APPENDIX III

opinion no. 4

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

on

appropriate initial and in-service training for judges at national and european levels

Introduction

1. At a time when we are witnessing an increasing attention being paid to the role and significance of the judiciary, which is seen as the ultimate guarantor of the democratic functioning of institutions at national, European and international levels, the question of the training of prospective judges before they take up their posts and of in-service training is of particular importance (see Opinion of the CCJE N° 1 (2001), paragraphs 10-13 and Opinion N° 3 (2002), paragraphs 25 and 50.ix).

2. The independence of the judiciary confers rights on judges of all levels and jurisdictions, but also imposes ethical duties. The latter include the duty to perform judicial work professionally and diligently, which implies that they should have great professional ability, acquired, maintained and enhanced by the training which they have a duty, as well as a right, to undergo.

3. It is essential that judges, selected after having done full legal studies, receive detailed, in-depth, diversified training so that they are able to perform their duties satisfactorily.

4. Such training is also a guarantee of their independence and impartiality, in accordance with the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms.

5. Lastly, training is a prerequisite if the judiciary is to be respected and worthy of respect. The trust citizens place in the judicial system will be strengthened if judges have a depth and diversity of knowledge which extend beyond the technical field of law to areas of important social concern, as well as courtroom and personal skills and understanding enabling them to manage cases and deal with all persons involved appropriately and sensitively. Training is in short essential for the objective, impartial and competent performance of judicial functions, and to protect judges from inappropriate influences.

6. There are great differences among European countries with respect to the initial and in-service training of judges. These differences can in part be related to particular features of the different judicial systems, but in some respects do not seem to be inevitable or necessary. Some countries offer lengthy formal training in specialised establishments, followed by intensive further training. Others provide a sort of apprenticeship under the supervision of an experienced judge, who imparts knowledge and professional advice on the basis of concrete examples, showing what approach to take and avoiding any kind of didacticism. Common law countries rely heavily on a lengthy professional experience, commonly as advocates. Between these possibilities, there is a whole range of countries where training is to varying degrees organised and compulsory.

7. Regardless of the diversity of national institutional systems and the problems arising in certain countries, training should be seen as essential in view of the need to improve not only the skills of those in the judicial public service but also the very functioning of that service.

8. The importance of the training of judges is recognised in international instruments such as the UN Basic Principles on the Independence of the Judiciary, adopted in 1985, and Council of Europe texts adopted in 1994 (Recommendation N° R (94) 12 on the independence, efficiency and role of judges) and 1998 (European Charter on the Statute for Judges) and was referred to in paragraph 11 of the CCJE’s Opinion N° 1.

I. The right to training and the legal level at which this right should be guaranteed

9. Constitutional principles should guarantee the independence and impartiality on which the legitimacy of judges depends, and judges for their part should ensure that they maintain a high degree of professional competence (see paragraph 50 (ix) of the CCJE Opinion N° 3).

10. In many countries the training of judges is governed by special regulations. The essential point is to include the need for training in the rules governing the status of judges; legal regulations should not detail the precise content of training, but entrust this task to a special body responsible for drawing up the curriculum, providing the training and supervising its provision.

11. The State has a duty to provide the judiciary or other independent body responsible for organising and supervising training with the necessary means, and to meet the costs incurred by judges and others involved.

12. The CCJE therefore recommends that, in each country, the legislation on the status of judges should provide for the training of judges.

II. The authority responsible for training

13. The European Charter on the Statute for Judges (paragraph 2.3) states that any authority responsible for supervising the quality of the training programme should be independent of the Executive and the Legislature and that at least half its members should be judges. The Explanatory Memorandum also indicates that the training of judges should not be limited to technical legal training, but should also take into account that the nature of the judicial office often requires the judge to intervene in complex and difficult situations.

14. This highlights the key importance attaching to the independence and composition of the authority responsible for training and its content. This is a corollary of the general principle of judicial independence.

15. Training is a matter of public interest, and the independence of the authority responsible for drawing up syllabuses and deciding what training should be provided must be preserved.

16. The judiciary should play a major role in or itself be responsible for organising and supervising training. Accordingly, and in keeping with the recommendations of the European Charter on the Statute for Judges, the CCJE advocates that these responsibilities should, in each country, be entrusted, not to the Ministry of Justice or any other authority answerable to the Legislature or the Executive, but to the judiciary itself or another independent body (including a Judicial Service Commission). Judges’ associations can also play a valuable role in encouraging and facilitating training, working in conjunction with the judicial or other body which has direct responsibility.

17. In order to ensure a proper separation of roles, the same authority should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judiciary or other independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.

18. Those responsible for training should not also be directly responsible for appointing or promoting judges. If the body (i.e. a judicial service commission) referred to in the CCJE's Opinion N° 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks.

19. In order to shield the establishment from inappropriate outside influence, the CCJE recommends that the managerial staff and trainers of the establishment should be appointed by the judiciary or other independent body responsible for organising and supervising training.

20. It is important that the training is carried out by judges and by experts in each discipline. Trainers should be chosen from among the best in their profession and carefully selected by the body responsible for training, taking into account their knowledge of the subjects being taught and their teaching skills.

21. When judges are in charge of training activities, it is important that these judges preserve contact with court practice.

22. Training methods should be determined and reviewed by the training authority, and there should be regular meetings for trainers to enable them to share their experiences and enhance their approach.

III. Initial training

a. Should training be mandatory?

23. While it is obvious that judges who are recruited at the start of their professional career need to be trained, the question arises whether this is necessary where judges are selected from among the best lawyers, who are experienced, as (for instance) in Common Law countries.

24. In the CCJE’s opinion, both groups should receive initial training: the performance of judicial duties is a new profession for both, and involves a particular approach in many areas, notably with respect to the professional ethics of judges, procedure, and relations with all persons involved in court proceedings.

25. On the other hand, it is important to take the specific features of recruitment methods into account so as to target and adapt the training programmes appropriately: experienced lawyers need to be trained only in what is required for their new profession. In some small countries with a very small judiciary, local training opportunities may be more limited and informal, but such countries in particular may benefit from shared training opportunities with other countries.

26. The CCJE therefore recommends mandatory initial training by programmes appropriate to appointees’ professional experience.

b. The initial training programme

27. The initial training syllabus and the intensiveness of the training will differ greatly according to the chosen method of recruiting judges. Training should not consist only of instruction in the techniques involved in the handling of cases by judges, but should also take into consideration the need for social awareness and an extensive understanding of different subjects reflecting the complexity of life in society. In addition, the opening up of borders means that future judges need to be aware that they are European judges and be more aware of European issues.

28. In view of the diversity of the systems for training judges in Europe, the CCJE recommends:

i. that all appointees to judicial posts should have or acquire, before they take up their duties, extensive knowledge of substantive national and international law and procedure;

ii. that training programmes more specific to the exercise of the profession of judge should be decided on by the establishment responsible for training, and by the trainers and judges themselves;

iii. that these theoretical and practical programmes should not be limited to techniques in the purely legal fields but should also include training in ethics and an introduction to other fields relevant to judicial activity, such as management of cases and administration of courts, information technology, foreign languages, social sciences and alternative dispute resolution (ADR);

iv. that the training should be pluralist in order to guarantee and strengthen the open-mindedness of the judge;

v. that, depending upon the existence and length of previous professional experience, training should be of significant length in order to avoid its being purely a matter of form.

29. The CCJE recommends the practice of providing for a period of training common to the various legal and judicial professions (for instance, lawyers and prosecutors in countries where they perform duties separate from those of judges). This practice is likely to foster better knowledge and reciprocal understanding between judges and other professions.

30. The CCJE has also noted that many countries make access to judicial posts conditional upon prior professional experience. While it does not seem possible to impose such a model everywhere, and while the adoption of a system combining various types of recruitment may also have the advantage of diversifying judges’ backgrounds, it is important that the period of initial training should include, in the case of candidates who have come straight from university, substantial training periods in a professional environment (lawyers’ practices, companies, etc).

IV. In-service training

31. Quite apart from the basic knowledge they need to acquire before they take up their posts, judges are “condemned to perpetual study and learning” (see report of R. Jansen “How to prepare judges to become well-qualified judges in 2003”, doc. CCJE-GT (2003) 3).

32. Such training is made indispensable not only by changes in the law, technology and the knowledge required to perform judicial duties but also by the possibility in many countries that judges will acquire new responsibilities when they take up new posts. In-service programmes should therefore offer the possibility of training in the event of career changes, such as a move between criminal and civil courts; the assumption of specialist jurisdiction (e.g. in a family, juvenile or social court) and the assumption of a post such as the presidency of a chamber or court. Such a move or the assumption of such a responsibility may be made conditional upon attendance on a relevant training programme.

33. While it is essential to organise in-service training, since society has the right to benefit from a well trained judge, it is also necessary to disseminate a culture of training in the judiciary.

34. It is unrealistic to make in-service training mandatory in every case. The fear is that it would then become bureaucratic and simply a matter of form. The suggested training must be attractive enough to induce judges to take part in it, as participation on a voluntary basis is the best guarantee for the effectiveness of the training. This should also be facilitated by ensuring that every judge is conscious that there is an ethical duty to maintain and update his or her knowledge.

35. The CCJE also encourages in the context of continuous training collaboration with other legal professional bodies responsible for continuous training in relation to matters of common interest (e.g. new legislation).

36. It further stresses the desirability of arranging continuous judicial training in a way which embraces all levels of the judiciary. Whenever feasible, the different levels should all be represented at the same sessions, giving the opportunity for exchange of views between them. This assists to break-down hierarchical tendencies, keeps all levels of the judiciary informed of each other’s problems and concerns, and promotes a more cohesive and consistent approach throughout the judiciary.

37. The CCJE therefore recommends:

i. that the in-service training should normally be based on the voluntary participation of judges;

ii. that there may be mandatory in-service training only in exceptional cases; examples might (if the judicial or other body responsible so decided) include when a judge takes up a new post or a different type of work or functions or in the event of fundamental changes in legislation;

iii. that training programmes should be drawn up under the authority of the judicial or other body responsible for initial and in-service training and by trainers and judges themselves;

iv. that those programmes, implemented under the same authority, should focus on legal and other issues relating to the functions performed by judges and correspond to their needs (see paragraph 27 above);

v. that the courts themselves should encourage their members to attend in-service training courses;

vi. that the programmes should take place in and encourage an environment, in which members of different branches and levels of the judiciary may meet and exchange their experiences and achieve common insights;

vii. that, while training is an ethical duty for judges, member states also have a duty to make available to judges the financial resources, time and other means necessary for in-service training.

V. Assessment of training

38. In order continuously to improve the quality of judicial training, the organs responsible for training should conduct frequent assessments of programmes and methods. An important role in this process should be played by opinions expressed by all participants to training initiatives, which may be encouraged through appropriate means (answers to questionnaires, interviews).

39. While there is no doubt that performance of trainers should be monitored, the evaluation of the performance of participants in judicial training initiatives is more questionable. The in-service training of judges may be truly fruitful if their free interaction is not influenced by career considerations.

40. In countries that train judges at the start of their professional career, the CCJE considers evaluation of the results of initial training to be necessary in order to ensure the best appointments to the judiciary. In contrast, in countries that choose judges from the ranks of experienced lawyers, objective evaluation methods are applied before appointment, with training occurring only after candidates have been selected, so that in those countries evaluation during initial training is not appropriate.

41. It is nevertheless important, in the case of candidates subject to an appraisal, that they should enjoy legal safeguards that protect them against arbitrariness in the appraisal of their work. In addition, in the case of States arranging for the provisional appointment of judges, the removal of these from office at the end of the training period should take place with due regard for the safeguards applicable to judges when their removal from office is envisaged.

42. In view of the above, the CCJE recommends:

i. that training programmes and methods should be subject to frequent assessments by the organs responsible for judicial training;

ii. that, in principle, participation in judges’ training initiatives should not be subject to qualitative assessment; their participation in itself, objectively considered, may however be taken into account for professional evaluation of judges;

iii. that quality of performance of trainees should nonetheless be evaluated, if such evaluation is made necessary by the fact that, in some systems, initial training is a phase of the recruitment process.

VI. The European training of judges

43. Whatever the nature of their duties, no judge can ignore European law, be it the European Convention on Human Rights or other Council of Europe Conventions, or if appropriate, the Treaty of the European Union and the legislation deriving from it, because they are required to apply it directly to the cases that come before them.

44. In order to promote this essential facet of judges’ duties, the CCJE considers that member states, after strengthening the study of European law in universities, should also promote its inclusion in the initial and in-service training programmes proposed for judges, with particular reference to its practical applications in day-to-day work.

45. It also recommends reinforcing the European network for the exchange of information between persons and entities in charge of the training of judges (Lisbon Network), which promotes training on matters of common interest and comparative law, and that this training should cater for trainers as well as the judges themselves. The functioning of this Network can be effective only if every member state supports it, notably by establishing a body responsible for the training of judges, as set out in section II above, and by pan-European co-operation in this field.

46. Furthermore, the CCJE considers that the co-operation within other initiatives aiming at bringing together the judicial training institutions in Europe, in particular within the European Judicial Training Network, can effectively contribute to the greater coordination and harmonisation of the programmes and the methods of training of judges on the whole continent.

opinion no. 5 (2003)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

on

the law and practice of judicial appointments to the european court of human rights

1. The CCJE in its 4^th meeting in Strasbourg, 24-28 November 2003, took note of the report dated May 2003 of the International Center for the Legal Protection of Human Rights (Interights) on “Law and Practice of Appointments to the European Court of Human Rights”.

2. The CCJE welcomes the conclusions and recommendations proposed by the report. It regards them as an important step towards implementing the recommendations contained in its Opinion No. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges, which the CCJE wishes to affirm, concerning:

(a) the appointment process for judges on international courts, in particular paragraph 56 of that Opinion stating:

“The CCJE agreed that the importance for national legal systems and judges of the obligations resulting from international treaties such as the European Convention on Human Rights and also the European Union treaties makes it vital that the appointment and re-appointment of judges to the courts interpreting such treaties should command the same confidence and respect the same principles as national legal systems. The CCJE further considered that involvement by the independent authority referred in the paragraphs 37 and 45 should be encouraged in relation to appointment and re-appointment to international courts. The Council of Europe and its institutions are in short founded on belief in common values superior to those of any single member State, and that belief has already achieved significant practical effect. It would undermine those values and the progress that has been made to develop and apply them, if their application was not insisted upon at the international level.”

Paragraphs 37 and 45 advocate the intervention of an independent authority with substantial judicial representation in relation to all judicial appointments.

(b) the tenure of office, in particular paragraphs 57 and 52 stating:

“It is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office.”

“The CCJE considered that where, exceptionally, a full-time judicial appointment is for a limited period, it should not be renewable unless procedures exist ensuring that:

iii. the judge, if he or she wishes, is considered for re-appointment by the appointing body and

iv. the decision regarding re-appointment is made entirely objectively and on merit and without taking into account political considerations.”

3. The objective criteria for appointment as a judge to the European Court of Human Rights are fixed in Article 21 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which states:

“The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence.”

4. The CCJE which consists of national judges from the 45 members States of the Council of Europe, emphasises the fundamental importance which it attaches to the appointment to the European Court of Human Rights of judges who not only meet such criteria but are the best candidates available for such appointment. The integrity and reputation of the Court, and so also of the Convention, depends upon this.

opinion no. 6 (2004)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

on fair trial within a reasonable time and judge’s role in trials taking into account alternative means of dispute settlement

INTRODUCTION

1. Over the years, management of proceedings by the courts in Europe has been evolving towards fuller consideration of the interests of court users. Practitioners have directed attention to ways of meeting the public’s expectations that all who seek justice should not only have readier access to the courts but also benefit from enhanced effectiveness of the procedures applied and more reliable guarantees that rulings delivered will be enforced.

2. The essential instrument of this evolution is the European Convention on Human Rights (ECHR), the case‑law of the European Court of Human Rights (the Court) being consulted in order to interpret and apply its provisions.

3. Article 6 of the ECHR in particular has generated a fund of procedural law common to the different European states and brought into being general principles which, above and beyond the wealth and diversity of the national systems, are intended to secure the right of access to a court, the right to obtain a decision within a reasonable time at the end of a fair and equitable procedure, and the right to obtain enforcement of any judgment delivered.

4. The right to a fair trial is tending to become a true substantive right for the citizens of Europe, one whose enforcement is ensured by the Court and subsequently the domestic courts, for example by compensating litigants whose cases are not tried within a reasonable time.

5. For a number of years the Council of Europe has shown a constant concern to improve the public’s access to justice, as reflected in its various Resolutions and Recommendations on legal aid, the simplification of procedures, reducing the costs of proceedings, the use of new technologies, reducing the courts’ workload and alternative means of settling disputes.

6. The Court itself ensures that governments abide by the provisions of Article 6 of the ECHR, for example by reminding them, that any person wishing to bring legal proceedings must have access to a court, and that no state interference with this prerogative, whether in fact or in law, is permissible.

7. The Consultative Council of European Judges (CCJE) has given thought to how judges might participate in this effort to guarantee access to rapid and effective settlement of disputes.

8. It recalls that the 1^st European Conference of Judges on “Early settlement of disputes and the role of judges”, held at the Council of Europe on 24 and 25 November 2003, revealed that no matter how interesting and useful alternative measures such as mediation or conciliation may be, confidence in the judicial institution remains an essential feature of democratic societies.

9. It is therefore important that, when dealing with the justice system, citizens should know that they are dealing with an efficient institution.

10. In this context, this Opinion revolves around (A) the question of access to justice (B) the quality of the justice system and its assessment, quantitative statistical data, monitoring procedures (C) the courts’ workload and case management and (D) alternative dispute resolution with the emphasis on the judge’s role in the implementation of the principles laid down in the ECHR and the case-law of the Court.

A. ACCESS TO JUSTICE

11. Public access to justice presupposes delivery of suitable information on the functioning of the judicial system.

12. The CCJE considers that all moves to provide the public with such information are to be encouraged.

13. The public should in particular be made aware of the nature of proceedings which may be brought, their possible duration, their cost and the risks involved in case of wrongful use of legal channels. Information should also be provided concerning alternative means of settling disputes which may be offered to parties.

14. This general information to the public can be supplemented by more precise information concerning in particular some of the landmark decisions delivered by the courts and how long it takes for cases to be dealt with in the various courts.

15. Information on the functioning of the judicial system can originate from various sources, such as the Justice Department (publication of information booklets, websites, etc.), the welfare services and the public legal advice services organised by lawyers’ associations as well as other sources.

16. The courts themselves should participate in disseminating the information, particularly when they have public relations services. Amongst the relevant ways of disseminating information are the Internet sites run by certain courts.

17. The CCJE recommends the development of education programmes including a description of the judicial system and offering visits to courts. It also perceives a need to publish citizens’ guides enabling potential litigants to gain a better grasp of the functioning of the judicial institutions, while also informing them of their procedural rights before the courts. Lastly, it recommends the general use of computer technology in order to provide members of the public with the same type of information on the functioning of the courts, the means of access to justice, the principal decisions delivered, and the statistical results of the courts.

18. The CCJE positively encourages the adoption of a simplified and standardised format for the legal documents needed to initiate and proceed with court actions. The recommended simplification is particularly advisable for minor litigation, for disputes involving consumers, and for cases in which the determination of the points of law and of fact raises virtually no difficulties (settlement of debts). It further recommends developing the technology whereby litigants may obtain, via computer facilities, the necessary documents for bringing an action before a court and either they or their representatives may be put directly in touch with the courts.

19. The CCJE also recommends that litigants be fully informed, by lawyers and courts or tribunals, even before proceedings are instituted, as to the nature and the amount of the costs they will have to bear, and that they be given an indication of the foreseeable duration of the proceedings up to the judgment.

20. In its Opinion No. 2 (2001), paragraph 9, the CCJE identified the importance of adequate funding to the operation of any judicial system. The question arises how far litigants, or others before court, can or should be expected to contribute to such funding through court fees. The CCJE considers that the judicial system should not obstruct access to justice through excessive costs. An efficient system of justice is of benefit to the public at large, not merely to those who also happen to become involved in litigation. The rule of law is demonstrated and established by the courts’ efficient operation and judgments; and this enables the public at large to regulate and conduct its affairs securely and with confidence.

21. A legal aid system should be organised by the State to enable everyone to enjoy access to justice. Such aid should cover not only court costs but also legal advice as to the wisdom or the necessity of bringing an action. It should not be reserved for the neediest persons but should also be available, at least in part, to those whose average income does not enable them to bear the cost of an action unaided.

22. This system of partial legal aid allows the number of beneficiaries to be increased while preserving a certain balance between the authorities’ obligation to facilitate access to justice, and individual responsibility. The CCJE considers that a judge or another authority acting judicially, should be able to take part in decisions concerning the grant of aid. If the authority required to rule on an application for legal aid is obliged to refuse it where the contemplated action appears manifestly inadmissible or ill-founded, it is indispensable, should action be brought by a litigant who has been refused aid, that the judge involved in the relevant decision should refrain from trying the case, for the sake of compliance with the duty of objective impartiality according to Article 6 of the ECHR.

23. The CCJE considers that legal aid should be financed by a public authority and covered by a special budget so that the corresponding expenses are not charged to the operating budget of the courts.

24. The provision of legal assistance to the parties is an important component of access to justice for litigants.

25. The CCJE notes, that in certain States, the intervention of a lawyer during the proceedings is not necessary. Other States draw distinctions according to the magnitude of the financial interests and the type of dispute or proceedings. The right for a litigant to plead his or her case before a court either personally or through the representative of his or her choice appears particularly suited to simplified proceedings, litigation of minor financial importance, and cases involving consumers.

26. Nonetheless, even in cases where there is no need to engage a lawyer at the outset, the CCJE considers that there should be provision enabling the judge, as an exceptional measure, to order the intervention of counsel if the case presents particular problems or if there is a major risk that the rights of the defence will be infringed. In that event, representation by a lawyer should have the support of an effective legal aid system.

27. Resolution (78) 8[26] states in paragraph 1 of the appendix that “no one should be prevented by economic obstacles from pursuing or defending his rights (…)”.

28. One must nonetheless guard against having the remuneration of lawyers and court officers fixed in such a way as to encourage needless procedural steps. Provision must also be made, pursuant to Recommendation No. R (84) 5 [27] (principle 2-1 in the appendix), for sanctioning abuse of court procedure.

29. Legal aid is not the sole means of assisting access to justice. Other methods which can be used for this purpose include for instance an insurance for court costs, covering a party’s own court costs and/or any sum payable to the other party where the case is lost.

30. The CCJE does not intend to discuss in detail, in this Opinion, a number of other arrangements for access to justice, including the conditional fees arrangement or the fixed expenses arrangement.

B. QUALITY OF THE JUSTICE SYSTEM AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES

31. The provision of justice involves not only the work of judges and other legal professionals; it encompasses a number of activities performed within judicial institutions by governmental agents and private citizens; its operation heavily relies on judicial infra-structures (buildings, equipment, support staff, etc). Therefore, quality of the justice system depends both on the quality of infra-structures, which may be measured with criteria similar to those employed for other public services, and on the ability of legal professionals (judges, but also lawyers, prosecutors and clerks); even today it is possible to measure the work of such professionals against the benchmarks of law and of judicial or professional practice and deontology.

32. However, since the growing demand for justice in most countries are faced with limitations of the budget for the justice system, theory and practice suggest the possibility to assess the quality of judicial activity, with reference also to social and economic efficiency, through criteria that are sometimes similar to those employed for other public services.

33. The CCJE notes that a number of problems arise when applying to justice assessment criteria that do not take into account its specificities. Although similar considerations may apply to the activities of other legal professionals, the CCJE discussed the implications of such an approach to judicial activity.

34. The CCJE strongly emphasises, first of all, that the evaluation of "quality" of the justice system, i.e. of the performance of the court system as a whole or of each individual court or local group of courts, should not be confused with the evaluation of the professional ability of every single judge. Professional evaluation of judges, especially when aiming at decisions influencing their status or career, is a task that has other purposes and should be performed on the basis of objective criteria with all guarantees for judicial independence (see Opinion No. 1 (2001) of the CCJE, especially paragraph 45).

