moreover, assessment of national implementation with regard to legislative instruments would gain in credibility if the composition of evaluation panels would reflect a measure of detachment from the national setting to be evaluated. This would also strengthen follow-up to the findings of monitoring and evaluation modalities, which currently faces weaknesses.

In the remainder of this discussion paper, ideas will be presented to enhance monitoring and evaluation in the area of EU judicial cooperation in criminal matters. In line with the Commission Discussion Paper for the Meeting of Experts on evaluation in the JHA area, we will first provide a (non-exhaustive) number of ideas about different aspects of enhancing rule of law assessment by drawing on the useful distinction between the scope, methodology and implementation (i.e. institutional set-up) of the envisioned evaluation and monitoring system. We will also add the element of creating a modality to ensure follow-up to the findings of the enhanced rule of law assessment system.

3. Dutch ideas for an enhanced rule of law assessment system in the area

of EU judicial cooperation in criminal matters

a. Starting-point

At the outset, in considering enhancement options, one needs to be aware of the need to avoid unnecessary duplication of existing rule of law assessment systems. On the other hand, an appropriate rule of law assessment system in the context of EU judicial cooperation in criminal matters, and the modalities put in place to guarantee follow-up to its findings, needs to be specific to the high standard set as a minimum basis for the application of mutual recognition as an operational concept[8].

Keeping this in mind, our envisioned rule of law assessment system that would confront the

various obstacles that currently hamper evaluation and monitoring activities in the field of EU judicial cooperation in criminal matters would be one that:

(1) uses as much as possible findings from existing thematic, as well as treaty/instrument-specific evaluation and monitoring activities within and outside the EU setting, and other resources, (2) ensures comparability of this data and then analyses the totality of this information, (3) identifies topics and national practices that are relevant for mutual trust in the area of EU judicial cooperation in criminal matters and would therefore benefit from further thematic assessment, and (4) includes a form of follow-up to the outcome of these thematic assessments.

b. Scope, methodology and institutional set-up of an enhanced rule of law

assessment mechanism

-Scope

As indicated previously, both the effectiveness of the judicial process and system, including

integrity of judicial and other public officials, and the degree of protection of individual rights are relevant aspects of the rule of law in each EU Member State. In the context of EU-wide judicial cooperation in criminal matters, the state and quality of the rule of law in one Member State has become dependent on the state and quality of the rule of law in other Member States. The mutual dependence with regard to the quality of the legal system and the rule of law therefore goes beyond what is currently (already) covered by EU law. Therefore, apart from continuing to evaluate and monitor specific instruments and themes in the EU context, the assessment should also include a focus on national practices in so far as these are relevant to the functioning of EU cooperation as well.

-Methodology

In considering how evaluation could be structured, it is first of all important that comparability of findings of existing evaluation and monitoring mechanisms, and from possible further sources, be ensured. Moreover, the EU specific assessment needs to draw on output of international and non-EU European assessments, particularly that of the Council of Europe. With regard to assessing the effectiveness of the judicial process and system, consistent drawing on the Council of Europe’s CEPEJ sould be considered. Moreover, an EU integrated analysis and follow-up of assessments of Member States’ individual rights protection compliance within the scope of EU judicial cooperation in criminal matters as already undertaken with regard to all EU Member States outside the institutional context of the European Union (e.g. output of United Nations and Council of Europe based human rights monitoring bodies). Complementary EU specific evaluation and monitoring could be considered, given the depth of the EU cooperation.

With regard to the stage in which the enhanced assessment would identify elements and national practices that would therefore benefit from further programmatic assessment, a thematic approach to assessment could also be combined with recommendations to countries. Moreover, rather than continuing monitoring and evaluation based on clauses of specific instruments or themes, the possibility of an integrated approach to assessment could be considered, e.g. by the joint monitoring of (overlapping aspects of) several instruments at once.

