CCJE(2016)2

Strasbourg, 10 November 2016

                               

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)

I. Introduction

1.         In accordance with the terms of reference entrusted to it by the Committee of Ministers, the Consultative Council of European Judges (CCJE) decided to prepare an Opinion on the role of court presidents focusing in particular on areas relating to the independence, quality and efficiency of justice.

2.         The purpose of this Opinion is to examine issues and concerns relating to the role of court presidents, given the overriding need to ensure a more effective functioning of an independent judiciary and an enhanced quality of justice.

3.         The Opinion has been prepared on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the ECHR), the CCJE’s Magna Carta of Judges (2010) and previous CCJE Opinions: No. 1(2001) on standards concerning the independence of the judiciary and the irremovability of judges, No. 2(2001) on the funding and management of courts, No. 10(2007) on the Council for the Judiciary in the service of society, No. 12(2009) on the relations between judges and prosecutors in a democratic society, No. 16(2013) on the relations between judges and lawyers, No. 17(2014) on the evaluation of judges' work, the quality of justice and respect for judicial independence, and No. 18(2015) on the position of the judiciary and its relation with the other powers of state in a modern democracy, as well as relevant instruments of the Council of Europe, in particular the European Charter on the Statute for Judges (1998) and the Committee of Ministers’ Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities (hereafter Recommendation CM/Rec(2010)12). This Opinion also takes account of the Council of Europe Plan of Action on strengthening judicial independence and impartiality (CM(2016)36final), of the Report 2013-2014: Minimum Judicial Standards IV – Allocation of Cases of the European Network of Councils for the Judiciary (ENCJ) (hereafter the ENCJ Report), of the United Nations Basic Principles on the Independence of the Judiciary (1985) and of the OSCE Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia (2010) – Judicial Administration, Selection and Accountability.

4.         This Opinion takes account of the replies of the CCJE members to the questionnaire on the role of court presidents[1], and of the preliminary draft prepared by the expert appointed by the CCJE, Mr Marco FABRI (Italy), along with the synthesis of the replies to the questionnaire.

5.         The different rules, structures and organisation of the judicial systems in member states influence the role of court presidents. This role is influenced to a significant extent by the management framework of each national judicial system as well as the legal, social, political traditions and practices that prevail in their jurisdictions.

II. Role and tasks of court presidents

6.         The  role of court presidents is:

-                 to represent the court and fellow judges;

-                 to ensure the effective functioning of the court and thus to enhance its service to society;

-                 to perform jurisdictional functions.

In performing their tasks, court presidents protect the independence and impartiality of the court and of the individual judges. 

A. Representing the court and fellow judges

7.         Court presidents fulfil a key role of representing the courts. According to the information provided by the CCJE members as regards the situation in member states, the extent of this particular role is increasing. By this process, the court presidents contribute to developing the whole judicial system as well as to ensuring the maintenance and delivery of high quality independent justice by their individual courts.

In general, the court presidents may have a role in maintaining and developing relations with other bodies and institutions, for example:  

·                the Council for the Judiciary or a similar body where appropriate;

·                other courts;

·                the prosecution service^[2];

·                the Bars^[3];

·                the Ministry of Justice;

·                the media;

·                the general public.

The main duty of court presidents must remain to act at all times as guardians of the independence and impartiality of judges and of the court as a whole.

8.         Court presidents are judges and therefore part of the judiciary. The level, intensity and scope of the participation of court presidents in the work of relevant bodies of judicial self-government and autonomy, such as the Council for the Judiciary, Congress of Judges, General Assembly of Judges, professional organisations of judges, depends on the national legal system. It is important that presidents, with their broad experiences, give their input in these bodies. However, concentration of functions and powers in the hands of only a limited group of persons should be avoided.

9.         Through co-operation and interaction with other courts, presidents may share experiences and identify best practices of court administration and delivery of services to the court users. It would be desirable that such co-operation be extended to the international level and draw on all available means of communication.

10.       Judicial training and education is often organised and managed by central judicial institutions and as a result, court presidents often perform a limited role in this area. Presidents should advise the judicial training institutions on the needs for specific training courses. They should make use of the specialised expertise and knowledge of their training institutes concerning training and development. Moreover, presidents play an important role in encouraging the judges to participate in relevant training courses and to create the conditions for this. This also applies in relation to the education and training of non-judge court staff.

