CCJE-BU(2019)5
Strasbourg, 22 May 2019
BUREAU OF THE CONSULTATIVE COUNCIL
OF EUROPEAN JUDGES
(CCJE-BU)
Report of the 26th meeting
Paris, 20 March 2019
Document prepared by the Secretariat
Directorate General I – Human Rights and Rule of Law
I. INTRODUCTION
1. The Bureau of the Consultative Council of European Judges (CCJE-BU) held its 26th meeting in Paris on 20 March 2019. The meeting was chaired by Mr Duro SESSA (Croatia), President of the CCJE.
2. The following members of the Bureau were present:
· Ms Nina BETETTO (Slovenia), Vice-President of the CCJE;
· Ms Anke EILERS (Germany);
· Mr Kim LEWISON (United Kingdom).
3. The agenda is set out in Appendix I.
II. COMMUNICATION BY THE PRESIDENT, MEMBERS OF THE BUREAU AND THE SECRETARIAT
4. The President briefed the members of the Bureau on his participation, on 4 February 2019, in the meeting of the heads of the Council of Europe monitoring, standard-setting and advisory bodies with the participation of the Secretary General, followed by a working lunch with the Secretary General. While such lunches took place each year, the meeting preceding the lunch was for the first time to take place this year. It was a very productive meeting, and the President highlighted, on behalf of the CCJE, its work on developing standards with regard to the status of judges and effective exercise of judicial functions.
5. The President also referred to his presentation, on 6 February 2019, to the Committee of Ministers, where he drew the attention of the Ministers’ Deputies to the recently adopted Opinion No. 21(2018) on preventing corruption among judges, as well as to the increasing role of the CCJE in identifying best European practices and providing standards of judicial profession. He underlined that the CCJE Opinions were being increasingly quoted in the judgments of the European Court of Human Rights, as well as of national courts, and in the reports and documents of other Council of Europe bodies, most notably of the Venice Commission.
6. In December 2018, the President was invited to Kyiv, Ukraine, to participate in a high-level conference on the reform of the judiciary. He presented the CCJE standards and their application in Ukraine.
7. The President also mentioned his forthcoming visit to Warsaw to a workshop organised on 25 March 2019 by the OSCE’s Office for Democratic Institutions and Human Rights on the situation of the judiciary in Poland. He would present to the participants the extensive work carried out by the CCJE on numerous negative developments in Poland as regards the independence of the judiciary and would discuss the current state of affairs and the follow-up.
8. The Vice-President referred to her participation, in February 2019, in a Rule of Law Conference organised in Tampere within the framework of the Finnish chairmanship of the Committee of Ministers of the Council of Europe.
9. The President and the Vice-President would both participate, on 18-19 November 2019, in the High-Level Meeting of the Global Judicial Integrity Network in Doha, Qatar, organised by the UN Office on Drugs and Crime within the framework of the Global Judicial Integrity Network. The President is member of the Board of this Network. He mentioned the Network’s particular usefulness in developing the tools for training.
III. PREPARATION OF THE CCJE OPINION NO. 22 ON THE ROLE OF COURT CLERKS AND LEGAL ASSISTANTS WITHIN THE COURTS AND THEIR RELATIONSHIPS WITH JUDGES
10. The Bureau discussed the draft structure for the Opinion No. 22 (document CCJE-BU(2019)2Prov1), as well as the analysis of responses to the questionnaire for the preparation of this Opinion (document CCJE(2019)2Prov1), prepared by the CCJE expert, Prof. Dr. Anne SANDERS, and praised both documents as a good basis and starting point for discussions and elaboration of the Opinion during the forthcoming Working Group meeting (20-22 March 2019, Paris).
11. The Bureau pointed out that the term judicial assistant is interpreted in different ways by different member States, therefore it should be clearly defined what the CCJE means by referring to such a term. In most member States, judicial assistants don’t have any decision-making power, however, in some States they may have such power to some extent. The definition of a judicial assistant should have two points: what goes under the term of judicial assistant, and what should not go.
12. The Opinion No. 22 must, in addition to giving such definition, describe where in the judicial framework the judicial assistants can exactly fit when it comes to the work of judges. The Opinion must also provide some information about the current trends, describe categories and types of judicial assistants, and indicate that, as a principle, every judge must have a judicial assistant. The rationale for employing judicial assistants should also be clearly identified.
13. The Bureau decided to suggest to the Working Group making the title of the Opinion shorter focusing on the role of judicial assistants and their relations with judges. The Bureau also discussed the modalities of the preparation of the Opinion and co-ordination with the expert.
IV. OTHER WORK OF THE CCJE
Follow-up to the Report of the CCJE Bureau on judicial independence and impartiality in the Council of Europe member States in 2017, prepared following the proposal of the Secretary General of the Council of Europe and contributing to the implementation of the Council of Europe Plan of Action on strengthening judicial independence and impartiality
14. The Bureau members discussed the preparation of the second edition of the Report on judicial independence and impartiality in the Council of Europe member States.