35. The practice of some countries shows an overlap which the CCJE deems inappropriate, between quality assessment of justice and professional evaluation of a judge. This overlap is reflected in the way in which statistics are collected. In some countries statistics are kept for each individual judge, in the others the figures are for each court. All are likely to keep records of the number of cases dealt with, but the former system attaches that figure to individuals. Systems which assess judges statistically typically include a figure for the percentage of successful appeals.

36. Some countries consider the percentage of the decisions reversed on appeal as an indicator. An objective evaluation of the quality of judicial decisions may be one of the elements relevant for the professional assessment of a single judge, (but even in this context one should take into account the principle of judicial internal independence and the fact that reversal of decisions must be accepted as a normal outcome of appeal procedures, without any fault on the part of the first judge). However, the use of reversal rates as the only or even necessarily an important indicator to assess the quality of the judicial activity seems inappropriate to the CCJE. Among several aspects that could be discussed with reference to this problem, the CCJE underlines that it is a feature of the justice system based on "procedures", that the quality of the outcome of a single case depends heavily on the quality of the previous procedural steps (initiated by the police, public prosecution, private lawyers or parties), so that evaluation of judicial performance is impossible without evaluation of each single procedural context.

37. The same considerations apply to other systems in which some assessment, through systems different from the observation of the reversal rate, is possible as to an individual decision taken by judges.

38. In some countries, assessment of quality of justice is done through collection of indicators measuring the performance of the court: how long it takes to deal with cases, how great the backlog is, how large the support staff is, the quantity and quality of infra-structures (with special reference to buildings and information technology), etc.

39. This approach is in principle acceptable, as it tends to evaluate "performance" of justice in a wider sense. However, the better approach, in the opinion of the CCJE, would be to evaluate justice in its even wider context, i.e. in the interactions of justice with other variables (judges and lawyers, justice and police, case law and legislation, etc.), as most malfunctions of the justice system derive from lack of coordination between several actors. The CCJE considers that it is also crucial to underline the interaction between the quality of justice and the presence of adequate infra-structures and support personnel.

40. Even if modern information technology allows very sophisticated data to be collected, the difficulty remains as to what variables should be measured and how and by whom the results should be interpreted.

41. As to data to be collected, no generally accepted criteria exist at this moment. This is due to the fact that administration of justice differs greatly from the purely administrative tasks that are typical of other public services, where measurement through indicators has developed and may be effective. For example, the fact that one court takes longer on average than another to deal with a case or has a greater backlog of cases may or may not mean that this court is less efficient.

42. Whatever may be the developments in this field, the CCJE considers that "quality" of justice should not be understood as a synonym for mere "productivity" of the judicial system; a qualitative approach should address rather the ability of the system to match the demand of justice in conformity with the general goals of the legal system, of which speed of procedures is only one element.

43. The CCJE recommends that, as it is impossible at the moment to rely upon widely accepted criteria, quality indicators should at least be chosen by wide consensus among legal professionals, it being advisable that the independent body for the self-governing of the judiciary play a central role in the choice and the collection of "quality" data, in the design of the data collection procedure, in the evaluation of results, in its dissemination as feed-back to the individual actors on a confidential basis, as well as to the general public; such involvement may reconcile the need for a quality evaluation to be carried out with the need for indicators and evaluators to be respectful of judicial independence.

44. Usually statistical data are collected by courts and sent to a central authority that may be the Supreme Court, the High Council for the Judiciary, the Ministry of Justice or the National Court Administration. In daily data collection court registrars may play an important role. In some cases private agencies have participated in the identification of quality indicators and in the design of a quality control system.

45. The publication of statistical data concerning pending and past cases in each court, available in some States, is a further step towards transparency of the situation of workloads. Appropriate forms should be studied for the release of even reserved information to researchers and to the judiciary, in order to allow improvements of the system.

46. The centralised authority that gathers the data only sometimes performs a constant monitoring process. This monitoring does not always have, however, a direct and immediate impact on the organisation of the courts or allocation of human and material resources.

47. The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that appropriate procedures allow a ready adjustment of the organisation of courts to changes in the caseloads.[28] In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring should be the independent body mentioned in paragraphs 37 and 45 of its Opinion No. 1 (2001); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.

48. Smooth co-operation should take place among all actors as to interpretation and dissemination of data.

C. CASELOAD AND CASE MANAGEMENT

49. This section covers measures that may reduce the workload of courts as well as measures to assist the handling of cases coming to court. The CCJE takes these subjects together[29] because both are of importance to the performance by courts of their duty to provide a fair trial within a reasonable time and there is a certain overlap.

I. GENERAL

50. Measures reducing the workload of courts included measures which have that object alone and measures that have an independent value. Recommendation No. R (86) 12 identifies measures applying to varying extents to criminal and civil courts[30]. Recommendations No. R (87) 18[31] and No. R (95) 12[32] deal specifically with criminal cases. As examples, measures such as the removal of non-judicial tasks or ensuring a balanced workload aim directly at ensuring an appropriate workload. Consensual settlement (whether by the parties alone or through mediation[33]) has an independent worth, reflecting the values of freedom of choice and agreement, compared with a court-imposed solution. Decriminalisation of minor offences may take place to reduce workload, or it may reflect a conclusion that it is preferable that certain types of offenders (e.g. youths) should be dealt with outside the formal criminal justice system. Clarity about motives may assist to identify the merits of particular proposals.

51. The CCJE starts with miscellaneous topics where the criminal and civil positions can be taken together or compared.

(a) Court administration

52. The CCJE has identified two basic models of court management[34]. In one, the judges play little or no direct role in the management of the courts. They can devote more of their time to judging, rather than take up time on non-judicial tasks for which they may not be suited by training or inclination. Although the courts could not run properly without the judges at least being consulted about administrative matters, decisions about managing budgets, employing staff and court buildings and facilities are in the hands of the administrators. Since, whatever system is employed, the money to run it must come from central government, this system helps to keep judges separate from the political pressures that follow from having to meet performance targets.

53. A disadvantage is that it is judges who must deliver the primary objective of the court system, the efficient and just disposal of cases, but in this model, they have little control over the environment in which they are trying to meet this objective.

54. In the second basic system, the senior judge in a court effectively manages it as well. He or she will have at least some discretion over the spending of the budget, the hiring and firing of staff and the court building and its contents. The advantages and disadvantages are a mirror image of the first: judges are taken away from their primary role and made to undertake tasks for which their background may not have prepared them. They are more likely to find themselves in dispute with public authority. On the other hand, they have real control over the means of delivering justice in their courts and have a greater influence over policy in allocating resources.

55. Many countries have systems which fall somewhere between the two extremes. What can be said to be recognised as being increasingly important is that judges should be consulted and have the opportunity to have a say in basic decisions about the shape of modern justice and the priorities involved. The CCJE underlines the need for this.

(b) Fluctuation in workloads

56. The workload of particular courts will increase or decrease over time. Demographic changes and, in the criminal sphere, changes in criminal patterns will drive this. These may be temporary. For example, a court near a border may have a dramatic increase in cases concerning illegal immigration or a court near an airport an increase in cases concerning drug importation.

57. In some jurisdictions, judges and/or cases may be transferred relatively easily between courts, at least on a temporary basis. The CCJE regards such flexibility as generally desirable, provided that the independence of the individual judges is respected and, in the case of transfer of a judge, the judge consents. It recognises of course that it must be exercised with due regard for practical problems of access to justice. Those involved in cases and the public generally are entitled to expect that cases will normally be handled on a relatively local and convenient basis.

58. In other jurisdictions, the judge assigned is fixed from the outset, transfers of judges require their consent and transfers of cases are possible, if at all, only with the consent of the parties. There may however be mechanisms within any court, whereby, e.g., an elected presidium of judges may decide to transfer cases from an overloaded judge to another judge within the same court.

59. If there are permanent changes in workload, corresponding changes in court size will be needed, especially in the latter category of jurisdictions. Purely economic considerations (pointing towards closure of a local court) may here clash with the parties’ and public’s entitlement to relatively local and accessible justice. The CCJE encourages countries to study and develop appropriate criteria to enable these considerations to be taken into account and balanced, ensuring that, while adopting to the evolution of the workload, the changes to the courts’ methods are not conceived as a way of harming the independence of judges.

60. Nevertheless, the CCJE refers to its Opinion No. 2 (2001), in particular paragraphs 4 and 5, dealing with adequate resources. The possibility to transfer judges or files from one court to other court should not encourage to accept structural lack of resources. Such flexibility cannot substitute a sufficient number of judges, which is necessary to meet the workload, which normally is to be expected.

61. In criminal cases, Recommendation No. R (87) 18, paragraph D.2 states that a single judge should be used “wherever the seriousness of the offence allows”. But, in serious cases involving the liberty of the subject, the collegiality of fact-finding provided by a panel of three or more judges, whether lay or professional, is an important safeguard against decisions influenced by one person’s prejudices or idiosyncratic views. In practice, less serious cases are usually decided by one judge and more serious cases by a panel, although the dividing line differs considerably between countries.

62. In civil cases, the general practice in common law countries is that first instance judges (being experienced practitioners appointed relatively late in their professional career) sit singly. In other jurisdictions having a career judiciary (and in countries such as France, where tribunaux de commerce consist of laymen), panels are still used at first instance, although there seems to be a trend towards greater use of single judges.

63. The use of panels can compensate for lack of experience on the part of individual members. It assists to ensure consistency of quality and to impart experience to younger judges. It may be difficult to abandon this system where a young judge or lay person would otherwise be the sole member of a first instance tribunal.

64. The CCJE considers that countries should encourage training and career development to make the use of single judges easier to hear first instance cases, wherever this can be achieved commensurately with the experience and capabilities of the judges available and the nature of the proceedings in question.

(d) Judges’ assistance

65. The CCJE noted in its Opinion No. 2 (2001) that in numerous countries the judges have insufficient means at their disposal. However, the CCJE points out the need that a genuine reduction of inappropriate tasks performed by judges can only take place by providing judges with assistants, with substantial qualifications in the legal field ("clerks" or "referendars"), to whom the judge may delegate, under the same judge's supervision and responsibility, the performance of specific activities such as research of legislation and case-law, drafting of easy or standardised documents, and liaising with lawyers and/or the public.

(e) Extra-judicial activity

66. The CCJE endorses the view that the non-judicial activities listed in the Appendix to Recommendation No. R (86) 12 should not normally be assigned to the judges. But there are other activities that may distract or detract from the performance of judicial duties, including activities in relation to court administration, where adequate assistance is not provided or funded (see point (a) above) and activity as private arbitrators, which is in most countries anyway inadmissible.

67. Criticism is often also levelled at time spent by judges working on commissions and similar bodies. There is a point of view that “a judge should be judging” and other activity is a waste of a valuable resource.

68. The CCJE does not consider that too much should be made of this point. If the commission is examining an aspect relevant to judicial work and the judge can add value to the work of that body, the time spent in such work cannot be regarded as wasted. Further, a judge will be a better judge for having the broader view that can be gained by working with professionals from other disciplines and on subjects that are related to but fall outside his normal work.

69. On the other hand, there are risks in judges becoming involved in enquiries established for political reasons, involving judgments on non-legal matters which may lie outside their direct experience. Judges should consider carefully whether it is sensible for them to lend their skills and reputations to enquiries of this nature[35].

(f) Legal representation and the funding of legal costs

70. In criminal cases, it is right that legal aid or free legal representation should be available without evaluation of the merits of the defendant’s position. The problem seems to lie in the great differences between the nature and seriousness of the cases for which such aid or representation is made available in different countries. But in civil cases there is concern that methods of funding litigation may encourage ill-founded or excessive litigation, and this is not confined to legal expenses insurance[36]. In any legal system, there is a tendency for work to gravitate to areas where fees are available. Suitable control systems need to be introduced for evaluating the merits of claims in advance and eliminating from eligibility for legal aid claims where the merits and/or sum in issue do not appear to justify the likely expense[37].

II. CRIMINAL COURTS

71. The CCJE turns next to subjects of specifically criminal relevance: It is at the outset important to remember two obvious but fundamental differences between criminal and civil proceedings:

(i) Civil proceedings almost always involve two private parties. The public has a general interest in the proper disposal of civil litigation but it has no interest in the outcome of a particular case. In criminal proceedings, the public has a real interest in the proper disposal of each case.

(ii) Procedural delay or irregularity can be sanctioned in civil proceedings by orders for costs or, as a last resort, striking the action out. In criminal proceedings, the prosecution may be sanctioned in monetary terms[38] or in an extreme situation by dismissing the prosecution. It is much more difficult to sanction a defendant for delay or irregularity, although in some countries a defence lawyer may be ordered to pay wasted costs. The defendant himself usually lacks means to meet costs orders. And the ultimate sanction of dismissal of his case is not available. The court cannot say that he has forfeited his right to a trial because he has not complied with some procedural requirement.

72. Against this background, the CCJE examines certain specific problems.

(a) Discretionary prosecution

73. Recommendation No. R (87) 18 endorses the principle of discretionary prosecution “wherever historical development and the constitution of member states allow”, and states that, “otherwise, measures having the same purpose should be devised”. In the latter countries, the duties of independent public prosecutors (ministère public) may require cases to be brought before a court, and, if anyone has the power to suspend prosecution, it may only be a judge.

74. The Recommendation states that any decision not to prosecute should be “founded in law” (paragraph I.2), “exercised on some general basis, such as the public interest” (paragraph II.4) and only take place “if the prosecuting authority has adequate evidence of guilt” (paragraph I.2). The CCJE interprets the third condition as meaning no more than that, unless the prosecuting authority has adequate evidence of guilt, the question of discretionary prosecution cannot sensibly arise. But, where adequate evidence has not (yet) been obtained, the CCJE considers that it should be open to an investigating authority to decide that the seriousness and other circumstances of the offence, of the suspected offender and of the victim do not justify further efforts to obtain further evidence.

75. The Recommendation further states that a decision not to pursue, or to discontinue, criminal proceedings may be accompanied by a warning or admonition or be made subject to compliance with conditions (requiring in this latter case the alleged offender’s consent); that it should not be treated as a conviction or affect the offender’s record, unless he has admitted the offence; and that it should leave unaffected the victim’s right to seek reparation. In practice, the majority of (but very far from all) countries have some degree of discretion. One distinction is between those systems where cases may only be discontinued with conditions such as compensation to the victim and those where there exists a discretion to discontinue proceedings where it is deemed not to be in the public interest to continue them.

76. Three basic structures presently appear in Europe.

(i) The prosecuting authority has neither the power to drop a case nor to impose conditions/sanctions upon an offender if the evidence justifies prosecution. It merely has the function of preparing a case for court.

(ii) The prosecuting authority has the power to decide whether or not to prosecute (i.e. to drop a case completely) even though there is sufficient evidence to prosecute.

(iii) The prosecuting authority has both the power to decide whether or not to prosecute and also the possibility of dropping the case with conditions or a fine imposed on the offender with his consent as an alternative to the case going to court. Within this broad category, there are considerable differences as to the prosecutorial power. In some countries a full range of conditions including counselling and community service may be imposed. In others, the only condition is payment of a sum of money.

77. The CCJE encourages further studies in individual states which do not presently have any system of or equivalent to discretionary prosecution so as to give effect to Recommendation No. R (87) 18. The CCJE is of the opinion that each state should consider the role that courts could have in verifying the procedure carried out, especially when the victim disputes the decision to drop a case taken by the prosecuting authority.

(b) Simplified procedures

78. All member states appear to have some forms of simplified procedure, e.g. for administrative breaches and less serious crime, although the nature and extent of such procedures vary greatly. The impact of articles 5 and 6 of the ECHR must be considered when introducing and providing for such procedures always allowing for the possibility of an appeal before the judge.

79. Recommendation No. R (87) 18 recommends this in principle. Its terms contemplate an early plea of guilty entered in court at an early stage of the proceedings, which is the common law model. However, few countries have a formal system of this nature. It - and more particularly what may go with it, plea bargaining and a reduced sentence for a plea of guilty - are anathema to many non-common law systems. However, a number of countries have a system of attenuated proceedings where guilt is admitted. This functions in a similar way to a formal plea to the extent of allowing less evidence to be called and the case to proceed more swiftly.

80. The CCJE identifies, in any formal system for pleading guilty, advantages (perceived by common law systems) and possible dangers, as follows:

(i) Guilty pleas

81. If a defendant can be invited and is able to give a formal indication before a judge that he admits his guilt at an early stage in proceedings, a great deal of time and money will be saved. If this takes place in a formal setting, safeguards for a defendant can be built in. A confession made to the police may have been improperly obtained. A guilty plea is an acknowledgement that it was not. Lawyers must however have a professional obligation to confirm with the defendant that he really admits the necessary legal elements of the offence.

(ii) Plea bargaining

82. This encompasses two different things: charge bargaining and sentence bargaining.

83. Charge bargaining involves an agreement with the prosecution, whether formal or informal, that the prosecution will not proceed with one or more charges if the defendant admits others (e.g. involving a less serious offence). Such a procedure will not normally involve the judge at all, although there may be provision for judicial approval to be required. The argument in favour is that, if a defendant is willing to admit nine out of ten alleged burglaries, it cannot be in the interests of efficient justice that there should always have be a full trial of the tenth charge simply because there is enough evidence to go to trial on it.

84. Sentence bargaining also occurs in a number of countries. But the common law has recognised that there are great dangers in allowing this to involve the judge. The danger is that a defendant may fell under pressure to plead guilty to an offence which he does not really admit in order to get a more lenient sentence from the judge who will be sentencing him.

(iii) Sentence discount

85. This is a different concept, which does not depend upon any bargain with anyone, whether prosecution or judge. The concept (accepted in some countries) is that a defendant who pleads guilty should normally receive a more lenient sentence than if he had not done so – the earlier the plea the greater the discount[39].

86. Some may recoil from this idea. They would argue that what the defendant has done, he has done and that any offence deserves a certain punishment, once proved, whether it is admitted or not. The argument that a plea of guilty shows remorse is, in most cases, illusory. In some cases, a principled social answer is possible for those systems where trials are largely oral. If the main witness is vulnerable (particularly children and victims of sexual assault), the oral hearing may constitute a further trauma. In such cases, by his plea avoiding the need for a hearing, a defendant has lessened or avoided harm which his actions would otherwise have caused.

87. Outside this minority of cases, such an answer is not valid. If a man is charged with a series of burglaries because of fingerprint or scientific evidence, the only witnesses he has saved from giving evidence are professionals, well used to giving evidence. The reason for encouraging pleas of guilty by a discount then is the pragmatic advantages that guilty pleas bring in (i) ensuring the conviction of offenders, who know that they are guilty, but who would otherwise have no incentive not to insist on a trial in the hope that the evidence or witnesses against them might not persuade a jury or judge and (ii) shortening cases (and avoiding delay to other trials, even in cases where a conviction would anyway have resulted from a full trial. These are real pragmatic benefits for society as a whole.

88. But it is clear that, if sentence discounts are to be permitted, certain safeguards must be in place. Care must be taken by the lawyers and the judges to ensure that the pleas of guilty are voluntary and represent real admissions of guilt. Judges should not mention or be involved in any discussions between lawyers and the defendant regarding the possibility of such a discount. Judges should have the power not to approve of any plea, which it appears may not be truthful or in the public interest.

89. The CCJE doubts whether it would be realistic to recommend immediate implementation of a system of sentence discount for a guilty plea in all member states. But the CCJE recommends all countries to consider whether such a system might not bring benefits to their criminal justice process.

III. CIVIL COURTS

90. Recommendation No. R (84) 5 identified nine “principles of civil procedure designed to improve the functioning of civil justice”. This was a far-sighted early Recommendation, but still in practice often unimplemented. The CCJE considers that it would, if implemented generally, offer a real guarantee of compliance with states’ duty under article 6 of the ECHR to ensure “a fair and public hearing within a reasonable time” in civil proceedings.

91. The nine principles set out core elements of the case management powers which the CCJE considers that judges should have and exercise from the commencement to the conclusion of all civil (including administrative) proceedings in order to ensure compliance with article 6 of the ECHR. The CCJE will therefore summarise and comment on these Principles in a little detail.

92. Principle 1 of the Recommendation suggests a limit in proceedings of “not more than two hearings”, one preliminary and the second for evidence, arguments and, if possible, judgment, with no adjournments allowed “except when new facts appear and in other exceptional and important circumstances” and sanctions on parties, witnesses and experts failing to comply with court time-limits or non-attendance.

93. The CCJE views this principle as a general template. Some systems take evidence over a number of hearings. Others handle very large litigation which could not possibly be conducted within the constraints of one preliminary and one final hearing. The most important point is that judges should from the outset control the timetable and duration of proceedings, setting firm dates and having (and being willing wherever appropriate to exercise) power to refuse adjournments, even against the wishes of both parties.

94. Under Principle 2, judges should have power to control abuse of procedure, by sanctions on a party or lawyers.

95. Principle 3 reflects the essence of modern case management:

“The court should (…) play an active role in ensuring the rapid progress of the proceedings, while respecting the rights of the parties, including the right to equal treatment. In particular, it should have proprio motu powers to order the parties to provide such clarifications as are necessary; to order the parties to appear in person; to raise questions of law; to call for evidence, at least in those cases where there are interests other than those of the parties at stake; to control the taking of evidence; to exclude witnesses whose possible testimony would be irrelevant to the case; to limit the number of witnesses on a particular fact where such a number would be excessive (…).”

96. Principle 4 supplements this, by providing that the court should, except in cases expressly prescribed by law, be able to decide whether to use written or oral proceedings.

97. Principle 5 addresses what is, in the CCJE’s view, a vital aspect of efficient case management: the need to crystallise the parties’ claims and the nature of their evidence at the earliest possible stage – and to exclude the admission of new facts on appeal, unless they were (or, the CCJE would suggest, could not reasonably have been) known at first instance or there was some other special reason.

98. In some countries, the rules or culture governing litigation allow parties to correct and supplement their cases and evidence almost without restriction – even at an appellate level (see further below). The CCJE considers that this is no longer acceptable, and that the time has come to re-examine such rules and change such culture. Parties are entitled to “a fair …hearing within a reasonable time” of their claim or defence, not to indefinite opportunities to present further and different cases - and especially not so by way of a second instance hearing on appeal.

99. Principle 6 is the important injunction that “Judgment should be given at the conclusion of the proceedings or as far as possible thereafter. The judgment should be as concise as possible. It may invoke any rule of law but it should with certainty resolve, expressly or implicitly, all claims raised by the parties”. Some states or courts operate more or less with formal rules stipulating maximum period(s) within which judgments should be delivered. Principle 7 (“steps should be taken to deter the abuse of post-judgment legal remedies”) lies outside the central concerns of this Opinion.

100. Principle 8 identifies some aspects of case management, including special procedures for (a) urgent cases, (b) undisputed cases, liquidated claims and small claims, (c) specific types of case. Among these are, it states:

“simplified methods of commencing litigation; no hearing or the convening of only one hearing, or (…) of a preliminary preparatory hearing; exclusively written or oral proceedings (…); prohibition or restriction of certain exceptions and defences; more flexible rules of evidence’ no adjournments or only brief adjournments; the appointment of a court expert (…); an active role for the court in conducting the case and in calling for and taking evidence.”

101. Principle 9 emphasises the need for “the most modern technical means [to] be made available to the judicial authorities”. The CCJE endorses and underlines the relationship between efficient technology and judges’ ability to keep track of and control the litigation on their or their courts’ dockets.

102. The general rationale of all these principles is that civil litigation threatens to become complex and lengthy to the point where it is not possible to comply with the requirements of article 6 (1) of the ECHR either in any particular case(s) or in any other cases, the speedy and efficient conduct of which is indirectly affected by the time and resources occupied by the former case(s).

103. States have to provide adequate - but not infinite - resources and funding for civil as well as criminal litigation[40]. Because neither the state nor parties have infinite resources, courts must control litigation, in the interests both of individual litigants and litigants in other cases.

104. Individual cases need to be conducted “proportionately”, meaning both in a manner that enables the parties thereto to obtain justice at a cost commensurate with the issues involved and the amounts at stake, and in a manner that enables other litigants to obtain their fair share of the court’s time for their disputes.