11.       The relations of court presidents with other organs of the state should be based on the fundamental principle of equality and separation of state powers. In some countries, the executive power exerts, through Ministries of Justice, considerable influence on the administration of courts through directors of courts and judicial inspections. The CCJE has taken the position that the presence of officials of the executive within the organising bodies of courts and tribunals should be avoided. Such a presence can lead to interferences with the judicial function, thus endangering judicial independence[4]. Anyway, in such cases, court presidents have an important role to prevent possible interferences into the court activities by the executive.   

12.       In their relations with the media, court presidents should keep in mind that the interests of society require that the media be provided with the necessary information to inform the public on the functioning of the justice system. However, such information should be provided with due regard to the presumption of innocence, the right to a fair trial and the right to respect for private and family life of all persons involved in the proceedings^[5], as well as the preservation of the confidentiality of deliberations.

B. Relations within the court: independence of judges

13.       There are several principles that are essential in the relations between the court president and other judges of the court and the work of the court president in this context. Internal judicial independence requires that individual judges be free from directives or pressure from the president of the court when adjudicating cases^[6]. Court presidents, acting as guardians of the court’s independence, impartiality and efficiency, should themselves respect the internal independence of judges within their courts[7].

14.       It is of essential importance that court presidents administer courts in strict accordance with fundamental principles of judicial power. In general, this requires that those who are appointed as court presidents should have an extensive experience in adjudicating cases.

15.       The CCJE considers it very important that court presidents, after appointment, continue to perform as judges. A continuing practice is not only important to allow presidents to ensure their continuing professionalism and maintaining contact with other judges in accordance with the principle of primus inter pares, but also to best fulfil their organisational role through direct awareness of issues arising in daily practice. The caseload of court presidents may be reduced having regard to their managerial tasks.

16.       Coherent and consistent case-law is an important part of legal certainty. Presidents of courts have a role in ensuring the quality, coherence and consistency of judicial decisions. This task can be fulfilled only if the court presidents promote consistency in the interpretation and citation of the case-law of the court itself, higher courts, Supreme Court and international courts (for example, by facilitating education and training including seminars, meetings, ensuring access to the relevant databases, as well as promoting dialogue and the exchange of information between different instances, etc.). The CCJE emphasises that, in the course of fulfilling these tasks, court presidents must respect the principle of judicial independence.

17.       Court presidents should also be empowered to monitor the length of court proceedings. This is closely linked to the reasonable length clause of Article 6 of the ECHR and the requirements of national legislation. Monitoring of the length of proceedings and actions to be undertaken by court presidents to speed up the disposition of cases must be balanced with the judges’ impartiality, independence and with judicial confidentiality[8].

18.       Court presidents should lead by example and create a climate where the judges can address them when they need support and assistance in relation to the exercise of their functions, including in matters of ethics and deontology.

19.       Courts are essentially collegial bodies. The CCJE encourages the establishment of bodies composed of judges of the court which play an advisory role and which cooperate with the court president and give advice on key issues[9].

20.       Judges may experience a certain “gap” between them and presidents. It is important that this “gap” be bridged. This can be achieved if the presidents have a close relationship with the judicial work and if the judges are interested in and bear a certain responsibility for the functioning of the court as a whole and the managerial issues involved.

21.       Cases should be allocated to judges in accordance with objective pre-established criteria. They should not be withdrawn from a particular judge without valid reasons. Decisions on the withdrawal of cases should only be taken on the basis of pre-established criteria following a transparent procedure^[10]. Where the court presidents have a role in the allocation of cases among the members of the court, these principles should be followed.

22.       Responses submitted by the CCJE members show that presidents perform a function of collecting data and assessing the performance of the court as a whole. In some member states, one of the functions of the court president is to evaluate the performance of individual judges. Some concerns have been expressed about analysing the performance of individual judges. In some member states, this is seen as posing a possible threat to judicial independence. Where presidents do play such a role, there must be appropriate legal and transparent safeguards in place to ensure impartiality and objectivity of that review[11]. 

23.       Where court presidents have a role in receiving and responding to parties’ complaints concerning cases pending in the court, they should have due regard to the principle of independence of judges, as well as to the legitimate expectations of the parties to the case and society as a whole[12].

C. Managerial role[13]

24.       The CCJE recognises that the managerial role of court presidents in member states varies[14]. There is, however, a general trend towards a wider managerial role for court presidents. This is a result of demands for a better service to court users and society and reflects the general view that presidents playing that role can enhance court performance. In this regard, the CCJE stresses that various models focusing on the managerial function are possible. Any managerial model must serve the better administration of justice and not be an objective in itself. The CCJE considers that any central authority responsible for managing the judiciary should only perform those tasks which cannot be performed effectively at the level of courts.