-       Institutional set-up

-      

With regard to the institutional architecture of an enhanced rule of law assessment system, it is important that the composition and set-up of a monitoring and evaluation entity – be it in the form of a restructuring of an existing monitoring mechanism, or a body that would need to be newly set up – should be characterised by multidisciplinarity, independence, and continuity. A strong involvement of the recently set up Justice Forum would be beneficial, particularly given its mandate to offer a perspective from practice.

Moreover, with a view to ensuring the effectiveness of the enhanced rule of law assessment, the assessment would need to culminate in concrete Council recommendations to Member States.

c. The crucial additional element of follow-up to findings of an enhanced rule of law assessment mechanism

One of the most important obstacles to making full use of the potential of current monitoring and evaluation activities is that the follow-up to the findings of the various mechanisms is generally weak. Therefore, active consideration of options for enhancement of follow-up should be integral to any efforts to enhance rule of law assessment.

We propose that assessment needs to culminate in concrete Council recommendations to Member States. Moreover, a follow-up mechanism is needed to ensure that these recommendations are acted upon. Also, future legislative measures in the field of judicial cooperation in criminal matters should include a reference to the findings of the enhanced rule of law system.

d. Legal bases for enhancement of rule of law assessment: current and future options

Generally, given the envisioned broad scope of the assessment, the (extent of the existence of a clear) legal basis for confronting different aspects of the rule of law varies. Also the method used for the assessment of each of the aspects of the rule of law may need to be differentiated. Where European Union standards are available, there is scope for European Commission monitoring and Commission/Council follow-up. Current EU instruments could be used as the legal basis, and Council of Europe monitoring findings could be actively drawn upon. In other areas that are relevant to the functioning of EU-wide judicial cooperation in criminal matters, but which are not (yet) covered by EU law, exchange of best practices or other similar mechanisms are to be used. Also here it should be attempted to organise a form of follow-up to the findings.

The Lisbon Treaty will provide for a number of new possibilities for bolstering the assessment of the rule of law along the lines set out above. But there is is no reason to wait. As suggested above (section 3b) there are various possibilities for taking immediate steps, in the run up to the entry into force of the Lisbon Treaty. The practice gained from using these options, by way of a pilot for enhanced rule of law assessment, could prove useful for effectively using the Lisbon Treaty possibilities, once the Treaty has entered into force. Assessment of different aspects of the national rule of law could be undertaken on the basis of different legal bases. Under the Lisbon Treaty, Article 70 of the Treaty on the Functioning of the Union would give a legal basis for evaluation linked to mutual recognition. It would give the Commission the option to propose Council measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of Union policies, including in the field of judicial cooperation in criminal matters. Given that this clause is based on EC practice in the field of economic policy and employment policy, there is considerable Member States experience with regard to extensive and in-depth assessment in the field of EC law. A further legal basis would be Article 19(1), second alinea TEU, which lays down the requirement of national minimum procedural guarantees. It codifies case law, developed on the basis of the Community law clause concerning the principle of Community loyalty (Art. 10 EC), which established a number of minimum standards for national procedural law. Article 19(1), second alinea TEU would extend this to Union law more broadly, and thus include the assessment of minimum procedural standards in the field of judicial cooperation in criminal matters[9].

One final way of further structuring an enhancement of individual rights assessment in particular would be specifically to draw on the EU Charter, whose status would be upgraded by Art. 6(1) Treaty on European Union to a legal text of the same legal value as the Treaties themselves. Here, apart from possible involvement of the EU Fundamental Rights Agency, assistance of independent experts, who could assess compliance on the basis of the EU-specific Fundamental Rights Charter, could be envisioned. This could be undertaken along the lines of the former EU Network of Independent Experts (2002-2006) that assessed EU Member States’ implementation practice on the specific basis of the EU Charter[10].The desirability of maintaining such type of monitoring was implicitly acknowledged by the Commission in 2005, albeit with regard to Community law[11].