105. In short, parties are entitled to an appropriate share of the court’s time and attention, but in deciding what is appropriate it is the judge’s duty to take into account the burden on and needs of others, including the state which is itself funding the court system and other parties who wish to use it.

106. Different countries have differing levels of implementation of the principles in Recommendation No. R (84) 5. The general direction of legal reforms of civil procedure instituted over recent years has been in this direction. Judges have been given greater power on the “formal conduct” of civil proceedings, though not over their substantive progress – they cannot, for example, take steps to introduce into a case factual evidence that the parties have not adduced. However, in some member states it is still not the judge’s role to decide whether the procedure should be oral or written, or when to resort a summary judgment or to set time limits, because these matters are fixed by law. The CCJE considers that these restrictions to the powers of control and impetus of the judge on the progress of the procedure are not compatible with efficiency of justice.

107. The CCJE will now consider certain procedures which have been adopted or suggested in this area:

(a) Pre-action protocols

108. Pre-action protocols (developed in the United Kingdom) prescribe steps which should be taken before proceedings are even commenced. They are formulated by co-operation between representatives of those interested on both sides of certain familiar types of dispute (personal injury or medical negligence or construction industry insurers, lawyers and interested bodies). Their purpose is to achieve early identification of the issues, by exchange of information and evidence, which may enable parties to avoid litigation and reach a settlement. If settlement cannot be reached they ensure that parties are in a much better position to respond to timetables imposed once proceedings are issued. The court may sanction failure to follow a pre-action protocol.

(b) Pre-action information

109. This is a feature of litigation which enables a court, before litigation is begun, to order disclosure of documents by a person likely to be a party to such proceedings, where this is desirable, amongst other reasons, to enable that person to know whether the facts justify proceedings at all, or to enable him to take better informed steps to resolve the dispute amicably without proceedings.

110. It is important that these should be available, where required, at an early stage, including in some cases before notification of the issue of proceedings to a defendant, or their purpose may be defeated.

111. A wide range of protective measures is available. Three main groups can be identified:

(i) measures aiming to secure enforcement, e.g. seizure or a “freezing” injunction;

(ii) measures intended to settle the situation provisionally (for instance, in family matters); and

(iii) measures anticipating the final judgment.

112. In many countries, the claimant has to present an appearance of right (fumus bonis iuris) and he must normally show a risk that, without such measures, any final judgment obtained could not be enforced (periculum in mora). The measure can be ordered without hearing the other party (ex parte) but, after making such an order, the defendant has a right to be heard, when the measure can be either confirmed or revoked.

113. Injunctive relief is also widely available in other situations in member states (sometimes only if the claim has a documentary basis), in order to settle provisionally some aspect(s) of the dispute. Common law countries have also developed the tool of the “Anton Piller” order, whereby the court can order a search for documents or other evidence in the defendant’s possession or control, which might otherwise be destroyed or concealed. “Mesures d’instruction” in futurum can fulfil a similar function in France and other countries.

(d) Commencement of proceedings

114. Most member states have provided certain simplified (including electronic) methods of commencing litigation. But differences between the traditional methods of commencing proceedings make it difficult to compare the different methods of simplification. For example, in some countries, proceedings have always been begun by steps taken in court, whereas in others the plaintiff has had to notify the claim to the defendant before going to court. In the latter states, the simplification may simply consist in allowing proceedings to be begun without this step being taken.

(e) Identification of the parties’ cases

115. The CCJE has already underlined the importance of this in its discussion (above) of Principle 5 of Recommendation No. R (85) 5. It is central to good case management that each party in civil proceedings should have to be as explicit as possible as soon as possible regarding its case – and that changes or additions to a party’s case should not be made as of right, but should require the judge’s permission, which should only be given or withheld having regard to the stage which the proceedings have reached and the effect on their conduct as well as on other parties.

(f) Summary proceedings

116. There are major differences in terminology in this area. Not all states understand the concept of summary, simplified and accelerated procedures in the same sense. Some only speak of procedures as summary when their outcome does not have the force of res judicata, and refer to simplified procedures when certain steps have been eliminated or made easy, and to accelerated procedures when time limits have been abbreviated compared with ordinary proceedings. These features can of course coincide, so that a procedure can, at the same time, be summary, simplified and accelerated.

117. Common law jurisdictions in contrast use the word “summary” to cover simplified and accelerated procedures leading to a final (res judicata) decision, although they also have procedures for provisional judgments, e.g. procedures whereby the court may, if provisionally satisfied that a defendant will be liable in debt or damages, order an “interim” payment of not more than a “reasonable proportion” of the liability to be paid to the claimant. If at a trial the claimant then fails to prove his case, the claimant must repay the interim payment, with interest.

118. Two civil law procedures are of particular importance: i) the order for payment (Mahnverfahren, injonction de payer); ii) the référé or, in the Netherlands, kort geding:

(i) The order for payment (or Mahnverfahren) is a procedure especially suited to uncontested monetary debts. At a claimant’s request, the court issues an order to pay without having heard the other party. In some countries a documentary basis is required for issuing the order, in other countries it is sufficient with the statement done by the claimant. If the defendant remains passive during the delay established by the law, the order becomes enforceable like an ordinary judgment. If the defendant objects, the plaintiff has to start a normal procedure if he wants to recover his debt. It is the debtor’s silence that transforms the initial order of payment into a judicial and enforceable decision that has the force of res judicata. In some countries a court clerk is in charge of the procedure. It is a written procedure, which permits computerized treatment (already in operation in some countries). Many cases are determined by this procedure.

(ii) The procedure of référé or kort geding enables a judge to decide any question after hearing the parties on the basis of the sometimes limited evidence that they are able to put before the court within a short time-limit. A decision is then rendered either immediately after the hearing or within a very short time. This is directly enforceable but the judgment does not have the force of res judiciata. A party is free to commence a procedure on the merits, but if none is initiated, the référé judgment will determine the rights and obligations of the parties. Thus, the procedure on the merits will often never take place. Because of the importance of the référé, an experienced judge (often the president of the court) is normally in charge of this kind of procedure. The référé procedure in practice also assists to alleviate a court’s workload, and to avoid the delays inherent in some states in ordinary civil proceedings.

(g) Interlocutory judgments

119. The power to “direct a separate trial of any issue” can have real importance. To take an example, matters fundamental to jurisdiction should, in the CCJE’s view, be resolved by a separate judgment at the outset of proceedings. This avoids the need for unnecessary, costly and time-consuming argument and investigation on the merits. But in some countries there exists no procedure for giving interlocutory judgments, and in others any interlocutory judgment can only be appealed after the first instance court has gone into and determined the rest of the case.

120. The CCJE recognises that care is necessary in the selection and definition of issues suitable to be dealt with by interlocutory judgment. There is a risk that time, effort and costs may be spent on an interlocutory issue (or on an appeal in an interlocutory issue), when it would be speedier and simpler to resolve the rest of the case. With that caveat, the CCJE recommends that the procedure for giving interlocutory judgments should be available, and that immediate appeals in respect of interlocutory judgments should normally be permissible.

121. The remedies for avoiding delays due to such appeals should consist in either a requirement to obtain the permission of the court of first instance or appeal for any immediate appeal and/or a speedy appellate system.

(h) Evidence and documentation

122. Most states have flexible rules of evidence. In protective and summary procedures, the judgment will not necessarily be based on full evidence. In protective measures, the claimant need only present an appearance of his right (prima facie evidence) in civil law countries, or need normally only show an arguable case on the facts in common law countries.

123. There are important differences in relation to disclosure of documentation between common law and civil law countries. In the former each party must voluntarily make disclosure of relevant documents (that is documents on which he relies in support of his contentions or which materially affect his case or support the other party’s case). The requirement to disclose unfavourable as well as favourable documents often proves a considerable incentive to settlement - either before or after disclosure has had to be made. It is also a considerable aid to fact-finding, at trial.

124. However, this procedure does rely on the honesty of legal advisers in advising their clients regarding production of documents, and it also involves legal and other costs in searching for and producing documents. It may be said therefore to be particularly suitable for larger or more complex cases.

125. In many other countries (especially civil law systems) a party can only gain access to a document under his opponent’s control and upon which the latter does not intend to rely, by applying for an order that the particular document be made available. This implies that the party seeking the order has to know previously the existence of the document and has to identify it, which is not always easy.

(i) General case management powers

126. These are important at every stage of civil proceedings, to enable cases to be managed appropriately and proportionately. Judges should be able to exercise them by giving directions on paper, without the parties necessarily having any right to an oral hearing. They should be exercisable as contemplated by Recommendation No. R (84) 5 both in relation to pre-trial preparation and in relation to any trial.

(j) Incentives in respect of costs and interest

127. English law and some other systems have introduced provisions for offers to settle and payments into court, which can have severe financial consequences for a party failing at trial to better the other side’s previous offer. A claimant may offer to accept, or a defendant may offer to pay, less than the full claim. (In the case of a money claim, the defendant must also follow up his offer, by paying the money into court.) If a claimant gets more than he offered to accept, or a defendant is ordered to pay less than he offered to pay, then, save in the case of small claims, adverse consequences may follow in costs, and also, for a defendant, in interest.

128. In some countries, where lawyers’ fees are regulated by statute, the legislature, in order to provide an incentive for lawyers to encourage settlement, has raised the statutory settlement fees for lawyers to 150% of the normal full fee.

(k) Enforcement

129. There are at present differences in attitude to enforcement of first instance judgments. In common law jurisdictions, the general rule is that such judgments are automatically enforceable, unless the court for good reason orders a stay. Good reason could include any unlikelihood of recovering monies paid, if the judgment were later set aside on a successful appeal. In civil law countries, in contrast, the position is sometimes regulated by law, sometimes left to the judge to decide. The judge may then grant provisional enforcement of the judgment, especially if there is a danger that, during the delay involved in any appeal, a situation might occur or be brought about by the losing party whereby the judgment would never be honoured. Normally, however, the winning party would then be required to provide security for any damage that might occur as a result of the enforcement if the judgment was reversed on appeal. It can be said to be usual in the case of money judgments for the judgment to be made enforceable by law or by the judge unless the debtor puts up security.

130. The CCJE considers that, to ensure the efficiency of justice, all countries should have procedures for provisional enforcement, which should normally be ordered, subject to satisfactory protection being made available to the losing party against the event of a successful appeal.

(l) Appeals

131. The different appellate systems divide into two broad groups: (a) appeals limited to revision on matters of law and the assessment of evidence, with no possibility on appeal of fresh new evidence or of a decision on any point not raised before the first instance judge; and (b) appeals in which such limitations do not exist and the court can hear new evidence and take into account new points raised in the proceedings before the appellate court.

132. There are intermediate systems, which in some cases or at some instances permit what is described as the “ordinary remedy” of an unlimited appeal, but in other cases or at other instances (e.g. in a court of cassation or Supreme Court) only permit the “extra-ordinary remedy” of a “review” on limited basis and in specific circumstances.

133. The difference between (a) and (b) is sometimes explained as being that in the former group an appeal is viewed primarily as a technique for ensuring uniformity in the application of legal principles (ius constitutionis), whereas in the latter group it is viewed as a procedural right, the main function of which is to give a party another opportunity (ius litigationis). That raises the question whether it is necessary or desirable that a party should have such a procedural right at any level, even a second instance level.

134. The CCJE has, in considering Principle 5 of Recommendation No. R (84) 5 (above), pointed out that nothing in article 6 of the ECHR requires the right to the appeal.

135. Although conscious of the weight of tradition in some countries favouring an unlimited right to (in effect) relitigate issues on appeal to a second instance, the CCJE wishes to indicate its disapproval in principle of this approach. There ought to be limitations on a party’s right to adduce fresh evidence or to raise fresh points of law. An appeal ought not to be or to be regarded as an unlimited opportunity to make corrections in respect of matters of fact or law which a party could and should have put before a first instance judge. This undermines the role of the first instance judge, and has the potential to make irrelevant any case management by a first instance judge.

136. In the CCJE’s view, it also tends to frustrate the legitimate expectations of the other party to the litigation, and to increase the length, cost and strain of litigation.

137. The CCJE notes, however, that even in countries accepting a ius litigationis, mechanisms (e.g. the power to declare hopeless appeals to be “manifestly ill-founded”) have been developed which constitute a partial safety valve, reducing to some extent the over-loading of the appellate system.

138. The CCJE therefore recommends that controls on unmeritorious appeal be introduced, either by provision of a leave to appeal to be granted by a court or by an equivalent mechanism that ensures that the speedy disposition of meritorious appeals is not impaired.

D. ALTERNATIVE DISPUTE RESOLUTION (ADR)

139. The Council of Europe has produced several instruments concerning alternative dispute resolution methods (ADR).[41] Being aware of the many positive effects of ADR, among which is its potential to lead to speedy settlement of disputes, the CCJE proposed that ADR be one of the items to be dealt with at the 1^st European Conference of Judges, within the larger framework of "case management".

140. The 1^st European Conference of Judges demonstrated the importance of ADR in the early settlement of disputes.[42] It is apparent that while ADR must not be regarded as a perfect way of alleviating the courts’ excess workload, it is definitely useful and effective because it places the accent on an agreement between the parties, which is always preferable to an imposed judgement.

141. In the future the CCJE may engage in specific consideration of ADR. At present, within the scope of an opinion concerned with the reasonable duration of trials and the role of judges in the trial, the CCJE considers it necessary to encourage the development of ADR schemes, which are particularly suited to certain types of litigation, and to increase public awareness of their existence, the way they operate and their cost.

142. Since ADR and the justice system share similar objectives, it is essential that legal aid should be available for ADR as it is for standard court proceedings. However, both legal aid resources as well as any other public expenditures to support ADR should make use of a special budget, so that the corresponding expenses are not charged to the operating budget of the courts (see paragraph 23 above).

143. The discussions held within the CCJE focused specifically on the scope of mediation, on the role of the judge in mediation during court proceedings, on confidentiality of mediation operations, on the possibility that courts supervise training/accreditation in mediation and judges act as mediators and on the necessity of a judicial confirmation of the mediation agreement between the parties. Separate considerations were made, when relevant, for criminal law matters, on one hand, and civil law (and administrative law) matters, on the other hand.

144. As for the scope of ADR, the relevant Council of Europe recommendations show that it is not confined to civil proceedings. The scope of mediation in criminal matters raises specific questions, on which the CCJE’s discussions concentrated.

145. Unlike ADR in civil matters, criminal mediation is not useful to alleviate the current workload of the court system, although it may have a preventative effect in respect of future crimes.

146. Recommendation No. R (99) 19 concentrates solely on "mediation" between offender and victim. However, although there is a need for further research, the CCJE considers that nowadays the wider debate concerns the broader concept of "restorative justice", i.e. procedures allowing diversion from the normal criminal process before it starts (soon after arrest), after it has started as part of the sentencing process or even during the execution of punishment. Restorative justice provides an opportunity for victims, offenders and sometimes representatives of the community to communicate, indirectly or directly, if necessary through a facilitator, about an offence (usually a minor offence concerning property or offences by young offenders) and how to repair the harm caused. This can lead to the offender making reparation - either to the victim, if the victim wishes, or to the wider community, for example by repairing property, cleaning premises, etc.

147. Therefore the scope of restorative justice in criminal matters is not as wide as ADR in civil matters; society may set “boundaries of permission” outside which it would not support the resolution of a criminal case other than by the normal court process. In contrast with civil cases, the community will also often be a proper participant in the process of restorative justice. Reconnecting offenders with the community they have harmed, including through repair of some of the damage they have caused, and involving the community in creating solutions to crime in their area, is at the heart of much restorative justice.

148. In a number of respects schemes for restorative justice require more careful implementation than ADR in civil disputes, as bringing victims and offenders into contact is a much more sensitive process than bringing two parties to a civil dispute together; its success depends in part on a cultural change for criminal justice practitioners used to the normal trial and punishment model of justice.

149. The CCJE discussed the role of the judge in mediation decisions considering first of all that recourse to mediation, in civil and administrative proceedings, may be chosen on the parties' initiative or, alternatively, the judge may be allowed to recommend that the parties appear before a mediator, with their refusal to do so sometimes being relevant to costs.

150. The second system has the advantage of having parties, who are in principle reluctant to seek an agreement, initiate a discussion; in practice, this step can in itself prove decisive in breaking the deadlock in a contentious situation.

151. In any case, the parties should also be allowed to refuse recourse to mediation; such a refusal should not infringe the party's right to have his/her case decided.

152. As for the role of the judge in criminal mediation, it is evident that, if a criminal case is diverted from the normal prosecution process before proceedings have been started, the judge will usually have no role. If the case is diverted to restorative justice after it has started, it will require an order of a judge so diverting it. There are also differences relating to the adoption, in the several countries, of the principles of discretionary or mandatory prosecution.

153. In view of the fact that within the restorative justice system obligations are imposed on the offender and restrictions may apply in the victim's interest, the CCJE considers that it may be good practice to give to all restorative justice arrangements (or, if appropriate, those that are more than mere warnings with no legal relevance) the formality of judicial approval. This will allow control of the offences that might give rise to restorative justice and of the conditions governing respect for the right to a fair trial and other provisions of the ECHR.

154. Must mediation operations be confidential? The CCJE’s discussions show that this question must be answered in the affirmative regarding civil and administrative disputes. Seeking an agreement means, in general, that the parties must be able to talk to the mediator in confidence about possible proposals for settlement, without it being possible for this information to be divulged.

155. However, it would be useful to specify whether confidentiality should be absolute or whether it may be lifted by agreement between the parties. Also, one should ask whether the documents used during mediation may be produced in court if mediation has failed.

156. As the mediation procedure is based on agreement, it would seem possible to the CCJE to lift confidentiality in the event of an agreement between the parties; on the other hand, without such agreement it is inappropriate for the judge to take account of documents revealing one party’s attitudes or the proposals made by the mediator for settling the dispute. It is open to question whether and how far the judge may (as permitted in some jurisdictions) consider refusal to access mediation or to accept a friendly settlement when making orders relating to trial expenses or costs.

157. As for confidentiality in ADR in criminal matters, the CCJE considers that, since the offender must be encouraged to speak frankly during the restorative justice process, confidentiality should also apply to this type of ADR. This poses the problem, especially in those systems where prosecution is obligatory, of what should be the consequences of admission of other offences on the part of the offender or of persons who are not participating in the mediation process.[43]

158. Both in criminal and civil-administrative matters, the CCJE emphasises the need that ADR schemes be closely associated with the court system, since mediators should possess relevant skills and qualifications, as well as the necessary impartiality and independence for such a public service.

159. Therefore the CCJE emphasises the importance of training in mediation.

160. Recourse to mediators or mediation institutions outside the judicial system is an appropriate arrangement, provided that the judicial institution can supervise the competence of these mediators or private institutions as well as the arrangements for their intervention and their cost. The CCJE considers that appropriate legal provisions or court practice should confer the judge the power to direct the parties to appear before a judicially appointed mediator.

161. The CCJE considers it possible for judges to act as mediators themselves. This allows judicial know-how to be placed at the disposal of the public. It is nevertheless essential to preserve their impartiality in particular by providing that they will perform this task in disputes other than those they are required to hear and decide. The CCJE considers that a similar measure be taken within those systems that already provide for the duty of the judge to attempt conciliation of the parties to a case.

162. Judicial supervision of appointment of mediators is only one of the elements of a system designed to prevent dangers connected with privatisation of dispute resolution (and possible restrictions of substantial and procedural rights of the parties) that may result from a wide recourse to ADR. The CCJE considers that it is also essential that courts control the mediation proceedings and their outcome.

163. It emerged from the CCJE’s discussions that in some circumstances the parties may be granted the right to settle a dispute by an agreement which is not subject to confirmation by the judge. However, such confirmation might prove essential in certain cases, particularly where enforcement measures have to be considered.

164. At least in this case the judge must enjoy substantial supervisory powers, particularly concerning respect for equality between the parties, the reality of their consent to the measures provided for by the agreement and respect for the law and for public policy. As for specific aspects concerning criminal mediation, the CCJE may recall here the considerations in paragraph 147 above.

SUMMARY OF THE RECOMMENDATIONS AND CONCLUSIONS

A. Access to justice

A.1. States should provide dissemination of suitable information on the functioning of the judicial system (nature of proceedings available; duration of proceedings in the average and in the various courts; costs and risks involved in case of wrongful use of legal channels; alternative means of settling disputes offered to parties; landmark decisions delivered by the courts - see paragraphs 12-15 above).

A.2. In particular:

- citizens’ guides should be made available;

- courts themselves should participate in disseminating the information;

- education programmes should include a description of the judicial system and should offer visits to courts (see paragraphs 16-17 above).

A.3. Simplified and standardised formats for the legal documents needed to initiate and proceed with court actions should be adopted, at least for some sectors of litigation (see paragraph 18 above).

A.4. Technology should be developed whereby litigants may, via computer facilities:

- obtain the necessary documents for bringing an action before a court;

- be put directly in touch with the courts;

- obtain full information, even before proceedings are instituted, as to the nature and the amount of the costs they will have to bear, and indication of the foreseeable duration of the proceedings up to the judgment (see paragraph 19 above).

A.5. The remuneration of lawyers and court officers should be fixed in such a way as not to encourage needless procedural steps (see paragraph 28 above).

A.6. Provision should be made, pursuant to Recommendation No. R (84) 5 (principle 2-1 in the appendix), for sanctioning abuse of court procedure (see paragraph 28 above).

A.7. States should guarantee the right for a litigant to plead his or her case before a court either personally or through the representative of his or her choice, particularly when simplified proceedings, litigation of minor financial importance, and consumers' cases are involved; there should be, however, provision enabling the judge, as an exceptional measure, to order the intervention of counsel if the case presents particular problems (see paragraphs 24-26 above).

A.8. A legal aid system should be organised by the State to enable everyone to enjoy access to justice, covering not only court costs but also legal advice as to the wisdom or the necessity of bringing an action; it should not be reserved for the neediest persons but should also be available, at least in part, to those whose average income does not enable them to bear the cost of an action unaided; the judge should be able to take part in decisions concerning the grant of aid, making sure that the obligation of the objective impartiality is respected (see paragraphs 21 and 22 above).

A. 9. Legal aid ought to be financed by a public authority and covered by a special budget, so that the corresponding expenses are not charged to the operating budget of the courts (see paragraph 23 above).

B. Quality of the justice system and its assessment; quantitative statistical data; monitoring procedures

B.1. The quality of the justice system depends both on the quality of infra-structures, which may be measured with criteria similar to those employed for other public services, and on the ability performance of legal professionals (judges, but also lawyers, prosecutors and clerks), whose work may be only measured against the benchmarks of law and of judicial or professional practice and deontology (see paragraph 31 above).

B.2. It is necessary to assess the quality of judicial activity, with reference also to social and economic efficiency, through criteria that are sometimes similar to those employed for other public services (see paragraphs 32 and 33 above).

B.3. The evaluation of the activity of the court system as a whole or of each individual court or local group of courts should not be confused with the evaluation of the professional ability of every single judge, which has other purposes. Similar considerations may apply to the activities of other legal professionals involved in the functioning of the court system (see paragraphs 33 and 34 above).

B.4. The overlap between quality assessment of justice and professional evaluation of a judge should also be avoided when designing judicial statistics; in particular, the use of reversal rates as the only or even necessarily an important indicator to assess the quality of the judicial activity is inappropriate; the same consideration applies to other systems in which some assessment, through systems different from the observation of the reversal rate, is possible as to an individual decision taken by judges (see paragraphs 35-37 above).

B.5. Although no generally accepted criteria exist at this moment as to data to be collected, the goal of data collection should consist in the evaluating justice in its wider context, i.e. in the interactions of justice with other variables (judges and lawyers, justice and police, case law and legislation, etc.), as most malfunctions of the justice system derive from lack of coordination between several actors (see paragraph 39 above).

B.6. It is also crucial to underline, in the data collection procedures, the interaction between the quality of justice and the presence of adequate infra-structures and support personnel (see paragraphs 31 and 39 above).

B.7. Furthermore, "quality" of justice should not be understood as a synonym for mere "productivity" of the judicial system; a qualitative approach should address rather the ability of the system to match the demand of justice in conformity with the general goals of the legal system, of which speed of procedures is only one element (see paragraphs 38-42 above).