25.       While judicial systems vary, the managerial functions have to be framed and adapted to the specific environment of the judicial organ of state respecting its independence and the independence and impartiality of individual judges. As it is in the case of relations between court presidents and other judges, the managerial functions of the presidents are also based on these fundamental values. The presidents should never engage in any actions or activities which may undermine judicial independence and impartiality[15].

26.       Replies of the CCJE members show that in some cases, court presidents have an explicit strategic planning function. The CCJE takes the view that the obligation of court presidents to provide fair and impartial justice will inevitably require that goals are defined and strategies developed in order to address various challenges and issues affecting the judiciary.

27.       Court presidents are responsible for managing the operation of the court, including managing court staff and material resources and infrastructure. It is crucial that they have the necessary powers and resources to fulfil this task efficiently.  

28.       The role played by court presidents in managing the court staff varies quite significantly among the member states. The replies to the questionnaire show that in some member states, the powers of the court presidents can be very broad. They can deal with selection and recruitment, setting remuneration levels, transfer, discipline, performance assessment and dismissal. In other member states, the powers of the presidents are very limited and most of the managing tasks are fulfilled by an outside body or person.

29.       Replies submitted by the CCJE members also show that court presidents have functions in relation to the maintenance and security of court infrastructure. If all these powers are exercised by organs appointed by, and accountable to the executive, for example to the Ministry of Justice or to the central authority, the CCJE's view is that court presidents should be involved and should have significant influence on how these services are provided.

30.       These powers should be exercised in a way that is both professional and transparent. There is a clear advantage if this responsibility is shared with the “court manager” or “administrative director”, who can have a different level of authority in the management of court personnel. In such cases, these officials should be appointed by, and be accountable to, court presidents.

31.       Court presidents should also have the authority to establish organisational units or divisions in the court, as well as individual posts and positions in order to respond to various needs within the court operations. Where court presidents intend to make significant changes in the organisation of the court, the judges should be consulted.

32.       In some member states, court presidents have some functions in the allocation of the court budget. For example, they analyse the resources needed to deal with the caseload within a reasonable time, and then negotiate with the central authorities in charge of budget allocation. This is a significant issue: it depends heavily on the administration framework of the judicial system, on the extent of its autonomy, and on the division of responsibilities within the system. The criteria used in the process of the allocation of financial and human resources to different courts are a key factor for defining the role of the court presidents. That role, if not decisive, should be significant. This is especially important in view of the existence, in some member states, of judicial systems where the allocation of resources is strictly centralised, and the discretion of the court presidents is very limited.

33.       However, presidents should have the power to manage the budget within their courts.  This power implies that court presidents are accountable. In order to perform this task, court presidents should be assisted by skilled professionals from among the non-judge court staff.

III. Election / selection, term of office, removal

A. Qualifications required for becoming president of a court

34.       The minimum qualification to become president of a court is that the candidate should have all the necessary qualifications and experience for appointment to judicial office in that court.

35.       In addition, they should have managerial abilities and skills. The CCJE has already observed that when judges are given responsibility for the administration of the courts, they should receive appropriate training and have the necessary support to carry out the task^[16].

36.       Thus, the qualifications for appointment as court presidents should reflect the functions and tasks they will have to carry out. Greater managerial functions demand more managerial abilities and skills.

B. Body to elect / select court presidents

37.       The manner in which presidents of courts are selected, appointed or elected varies in the member states as the responses to the questionnaire show. These procedures are affected by the existing system of judicial administration and the role of presidents of courts. In some systems, presidents are appointed or promoted from among judges, while others allow for appointments or selections to be made from outside. In the case of the former, the merits of the candidate as well as his or her judicial experience are taken into account.

38.       The CCJE considers that the procedures for the appointment of presidents of courts should follow the same path as that for the selection and appointment of judges. This will include a process of evaluation of the candidates and a body having the authority to select and/or appoint judges in accordance with the standards established in Recommendation CM/Rec(2010)12 and previous Opinions of the CCJE[17].

In any event, the system of selection and appointment of presidents of courts should include, as a rule, a competitive selection process based on an open call for applications of candidates who meet pre-determined conditions set out in the law.