15. The first edition[1] was prepared in 2017 as a follow-up to the report of the Secretary General of the Council of Europe – 2016 entitled “State of democracy, human rights and the rule of law - a security imperative for Europe” which proposed to “develop the methodology and establish a regular in-house evaluation mechanism on the independence and impartiality of the judiciaries of the Council of Europe member States”[2].
16. The Bureau agreed on a timetable and modalities of the upcoming process of preparation of the second edition of the report, in line with the above-mentioned proposal of the Secretary General, focusing on judicial independence and impartiality. In order to identify issues of concern in the member States, request of relevant information would have to be sent, as in 2017, to all members and observers of the CCJE, and their responses would then be integrated in the report, along with relevant references to the judgments of the European Court of Human Rights, opinions of the Venice Commission, reports of the Human Rights Commissioner and of the Parliamentary Assembly.
17. The Bureau also emphasised that the preparation of this report would constitute, as it already did in 2017, follow-up to the Council of Europe Plan of Action on strengthening judicial independence and impartiality in member States[3].
Situation in Romania
18. The Bureau discussed the letter from two professional organisations in Romania addressed to the CCJE (as well as to the Consultative Council of European Prosecutors (CCPE)): from the “Romanian Judges Forum” and the “Movement for Defending the Status of Prosecutors”. The letter (of 35 page volume) referred to the long history of tense battle in Romania, since 2017, for the preservation of independence of judges and prosecutors, and it also referred in-depth to the fight against corruption and other problems in the country. Among issues of direct relevance to the CCJE mandate, the letter emphasised the Amendments to the Law on the Statute of Judges and Prosecutors which entered into force in October 2018, the Amendments to the Law on Judicial Organisation which entered into force in July 2018, and the Amendments to the Law on the Superior Council for Magistracy which entered into force in October 2018.
19. In particular, the letter described how these Amendments were elaborated and proposed, without any meaningful dialogue and involvement of the judiciary and prosecution. The letter also referred in-depth to the interventions of the Venice Commission. The CCJE was requested to answer a long list of questions including the role and functioning of the Superior Council for Magistracy, the material liability of judges, the establishment of a separate prosecutor office structure for the investigation of offences committed by judges, the freedom of expression of judges, repeated and unprecedented attacks against judges directed by political actors and the right of judges to stand against any policies or actions affecting their independence.
20. The Bureau members shared the concerns expressed in the letter and decided to proceed to the elaboration of the Bureau’s Opinion on this subject on the basis of the CCJE standards for judicial independence and impartiality.
Request of the Association of European Administrative Judges (AEAJ)
21. The Bureau discussed the draft Opinion of the Bureau prepared in response to the letter from the AEAJ, which is observer to the CCJE, concerning the legal setting of the position of the president of the Administrative Court of Vienna. The letter alleged some problems in this regard and asked the CCJE to render its Opinion from the point of view of European standards.
22. The Bureau, in close co-operation with Mr Gerhard Reissner, the former President of the CCJE and the current member of the Working Group, acting as the CCJE member in respect of Austria, prepared the draft of its Opinion on the subject. In the course of the meeting, the Bureau clarified a number of questions and made final recommendations for the draft which would be adopted very soon and sent to the AEAJ.
V. OTHER ITEMS
23. The next meeting of the Bureau will take place on 19 June 2019. The members of the Bureau discussed the possibility of having this meeting in Saverne, France, following an invitation by the City of Saverne, and including the possibility of having a meeting and exchange of views with the First Instance Court of Saverne. The members of the Bureau appreciated this invitation and gave a very favourable opinion on that.
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 36th meeting of the CCJE-GT and the draft Opinion No. 22 on « The role of court clerks and legal assistants within the courts and their relationships with judges » / Préparation de la 36èmeréunion du CCJE-GT et du projet de l’Avis No. 22 sur « Le rôle des greffiers de justice et assistants juridiques au sein des tribunaux et leurs relations avec les juges »
5. Follow-up to the Report of the CCJE Bureau on judicial independence and impartiality in the Council of Europe member States in 2017, prepared following the proposal of the Secretary General of the Council of Europe and contributing to the implementation of the Council of Europe Plan of Action on strengthening judicial independence and impartiality / Suivi du Rapport du Bureau du CCJE sur l’indépendance et l’impartialité du pouvoir judiciaire dans les États membres du Conseil de l’Europe en 2017, établi sur la proposition du Secrétaire Général du Conseil de l’Europe et contribuant à la mise en œuvre du Plan d'Action du Conseil de l'Europe pour renforcer l’indépendance et l’impartialité du pouvoir judiciaire
6. Other work of the CCJE / Autres travaux du CCJE
· Situation in Poland / Situation en Pologne
· Situation in Romania / Situation en Roumanie
· Situation in Serbia / Situation en Serbie
· Request of the Association of European Administrative Judges (AEAJ) / Demande de la Fédération européenne des juges administratifs (FEJA)
· Participation of the CCJE in other meetings in and outside the Council of Europe / Participation du CCJE à d’autres réunions au sein et à l’extérieur du Conseil de l’Europe
7. Any other business / Divers