B.8. Quality indicators should be chosen by wide consensus among legal professionals (see paragraph 43 above).

B.9. Data collection and monitoring should be performed on a regular basis, and procedures carried out by the independent body should allow a ready adjustment of the organisation of courts to changes in the caseloads (see paragraphs 46-48 above).

B.10. In order to reconcile the realisation of this need with the guarantees of independence of the judiciary, the independent body mentioned in paragraphs 37 and 45 of the CCJE's Opinion No. 1 (2001) should be competent for the choice and the collection of "quality" data, the design of the data collection procedure, the evaluation of results, its dissemination as feed-back, as well as the monitoring and follow-up procedures. The States should, in any case, assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice (see paragraphs 43-48 above).

C. Case-load and case management

General

C.1. The recommendations in Recommendation No. R (87) 18 regarding reduction in the workload of courts should be implemented.

C.2. States should provide adequate resources for criminal and civil courts, and judges should (even where they have no direct administrative role) be consulted and have a say in basic decisions about the shape of modern justice and the priorities involved (see paragraphs 52-55 above).

C.3. Judges should encourage consensual settlement (whether by the parties alone or through mediation) since it has an independent worth, reflecting the values of freedom of choice and agreement, compared with a court-imposed solution (see paragraph 50 above and section D below).

C.4. It is generally desirable, in countries whose constitutional arrangements so permit, that there should be some flexibility enabling judges and/or cases to be transferred relatively easily between courts, at least on a temporary basis and subject to their consent, to cater for fluctuations in workload. Regard should always be had, when considering court closures, to the right of citizens to have convenient access to their courts (see paragraph 57-60 above).

C.5. The use of a single judge should be facilitated to determine guilt or innocence within conditions mentioned in paragraphs 61-64 above. The CCJE also considers that countries should encourage training and career development to make full use of single judges to hear first instance cases, wherever this can be achieved commensurately with the experience and capabilities of the judges available and the nature of the proceedings (see paragraphs 61-64 above).

C.6. The judges should have one or more personal assistants having good qualifications in the legal field to which they can delegate certain activities (see paragraph 65 above).

C.7. The non-judicial activities listed in Recommendation No. R (86) 12 should be assigned to bodies or individuals other than judges, and attention should be given to the risks inherent when judges are permitted to undertake other private work, which might impact on their public duties. Judges should not be discouraged from serving on relevant commissions and other out-of-court bodies but should exercise particular caution before accepting appointment in cases where essentially non-legal judgments are involved (see paragraphs 66-69 above).

C.8. In criminal cases, legal aid or free legal representation should be available without evaluation of the merits of the defendant’s position. The CCJE recommends further study of the differences between the nature and seriousness of the cases for which such aid or representation is available in different countries. In civil cases suitable control systems need to be introduced for evaluating the merits of claims in advance (see paragraph 70 above).

C.9. In respect of all aspects of case management, comparative study of other states’ experience offers valuable insights into specific procedural measures that may be introduced, a number of which are discussed in more details in the text above.

Criminal cases

C.10. Further studies ought to be encouraged in individual states which do not presently have any system of or equivalent to discretionary prosecution so as to give effect to Recommendation No. R (87) 18 (see paragraphs 73-77 above).

C.11. All countries should consider whether a system of sentence discount for a guilty plea might not bring benefits to their criminal justice. Any such plea must be in court and be taken by a judge. Lawyers should have a professional obligation to ensure that the plea of guilty is entered voluntarily and with the intention to admit each of the elements of the offence charged (see paragraphs 79- 89 above).

Civil cases

C.12. To comply with their duties under article 6 of the ECHR to ensure “a fair and public hearing within a reasonable time”, states should provide adequate resources and courts should conduct individual cases in a manner which is fair and proportionate as between the particular parties and takes into account the interests of other litigants and the public generally; that means conducting such litigation in a manner that enables the parties thereto to obtain justice at a cost commensurate with the issues involved, the amounts at stake and (without prejudice to the state’s duty to provide appropriate resources) the court’s own resources and that enables other litigants to obtain their fair share of the court’s time for their own disputes (see paragraphs 103-104 above).

C.13. The key to conducting litigation proportionately is active case management by judges, the core principles of which are stated in Recommendation No. R (84) 5. The most important point is that judges should from the outset and throughout legal proceedings control the timetable and duration of proceedings, setting firm dates and having power to refuse adjournments, even against the parties’ wishes (see paragraphs 90-102 above).

C.14. Parties should be required to define and commit themselves to their cases and evidence at an early stage, and judges should have power, both at first instance and on any appeal, to exclude amendments and/or new material after that stage (see paragraphs 122-125 above).

C.15. States should introduce (a) effective protective measures, (b) summary, simplified and/or abbreviated procedures and (c) procedures for early determination of preliminary issues (including jurisdictional issues) and for the speedy resolution of any appeal in respect of such preliminary issues (see paragraphs 111-131 above).

C.16. Court judgments should be immediately enforceable, notwithstanding any appeal, subject to provision of security where appropriate to protect the losing party in the event of a successful appeal (see paragraphs 129-130 above).

C.17. Countries should give consideration to the possibility of introducing into their systems controls on unmeritorious appeals, in order to ensure that the speedy disposition of meritorious appeals is not impaired (see paragraph 138 above).

D. Alternative dispute resolution (ADR)

D.1. It is necessary to encourage the development of ADR schemes and to increase public awareness of their existence, the way they operate and their cost (see paragraph 141 above).

D.2. Legal aid should be available for ADR as it is for standard court proceedings; both legal aid resources as well as any other public expenditures to support ADR should make use of a special budget, so that the corresponding expenses are not charged to the operating budget of the courts (see paragraph 142 above).

D.3. Although, unlike ADR in civil matters, criminal mediation is not useful to alleviate the current workload of the court system, it may have a preventative effect in respect of future crimes; since Recommendation No. R (99) 19 concentrates solely on "mediation" between offender and victim, there is a need for further research on the broader concept of "restorative justice", i.e. procedures allowing diversion from the normal criminal process before it starts (soon after arrest), after it has started as part of the sentencing process or even during the execution of punishment; since schemes for restorative justice require more careful implementation than ADR in civil disputes, as bringing victims and offenders into contact is a much more sensitive process than bringing two parties to a civil dispute together, the success of such schemes depends in part on a cultural change for criminal justice practitioners used to the normal trial and punishment model of justice (see paragraphs 146-149 above).

D.4. Recourse to mediation, in civil and administrative proceedings, may be chosen on the parties' initiative or, alternatively, the judge should be allowed to recommend it; the parties should be allowed to refuse recourse to mediation; such a refusal should not infringe the party's right to have his/her case decided (see paragraphs 150-152 above).

D.5. In criminal mediation, if a criminal case is diverted from the normal prosecution process after it has started, it should require an order of a judge; all restorative justice arrangements (or, if appropriate, those that are more than mere warnings with no legal relevance) should have the formality of judicial approval (see paragraphs 151-152 above).

D.6. Information provided during mediation operations in civil and administrative disputes should be confidential; confidentiality may be lifted in the event of an agreement between the parties; it is open to question whether and how far the judge may consider refusal to access mediation or to accept a friendly settlement when making orders relating to trial expenses or costs (see paragraphs 154-156 above).

D.7. Confidentiality should also apply to ADR in criminal matters, especially in those countries where prosecution is obligatory. This poses the problem of what should be the consequences of admission of other offences on the part of the offender or of persons who are not participating in the mediation process (see paragraph 157 above).

D.8. Both in criminal and civil-administrative matters, ADR schemes should be closely associated with the court system; appropriate legal provisions or court practice should confer the judge the power to direct the parties to appear before a judicially appointed, trained mediator, who may prove possession of relevant skills and qualifications, as well as of the necessary impartiality and independence for such a public service (see paragraphs 157-159 and 161 above).

D.9. Judges may act as mediators themselves, since this allows judicial know-how to be placed at the disposal of the public; it is nevertheless essential to preserve their impartiality in particular by providing that they will perform this task in disputes other than those they are required to hear and decide (see paragraph 161 above).

D.10. ADR settlement agreements should be subject to confirmation by the judge, particularly where enforcement measures have to be considered; in this case the judge must enjoy substantial supervisory powers, particularly concerning respect for equality between the parties, the reality of their consent to the measures provided for by the agreement and respect for the law and for public policy; as for specific aspects concerning criminal mediation, further guarantees should apply (see paragraphs 162-164 above).

APPENDIX

List of the Council of Europe texts and instruments cited in this Opinion

Opinion No. 1 (2001) of the Consultative Council of European Judges (CCJE) on standards concerning the independence of the judiciary and the irremovability of judges.

Opinion No. 2 (2001) of the Consultative Council of European Judges (CCJE) on the funding and management of courts with reference to the efficiency of the judiciary and to article 6 of the European Convention on Human Rights.

Opinion No. 3 (2002) of the Consultative Council of European Judges (CCJE) on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality.

Resolution (78) 8 on legal aid and advice.

Recommendation No. R (84) 5 of the Committee of Ministers to the member States on the principles of civil procedure designed to improve the functioning of justice.

Recommendation No. R (86) 12 of the Committee of Ministers to the member States concerning measures to prevent and reduce the excessive workload in the courts.

Recommendation No. R (94) 12 of the Committee of Ministers to the member States on the independence, efficiency and role of judges.

Recommendation No. R (87) 18 of the Committee of Ministers to the member States concerning the simplification of criminal justice.

Recommendation No. R (95) 12 of the Committee of Ministers to the member States on the management of criminal justice.

Recommendation No. R (98) 1 of the Committee of Ministers to the member States on family mediation.

Recommendation No. R (99) 19 of the Committee of Ministers to the member States concerning mediation in penal matters.

Recommendation Rec (2001) 9 of the Committee of Ministers to the member States on alternatives to litigation between administrative authorities and private parties.

Recommendation Rec (2002) 10 of the Committee of Ministers to the member States on mediation in civil matters.

opinion no.10 (2007)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

the council for the judiciary at the service of society

I. INTRODUCTION

1. In 2007, the Committee of Ministers of the Council of Europe entrusted the Consultative Council of European Judges (CCJE) with the task of adopting an Opinion on the structure and role of the High council for the judiciary or another equivalent independent body as an essential element in a state governed by the rule of law to achieve a balance between the legislature, the executive and the judiciary.

2. The diversity of European systems is reflected in the choice made by states and the discussions on the name of the bodies entrusted with the protection of the independence of judges. In order to facilitate the reading of this Opinion, the CCJE decided to use in this text the single term of “Council for the Judiciary”[88].

3. In accordance with its terms of reference, the CCJE considered the following points which appear in the Framework Global Action Plan for Judges in Europe[89]:

§ the respect for the guarantees of judicial independence in the member states at the constitutional, legislative and institutional levels (see Part I (a), (b), (c) and (d) of the Action Plan);

§ the setting up or strengthening of authorities who are independent from the legislative and/or executive authorities, with responsibility for managing judges' careers (see Part I (e) of the Action Plan).

4. The aim of this Opinion is to identify the core elements in relation to the general mission, composition and functions of the Council for the Judiciary with a view to strengthening democracy and to protecting the independence of the judiciary. The Opinion does not present a detailed description of principles for the composition or the functions of the Council for the Judiciary, neither does it create a single model for the Council for the Judiciary in Europe.

5. The composition and the functions of the Council for the Judiciary can vary from one country to another[90]. Conscious of this diversity but noticing at the same time a trend to create an independent Council for the Judiciary, the CCJE considered it necessary:

§ to stress the importance of the existence of a specific body entrusted with the protection of the independence of judges, in the context of respecting the principle of separation of powers;

§ to set guidelines and standards for member States wishing to implement or reform their Council for the Judiciary.

6. The provisions of this Opinion are relevant to all parts of the judicial system, in particular in the countries where a separate system of administrative justice exists, either within the framework of a single Council for the Judiciary (competent for ordinary and administrative justice), or through separate Councils[91].

7. When preparing this Opinion, the CCJE examined and duly took into account in particular:

§ the acquis of the Council of Europe and in particular Recommendation No.R(94)12 of the Committee of Ministers to member States on the independence, efficiency and role of judges^{^[92]}, the European Charter on the Statute for Judges of 1998 as well as Opinions No. 1, 2, 3, 4, 6 and 7 of the CCJE;

§ the report on “Judicial Appointments” adopted in March 2007 by the Venice Commission during its 70th Plenary Session, as a contribution to the work of the CCJE^{^[93]};

§ the replies by 40 delegations to a questionnaire concerning the Council for the Judiciary adopted by the CCJE during its 7th plenary meeting (8-10 November 2006);

§ the reports prepared by the specialists of the CCJE, Ms Martine VALDES-BOULOUQUE (France) on the current situation in the Council of Europe member States where there is a High Council for the Judiciary or another equivalent independent body and Lord Justice THOMAS (United Kingdom) on the current situation in states where such a body does not exist;

§ the contributions of participants in the 3rd European Conference of Judges on the theme of "Which Council for justice?", organised by the Council of Europe in co-operation with the European Network of Councils for the Judiciary (ENCJ), the Italian High Council for the Judiciary and the Ministry of Justice (Rome, 26-27 March 2007).

II. general mission: to safeguard the independence of the judiciary and the rule of law

8. The Council for the Judiciary is intended to safeguard both the independence of the judicial system and the independence of individual judges. The existence of independent and impartial courts is a structural requirement of a state governed by the rule of law.

9. The independence of judges, in a globalised and interdependent society, should be regarded by every citizen as a guarantee of truth, freedom, respect for human rights, and impartial justice free from external influence. The independence of judges is not a prerogative or privilege granted in their own interest, but in the interest of the rule of law and of anyone seeking and expecting justice. Independence as a condition of judges' impartiality therefore offers a guarantee of citizens' equality before the courts.

10. The CCJE also takes the view that the Council for the Judiciary should promote the efficiency and quality of justice, so assisting to ensure that Article 6 of the European Convention on Human Rights is fully implemented, and to reinforce public confidence in the justice system. In this context, the Council for the Judiciary has the task to set up the necessary tools to evaluate the justice system, to report on the state of services, and to ask the relevant authorities to take the necessary steps to improve the administration of justice.

11. The CCJE recommends that the Council for the Judiciary be positioned at the constitutional level in those countries having a written Constitution, or in the equivalent basic law or constitutional instrument for other countries. Provisions should be made for the setting up of such body, for the definition of its functions and of the sectors from which members may be drawn and for the establishment of criteria for membership and selection methods[94].

12. Beyond its management and administrative role vis-à-vis the judiciary, the Council for the Judiciary should also embody the autonomous government of the judicial power, enabling individual judges to exercise their functions outside any control of the executive and the legislature, and without improper pressure from within the judiciary.

13. In this perspective, the CCJE considers that it would be inappropriate for the Council for the Judiciary to be restricted by other authorities in its autonomy to decide on its own operating methods and on subjects for discussion. The relations between the Council for the Judiciary and the Minister of Justice, the Head of State and Parliament need to be determined. Furthermore, considering that the Council for the Judiciary does not belong to the hierarchy of the court system and cannot as such decide on the merits of the cases, relations with the courts, and especially with judges, need careful handling.

14. The Council for the Judiciary is also obliged to safeguard from any external pressure or prejudice of a political, ideological or cultural nature, the unfettered freedom of judges to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in accordance with the prevailing rules of the law[95].

III. MEMBERSHIP: to enable an optimum functioning of an independent and transparent council for the judiciary

III. A. A Council for the Judiciary composed by a majority of judges

15. The composition of the Council for the Judiciary shall be such as to guarantee its independence and to enable it to carry out its functions effectively.

16. The Council for the Judiciary can be either composed solely of judges or have a mixed composition of judges and non judges. In both cases, the perception of self-interest, self protection and cronyism must be avoided.

17. When the Council for the Judiciary is composed solely of judges, the CCJE is of the opinion that these should be judges elected by their peers.

18. When there is a mixed composition (judges and non judges), the CCJE considers that, in order to prevent any manipulation or undue pressure, a substantial majority of the members should be judges elected by their peers^{^[96]}.

19. In the CCJE’s view, such a mixed composition would present the advantages both of avoiding the perception of self-interest, self protection and cronyism and of reflecting the different viewpoints within society, thus providing the judiciary with an additional source of legitimacy. However, even when membership is mixed, the functioning of the Council for the Judiciary shall allow no concession at all to the interplay of parliamentary majorities and pressure from the executive, and be free from any subordination to political party consideration, so that it may safeguard the values and fundamental principles of justice.

20. When there is a mixed composition in the Council for the Judiciary, the CCJE is of the opinion that some of its tasks may be reserved to the Council for the Judiciary sitting in an all-judge panel.

III.B. Qualifications of members

21. Members, whether judges or not, must be selected on the basis of their competence, experience, understanding of judicial life, capacity for discussion and culture of independence.

22. The non-judge members may be selected among other outstanding jurists, university professors, with a certain length of professional service, or citizens of acknowledged status. Modern management of the judiciary might also require wider contributions from members experienced in areas outside the legal field (e.g. in management, finances, IT, social sciences).

23. Prospective members of the Council for the Judiciary, whether judges or non judges, should not be active politicians, members of parliament, the executive or the administration. This means that neither the Head of the State, if he/she is the head of the government, nor any minister can be a member of the Council for the Judiciary. Each state should enact specific legal rules in this area.

24. The CCJE considers that the composition of the Council for the Judiciary should reflect as far as possible the diversity in the society.

III.C. Selection methods

III. C. 1. Selection of judge members

25. In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary.

26. The selection can be done through election or, for a limited number of members (such as the presidents of Supreme Court or Courts of appeal), ex officio.

27. Without imposing a specific election method, the CCJE considers that judges sitting on the Council for the Judiciary should be elected by their peers following methods guaranteeing the widest representation of the judiciary at all levels^{^[97]}.

28. Although the roles and tasks of professional associations of judges and of the Council for the Judiciary differ, it is independence of the judiciary that underpins the interests of both. Sometimes professional organisations are in the best position to contribute to discussions about judicial policy. In many states, however, the great majority of judges are not members of associations. The participation of both categories of judges (members and non members of associations) in a pluralist formation of the Council for the Judiciary would be more representative of the courts. Therefore, judges' associations must be allowed to put forward judge candidates (or a list of candidates) for election, and the same arrangement should be available to judges who are not members of such associations. It is for states to design an appropriate electoral system including these arrangements.

29. In order to meet citizens’ expectations that the Council for the Judiciary should be “depoliticised”, the CCJE shares the view that competition for elections should comply with the rules set out by the Council for the Judiciary itself so as to minimise any jeopardy to public confidence in the judicial system.

30. The CCJE would have no objection to the development by states of methods, other than direct elections, guaranteeing the widest representation of the judiciary in the Council for the Judiciary. A method guaranteeing diverse and territorial representation could be adopted from some countries’ experiences in forming court panels, i.e. drawing by lot members on the basis of one or more territorial lists including eligible candidates upon nominations by a sufficient number of peers.

31. The CCJE does not advocate systems that involve political authorities such as the Parliament or the executive at any stage of the selection process. All interference of the judicial hierarchies in the process should be avoided. All forms of appointment by authorities internal or external to the judiciary should be excluded.

III. C. 2. Selection of non-judge members

32. Non-judge members should not be appointed by the executive. Although it is for each state to strike a balance between conflicting needs, the CCJE would commend a system that entrusts appointments of non-judges to non political authorities. If in any state any non judge members are elected by the Parliament, they should not be members of the Parliament, should be elected by a qualified majority necessitating significant opposition support, and should be persons affording, in the overall composition of the Council for the Judiciary, a diverse representation of society.

III. C. 3. Selection of the Chair

33. It is necessary to ensure that the Chair of the Council for the Judiciary is held by an impartial person who is not close to political parties. Therefore, in parliamentary systems where the President / Head of State only has formal powers, there is no objection to appointing the Head of State as the chair of the Council for the Judiciary, whereas in other systems the chair should be elected by the Council itself and should be a judge.

III.D. Number of members and duration of their mandate

34. The CCJE considers that the membership of the Council for the Judiciary should reflect the size of the judiciary and, consequently, the volume of tasks to be fulfilled. Although it is for the states to decide whether the members of the Council for the Judiciary should sit as full-time or part time members, the CCJE points out that full-time attendance means a more effective work and a better safeguard of independence. However, there is a need to ensure that judges sitting on the Council for the Judiciary are not absent for too long from their judicial work, so that, whenever possible, contact with court practice should be preserved. Terms of office which entail exclusive sitting on the Council for the Judiciary should be limited in number and time[98].

35. The CCJE recommends that, in order to guarantee the continuity of the Council's activities, members of the Council for the Judiciary should not all be replaced at the same time.

III. E. Status of members

36. Members of the Council for the Judiciary (both judges and non-judges) should be granted guarantees for their independence and impartiality. The remuneration of the members of the Council for the Judiciary should be commensurate to their position and the workload within the Council.

IV. RESOURCES (TO ENSURE FINANCING, PERSONNEL, TECHNICAL EXPERTISE) AND LEGITIMATE DECISIONS OF THE COUNCIL FOR THE JUDICIARY

IV. A. Budget and staff

37. The CCJE stresses the importance of ensuring that the Council for the Judiciary is financed in such a way that it is enabled to function properly. It should have appropriate means to operate independently and autonomously as well as power and capacity to negotiate and organise its own budget effectively.

38. The Council for the Judiciary should have its own premises, a secretariat, computing resources and freedom to organise itself, without being answerable for its activities to any political or other authority. It should be free to organise its sittings and set the agenda for its meetings, as well as have the right to communicate directly with the courts in order to carry out its functions. The Council for the Judiciary should have its own staff according to its needs, and each member should have staff in accordance with the tasks assigned to him or her.

IV. B. Decisions of the Council for the Judiciary

39. Some decisions of the Council for the Judiciary in relation to the management and administration of the justice system, as well as the decisions in relation to the appointment, mobility, promotion, discipline and dismissal of judges (if it has any of these powers) should contain an explanation of their grounds, have binding force, subject to the possibility of a judicial review. Indeed, the independence of the Council for the Judiciary does not mean that it is outside the law and exempt from judicial supervision.

IV.C. Technical expertise

40. The Council for the Judiciary may request the expertise of other professionals on specific issues. Of course, these experts are not members of the Council and cannot take part in the decision process.

V. EXTENSIVE POWERS in order to guarantee the independence and the efficiency of justice

41. Overall the Council for the Judiciary should have a wide role in respect of competences which are interrelated, in order that it can better protect and promote judicial independence and the efficiency of justice.

42. The CCJE recommends that the Council for the Judiciary ensures that the following tasks, to be performed preferably by the Council itself, or in cooperation with other bodies, are fulfilled in an independent manner:

§ the selection and appointment of judges (see point V.A);

§ the promotion of judges (see point V.A);

§ the evaluation of judges (see point V.B);

§ disciplinary and ethical matters (see point V.C);

§ the training of judges (see point V.D);

§ the control and management of a separate budget (see point V.E);

§ the administration and management of courts (see point V.F);

§ the protection of the image of judges (see point V.G);

§ the provision of opinions to other powers of the State (see point V.H);

§ the co-operation with other relevant bodies on national, European and international level (see point V.I).

§ the responsibility towards the public: transparency, accountability, reporting (see point VI).

43. One must be aware of and take into account the fact that there might be conflicts between different functions of the Council for the Judiciary, such as between appointing and training of judges, or between training and disciplinary matters, as well as between training and evaluation of judges. One way of avoiding such conflict is to separate the different tasks between various branches of the Council for the Judiciary[99].

44. The CCJE emphasises that the various tasks of the Council for the Judiciary are closely linked to the constitutional role of the Council for the Judiciary and that therefore the tasks should be set out in the Constitution, basic law or constitutional instrument. In order to ensure the best discharge of the Council’s responsibilities, the problems with possible external and internal pressure (e.g. pressure of the legislature/executive) should be prevented by defining the type of tasks and the way they should be carried out.

45. Also there should be a close connection between the composition and the competences of the Council for the Judiciary. Namely, the composition should result from the tasks of the Council for the Judiciary. Certain functions of the Council for the Judiciary may require for example members of the legal professions, professors of law or even representatives of civil society.