39.       The CCJE also wishes to stress that, irrespective of the existing rules of procedures and what bodies are empowered to decide which candidate will take on the position of court president, what is essential is that the best candidate is selected and/or appointed as stated in Recommendation CM/Rec(2010)12[18] and in CCJE Opinion No.1(2001): ”…the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are based on merit, having regard to qualifications, integrity, ability and efficiency”[19].

The CCJE is of the opinion that the judges of the court in question could be involved in the process. This can take the form of a binding or advisory vote.

40.       In some member states, presidents of courts are not selected and/or appointed but are elected by their peers - the judges of the court. The CCJE is of the opinion that in such a system, objective criteria of merit and competence should also prevail.

C. Evaluation of the work of court presidents

41.       In general, the performance of court presidents is subject to evaluation in the same way as the work of ordinary judges, with all the necessary safeguards to be respected^[20].

42.       In addition, based on the specific role of the court presidents, appraisal can take place to assess the overall work done, including the managerial functions, in order to explore the possibility of improvements, and in order to learn from experience. Such appraisal should be appropriate for the presidents’ tasks and responsibilities.

43.       Only few member states indicate that they have specific appraisals for court presidents. This appraisal assumes the existence of objective indicators. In general, the evaluation of judges may indeed be based on a number of quantitative and qualitative criteria^[21]. However, there are very few specific practices in member states when it comes to evaluating the managerial performance of a court president. In member states where the drafting of a work plan for the court takes place, this may provide a basis for evaluation of the managerial performance.

D. Term of office

44.       Member states have chosen different options regarding the terms of office of presidents of courts, which may range from two to seven years, renewable once or several times. In some countries, court presidents, once elected/selected, can hold the office until their retirement. On the one hand, the term of office should be long enough to gain sufficient experience and to permit the realisation of ideas to offer better services to the court users. On the other hand, the term of office should not be too long, since this can lead to routine and can hinder the development of new ideas. The CCJE recommends to find, depending on the concrete institutional framework of the respective country, an adequate balance between these two perspectives. It should also be considered that each election or appointment of a president provides a certain influence of the electing or appointing body on the respective court.

45.       The safeguards of irremovability from office as a judge apply equally to the office of a court president. The CCJE agrees that “the security of tenure and conditions of service of judges are absolutely necessary elements for the maintenance of judicial independence, according to all international legal standards, including those of the Council of Europe[22]. There is nothing in these standards to suggest that the principle of irremovability of judges should not apply to the term of office of presidents of courts, irrespective of whether they perform, in addition to their judicial duties, administrative or managerial functions”[23].

46.       These standards are not inconsistent with time limited presidencies. When judges are appointed to the presidency of a court for a particular term, they should serve that term in full. A president can only be removed from office (e.g. following disciplinary proceedings) following the application - as a minimum - of those safeguards and procedures that would apply when consideration is being given to a removal from office of an ordinary judge[24]. Serious organisational failures or an incapacity to fulfil the functions of court president can lead to a procedure for removal. Any pre-term removal should be subject to clearly established procedure and safeguards, with clear and objective criteria.

47.       Furthermore, the procedure in the case of pre-term removal should be transparent and any risk of political influence should be firmly excluded. Consequently, the participation in this process of executive authorities, e.g. the Ministry of Justice, should be avoided. Furthermore, the procedures should not depart from those applied in the case of other judges.

48.       Termination of the term of office of a court president, whether as a result of the end of mandate or in the case of pre-term removal, should in principle not affect his/her position as a judge.  

IV. Presidents of Supreme Courts

49.       Presidents of the highest courts have different roles and duties which arise from the specific role of these courts and their role as a figure which is somehow the personification of the whole judicial system, especially in those member states where there is one Supreme Court. Nevertheless, the CCJE is of the opinion that, besides the above-mentioned important roles, presidents of Supreme Courts are also presidents of their courts and in that respect, all tasks and principles enunciated in this Opinion generally apply also to presidents of Supreme Courts.

50.       Presidents of Supreme Courts may also have additional specific tasks according to the place which they occupy within the national judiciary. These specific tasks vary among member states and may include, for example, the following:

·                representing the national judiciary;

·                providing opinions reflecting the views of the judiciary on strategic developments and the elaboration of legislation affecting the functioning of the judiciary;

·                being consulted in the process of the preparation of the state budget and the allocation of resources with regard to the judicial budget^[25];

·                preparing annual reports for the attention of the Parliament on the current state of affairs within the judiciary[26].