46. Among Councils for the Judiciary, a distinction can also be made between Councils performing traditional functions (e.g. in the so-called “Southern European model” with competences for appointment of judges and evaluation of the judiciary) and Councils performing new functions (e.g. in the so-called “Northern European model” with competences for management and budget matters). The CCJE encourages attributing both traditional and new functions to the Council.

47. Furthermore, the competences of the Council for the Judiciary may be related to the functions of other similar bodies, such as a Council for prosecutors or in some countries a separate Council for administrative judges. It is also one of the responsibilities of the Council for the Judiciary to develop relations with these different bodies as well as to expand European and international contacts/co-operation.

V. A. Selection, appointment and promotion of judges

48. It is essential for the maintenance of the independence of the judiciary that the appointment and promotion of judges are independent and are not made by the legislature or the executive but are preferably made by the Council for the Judiciary^{^[100]}.

49. While it is widely accepted that appointment or promotion can be made by an official act of the Head of State, yet given the importance of judges in society and in order to emphasise the fundamental nature of their function, Heads of States must be bound by the proposal from the Council for the Judiciary. This body cannot just be consulted for an opinion on an appointment proposal prepared in advance by the executive, since the very fact that the proposal stems from a political authority may have a negative impact on the judge’s image of independence, irrespective of the personal qualities of the candidate proposed.

50. Although this appointment and promotion system is essential, it is not sufficient. There must be total transparency in the conditions for the selection of candidates, so that judges and society itself are able to ascertain that an appointment is made exclusively on a candidate’s merit and based on his/her qualifications, abilities, integrity, sense of independence, impartiality and efficiency. Therefore, it is essential that, in conformity with the practice in certain States, the appointment and selection criteria be made accessible to the general public by every Council for the Judiciary. The Council for the Judiciary shall also ensure, in fulfilling its role in relation to the court administration and training in particular, that procedures for judicial appointment and promotion based on merit are opened to a pool of candidates as diverse and reflective of society as a whole as possible.

51. In addition, where more senior posts are concerned, particularly that of a head of jurisdiction, general profiles containing the specificities of the posts concerned and the qualities required from candidates should be officially disseminated by the Council for the Judiciary in order to provide transparency and accountability over the choice made by the appointing authority. This choice should be based exclusively on a candidate’s merits rather than on more subjective reasons, such as personal, political or an association/trade union interests.

V. B. Professional evaluation of judges

52. The issues relating to the professional assessment of judges are twofold: firstly, the assessment of the quality of the judicial system and, secondly, the professional ability of judges.

53. The question of the quality assessment of the judicial system was touched upon by the CCJE in Opinion No. 6[101]. As far as the present Opinion is concerned, it is very important that, in each member State, the Council for the Judiciary holds a vital role in the determination of the criteria and standards of quality of the judicial service on the one hand, and in the implementation and monitoring of the qualitative data provided by the different jurisdictions on the other.

54. Quality of justice can of course be measured by objective data, such as the conditions of access to justice and the way in which the public is received within the courts, the ease with which available procedures are implemented and the timeframes in which cases are determined and decisions are enforced. However, it also implies a more subjective appreciation of the value of the decisions given and the way these decisions are perceived by the general public. It should take into account information of a more political nature, such as the portion of the State budget allocated to justice and the way in which the independence of the judiciary is perceived by other branches of the government. All these considerations justify the active participation of Councils for the Judiciary in the assessment of the quality of justice and in the implementation of techniques ensuring the efficiency of judges’ work. .

55. Where applicable, the question of the professional assessment of judges depends on whether a judge is recruited at the beginning of his/her career from among other candidates who have no previous professional experience or after many years of practice of a legal profession from among the most experienced and deserving practitioners. In the former case the candidate’s professional qualities need to be assessed in order to determine his/her previously undisclosed abilities, while there is also utility in such an assessment in the latter case, having regard to the nature of the judicial role and the constant evolution of legal practice and the competencies it involves.

56. It is important to note that the assessment should not only consist of an examination of the legal expertise and the general professional abilities of judges, but also of more personal information, such as their personal qualities and their communication skills. If the practice of judicial functions presupposes great technical and personal qualities, it would be desirable to come to some common agreement at the European level concerning their identification. In this respect, the Council for the Judiciary should play a fundamental role in the identification of the general assessment criteria. However, the Council for the Judiciary should not substitute itself for the relevant judicial body entrusted with the individual assessment of judges.

V. C. Ethics and discipline of judges

V. C. 1. Ethics

57. The CCJE, when dealing with the questions of ethics and discipline in its Opinion No.3(2002), has pinpointed the need to clearly distinguish between these two matters.

58. The distinction between discipline and professional ethics brings about the need to provide judges with a collection of principles of professional ethics, which should be conceived as a working tool in judicial training and the everyday practice. The dissemination of case law on matters of discipline by the disciplinary authority marks a great improvement in the information available to judges; it allows them to engage in discussions on their practices, creating a “think tank” for these discussions. However, this is not sufficient in itself: the disciplinary decisions do not cover the entire scope of the rules of professional ethics, nor constitute the guide to good practices needed by judges.

59. The collection of principles of professional ethics should contain a synthesis of these good practices, with examples and comments; this should not amount to a code, the rigidity and falsely exhaustive nature of which being criticised. This guide of good practices should be the work of the judges themselves as it would be inappropriate for third parties, and in particular for other branches of government, to impose any principle on them.

60. Given the distinction between professional ethics and discipline drawn up by the CCJE, the drafting of this collection of principles should be done by a body other than the one responsible for judges’ discipline. There are several solutions for determining the competent body which should be responsible for judicial ethics:

(i) to entrust this activity to the Council for the Judiciary, if this Council does not have a disciplinary function or has a special body for disciplinary matters with a separate composition within the Council for the Judiciary (see paragraph 64 below);

(ii) or to create, alongside the Council for the Judiciary, an ethics committee whose only function would be the drafting and monitoring of rules of professional ethics. Problems with the latter choice may arise from the criteria of selection of the committee members and the risk of conflict or disagreement between this committee and the Council for the Judiciary.

The body entrusted with ethics could also, as the CCJE suggested in Opinion No. 3, advise judges on matters of professional ethics with which they are likely to be faced throughout their career.

61. In addition, the CCJE considers that associating persons external to the judiciary (lawyers, academics, representatives of the society, other governmental authorities) in the process of development of ethical principles is justified in order to prevent possible perception of self-interest and self protection, while making sure that judges are not deprived of the power to determine their own professional ethics.

V. C. 2. Discipline

62. The question of a judge’s responsibility was examined by the CCJE in Opinion No.3(2002). The recent experiences of some States show the need to protect judges from the temptation to broaden the scope of their responsibility in purely jurisdictional matters. The role of the Council for the Judiciary is to show that a judge cannot bear the same responsibilities as a member of another profession: he/she performs a public function and cannot refuse to adjudicate on disputes. Furthermore, if the judge is exposed to legal and disciplinary sanctions against his/her decisions, neither judicial independence nor the democratic balance of powers can be maintained. The Council for the Judiciary should, therefore, unequivocally condemn political projects designed to limit the judges’ freedom of decision-making. This does not diminish judges' duty to respect the law.

63. A judge who neglects his/her cases through indolence or who is blatantly incompetent when dealing with them should face disciplinary sanctions. Even in such cases, as indicated by CCJE Opinion No.3(2002), it is important that judges enjoy the protection of a disciplinary proceeding guaranteeing the respect of the principle of independence of the judiciary and carried out before a body free from any political influence, on the basis of clearly defined disciplinary faults: a Head of State, Minister of Justice or any other representative of political authorities cannot take part in the disciplinary body.

64. The Council for the Judiciary is entrusted with ethical issues; it may furthermore address court users' complaints. In order to avoid conflicts of interest, disciplinary procedures in first instance, when not addressed within the jurisdiction of a disciplinary court, should preferably be dealt with by a disciplinary commission composed of a substantial representation[102] of judges elected by their peers, different from the members of the Council for the Judiciary, with provision of an appeal before a superior court.

V.D. Training of judges[103]

65. The responsibility for organising and supervising judicial training should in each country be entrusted not to the ministry of justice or any other authority answerable to the legislature or the executive, but to the judiciary itself or preferably to the Council for the Judiciary; judges' associations can also play a valuable role in that respect. Furthermore, the conception of training programmes and their implementation should be entrusted, under the authority of the judiciary or preferably the Council for the Judiciary, to a special autonomous body (e.g. a training academy) with its own budget and which should work in consultation with judges. A clear division of functions should be encouraged between the Council for the Judiciary and the training academy, when it exists.

66. The CCJE is of the opinion that, if the Council for the Judiciary has competence in training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks and ties should be avoided either with the ministry of justice (appointment of the trainers, budget allocation etc.), or with the ministry of education (accreditation, recognition of diplomas etc.).

67. The Council for the Judiciary should cooperate with the training body, during the initial and in-service training, to ensure an efficient and high quality training, and to guarantee that judges are selected based on objective and measurable criteria, a merit based system and proper training.

V. D. 1. Initial training

68. In order for candidates for appointment as judges to receive quality training, the CCJE recommends that the Council for the Judiciary should participate directly or in other ways cooperate with training institutions in the creation and the development of the programme for initial training, through which candidates will develop and deepen not only their legal knowledge of the national and international substantive and procedural law and practice, but also develop complementary skills, e.g. knowledge of foreign languages, ethics, alternative dispute resolution, so that society may be served by judges capable of applying the law correctly, and of critical and independent thinking, social sensitivity and open-mindedness.

69. In addition, the Council for the Judiciary should provide external evaluation of the initial training, in the sense that by following the professional development and success in everyday work of judges in the early years after appointment, it will evaluate the effectiveness of initial training and will be able to make suggestions for its improvement.

V. D. 2. Continuous training

70. The Council for the Judiciary should promote participation of judges in all training activities, as a significant part of their professional activity. The legal and ethical duty and right of judges is to work on their own professional development through participation in the continuous training which should be understood as a life long learning process. Judges, during the performance of their duties, should, in particular, follow changes in national and international legislation and practice[104], be in touch with social trends and become acquainted with alternative dispute resolution methods. The CCJE recommends that the Council for the Judiciary should take into account judges' participation in training programmes when considering their promotion.

71. The reports and statistics for the evaluation of the work of the judges and the courts, annually prepared by the Council for the Judiciary, should contain data about the critical issues on which training should be focused[105], such as case management, time management, budgeting, improvement of working techniques, public relations skills, communication techniques, legal research etc.

72. More generally, the Council for the Judiciary should be widely consulted in the process of selection of the topics which will be included in the yearly training programmes; the Council for the Judiciary should also monitor the way the programme is carried out and evaluate its effects on the quality of the performance of the judiciary.

V. E. Budget of the Judiciary

73. Although the funding of courts is part of the State budget, such funding should not be subject to political fluctuations. Decisions on the allocation of funds to the courts must be taken with the strictest respect for judicial independence. The arrangements for parliamentary adoption of the judicial budget should include a procedure that takes into account the opinions of the judiciary^{^[106]}. If the Council for the Judiciary does not have a role of administration and management of the courts, it should at least be in a position to issue opinions regarding the allocation of the minimal budget which is necessary for the operation of justice, and to clarify its needs in order to justify its amount.

74. The CCJE is of the opinion that the courts can only be properly independent if they are provided with a separate budget and administered by a body independent of the executive and legislature, whether it is a Council for the Judiciary or an independent agency.

75. Although it is advocated by some States that the ministry of justice is better placed to negotiate the court budget vis-à-vis other powers, especially the ministry of finances, the CCJE is of the opinion that a system in which the Council for the Judiciary has extended financial competences requires serious consideration in those countries where such is not the case at present. It must be stressed that extended financial powers for the Council for the Judiciary imply its accountability not only vis-à-vis the executive and the legislature, but also vis-à-vis the courts and the public.

V. F. Court administration and management

76. The determination of the conditions for the allocation of the budget to the various courts and the decision as to the body which should examine and report on the efficiency of the courts are sensitive issues. The CCJE considers that the Council for the Judiciary should have competence in this respect.

77. The Council for the Judiciary should not have competence in respect of performance management of individual judges.

78. The CCJE is of the opinion that the Council for the Judiciary can make a positive contribution to the promotion of quality of justice. Apart from developing policy in this respect, sufficient funding of the courts shall be provided to enable them to fulfil their obligations in this respect. In some countries systems have been set up to account for and measure the quality of justice; it is important to inquire into the results of such developments. As to developing policy measuring quality, it is important that the Council for the Judiciary can obtain from the courts relevant data and statistics.

79. The Council for the Judiciary should supervise the organisation of the inspection service so that inspection is compatible with judicial independence. This is particularly important where inspection services belong to the executive.

V.G. Protection of the image of justice

80. In its Opinion No.7(2005), the CCJE recommended the setting up of programmes, to be generally supported by the European judiciaries and states, aimed at going beyond the scope of giving general information to the public in the area of justice, and at helping to provide the correct perception of the judge’s role in society. The CCJE considered that courts themselves should be recognised as a proper agency to organise programmes having the goal of improving the understanding and confidence of society with regard to its system of justice. In parallel, a role of co-ordinating the various local initiatives as well as promoting nation-wide “outreach programmes” should be given to the Council for the Judiciary which, with the assistance of professionals, may also provide more sophisticated information.

81. Again in its Opinion No.7(2005), the CCJE pointed out the role of an independent body – which could well be identified in the Council for the Judiciary or in one of its committees, if necessary with the participation of media professionals – in dealing with problems caused by media accounts of court cases, or difficulties encountered by journalists in carrying out their work.

82. Finally, in its above mentioned Opinion, the CCJE – dealing with the issue of judges or courts challenged or attacked by the media or by political or social figures through the media – considered that, while the judge or court involved should refrain from reacting through the same channels, the Council for the Judiciary or a judicial body should be able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases.

83. The Council for the Judiciary should have the power not only to disclose its views publicly but should also take all necessary steps before the public, the political authorities and, where appropriate, the courts to defend the reputation of the judicial institution and/or its members.

84. The Council for the Judiciary may also be the appropriate body to play a broader role in the field of the promotion and protection of the image of justice, as the performance of such a function often requires striking a balance between conflicting freedom of individuals, social and political actors, and the media, on the one hand, and the public interest in an independent and efficiently functioning justice system, on the other hand.

85. In this framework, the Council for the Judiciary could also address court users' complaints (See also paragraph 64 above).

86. The CCJE recommends that the Council for the Judiciary can perform such a function by availing itself of the help of the necessary professional assistance, as its staff in this area should not be restricted to lawyers but should also include journalists, social scientists, statisticians, etc.

V.H. Possibility to provide opinions to other powers of state

87. All draft texts relating to the status of judges, the administration of justice, procedural law and more generally, all draft legislation likely to have an impact on the judiciary, e.g. the independence of the judiciary, or which might diminish citizens' (including judges' own) guarantee of access to justice, should require the opinion of the Council for the Judiciary before deliberation by Parliament. This consultative function should be recognised by all States and affirmed by the Council of Europe as a recommendation.

V.I. Co-operation activities with other bodies on national, European and international level

88. The CCJE notes that in some States the responsibilities of the Council for the Judiciary are subdivided between several agencies. The resulting variety of national arrangements is further complicated by the fact that in some areas (e.g., training) a single institution may be competent, when in other areas competences are divided. It is not for the CCJE, at this stage, to take a stand with respect to an optimal scheme for the relations between separate agencies. Aware of the importance of national legal traditions as to the way in which such bodies have developed, the CCJE considers nonetheless the need to recommend that co-operation frameworks, under the leadership of the Council for the Judiciary, be set up, so that, when several agencies share the Council’s tasks, smooth achievement of these tasks may be ensured. Such a process is also likely to favour institutional evolution in the sense of progressive unification of agencies (e.g. in the area of training). This also concerns co-operation with the Councils for the administrative judiciary. Cooperation with the Councils for the prosecutors, if such separate bodies exist, may also be appropriate.

89. The CCJE also stresses the importance of co-operation at the European and international levels between Councils for the Judiciary with respect to all areas in which Councils are active at the national level.

90. The CCJE acknowledges that the work of the European Network of the Councils for the Judiciary (which plays a general co-operative role between the councils for the judiciary) and the activities of the Lisbon Network and of the European Judicial Training Network (which are competent in the area of judicial training) deserve recognition and support. These Networks have been fruitful interlocutors for the CCJE.

VI. THE COUNCIL FOR THE JUDICIARY IN SERVICE OF ACCOUNTABILITY AND TRANSPARENCY OF THE JUDICIARY

91. Given the prospect of considerable involvement of the Council for the Judiciary in the administration of the judiciary, transparency in the actions undertaken by this Council must be guaranteed. Transparency is an essential factor in the trust that citizens have in the functioning of the judicial system and is a guarantee against the danger of political influence or the perception of self-interest, self protection and cronyism within the judiciary.

92. All decisions by the Council for the Judiciary on appointment, promotion, evaluation, discipline and any other decisions regarding judges' careers must be reasoned (see also paragraph 39 above).

93. As it has already been mentioned, transparency, in the appointment and promotion of judges, will be ensured by publicising the appointment criteria and disseminating the post descriptions. Any interested party should be able to look into the choices made and check that the Council for the Judiciary applied the rules and criteria based on merits in relation to appointments and promotions.

94. When the Council for the Judiciary has budgetary powers, it is only logical that it should be accountable for the use of the funds in question to the Parliamentary assembly which adopted the budget. The portion of the budget allocated to the judicial system should be controlled by the Audit Office in charge of supervising the use of public money, when it exists.

95. When the Council for the Judiciary has disciplinary powers, judges who are the subject of disciplinary proceedings shall be fully informed of the grounds of the decision so that they can evaluate if they should contemplate appealing against the decision (see paragraph 39 above). In addition, the Council for the Judiciary could consider the publication of decisions taken which are both formal and final, in order to inform, not only the whole of the judiciary, but also the general public of the way in which the proceedings have been conducted and to show that the judiciary does not seek to cover up reprehensible actions of its members.

96. The Council for the Judiciary should periodically publish a report of its activities, the aim of which being, on the one hand, to describe what the Council for the Judiciary has done and the difficulties encountered and, on the other, to suggest measures to be taken in order to improve the functioning of the justice system in the interest of the general public. The publication of this report may be accompanied by press conferences with journalists, meetings with judges and spokespersons of judicial institutions, to improve on the dissemination of information and on the interactions within the judicial institutions.

Summary of the Recommendations and conclusions

In its Opinion No.10(2007) on « The Council for the Judiciary at the service of society », the CCJE recommends that:

A. In general:

a) it is important to set up a specific body, such as the Council for the Judiciary, entrusted with the protection of the independence of judges, as a an essential element in a state governed by the rule of law and thus respecting the principle of the separation of powers ;

b) the Council for the Judiciary is to protect the independence of both the judicial system and individual judges and to guarantee at the same time the efficiency and quality of justice as defined in Article 6 of the ECHR in order to reinforce public confidence in the justice system;

c) the Council for the Judiciary should be protected from the risk of seeing its autonomy restricted in favour of the legislature or the executive through a mention in a constitutional text or equivalent.

B. On the composition of the Council for the Judiciary:

a) in order to avoid the perception of self-interest, self protection and cronyism and to reflect the different viewpoints within society, the Council for the Judiciary should have a mixed composition with a substantial majority of judges, even if certain specific tasks should be held in reserve to an all-judge panel. The Council for the Judiciary may also be exclusively composed of judges;

b) prospective members, whether judges or not, shall be appointed on the basis of their competence, experience, understanding of judicial life and culture of independence. Also, they should not be active politicians or members of the executive or the legislature;

c) judge members should be elected by their peers, without any interference from political authorities or judicial hierarchies, through methods guaranteeing the widest representation of the judiciary; if direct elections are used for selection, the Council for the Judiciary should issue rules aimed at minimising any jeopardy to public confidence in the justice system;

d) appointment of non-judge members, with or without a legal experience, should be entrusted to non-political ; if they are however elected by the Parliament, they should not be members of the Parliament, should be elected by a qualified majority necessitating significant opposition support, and should be persons affording, in the overall composition of the Council for the Judiciary, a diverse representation of society.

C. On the functioning of the Council for the Judiciary:

a) terms of office of members could be full-time but limited in number and in time in order to preserve contact with court practice; members (judges and non-judges) should be granted guarantees for their independence and impartiality;

b) the Council for the Judiciary should manage its own budget and be financed to allow an optimum and independent functioning;

c) some decisions of the Council of the Judiciary shall be reasoned and have binding force, subject to the possibility of a judicial appeal ;

d) as an essential element of the public confidence in the justice system, the Council for the Judiciary should act with transparency and be accountable for its activities, in particular through a periodical report suggesting also measures to be taken in order to improve the functioning of the justice system.

D. On the powers of the Council for the Judiciary:

a) the Council for the Judiciary should have a wide range of tasks aiming at the protection and the promotion of judicial independence and efficiency of justice; it should also ensure that no conflicts of interest arises in the Council for the Judiciary in carrying out its various tasks;

b) the Council of the Judiciary should preferably be competent in the selection, appointment and promotion of judges; this should be carried out in absolute independence from the legislature or the executive as well as in absolute transparency as to the criteria of selection of judges;

c) the Councils for the Judiciary should be actively involved in the assessment of the quality of justice and in the implementation of techniques ensuring the efficiency of judges’ work, but should not substitute itself for the relevant judicial body entrusted with the individual assessment of judges;

d) the Council for the Judiciary may be entrusted with ethical issues; it may furthermore address court users' complaints;

e) the Council for the Judiciary may be entrusted with organising and supervising the training but the conception and the implementation of training programmes remain the responsibility of a training center, with which it should cooperate to guarantee the quality of initial and in-service training;

f) the Council for the Judiciary may have extended financial competences to negotiate and manage the budget allocated to Justice as well as competences in relation to the administration and management of the various courts for a better quality of Justice ;

g) the Council for the Judiciary may also be the appropriate agency to play a broad role in the field of the promotion and protection of the image of justice;

h) prior to its deliberation in Parliament, the Council for the Judiciary shall be consulted on all draft legislation likely to have an impact on the judiciary, e.g. the independence of the judiciary, or which might diminish citizens' guarantee of access to justice;

i) co-operation with the different Councils for the Judiciary at the European and international levels should be encouraged.

opinion no.12 (2009)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

“judges and prosecutors in a democratic society”[126]

This Opinion, jointly adopted by the CCJE and the CCPE contains:

§ a Declaration, called « Bordeaux Declaration » ;

§ an Explanatory Note.

BORDEAUX DECLARATION

“JUDGES AND PROSECUTORS IN A DEMOCRATIC SOCIETY”[127]

The Consultative Council of European Judges (CCJE) and the Consultative Council of European Prosecutors (CCPE), at the request of the Committee of Ministers of the Council of Europe to provide an opinion on relationships between judges and prosecutors, agreed on the following:

It is in the interest of society that the rule of law be guaranteed by the fair, impartial and effective administration of justice. Public prosecutors and judges shall ensure, at all stages of the proceedings, that individual rights and freedoms are guaranteed, and public order is protected. This involves the total respect of the rights of the defendants and of the victims. A decision of the prosecutor not to prosecute should be open to judicial review. An option may be to allow the victim to bring the case directly to the court.

The fair administration of justice requires that there shall be equality of arms between prosecution and defence, as well as respect for the independence of the court, the principle of separation of powers and the binding force of final court decisions.

The proper performance of the distinct but complementary roles of judges and public prosecutors is a necessary guarantee for the fair, impartial and effective administration of justice. Judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear independent from each other.

Adequate organisational, financial, material and human resources should be put at the disposal of justice.

The role of judges – and, where applicable, of juries – is to properly adjudicate cases brought regularly before them by the prosecution service, without any undue influence by the prosecution or defence or by any other source.

The enforcement of the law and, where applicable, the discretionary powers by the prosecution at the pre-trial stage require that the status of public prosecutors be guaranteed by law, at the highest possible level, in a manner similar to that of judges. They shall be independent and autonomous in their decision-making and carry out their functions fairly, objectively and impartially.

The CCJE and the CCPE refer to the consistent case-law of the European Court of Human Rights in relation to article 5 paragraph 3 and article 6 of the European Convention of Human Rights. In particular, they refer to the decisions whereby the Court recognized the requirement of independence from the executive power and the parties on the part of any officer authorized by law to exercise judicial power but which does not, however, exclude subordination to higher independent judicial authority. Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions, should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendants’ right to a decision on such cases by an independent and impartial authority exercising judicial functions.

For an independent status of public prosecutors, some minimal requirements are necessary, in particular:

- that their position and activities are not subject to influence or interference from any source outside the prosecution service itself;

- that their recruitment, career development, security of tenure including transfer, which shall be effected only according to the law or by their consent, as well as remuneration be safeguarded through guarantees provided by the law.

In a State governed by the rule of law, when the structure of prosecution service is hierarchical, effectiveness of prosecution is, regarding public prosecutors, strongly linked with transparent lines of authority, accountability, and responsibility. Directions to individual prosecutors should be in writing, in accordance with the law and, where applicable, in compliance with publicly available prosecution guidelines and criteria. Any review according to the law of a decision by the public prosecutor to prosecute or not to prosecute should be carried out impartially and objectively. In any case, due account shall be given to the interests of the victim.

The sharing of common legal principles and ethical values by all the professionals involved in the legal process is essential for the proper administration of justice. Training, including management training, is a right as well as a duty for judges and public prosecutors. Such training should be organized on an impartial basis and regularly and objectively evaluated for its effectiveness. Where appropriate, joint training for judges, public prosecutors and lawyers on themes of common interest can contribute to the achievement of a justice of the highest quality.

The interest of society also requires that the media are provided with the necessary information to inform the public on the functioning of the justice system. The competent authorities shall provide such information with due regard in particular to the presumption of innocence of the accused, to the right to a fair trial, and to the right to private and family life of all persons involved in proceedings. Both judges and prosecutors should draw up a code of good practices or guidelines for each profession on its relations with the media.

Both public prosecutors and judges are key players in international cooperation in judicial matters. The enhancement of mutual trust between competent authorities of different states is necessary. In this context, it is imperative that information gathered by prosecutors through international co-operation and used in judicial proceedings is transparent in its content and origin, as well as made available to the judges and all parties, with a view to an effective protection of human rights and fundamental freedoms.

In member States where public prosecutors have functions outside the criminal law field, the principles mentioned herein apply to these functions.

Explanatory note

I. INTRODUCTION:

a. Purpose of the Opinion

1. It is an essential task of a democratic State based on the rule of law to guarantee that fundamental rights and freedoms as well as equality before the law are fully respected, in accordance, in particular, with the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as well as the case-law of the European Court of Human Rights (the Court). At the same time it is important to ensure security and justice in society by assuring effective measures in respect of criminal conduct. Security in society must also be guaranteed in a democratic state by an effective enforcement of penalties imposed for criminal conduct (Declaration, paragraph 1).

2. Thus, it is the mission of the State to set up and to ensure the functioning of an efficient justice system respectful of human rights and fundamental freedoms. While numerous actors participate in this mission, be they from the public or (as in the case of lawyers) private sector, a key role in ensuring the functioning of justice in an independent and impartial way is played by judges and public prosecutors.

3. In their previous Opinions, the Consultative Council of European Judges (CCJE) and the Consultative Council of European Prosecutors (CCPE) addressed many important aspects of the efficiency of justice with emphasis on human rights and fundamental freedoms. It should be underlined that the common goal of judges and prosecutors, including that of public prosecutors who have tasks outside the criminal law field, is to ensure a fair, impartial and effective justice. The novelty of this Opinion is that it has been drafted by judges and prosecutors representing their national colleagues and it deals with matters which the judges and prosecutors have agreed on the basis of their practical experience.

4. Hence, the text focuses on essential aspects of the two missions and in particular: independence, respect of individual rights and freedoms, objectivity and impartiality, ethics and deontology, training and relations with the media.

5. The present Opinion should be considered in the context of the relations of judges and prosecutors with professional persons dealing with justice involved in the various stages of judicial proceedings, such as lawyers, judicial experts, court clerks, bailiffs, police, as suggested by the Framework Global Action Plan for Judges in Europe, adopted by the Committee of Ministers on 7 February 2001 and the Recommendation (2000)19 on the role of prosecution in the criminal justice system, adopted by the Committee of Ministers on 6 October 2000.

b. Diversity of national systems

6. In the member States of the Council of Europe, many legal systems exist side by side:

i. the Common Law systems in which there is a clear division between judges and prosecutors and where the criminal investigation power is not combined with other functions;

ii. the Continental Law systems where one may observe different types in which either judges and prosecutors are part of the « judicial corps » or, on the contrary, only judges may belong to that corps

In addition, in these various systems, the public prosecution’s autonomy from the executive can be complete or limited.

7. The objective of this Opinion is to identify, in the light of the Court s’ case law, a basis of applicable principles and approaches while taking into account common points as well as differences.

8. The guarantee of separation of functions represents an essential condition of the judge’s impartiality towards the parties in the proceedings. Impartiality, as stated in Opinion No. 1 of the CCJE on standards concerning the independence of the judiciary and the irremovability of judges (2001), is first among the institutional guarantees that define the position of a judge. Furthermore, it presupposes that the public prosecution is allocated the burden of proof and the filing of indictments, which constitutes one of the first procedural guarantees of the ultimate decision.

9. In every system, the judge’s role is therefore different to that of the public prosecution. Their respective missions remain nevertheless complementary. There are no hierarchic ties between the judge and the prosecutor.

10. The independence of the public prosecution service constitutes an indispensable corollary to the independence of the judiciary. The role of the prosecutor in asserting and vindicating human rights, both of suspects, accused persons and victims, can best be carried out where the prosecutor is independent in decision-making from the executive and the legislature and where the distinct role of judges and prosecutors is correctly observed. In a democracy based on the rule of law, it is the law that provides the basis for prosecution policy (Declaration, paragraph 3).

c. Peculiarities of functions

11. Prosecutors and judges must both carry out their functions fairly, impartially, objectively and consistently, must respect and strive to protect human rights and seek to ensure that the justice system operates promptly and efficiently.

12. In carrying out their functions, prosecutors rely on either a system of discretionary prosecution (the opportunity principle) or a system of mandatory prosecution (the legality principle), but in both cases prosecutors not only act on behalf of the society as a whole, but also discharge duties to particular individuals, namely the accused person to whom a duty of fairness is owed, as well as the victims of crime to whom a duty is owed to ensure that their rights are fully taken into account. In that sense and without prejudice to the respect for the principle of equality of arms, the prosecutor can not be considered equal to other parties (Declaration, paragraph 2). Prosecutors should also take proper account of the views and concerns of victims and take or promote actions to ensure that victims are informed of both their rights and the course of the proceedings. They should not initiate or continue prosecution when an impartial investigation on the basis of the available evidence shows the charge to be unfounded.

d. Existing international instruments

13. Several texts of the Council of Europe as well as the case-law of the Court address directly or implicitly topics related to the relationship between judges and prosecutors.

14. First and foremost, the Court assigns tasks to judges only in their capacity as the guardians of rights and freedoms – see in particular Articles 5 (right to liberty and security) and 6 (right to a fair trial) - but it does so also to public prosecutors (as a result of Article 5 paragraphs 1a and 3, and 6).

15. The Court, one of whose tasks is to interpret the ECHR, has given several rulings on matters affecting the relationship between judges and public prosecutors.

16. In particular it has dealt with the problem of a person serving in turn as prosecutor and judge in the same case (judgment of 1 October 1982 in Piersack v. Belgium, §§ 30-32), the need to guarantee that no political pressure is ever put on the courts or the prosecuting authorities (judgment of 12 February 2008, in Guja v. Moldova, §§ 85-91), the need to protect judges and public prosecutors in the context of freedom of expression (judgment of 8 January 2008, in Saygili and Others v. Turkey, §§ 34-40), procedural obligations of courts and public prosecutors’ departments to investigate, prosecute and punish human rights violations (judgment of 15 May 2007, in Ramsahai and Others v. the Netherlands, §§ 321-357) and lastly the prosecuting authorities’ contribution to the standardization of case-law (judgment of 10 June 2008, in Martins de Castro and Alves Correia de Castro v. Portugal, §§ 51-66).

17. In the area of criminal procedure, the Court has examined the status and powers of the public prosecution service and the requirements of Article 5 paragraph 3 of the ECHR (with regard to other officers “authorized by law to exercise judicial power”) in the context of various factual situations (see, inter alia, the judgments of 4 December 1979, in Schiesser v. Switzerland, §§ 27-38, in De Jong, Baljet and Van den Brink v. the Netherlands, §§ 49-50, in Assenov and Others v. Bulgaria, §§ 146-150, in Niedbala v. Poland, §§ 45-47, in Pantea v. Romania, §§ 232-243, and 10 July 2008, in Medvedyev and Others v. France, §§ 61, 67-69). The Court has also examined the status, jurisdiction and supervisory powers of the prosecuting authorities in cases of telephone monitoring (judgment of 26 April 2007, in Dumitru Popescu v. Romania, §§ 68-86) and the presence of the prosecuting authorities at the deliberations of Supreme Courts (judgments of 30 October 1991, in Borgers v. Belgium, §§ 24-29, and 8 July 2003, in Fontaine and Berlin v. France, §§ 57-67).

18. Lastly, outside the criminal sphere, the Court has a well established body of case-law on the “doctrine of appearances”, according to which the presence of prosecutors at the deliberations of courts is contrary to Article 6 paragraph 1 of the ECHR (judgments of 20 February 1996, in Lobo Machado v. Portugal, §§ 28-32, and 12 April 2006, in Martinie c. France [GC], §§ 50-55).

19. Other texts have been drawn up by the Council of Europe :

- Recommendation Rec(94)12 of the Committee of Ministers on the Independence, Efficiency and Role of Judges recognizes the links between judges and public prosecutors, at least in countries where the latter have judicial authority within the meaning attached to this expression by the Court;

- Recommendation Rec(2000)19 of the Committee of Ministers on the Role of Public Prosecution in the Criminal Justice System explicitly highlights the relations between judges and prosecutors, while underlining the general principles that are crucial for ensuring that these relationships contribute unequivocally to the proper performance of judges’ and public prosecutors’ tasks. It particularly emphasizes the obligation of States to “take appropriate measures to ensure that the legal status, the competencies and the procedural role of public prosecutors are established by law in a way that there can be no legitimate doubt about the independence and impartiality of the court judges”.

- Recommendation Rec (87)18 of the Committee of Ministers concerning the Simplification of Criminal Justice provides different examples of tasks previously vested solely in judges and currently entrusted to the public prosecution service (whose primary mission still consists in undertaking and directing prosecutions). These new tasks create additional requirements concerning the organisation of the public prosecution service and the selection of the people called upon to assume those functions.

II. STATUS OF JUDGES AND PUBLIC PROSECUTORS

a. Guarantees for the internal and external independence of judges and public prosecutors; the rule of law as a condition for their independence

20. Judges and public prosecutors should be independent from each other and also enjoy effective independence in the exercise of their respective functions. They discharge different duties in the justice system and in society at large. Therefore different perspectives of institutional and functional independence exist (Declaration, paragraph 3).

21. The judiciary is based on the principle of independence from any external power and from any instructions coming from any source, as well as on the absence of internal hierarchy. Its role and, where applicable, that of juries, is to properly adjudicate cases brought before them by the prosecution services and the parties. This involves the absence of all undue influence by the public prosecutor or the defence. Judges, prosecutors and defence lawyers should each respect the roles of the others. (Declaration, paragraph 5).

22. The fundamental principle of independence of judges is enshrined in Article 6 of the ECHR and stressed in previous opinions of the CCJE.

23. The function of judging implies the responsibility for making binding decisions for the persons concerned and for deciding litigation on the basis of the law. Both are the prerogative of the judge, a judicial authority independent from the other State powers[128]. This is, in general, not the mission of public prosecutors, who are responsible for bringing or continuing criminal proceedings.

24. The CCJE and the CCPE refer to the consistent case-law of the Court in regard to article 5, paragraph 3 and article 6 of the ECHR. In particular, they refer to the decision in the case Schiesser vs. Switzerland, whereby the Court recognized the requirement of independence from the executive and the parties on the part of any «officer authorized by law to exercise judicial powers”, which does not, however, exclude subordination to higher independent judicial authority (Declaration, paragraph 7).

25. Some member States assign to public prosecutors the power to make binding decisions in some areas instead of pursuing criminal prosecutions or in order to protect certain interests. The CCJE and the CCPE consider that any attribution of judicial functions to prosecutors should be limited to cases involving minor sanctions, should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendant's rights to a decision on such case by an independent and impartial authority exercising judicial functions. Under no circumstances, should any such attribution allow public prosecutors to take final decisions restricting individual freedoms and involving deprivation of liberty with no right to appeal to a judge or a court (Declaration, paragraph 7).

26. The public prosecution service is an independent authority whose existence should be based on the law at the highest possible level. In democratic states neither the parliament nor any governmental body should seek to unduly influence a particular decision taken by public prosecutors in relation to individual cases in order to determine how a prosecution in any particular case should be conducted, or constrain public prosecutors to change their decisions (Declaration, paragraphs 8 and 9).

27. The independence of public prosecutors is indispensable for enabling them to carry out their mission. It strengthens their role in a state of law and in society and it is also a guarantee that the justice system will operate fairly and effectively and that the full benefits of judicial independence will be realised (Declaration,, paragraphs 3 and 8). Thus, akin to the independence secured to judges, the independence of public prosecutors is not a prerogative or privilege conferred in the interest of the prosecutors, but a guarantee in the interest of a fair, impartial and effective justice that protects both public and private interests of the persons concerned.

28. The function of the prosecutor, which may be characterized by the principles of mandatory or discretionary prosecution, differs according to the system existing in each country, according to the position which the public prosecutor occupies in the institutional landscape and in the criminal procedure.

29. Whatever their status, public prosecutors must enjoy complete functional independence in the discharge of their legal roles, whether these are penal or not. Whether they are under a hierarchical authority or not, in order to ensure their accountability and prevent proceedings being instituted in an arbitrary or inconsistent manner, public prosecutors must provide clear and transparent guidelines as regards the exercise of their prosecution powers, (Declaration, paragraph 9).

30. In this respect, the CCJE and CCPE wish to recall in particular Recommendation (2000)19 which recognises that, in order to promote equity, consistency, and efficiency in the activity of the public prosecution service, States should seek to define general principles and criteria to serve as a reference against which decisions are taken by prosecutors in individual cases.

31. Directions to prosecutors should be in writing, in accordance with the law and, where applicable, in compliance with publicly available prosecution guidelines and criteria (Declaration, paragraph 9)[129].

32. Any decision to prosecute or not to prosecute must be legally sound. Any review according to the law of a decision by the prosecutor to prosecute or not to prosecute should be carried out impartially and objectively, whether or not it is being carried out within the prosecution service itself or by an independent judicial authority. The interest of the victim as well as any other person’s legal interests, should always be duly taken into account. (Declaration, paragraph 9).

33. The complementary nature of judges’ and prosecutors’ functions means that both are conscious that impartial justice requires equality of arms between the public prosecution service and the defence, and that public prosecutors must act at all times honestly, objectively and impartially. Judges and public prosecutors have, at all times, to respect the integrity of the suspects, accused persons and victims, as well as the rights of the defence (Declaration, paragraphs 2 and 6).

34. The independence of the judge and of the prosecutor is inseparable from the rule of law. Judges as well as prosecutors act in the common interest, in the name of the society and its citizens who want their rights and freedoms guaranteed in all their aspects. They intervene in areas where the most sensitive human rights (individual freedom, privacy, protection of possessions, etc.) deserve the greatest protection. Prosecutors must ensure that evidence is gathered and proceedings are initiated and continued in accordance with the law. In doing so, they must uphold the principles laid down by the ECHR and other international legal instruments, notably respect for the presumption of innocence, the rights of the defence and a fair trial. Judges must see to it that those principles are respected in proceedings before them.

35. While a public prosecutor is permitted to refer to the judge actions and petitions defined by law and to put before the judge the matters of fact and law supporting the same, the prosecutor may not interfere in any way in the judge’s decision making process and is bound to abide by the judge’s decisions. The prosecutor cannot oppose the enforcement of such decisions, other than by exercising such right of recourse as may be provided for by law (Declaration, paragraphs 4 and 5).

36. The activity and the demeanour of the public prosecutor and the judge should leave no doubt as to their objectivity and impartiality. Judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear independent from each other. In the eyes of litigants and the society as a whole, there must not be even a hint of connivance between judges and prosecutors or confusion between the two functions.

37. Respect for the above principles implies that the status of prosecutors be guaranteed by law at the highest possible level in a manner analogous to that of judges. The proximity and complementary nature of the missions of judges and prosecutors create similar requirements and guarantees in terms of their status and conditions of service, namely regarding recruitment, training, career development, discipline, transfer (which shall be effected only according to the law or by their consent), remuneration, termination of functions and freedom to create professional associations (Declaration, paragraph 8).

38. Both judges and prosecutors should, according to the national system in force, be directly associated with the administration and the management of their respective services. For this purpose, sufficient financial means as well as infrastructure and adequate human and material resources should be put at the disposal of judges and prosecutors and should be used and managed under their authority (Declaration, paragraph 4).

b. Ethics and deontology of judges and public prosecutors

39. Judges and prosecutors should be individuals of high integrity and with appropriate professional and organisational skills. Due to the nature of their functions, which they have accepted knowingly, judges and prosecutors are constantly exposed to public criticism and must, in consequence, set themselves a duty of restraint without prejudice, in the framework of the law, to their right to communicate on their cases. As principal actors in the administration of justice, they should at all times maintain the honour and dignity of their profession and behave in all situations in a way worthy of their office[130] (Declaration, paragraph 11).

40. Judges and prosecutors should refrain from any action and behaviour that could undermine confidence in their independence and impartiality. They should consider cases submitted to them with due care and within a reasonable time, objectively and impartially.

41. Public prosecutors should refrain from making public comments and statements, using the media, which may create an impression of putting direct or indirect pressure on the court to reach a certain decision or which may impair the fairness of the procedure.

42. Judges and prosecutors should strive to acquaint themselves with ethical standards governing the functions of each other. This will enhance understanding and respect for each other’s missions, thereby increasing the prospects of a harmonious collaboration.

c. Training of judges and public prosecutors

43. The highest level of professional skill is a pre-requisite for the trust which the public has in both judges and public prosecutors and on which they principally base their legitimacy and role. Adequate professional training plays a crucial role since it allows the improvement of their performance, and thereby enhances the quality of justice as a whole (Declaration, paragraph 10).

44. Training for judges and prosecutors involves not only the acquisition of the professional capabilities necessary for access to the profession but equally permanent training throughout their career. It addresses the most diverse aspects of their professional life, including the administrative management of courts and prosecution departments, and must also respond to the necessities of specialisation. In the interests of the proper administration of justice, the permanent training required to maintain a high level of professional qualification and to make it more complete is not only a right but also a duty for judges and public prosecutors (Declaration, paragraph 10).

45. Where appropriate, joint training for judges, public prosecutors and lawyers on themes of common interest can contribute to the achievement of a justice of the highest quality. This common training should make possible the creation of a basis for a common legal culture (Declaration, paragraph 10).

46. Different European legal systems provide training for judges and prosecutors according to various models. Some countries have established an academy, a national school or other specialised institution; some others assign the competence to specific bodies. International training courses for judges and prosecutors should be arranged. It is essential, in all cases, to assure the autonomous character of the institution in charge of organising such training, because this autonomy is a safeguard of cultural pluralism and independence.[131]

47. In this context, much importance attaches to the direct contribution of judges and prosecutors towards training courses, since it enables them to provide opinions drawn from their respective professional experience. Courses should not only cover the law and protection of individual freedoms, but should also include modules on management practices and the study of judges' and the prosecutors' respective missions. At the same time, additional lawyers’ and academic contributions are essential to avoid taking a narrow-minded approach. Finally, the quality and efficiency of training should be assessed on a regular basis and in an objective manner.

III. ROLES AND FUNCTIONS OF JUDGES AND PUBLIC PROSECUTORS IN THE CRIMINAL PROCEDURE

a. Roles between judges and public prosecutors in the pre-criminal procedure

48. At the pre-trial stage the judge independently or sometimes together with the prosecutor, supervises the legality of the investigative actions, especially when they affect fundamental rights (decisions on arrest, custody, seizure, implementation of special investigative techniques, etc).

49. As a general rule, public prosecutors should scrutinise the lawfulness of investigations and monitor the observance of human rights by the investigators when deciding whether a prosecution should commence or continue.

50. Recommendation Rec(2000)19 provides that when the police is placed under the authority of public prosecutors or when police investigations are either conducted or supervised by the prosecutor, the State should take effective measures to guarantee that the public prosecutor may give instructions and may carry out evaluations and controls, and can sanction the violations. Where the police is independent from public prosecutors, the recommendation merely provides that the State should take effective measures to ensure that there is an appropriate and functional cooperation between public prosecutors and the investigative authorities.

51. Even in systems where the investigation is supervised by the prosecutor whose status invests him with a judicial authority, it is essential that any measures taken in this context which involve significant infringements of freedoms, in particular temporary detention, are monitored by a judge or a court.

b. Relations between judges and public prosecutors in the course of prosecution and court hearing

52. In some States, public prosecutors can regulate the flow of cases by exercising a discretionary power to decide which cases will be brought before the court and which cases can be dealt with without court proceedings (conciliation between the accused and the victim, pre-trial settlement of the case with the consent of the parties, plea bargaining-related simplified and shortened procedures, mediation, etc), all of which contributes towards reducing the burden on the judicial system and determining prosecution priorities.

53. Such public prosecution powers, which reflect the modernisation, socialisation, humanisation and rationalisation of the administration of criminal justice, are useful in reducing the case overload of courts. On the other hand, as soon as prosecutors have the right not to present particular cases in court, it is necessary to avoid arbitrary actions, discrimination or possible unlawful pressures from the political power and to protect the rights of victims. It is also necessary to enable any person affected, in particular the victims, to seek a review of the prosecutor’s decision not to prosecute. An option may be to allow the victim to bring the case directly to the court.

54. Therefore, in countries which operate a system of discretionary prosecution, the prosecutor should give careful consideration on whether to prosecute or not, taking into account any general guidelines or criteria which have been adopted with a view to achieving consistency in prosecution decisions.

55. The impartiality of the prosecutors during the procedure should be understood in this sense: they should proceed fairly and objectively to ensure that the court is provided with all relevant facts and legal arguments and, in particular, ensure that evidence favourable to the accused is disclosed; take proper account of the position of the accused person and the victim; verify that all evidences have been obtained through means that are admissible by the judge according to the rules of a fair trial and refuse to use evidence obtained through human rights violations, such as torture (Declaration, paragraph 6).

56. Prosecutors shall not initiate or continue prosecution and shall make every effort to stop proceedings when an impartial investigation or a review of the evidence shows the charge to be unfounded.

57. In essence, during proceedings judges and prosecutors carry out their respective functions for the purpose of a fair criminal trial. The judge supervises the legality of evidence taken by the public prosecutors or investigators and may acquit an accused when there is insufficient or unlawfully obtained evidence. The public prosecutors may also have a right to appeal a court decision.

c. The rights of the defence at all levels of procedure

58. Judges must apply the rules of criminal procedure while fully respecting the rights of the defence (giving the defendants the possibility of exercising their rights, notifying the defendants of their charge, etc.), the rights of the victims in the procedure, the principle of equality of arms and the right to a public hearing, so that a fair trial is guaranteed in all cases[132] (Declaration, paragraphs 1, 2, 6 and 9).

59. An indictment plays a crucial role in a criminal proceedings: it is from the moment of its service that defendants are formally put on written notice of the factual and legal basis of the charges against them (the European Court of Human Rights judgment of 19 December 1989 in Kamasinski v. Austria, § 79). In a criminal process, the "fair hearing" required by Article 6 paragraph 1 of the ECHR entails that defendants must have the right to challenge the evidence against them, as well as the legal basis of the charge.

60. In countries where public prosecutors supervise the investigation, it is also for the prosecutor to ensure that the rights of the defence are respected. In countries where the criminal investigation is directed by the police or other law-enforcement authorities, judges are involved as guarantors of individual freedoms (habeas corpus), particularly as regards pre-trial detention, and it is for them to ensure that the rights of the defendant are respected.