51.       In some member states, presidents of Supreme Courts are ex officio members of the Councils for the Judiciary and in this capacity they are centrally involved in all matters related to the administration of the judiciary, appointment, promotion, transfer and dismissal of judges, disciplinary proceedings against judges, resolving various disputes, and so on.

52.       In view of the specific tasks of presidents of Supreme Courts, the CCJE cautions against the risk of excessive accumulation of different powers within their authority which may have a negative effect on the independence of the judiciary and the confidence of the public in its impartiality. 

53.       In almost all member states, the election/selection procedures for presidents of Supreme Courts are different from those designed for other court presidents. The CCJE stresses that the process of election/selection of presidents of Supreme Courts should conform to certain criteria and provide for safeguards in order to maintain the fundamental principles of independence of the judiciary and the impartiality of judges. The procedures for election/selection should be defined by law and be based on merit. They should formally rule out any possibility of political influence. Any such risk may be overcome by adopting a model whereby the election of the presidents is done by the judges of the Supreme Court concerned. The CCJE sees value in such a model.

54.       Rules regarding the term of office of Supreme Court presidents vary greatly among member states: from one end of the spectrum, appointment for two years with the possibility of renewal once, to an indefinite appointment until retirement.

55.       The CCJE does not attempt to prescribe which term of office is the most appropriate for presidents of Supreme Courts. This depends on the national legal system and accordingly the role and functions of the president. However, presidents should be given sufficient time to fulfil their tasks in an independent and impartial manner free from any political or other outside influence.

V. Conclusions and recommendations  

1.         The role of court presidents is to represent the court and fellow judges, to ensure the effective functioning of the court, thus enhancing its service to society, and to perform jurisdictional functions (paragraph 6). In performing their tasks, court presidents protect independence and impartiality of the court and individual judges and they have to act at all times as guardians of these values and principles (paragraphs 6 and 7).

2.         Court presidents have their role in contributing to the work of bodies of self-government. However, a concentration of functions and powers in the hands of only a limited group of persons should be avoided (paragraph 8).

3.         In their relations with the media, court presidents should keep in mind the interest of society in being informed, while also having due regard to the presumption of innocence, the right to a fair trial and the right to respect for private and family life of all persons involved in the proceedings, as well as to the preservation of the confidentiality of deliberations (paragraph 12) Court presidents, acting as guardians of the court’s independence, impartiality and efficiency, should themselves respect the internal independence of judges within their courts (paragraph 13).

4.         Where court presidents have a role in collecting data and assessing the work of the court and of individual judges, appropriate safeguards must be in place to ensure impartiality and objectivity (paragraph 22).

5.         Any managerial model in courts must facilitate the better administration of justice and not be an objective in itself. The court presidents should never engage in any actions or activities which may undermine judicial independence and impartiality (paragraphs 24 and 25).

6.         The role of court presidents in the allocation of budgetary means to the court should be significant, if not decisive (paragraph 32), and they should have the power to manage the budget within their courts (paragraph 33).

7.         The minimum qualification to become a court president is that the candidate should have all the necessary qualifications and experience for appointment to judicial office in that court. The skills and abilities for appointment as court presidents should reflect the functions and tasks they will have to carry out (paragraphs 34 and 36).

8.         The CCJE considers that the procedures for the appointment of court presidents should follow the same path as that for the selection and appointment of judges in line with standards established in Recommendation CM/Rec(2010)12 and previous CCJE Opinions (paragraph 38). Judges of the court in question could be involved in the process of election, selection and appointment of court presidents. An advisory or even binding vote is a possible model (paragraph 39).

9.         In general, the performance of court presidents is subject to evaluation in the same way as the work of ordinary judges, with all necessary safeguards to be respected (paragraph 41).

10.       The principle of irremovability of judges should apply to the term of office of court presidents, irrespective of whether they perform, in addition to their judicial duties, administrative or managerial functions (paragraph 45). Removal of a court president before the expiration of his/her mandate should, as a minimum, be subject to the same safeguards as the removal of ordinary judges (paragraph 46).

11.       The termination of the term of office of a court president should in principle not affect his/her position as a judge (paragraph 48). 

12.       Presidents of Supreme Courts are also presidents of their courts and in that respect, all tasks and principles enunciated in this Opinion generally apply also to them (paragraph 49).

13.       The procedures for election/selection of Presidents of Supreme Courts should be defined by law and be based on merit and should formally rule out any possibility of political influence (paragraph 53).