61. In many countries, however, the judge and the prosecutor only become responsible for monitoring the exercise of the rights of the defence once the investigation has been completed and examination of the charges begins. At this point it is for the prosecutor, who receives the investigators’ reports, and the judge, who examines the charges and the evidence gathered, to ensure that everyone charged with a criminal offence has, in particular, been informed promptly, in a language he/she understands and in detail, of the nature and cause of the accusation against him/her.

62. Depending on their role in a particular country, prosecutors and judges must then ensure that the person has had adequate time and facilities for the preparation of his/her defence, that he/she is properly defended, if necessary by an officially appointed lawyer paid by the state, and has access, if necessary, to an interpreter, and is able to request the taking of actions necessary to establish the truth.

63. Once the case has been brought before the trial court, the powers of the judge and the prosecutor vary according to the role they play during the trial. In any event, if any of the components of respect for the rights of the defence is lacking, either the judge or the prosecutor, or both, depending on the particular national system, should be able to draw attention to the situation and objectively remedy it.

IV. RELATIONS OF JUDGES AND PUBLIC PROSECUTORS OUTSIDE THE CRIMINAL LAW FIELD AND IN SUPREME COURTS

64. Depending on the State in which they operate, prosecutors may or may not have tasks and functions outside the criminal law field.[133] Where prosecutors have such tasks and functions these can include, inter alia, civil, administrative, commercial, social, electoral and labour law as well as the protection of the environment, social rights of vulnerable groups such as minors, disabled persons and persons with very low income. The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision making process of the judges (Declaration, paragraph 13).

65. The role that public prosecutors have in certain countries before the Supreme Court is also worth mentioning. This role is comparable with that of the advocate general before the Court of Justice of the European Communities. Before these jurisdictions, the attorney general (or equivalent) is not a party and does not represent the State. He is an independent authority who sets down conclusions, in each case or only in cases of particular interest, in order to clarify for the court all aspects of the questions of law that are before it, with a view to ensuring the correct application of the law.

66. According to the rule of law in a democratic society all these competences of public prosecutors as well as the procedures of exercising these competences have to be precisely established by law. When prosecutors act outside the criminal law field, they should respect the exclusive competence of the judge or court and take into account the principles developed in particular in the case-law of the Court as follows:

i. The participation of the prosecution in court proceedings should not affect the independence of the courts;

ii. The principle of separation of powers should be respected in connection with the prosecutors’ tasks and activities outside the criminal law field, on the one hand, and with the role of courts to protect human rights, on the other hand;

iii. Without prejudice of their prerogatives to represent the public interest, prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings (equality of arms principle);

iv. The action of prosecutors’ services on behalf of society to defend the public interest and the rights of individuals shall not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court.

The other principles mentioned in the Declaration apply to all the functions of the public prosecutors outside the criminal law field, mutatis mutandis (Declaration, paragraph 13).

V. JUDGES, PUBLIC PROSECUTORS AND THE MEDIA (Declaration, paragraph 11)

67. Media play an essential role in a democratic society in general and more specifically in relation to the judicial system. The perception in society of the quality of justice is heavily influenced by media accounts of how the justice system works. Publicity also contributes to the achievement of a fair trial, as it protects litigants and defendants against a non-transparent administration of justice.

68. The expanding public and media attention to criminal and civil proceedings has led to an increasing need for objective information to be provided to the media both from the courts and public prosecutors.

69. It is of fundamental importance in a democratic society that the courts inspire confidence in the public[134]. The public character of proceedings is one of the essential means whereby confidence in the courts can be maintained.

70. Within the Council of Europe two main documents deal with this issue: a) Recommendation Rec (2003)13 on the Provision of Information through the Media in Relation to Criminal Proceedings, and b) Opinion No. 7 of the CCJE on Justice and Society (2005).

71. Bearing in mind the right of the public to receive information of general interest, journalists should be provided with necessary information in order to be able to report and comment on the functioning of the justice system, subject to the obligations of discretion of the judges and prosecutors on pending cases and to the limitations established by national laws and in accordance with the case-law of the Court.

72. Media, as well as judges and public prosecutors, shall respect fundamental principles such as the presumption of innocence [135]and the right to a fair trial, the right to private life of the persons concerned, the need to avoid an infringement of the principle and of the appearance of impartiality of judges and public prosecutors involved in a case.

73. Media coverage of cases under investigation or on trial can become invasive interference and produce improper influence and pressure on judges, jurors and public prosecutors in charge of particular cases. Good professional skills, high ethical standards and strong self-restraint against premature comments on pending cases are needed for judges and public prosecutors to meet this challenge.

74. Media liaison personnel, for example public information officers or a pool of judges and prosecutors trained to have contact with the media, could help the media to give accurate information on the courts’ work and decisions, and also assist judges and prosecutors.

75. Judges and prosecutors should mutually respect each other’s specific role in the justice system. Both judges and prosecutors should draw up guidelines or a code of good practice for each profession on its relations with the media[136]. Some national codes of ethics require judges to refrain from public comments on pending cases, in order not to make statements that might cause the public to question the judges’ impartiality[137], and to avoid violation of the presumption of innocence. In any case, judges should express themselves above all through their decisions; discretion and the choice of words are important where judges give statements to the media on cases pending or decided in accordance with the law[138]. Public prosecutors should be cautious when commenting on the procedure followed by the judge or upon the judgment issued, stating his/her disagreement concerning a decision by means of an appeal, if appropriate.

VI. JUDGES, PROSECUTORS AND INTERNATIONAL CO-OPERATION

(Declaration, paragraph 12)

76. In order to ensure the effective protection of human rights and fundamental freedoms, it is important to note the need for an efficient international cooperation notably between the Council of Europe member states on the basis of values enshrined in relevant international instruments, in particular the ECHR. International co-operation must be built on mutual trust. Information gathered through international cooperation and used in judicial procedures must be transparent in its content and origin as well as available to judges, public prosecutors and to the parties. It will be necessary to prevent international judicial cooperation from taking place without any judicial monitoring and without taking adequately into account, in particular, the rights of defence and the protection of personal data.

opinion no.13 (2010)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

the role of judges in the enforcement of judicial decisions

I. Introduction

1. The Committee of Ministers of the Council of Europe instructed the Consultative Council of European Judges (hereafter “CCJE”) to adopt, in 2010, an Opinion "on the role of judges in the relation to the other functions of State and other actors in the enforcement of judicial decisions”[139].

2. The CCJE has drafted this Opinion on the basis of replies to a questionnaire received from 34 member states. The replies of almost all member states identify the existence of serious obstacles to effective and adequate enforcement of judicial decisions. These obstacles arise in the civil, administrative and criminal spheres. With regard to civil and administrative matters, member states report, in particular, the complexity and cost of the enforcement procedures. With regard to criminal matters, member states report for example inadequate prison conditions and laxity in the execution of penalties.

3. This Opinion will propose concrete means to improve the role of the judge in the enforcement of judicial decisions and not deal with the enforcement procedure in general.

4. In order to do so, the judge's role will be examined as regards the enforcement of judicial decisions in the civil, administrative and criminal fields, as well as of decisions taken by international courts, notably by the European Court of Human Rights (hereafter “the Court”).

5. To draft this Opinion, the CCJE relies on instruments adopted by the Council of Europe, in particular:

- the European Convention on Human Rights (hereafter „ the ECHR“), in particular Articles 5, 6, 8 and 13 and Article 1 of Protocol No. 1;

- the Interlaken Declaration at the High Level Conference on the Future of the Court (February 19, 2010);

- the Recommendation Rec(2003) 16 of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law;

- the Recommendation Rec(2003) 17 of the Committee of Ministers to member states on enforcement;

- the Recommendation Rec(2006) 2 of the Committee of Ministers to member states on the European Prison Rules;

- the Recommendation Rec(2008) 2 of the Committee of Ministers to member states on efficient domestic capacity for rapid execution of judgments of the Court;

- Report of the CEPEJ "European judicial systems" (2010 Edition);

- “Enforcement of Court decisions in Europe” (CEPEJ Studies No. 8);

- CEPEJ Guidelines for a better implementation of the existing Council of Europe's Recommendation on enforcement;

- 3rd Annual Report 2009 on the supervision of the execution of judgments of the Court;

- the Convention for the Protection of Personal Data (ETS No. 108);

- the views of the Commissioner for Human Rights "The imperfect implementation of judicial decisions undermines confidence in the justice of states" (31 August 2009);

- the Conventions of the Council of Europe on enforcement of sentences and extradition: the European Convention on Extradition (ETS No. 24) and its protocols (ETS No. 86 and 98), the European Convention for the Supervision of Conditionally Sentenced or paroled (ETS No. 51), the European Convention on the International Validity of Criminal Judgments (ETS No. 70), the Convention on the Transfer of Sentenced Persons (ETS No. 112) and its Additional Protocol (ETS No. 167);

as well as the Court case-law on this matter, in particular:

- Hornsby v. Greece (19 March 1997, No. 18357/91);

- Burdov v. Russia Nr 2 (15 January 2004, No. 33509/04);

- Akashev v. Russia (12 June 2008, No. 30616/05);

- Zielinski and Pradal and Gonzalez and Others v. France (28 October 1999, No. 24846/94 and acc);

- Cabourdin v. France (11 April 2006, No. 60796/00);

- Immobiliare Saffi v. Italy (28 July 1999, GC No. 22774/93);

- Papon v. France (25 July 2002, No. 54210/00);

- Annoni Di Gussola and Desbordes and Omer v. France (14 November 2000, No. 31819/96, 33293/96).

II. General principles

6. Enforcement should be understood as putting into effect judicial decisions and also other judicial or non-judicial enforceable titles. It may involve an order to do, to refrain from doing or to pay what has been adjudged. It may involve the imposition of financial penalties or a custodial sentence.

7. The effective enforcement of a binding judicial decision is a fundamental element of the rule of law. It is essential to ensure the trust of the public in the authority of the judiciary. Judicial independence and the right to a fair trial (Article 6 of the ECHR) is in vain if the decision is not enforced.

8. The enforcement procedure must be implemented in compliance with fundamental rights and freedoms (Articles 3, 5, 6, 8, 10, 11 of the ECHR, data protection, etc.).

9. The decision to be enforced must be precise and clear in determining the obligations and rights engaged in order to avoid any obstacle to effective enforcement[140].

10. Decisions of the Court show that, in some cases, legislative or executive powers have attempted to influence enforcement through refusal or suspension or denial of resort to the police. They also have interfered in pending litigation by enacting provisions, often declared as being of a retroactive or interpretative nature, aiming at changing the foreseeable outcome of one or more court cases or introducing new remedies for their review[141].

11. The enforcement of a decision must not be undermined by extraneous intervention whether from the executive or the legislator by imposing retroactive legislation.

12. The very notion of an “independent” tribunal set out in Article 6 of the ECHR implies that its power to give a binding decision may not be subject to approval or ratification, or that the decision may not be altered in its content, by a non-judicial authority, including the Head of State[142]. All branches of states should therefore ensure that the legal provisions providing for the independence of courts, existing in their constitutions or at the highest level of their legislation, are construed in such a way that they call for prompt enforcement of judicial decisions with no interference of other powers of the State, with the sole exceptions of amnesty and pardon in criminal matters. The suspension of enforcement of a judicial decision may only take place by way of another judicial decision.

13. There should be no postponement of the enforcement procedure, except on grounds prescribed by law. Any deferral should be subject to the judge’s assessment.

14. The enforcement agents should not have the power to challenge or vary the terms of the judgment.

15. If it is necessary for a party to have a decision enforced, the enforcement procedure should be easily initiated. Any obstacle to this, for instance excessive costs, should be avoided.

16. Enforcement should be swift and effective. Therefore necessary funds have to be provided for enforcement. Clear legal regulations should determine the available resources, the authorities in charge and the applicable procedure for their allocation.

17. Member states should provide for an accelerated or urgent enforcement procedure where delay might cause an irreversible wrong (some family cases, cases where the defendant has absconded, cases of expulsion, risk of damage to property, etc.).

18. In order for judges to fulfil their tasks, the judiciary should be entrusted with the following missions concerning enforcement:

· an appeal to a judge if the enforcement is not initiated or is delayed by the relevant bodies; a judge should also be involved when fundamental rights of the parties are concerned; in all cases, the judge should have the power to grant just compensation;

· an appeal or complaint to a judge if there is any abuse in the enforcement procedure;

· an appeal to a judge in order to settle litigation concerning enforcement and to give orders to state authorities and other relevant bodies to enforce decisions; at the final stage, it should be up to the judge to use all possible ways to ensure enforcement;

· to identify and take due account of the rights and interests of third parties and members of the family including those of children.

19. In some systems, parties may be forced to comply with the judicial decision by way of indirect coercion, for example by imposing fines or legal provisions stating that criminal charges may be brought in the case of a refusal to execute. The CCJE considers that such indirect enforcement measures, which should in all cases be provided by the law and allowed by the judge, both in the decision or even afterwards, are especially important to ensure enforcement in urgent matters, in matters in which the specific performance may not be substituted by an equivalent satisfaction and in family matters, in which the use of force may harm the interest of children. In view of the benefits associated with indirect coercion, the CCJE recommends that courts ensure the widest use of such remedies, which also allow in most cases a prompt enforcement.

20. The CCJE considers that a transparent regulatory framework, preferably of legislative nature, should apply to costs of enforcement. The amount of fees should take into account the nature of the activity required from the enforcement agents, not necessarily in proportion to the value of the claim. In case of a dispute, costs should be assessed by the court.

21. For purposes of guaranteeing access to justice, alternative legal aid or financing arrangements should be proposed to claimants who are unable to pay the costs of enforcement (by public funding or reduction of costs).

22. The vital importance of enforcement to comply with the Rule of law requires that data about enforcement are included in systems of evaluation of justice and in information on judicial systems provided to court users, the general public and the media, as proposed in Opinion No. 6 of the CCJE (Parts A and C).

23. The CCJE recommends that the Council for the Judiciary, or any other relevant independent body, publish regularly a report on the effectiveness of enforcement, including data on delays and their causes, as well as on different enforcement methods. A special section should deal with the enforcement of judicial decisions against public entities.

III. The role of the judge in the enforcement of judicial decisions in civil matters

24. Enforcement of a judicial decision shall not require the commencement of entirely fresh proceedings and enforcement procedures shall not permit reopening of the merits of the original judicial decisions. But the judge may have power to suspend or postpone enforcement to take account of the particular circumstances of the litigants, for example to give effect to Article 8 of the ECHR.

25. If the rule of law is to be maintained and litigants’ trust in the judicial system is to be ensured, enforcement activities must be proportionate, fair and effective. For example, tracing and attachment of the defendants’ assets should be made as effective as possible, while taking account of the applicable provisions on human rights, protection of personal data and the need for judicial review.

26. When the parties are free to dispose of their rights and where the parties together reach a lawful agreement on enforcement, no legal provision should prevent the agreement from taking effect.

27. The fundamental right of data protection should be reconciled with the possibility to use, within enforcement procedures, information contained in databases on assets of debtors. This requires a precise legal regulation of the procedure and the authorisation to resort to the database, with the aim to guarantee an effective and complete enforcement and prevent any misuse. All state organs in charge of databases containing the information needed for effective enforcement should be bound to convey this information to the courts.

28. Repeated use of information on a defendant’s assets in connection with subsequent proceedings to which the same defendant is a party should have a clear and specific legal framework (setting of strict time limits for retention of data, etc.) and be subject to all procedural prerequisites to start an enforcement procedure.

IV. The role of judges in the enforcement of judicial decisions in administrative matters

29. The CCJE considers that most of the principles set out regarding enforcement in civil matters also apply “mutatis mutandis“ to enforcement in administrative matters, whether enforcement is against a private person or a public institution.

30. However, some special considerations arise concerning the execution of judicial decisions against public entities. These may arise in administrative law, but also in civil law disputes.

31. First, the CCJE considers that, in a state governed by the Rule of law, public entities are above all bound to respect judicial decisions, and to implement them in a rapid way “ex officio”. The very idea of a state body refusing to obey a court decision undermines the concept of primacy of the law.

32. A large amount of cases brought before the Court concerns the non-execution of judicial decision by public bodies. A state should respect judgments delivered against it without delay and without requiring the claimant to use enforcement procedures. The Court has repeatedly admitted claims by claimants who have either not used such procedures, or have had to do so, saying that “a person who has obtained an enforceable judgment against the state as a result of successful litigation cannot be required to resort to enforcement proceedings in order to have it executed”[143].

33. When recourse to forced execution is necessary, states should ensure that their domestic legislations allow criminal and disciplinary prosecution of officials to whom refusal or delay of execution is attributable, as well as to question their civil liability.

34. States should recover against such officials any additional costs incurred due to refusal or delay of enforcement. Acts by public officials delaying or denying enforcement should always be subject to an effective judicial review.

35. Legislative interference with pending execution is impermissible above all when a public entity is the debtor.

36. The same enforcement agents, as for enforcement against private bodies, should be competent and the same procedural principles should apply. Judges should not suffer restrictions in applying the same legal provisions and in ensuring effective compensation for delays in the enforcement procedure (indexation, default interest at the same rate generally applicable, specific damages, other penalties)[144].

37. Judgments concerning a decision by an administrative authority denying an alien’s right to stay on the state’s territory frequently involve the question whether the alien could be expulsed. In this context, expulsion constitutes the enforcement of the authority’s decision. The CCJE considers that, in order to secure effective judicial review, states should not prevent the court from examining the admissibility of expulsion in its final or interim decision concerning the act taken by the administrative authority.

V. The role of judges in the enforcement of judicial decisions in criminal matters

38. In criminal matters, respect of the Rule of law requires the full implementation of criminal sanctions or penalties, regardless of the nature of the sentence imposed. Thus, member states should refrain from developing policies which result in minor penalties that are not actually enforced, whether for budgetary reasons, lack of prison accommodation or expediency. The result of such policies is to undermine the authority of judicial decision making, and thereby the rule of law itself.

39. A penalty may take the form of a term of imprisonment, a fine, or another sanction (for instance, disqualification from driving, professional prohibition, etc.). As a general rule, the actual implementation of such sanctions is not a matter for the judge to decide on; such measures are to be put into effect by prosecutors, police authorities or any relevant administrative authority. Either public or private officials, such as bailiffs may be appointed by a judge or another competent authority to carry out such duties. In any case, the performance of such powers and the implementation of penal measures have a direct impact on individual rights. The role of a judge is to protect and guarantee such rights within the framework of the judicial decision to be enforced.

40. A term of imprisonment may be looked at from two different standpoints. The first relates to modalities of the enforcement of the sentence, namely the duration and mode of implementation which may involve questions such as remission of sentence, parole, limited detention or provisional release under judicial supervision or electronic surveillance. The second standpoint relates to the physical or psychological conditions or the effects of imprisonment, which may give rise to questions as to the lawfulness of the detention itself or the conditions of the detention.

41. In some member states, the modalities of enforcement of the sentence may fall within the function of judges. In other member states, this category is dealt with by a parole board or other administrative authorities. In either case, the implementation of such measures must be subject to fairness in procedure and to judicial supervision and review.

42. Any alteration in the nature or location of the detention, for example by placement in a psychiatric institution because of the prisoner’s mental health, must be subject to a right of appeal or judicial review.

43. Deprivation of liberty, of whatever nature, must at all times be in accordance with Article 3 and Article 8 of the ECHR. A person detained by police authorities or a sentenced prisoner must not, at any time, be subject to inhuman or degrading treatment. Human dignity must be protected at all times during detention. The requirements of Article 8.1 of the ECHR (respect for private and family life) must also be met, subject to the stipulations of Article 8.2 of the ECHR (possibility of interference by a public authority). It is the duty of the judge to protect and vindicate these rights and guarantees as applicable in each member state.

44. In some member states, the judge carries out ex officio the supervision of prison conditions. In other member states, the judge cannot assume ex officio jurisdiction in this matter. Whatever system in force, the legislation of each Member states should enable the convicted person, his/her counsel as well as the prosecution to bring a case before the judge whenever the conditions of detention violate fundamental rights guaranteed by Articles 3 and 8 of the ECHR. This legislation should also provide mechanisms that allow independent administrative authorities to supervise prison conditions and to refer, if need be, a case to the Court.

45. Contact between a judge and enforcement authorities (Ministry of Justice, prison authorities, social services, the directors of prisons) will generally be limited to disputed enforcement issues, both in the event that such authorities are questioned on conditions of detention or modalities of implementation of the penalty, and in the event that they are requested to provide their opinion as to how the penalty is to be implemented. In all cases, the judge must take all necessary steps to be provided with all relevant information by the authorities. These authorities must also provide and submit such information to the parties contesting any relevant issue.

46. Implementation of non-custodial sentences may have an impact on property (for instance fines, forfeitures or the closing of a business) or affect personal rights (such as a prohibition to exercise certain rights, disqualification from driving). All such issues may give rise to legal issues. A convicted person must be able to address and request a judge to review any disputes which arise thereof.

47. It is also necessary to ensure that judges, responsible for executing sentences, have specific training allowing them to clearly understand any legal, technical, social and human dimensions of this matter. Such training must be devised and led in interaction with all the authorities or services involved in the process of implementation including judges, prosecutors, ministerial officials, prison staff and administration, directors of penal institutions, as well as social workers, lawyers and others.

VI. The role of judges in the enforcement on the international level

1. Implementation of decisions of the European Court of Human Rights

48. In its Opinion n° 9, the CCJE gave its viewpoint on the role of the judge regarding the implementation of international case-law, especially that of the Court. It has, notably, specified how the judge should comply with the Court's case-law.

49. When a state is condemned to pay compensation by the Court, the creditor should, in case of non-enforcement of the decision of the Court, have the right to request the enforcement by the national judge, without prejudice to measures which could be taken at a supranational level.

2. International co-operation and cross-border enforcement

50. At a time where justice is characterised by growing mobility and the development of international trade, the priority should be given to develop and promote an area of justice common to European citizens, by removing any remaining obstacles in the exercise of their rights. Thus judicial rulings must be recognised and enforced between member states without hindrance.

51. The principles of mutual trust and recognition are cornerstones of the construction of a European legal area, while respecting the diversity of national systems. Mutual recognition implies that decisions given at the national level have an effect in other member states, in particular in their legal system. It is therefore essential to increase exchanges between legal professionals. Their different networks should reinforce and restructure themselves and coordinate with each other.

52. Systematic European training for all judges and prosecutors should be provided; they should take part in training initiatives or exchanges in other states. Moreover, distance teaching programmes (e-learning) and common training material should be developed to instruct the judicial professions on how to deal with the European mechanisms (relations with the Court, the CJUE, use of the instruments of mutual recognition and judicial co-operation, comparative law, etc.).

a. In civil and administrative matters

53. In civil litigation, judicial rulings should be enforced directly and without any further intermediate measure. It will thus be necessary to move ahead gradually and cautiously with the process of eliminating the exequatur clause from certain decisions in civil and commercial matters.

54. Meanwhile, the speed of procedures and the effectiveness of the enforcement of court decisions should be enhanced by improved international arrangements regarding the taking and enforcement of provisional and precautionary measures.

55. In addition, mutual recognition could be extended to areas not covered yet by European law and essential to everyday life, such as inheritances and wills, matrimonial property regimes and the pecuniary consequences of the separation of couples.

b. In criminal matters

56. In criminal matters, international co-operation involves many areas. Examples to be recalled may concern the serving of a sentence in the country of origin, determined by a judicial decision issued in another country, extradition requests, the European Arrest Warrant, the recognition of judicial decisions in criminal matters, judicial cooperation, etc.

57. The enforcement of a foreign judgment is to be realised under a convention between states and is based on mutual trust in the judicial system of each of them. The judge in the country of enforcement must honour that trust. Thus, this judge shall not change or challenge the decision of the judge in the country of origin. He or she will not refuse the execution thereof other than on the grounds of exclusion provided in the convention between the countries of enforcement and of origin, or when the decision is contrary to the fundamental rights of the persons concerned.

58. However, in the area of transfer of condemned persons, the judge can adapt the sanctions pronounced by the foreign judge when this possibility exists under the convention binding the states concerned.

VII. Conclusions

A. The effective enforcement of a binding judicial decision is a fundamental element of the rule of law. It is essential to ensure the trust of the public in the authority of the judiciary. Judicial independence and the right to a fair trial is in vain if the decision is not enforced.

B. The very notion of an “independent” tribunal set out in Article 6 of the European Convention on Human Rights implies that its power to give a binding decision may not be subject to approval or ratification, or the decision altered in its content, by a non-judicial authority, including the Head of State.

C. All branches of states should ensure that the legal provisions providing for the independence of courts, existing in their constitutions or at the highest level of their legislation, are construed in such a way that they call for prompt enforcement of judicial decisions with no interference by other powers of the State, with the sole exceptions of amnesty and pardon in criminal matters. The suspension of enforcement of a judicial decision may only take place by way of another judicial decision.

D. There should be no postponement of the enforcement procedure, except on grounds prescribed by law. Any deferral should be subject to the judge’s assessment. The enforcement agents should not have the power to challenge or vary the terms of the judgment.

E. In criminal matters, states should refrain from developing policies which result in minor penalties that are not actually executed.

F. The CCJE considers that, in a state governed by the rule of law, public entities are above all bound to respect judicial decisions, and to implement them in a rapid way “ex officio”. The very idea of a state body refusing to obey a court decision undermines the concept of primacy of the law.

G. Enforcement should be fair, swift, effective and proportionate.

H. The parties should be able to initiate enforcement proceedings easily. Any obstacle to this, for instance excessive cost, should be avoided.

I. All enforcement proceedings must be implemented in compliance with fundamental rights and freedoms recognized by the ECHR and other international instruments.

J. The deprivation of liberty must be in accordance with the rights protected by Articles 3 and 8 of the ECHR, while having regard to the stipulations recognized by Article 8.2 of the latter. It is the duty of the judge to protect and vindicate these rights.

K. Whether the modalities of execution of a sentence are under the responsibility of the judge, a parole board, or an administrative authority, the implementation of such measures must be subject to fairness in procedure and to judicial supervision and review.

L. The principles of trust and mutual recognition are cornerstones of the construction of a European legal area. Mutual recognition implies that decisions given at the national level have an effect in other member states, in particular in their legal system. It is therefore essential to increase exchanges between legal professionals. Their different networks should reinforce and restructure themselves and coordinate with each other.

M. The CCJE recommends that the Judicial Councils, or any other relevant independent body, should regularly publish a report on the effectiveness of enforcement. A separate section should deal with the execution of judgments against public entities.

opinion no. 14 (2011)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

“Justice and information technologies (IT)”

A. Introduction

1. In 2011, the Consultative Council of European Judges was given the task of adopting an Opinion for the attention of the Committee of Ministers on non-materialisation of the judicial process. In its discussions, the CCJE concluded that the title “Justice and Information Technologies” reflects the intended subject of this opinion in a more comprehensive and readily recognisable way than the previous title. Therefore, this new title has been chosen for this Opinion.

2. The Opinion was prepared on the basis of previous CCJE Opinions and of the Magna Carta of judges, as well as replies by member States to a questionnaire prepared by the CCJE on the non-materialization of the judicial process and on a preliminary report prepared by an expert, Ms Dory Reiling (Netherlands).

3. In preparing this Opinion, the CCJE also considered relevant Council of Europe instruments, in particular the 1981 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data as well as the Report “European Judicial Systems” (Edition 2010) by the European Commission for the Efficiency of Justice (CEPEJ) (specifically, Chapter 5.3 on Information and Communication Technologies in the courts). It also took into account other international legal instruments such as the European Union’s European Justice Strategy and the European Union’s Data Protection Directive, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

B. Scope of the Opinion and general principles

4. This Opinion deals with the application of modern information and communication technology (IT) in courts. It focuses on the opportunities that IT offers in relation to, and its impact on, the judiciary and the judicial process. In particular, it addresses questions such as access to justice, the rule of law, the independence of judges and the judiciary, the functioning of courts and the parties’ rights and duties. It does not concern itself primarily with the technical aspects of IT.

5. IT should be a tool or means to improve the administration of justice, to facilitate the user’s access to the courts and to reinforce the safeguards laid down in Article 6 ECHR: access to justice, impartiality, independence of the judge, fairness and reasonable duration of proceedings.

6. The introduction of IT in courts in Europe should not compromise the human and symbolic faces of justice[145]. If justice is perceived by the users as purely technical, without its real and fundamental function, it risks being dehumanised. Justice is and should remain humane as it primarily deals with people and their disputes. This is best seen when evaluating the demeanour of litigants and their witnesses, which is an exercise performed in a court of law by the judge trying the case.

7. The Magna Carta of Judges entrusts judges with co-responsibility for access to swift, efficient and affordable dispute resolution. Judges must identify the advantages and disadvantages of IT and identify and eliminate any risks to the proper administration of justice. IT must not diminish parties’ procedural rights. Judges must be mindful of such risks as they are responsible for ensuring that parties’ rights are protected.

8. Judges need to be involved in assessing the impact of IT, especially when it may be required or decided that documentary matters and/or proceedings may be conducted by electronic means. IT must not prevent judges from applying the law in an independent manner and with impartiality.

9. Not all individuals have access to IT. At present, more traditional means of access to information should not be abolished. Help desks and other forms of assistance within courts should not be removed because of an erroneous argument that IT has made justice “accessible for all”. This is a particularly pressing concern as regards the protection of vulnerable persons.

10. The use of IT should not diminish procedural safeguards for those who do not have access to new technologies. States must ensure that parties without such access are provided specific assistance in this field.

11. Having regard to the important role that IT technology plays today in the administration of justice, it is particularly important to ensure that difficulties in the functioning of IT do not prevent the court system, even for short periods, from taking decisions and ordering appropriate procedural steps. Appropriate alternatives should always be available whenever the IT system is under maintenance, or when technical incidents occur, in order to avoid any adverse impact on court activity.

12. Particular care should be taken to evaluate proposed legislation in advance with reference to its implications for the appropriate IT treatment of cases arising under it. The CCJE recommends that such legislation comes into force only after the IT systems have been adjusted to the new requirements, and court personnel are properly trained.

13. IT assisted treatment of judicial proceedings is especially important in the area of international and European judicial co-operation. IT facilities may be particularly relevant in areas such as the transmission of rogatory commissions and other requests for judicial co-operation, in the service and notification of judicial documents in member States as well as for cross-border taking of evidence (e.g. by way of video-conferencing). The CCJE recommends that member States develop methods of mutual access to each national IT systems, as well as making such systems compatible with one another. This will ensure that IT enhances co-operation of judges in different countries, and do not constitute an obstacle.

14. The CCJE welcomes the solutions envisaged by some states in the application of EU regulations, allowing the electronic initiation of civil claims in one country by residents in another country, as well as video-conferencing in the context of international cooperation.

15. The use of IT improves access to justice, as well as increases its effectiveness and transparency. On the other hand, it requires major financial investments. The CCJE’s recommendation that access to justice should be enhanced by using IT therefore, necessarily means that States must make adequate financial allocations to the judicial system for this purpose.

16. Data and information, such as those contained in case registers, individual case files, preparatory notes and drafts, judicial decisions and statistical data on the evaluation of judicial processes and court management, need to be managed with appropriate levels of data security. Within the courts, access to information should be limited to those who need it in order to accomplish their work.

17. Having regard to the nature of the disputes brought before courts, the online availability of certain judicial decisions could place privacy rights of individuals at risk and jeopardize the interests of companies. Therefore courts and judiciaries should ensure that appropriate measures are taken for safeguarding data in conformity with the appropriate laws.

18. The CCJE encourages the development of IT as a tool to improve communication between the courts to the media, for example, by giving the media easier access to judicial decisions as well as notice of forthcoming hearings.

C. IT and access to justice

19. Full, accurate and up to date information about procedure is a fundamental aspect of the guarantee of access to justice identified in Article 6 of the Convention (ECHR). Judges must therefore ensure that accurate information is available to any person engaged in court proceedings. Such information should generally include details or requirements necessary to invoke jurisdiction. Such measures are necessary to ensure the necessary equality of arms.

20. In any case, Justice cannot be disconnected from its users, and the IT development should not be used to justify courts being dispensed with.

21. IT creates new opportunities to provide court users with general information on the judicial system, its activities, case-law, the costs of proceedings, ADR etc. The CCJE recommends that full use be made by the judicial system of the internet and other new technologies to provide the general public with those elements which, in its Opinion N° 6 (paragraphs 12 and following) the CCJE has already concluded should be widely publicised.

22. IT is a valuable tool to support the role of courts. IT can also improve the ways in which courts can provide the concerned persons with detailed information on procedures in general. Therefore, the CCJE recommends that Courts introduce user-friendly electronic information services.

23. IT enables court users to initiate court proceedings electronically (e-filing). The CCJE encourages further development of this practice[146].

24. The CCJE considers that the judiciary should make case law, or at least landmark decisions, available on the internet i) free of charge, ii) in an easily accessible form, and iii) taking account of personal data protection. The CCJE welcomes initiatives to introduce international case-law identifiers (like the European Union case-law identifier ECLI[147]) which will improve access to foreign case-law.

D. IT in court procedure

25. IT offers opportunities for more efficient, clear and certain case processing.

26. Computerisation assists courts in rationalising file management as well as in registering and keeping track of cases. In this way, a series of files or connected cases can be managed under more secure conditions ; templates may be designed to support the formulation of judicial decisions or orders and multi-criteria statistics for each type of litigation, which can be made publicly available.

27. Computerisation can also improve the quality of the judge’s work, for example through databases with links to judicial decisions, legislation , studies of identical questions of law, legal commentaries on previous decisions delivered by a court, and other forms of knowledge-sharing between judges. The most advanced and complete methods of this kind existing on the market should be made available free of charge to judges, who need to be able to verify all sources of legal information available to other actors in the judicial process (defence lawyers, experts, etc.). The aids to judicial decision must be designed and seen as an ancillary aid to judicial decision-making, and to facilitate the judge’s work, not as a constraint.

28. The use of IT should not, however, diminish the procedural safeguards (or affect the composition of the tribunal) and should in no event deprive the user of his/her rights to an adversarial hearing before a judge, the production of original evidence, to have witnesses or experts heard and to present any material or submission that he/she considers useful. Moreover, the use of IT should not prejudice mandatory hearings and the completion of other essential formalities prescribed by law. The judge must also retain, at all times, the power to order the appearance of the parties, to require the production of documents in their original form and the hearing of witnesses. Security requirements must not be an obstacle to these possibilities.

29. Resort to IT simplifies exchanges of documents. The parties and their representatives can access information about the cases in which they are involved before the court. In this way, they can follow the progress of their case by accessing the computerised case history.

30. Video-conferencing may facilitate hearings in conditions of improved security or the hearing remotely of witnesses or experts. It could, however, have the disadvantage of providing a less direct or accurate perception by the judge of the words and reactions of a party, a witness or an expert. Special care should be taken so that video-conferencing and adducing evidence by such means should never impair the guarantees of the defence.

31. The role of IT should remain confined to substituting and simplifying procedural steps leading to an individualised decision of a case on the merits. IT cannot replace the judge’s role in hearing and weighing the factual evidence in the case, determining the law applicable and taking a decision with no restrictions other than those prescribed by law.

E. IT governance

32. IT should be used to enhance the independence of judges in every stage of the procedure and not to jeopardize it. Since judges play an important role in safeguarding both their individual and institutional independence and their impartiality, they need to be involved in decisions that have consequences in those areas.

33. IT access to information can contribute to a greater autonomy of judges in performing their tasks.

34. Over dependence on technology and on those who control it can pose a risk to justice. Technology must be suitable for the judicial process, and for all aspects of a judge’s work. Judges should not be subject, for reasons solely of efficiency, to the imperatives of technology and those who control it. Technology also needs to be adapted to the type and level of complexity of cases.

35. The CCJE considers that instructions, templates or other suggestions as to form or content of decisions should not be addressed to judges by whatever other authority on the basis of needs reflecting the architecture of IT systems to be employed in the judicial process; rather, this architecture should be flexible, and ready to adjust to judicial case-law or practices.

36. Dialogue is absolutely necessary between those developing technology and those responsible for the judicial process. IT governance should be within the competence of the Council for the judiciary or other equivalent independent body. Regardless of which body is in charge of IT governance, there is the need to ensure that judges are actively involved in decision making on IT in a broad sense.

37. Judges should have flexibility when it comes to deciding how to manage cases and deal with back office work. The case management system should not limit this flexibility.

38. Judges and court staff have both a right and a duty to initial and on-going IT training so they can make full and appropriate use of IT systems.

39. IT can be an important tool for strengthening transparency, and objectivity in distributing cases and fostering case management. It can play a role in relation to the evaluation of judges and courts. However, data collected from IT systems should not be the sole basis for analysis of the work of an individual judge. Statistical data should be examined by the Council for the Judiciary or another equivalent independent body[148].

40. Managing and developing IT presents a challenge for any organisation. For judiciaries, it presents a new and demanding challenge for their governance structures. Information-based management is an opportunity for developing institutional independence.

41. Funding for IT should be based on its contribution to improve court performance, the quality of justice and the level of service to the citizens.

F. Conclusions - Recommendations

i. The CCJE welcomes IT as a mean to improve the administration of justice;

ii. IT can contribute to the improvement of access to justice, case-management and the evaluation of the justice system;

iii. IT plays a central role in the provision of information to judges, lawyers and other stakeholders in the justice system as well as to the public and the media;

iv. IT has to be adapted to the needs of judges and other users, it should never infringe guarantees and procedural rights such as that of a fair hearing before a judge;

v. Judges should be involved in all decisions concerning the setting up and development of IT in the judicial system;

vi. Consideration must be given to the needs of those individuals who are not able to use IT facilities;

vii. The judge must retain, at all times, the power to order the appearance of the parties, to require the production of documents in their original form and the hearing of witnesses;

viii. The CCJE encourages the use of all aspects of IT to promote the important role of the judiciary in guaranteeing the rule of law (/the supremacy of law) in a democratic state;

ix. IT should not interfere with the powers of the judge and jeopardise the fundamental principles enshrined in the Convention.

opinion no. 15 (2012)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

the specialisation of judges

Introduction

1. In accordance with the Terms of Reference given to it by the Committee of Ministers, the Consultative Council of European Judges (CCJE) has decided to prepare in 2012 an Opinion on the specialisation of judges.

2. The Opinion was prepared on the basis of previous CCJE Opinions, the Magna Carta of Judges, the member States’ replies to a questionnaire on the specialisation of judges prepared by the CCJE, and the preliminary report by the expert of the CCJE, Ms Maria Giuliana Civinini (Italy).

3. In preparing this Opinion, the CCJE has also relied on the acquis of the Council of Europe, in particular the European Charter on the Statute for Judges, Recommendation Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, and the report on “European Judicial Systems” (2010 edition) by the European Commission for the Efficiency of Justice (CEPEJ)^{^[149]}.

4. The replies of member States to the questionnaire and the report by the expert show that specialist judges and/or specialist courts are common in member States. Such specialisation is a reality, and it takes a wide variety of forms, involving either setting up specialist chambers within existing courts or creating separate specialist courts. This trend has spread throughout Europe[150].

5. In the context of the present Opinion, the “specialist judge” is a judge who deals with limited areas of the law (e.g. criminal law, tax law, family law, economic and financial law, intellectual property law, competition law) or who deals with cases concerning particular factual situations in specific areas (e.g. those relating to social, economic or family law).

6. Jurors who take part in criminal cases[151] have not been included within the definition of “specialist judges” mentioned above. Jurors do not sit in all criminal cases. They are not subject to the same codes and rules as judges who are part of the regular corpus of judges; nor are they part of the judicial hierarchy or subject to its disciplinary and ethical rules.

7. The purpose of this Opinion is to examine the main problems relating to specialisation, given the overriding need to secure the protection of fundamental rights and the quality of justice as well as the status of judges.

A. Possible advantages and disadvantages of specialisation

a. Possible advantages of specialisation

8. Specialisation often stems from the need to adapt to changes in the law rather than from any deliberate choice. The constant adoption of new legislation, whether at the international, European or domestic level, and changing case-law and doctrine are making legal science increasingly vast and complex. It is difficult for the judge to master all these fields, while at the same time society and litigants demand more and more professionalism and efficiency from the courts. Specialisation of judges can ensure that they have the requisite knowledge and experience in their field of jurisdiction.

9. An in-depth knowledge of the legal field in question can improve the quality of the decisions taken by a judge. Specialist judges can acquire greater expertise in their specific fields, which can thereby enhance their courts’ authority.

10. Concentrating case-files in the hands of a select group of specialist judges can be conducive to consistency in judicial decisions and consequently can promote legal certainty.

11. Specialisation can help judges, by repeatedly dealing with similar cases, to gain a better understanding of the realities concerning the cases submitted to them, whether at the technical, social or economic levels, and therefore to identify solutions better suited to those realities.

12. Specialist judges who provide knowledge of a science other than law can foster a multidisciplinary approach to the problems under discussion.

13. Specialisation through greater expertise in a certain legal field may help improve the court’s efficiency and case management, taking into account the ever growing number of cases.

b. Possible limits and dangers of specialisation

14. Whilst judicial specialisation is desirable for a number of reasons, there are several dangers in it. The main risk in judicial specialisation is to be found in the possible separation of specialist judges from the general body of judges.

15. Judges who, for reasons of specialisation, have previously had to decide on the same issues might tend to reproduce these previous decisions, which can hamper the evolution of case-law in line with society’s needs. This danger also arises where decisions in a specific field are always taken by the same select group of judges.

16. Specialist legal professionals tend to develop concepts which are specific to their field and are (often) unknown to other lawyers. This can lead to compartmentalisation of the law and procedure, cutting specialist judges off from legal realities in other fields, and potentially isolating them from general principles and fundamental rights. This compartmentalisation could undermine the principle of legal certainty.

17. Society may expect to have specialist judges where this is, in practice, not possible. Specialisation is only possible when courts reach a sufficient size. Smaller courts may find it impossible to set up specialist chambers, or an adequate number of such chambers. This forces judges to be versatile, and thus to have the ability to address a range of specialist matters. Excessive individual specialisation of judges would hamper this necessary versatility.

18. In some cases specialisation of judges may be detrimental to the unity of the judiciary. It can give judges the impression that their expertise in their specialist field places them in an elite group of judges who are different from the others. It may also give the general public an impression that some judges are “super-judges” or, on the contrary, that a court is an exclusively technical body separate from the actual judiciary. This may result in a lack of public confidence in courts that are not thought to be specialist enough.

19. Setting up a highly specialist court may have the purpose or the effect of separating judges from the rest of the judiciary and exposing them to pressure from the parties, interest groups or other State powers.

20. In a select field of law, the danger of an impression of excessive proximity between judges, lawyers and prosecutors during joint training courses, conferences or meetings is real. This could not only tarnish the image of judicial independence and impartiality, but could also expose judges to a real risk of secret influence and therefore orientation of their decisions.

21. Since courts require an adequate workload, setting up a court specialising in a very restricted field can have the effect of concentrating that specialisation within a single court for the whole country or for one national region. This may hamper access to courts or create too great a distance between the judge and the litigant.

22. There is a danger that a specialist judge who is part of a bench and who is responsible for providing particular technical or expert advice may express a personal opinion or account of the facts directly to his or her colleagues without such matters being presented to the parties for their submissions[152].

23. Setting up specialist courts in response to public concerns (e.g. anti-terrorist courts)[153] can result in the public authorities granting them material and human resources unavailable to other courts.

B. General principles – respect for fundamental rights and principles: position of the CCJE

24. The CCJE stresses, above all, the fact that all judges, whether generalist or specialist, must be expert in the art of judging. Judges have the know-how to analyse and appraise the facts and the law and to take decisions in a wide range of fields. To do this they must have a broad knowledge of legal institutions and principles.

25. The member States’ replies and the expert’s report demonstrate that most cases submitted to courts are dealt with by generalist judges, highlighting the predominant role played by such judges.

26. In principle, judges should be capable of deciding cases in all fields. Their general knowledge of the law and its underlying principles, their common sense and knowledge of the realities of life give them an ability to apply the law in all fields, including specialist areas, with expert assistance if necessary^{^[154]}. The role of the “generalist judge” can never be underestimated.

27. In any given court, generalist judges are usually assigned to various specialist sectors, changing assignments several times in the course of their careers. This gives them broad experience of a variety of legal fields, thus enabling them to adapt to new assignments and meet litigants’ needs. This is why it is vital, from the outset, for judges to have general training in order to acquire the requisite flexibility and versatility to cope with the needs of a general court, which has to deal with an enormous variety of matters, including those requiring a certain degree of specialisation.

28. Nevertheless, the law has become so complex or specific in some fields that a proper consideration of cases in these fields demands a higher degree of specialisation. The provision of appropriately qualified judges who are responsible for specific fields is therefore recommended.

29. Specialist judges, like all judges, must meet the requirements of independence and impartiality set out in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). Specialist courts and judges must also meet all the other conditions set out in this provision of the Convention: access to the court, due process, right to a fair hearing and right to be heard within a reasonable time. It is incumbent on the courts to organise their specialist chambers in such a way as to respect these requirements.

30. The CCJE considers that the creation of specialist chambers or courts must be strictly regulated. Such bodies should not undermine the remit of the generalist judge, and must in all cases provide the same safeguards and quality. At the same time, regard must be had to all the criteria governing a judge’s work: court size, service requirements, the fact that it is increasingly difficult for judges to master all legal areas and the cost of specialisation.

31. Specialisation must never stand in the way of the quality requirements which every judge must meet. The CCJE notes that these requirements were listed in its Opinion No. 11 (2008) on the quality of judicial decisions, and that the requirements are applicable to all judges and therefore also to specialist judges. Everything necessary must be done to guarantee the optimum conditions for the administration of justice in specialist courts.

32. In principle, general procedural rules must also apply in specialist courts. Introducing specific procedures for each specialist court is liable to lead to a proliferation of such procedures, creating risks vis-à-vis access to justice and certainty of the law. Specific procedural rules are only permissible if they respond to one of the needs which led to the setting up of the specialist court (e.g. proceedings relating to family law, where examination of children is subject to specific rules geared to safeguarding their interests).

33. It is always vital to ensure that the principles of a fair trial are respected, namely impartiality of the tribunal as a whole and the judge’s freedom to assess evidence. It is also vital that where the system of an assessor or expert who sits as part of the judicial tribunal exists, the parties retain the ability to respond to advice given to the legally trained judge by this assessor or expert. Otherwise an expert view could be included in a judgment without the parties having had the opportunity to test or challenge it. The CCJE would regard as preferable a system where the judge appoints an expert or the parties can themselves call experts as witnesses whose findings and conclusions can be challenged and debated between the parties before the judge.

34. All cases, whether before a specialist or generalist court, must be examined with the same diligence. There are no grounds for prioritising cases dealt with by specialist courts. The only permissible priorities are those based on objective need, e.g. proceedings involving deprivation of liberty or urgent measures in matters of custody of children, protection of property or persons, environment, public health, public order or security.

35. While specialist courts must benefit from adequate human, administrative and material resources necessary to perform their work, this must not be to the detriment of other courts which should enjoy the same conditions in terms of resources.

36. The CCJE considers that greater mobility and flexibility on the part of judges might help remedy the above-mentioned disadvantages of specialisation. Judges should be entitled to change court or specialisation in the course of their career, or even move from specialist to generalist duties or vice-versa. Mobility and flexibility not only provide judges with more varied and diversified career opportunities but also allow them to take stock and move into other legal disciplines, which necessarily fosters the development of case-law and law in general. However, such mobility and flexibility should not endanger the principle of independence and irremovability of judges[155].

37. Providing specialist judges to meet the complexity or particular requirements in specific legal fields is a separate matter from setting up special, ad hoc or extraordinary courts as dictated by individual or specific circumstances. There is a potential danger of these latter courts failing to provide all the safeguards enshrined in Article 6 of the Convention. The CCJE has already expressed its objections to the establishment of such courts, and refers here to the content of its Opinion No. 8 (2006) on the role of judges in protecting the rule of law and human rights in the context of terrorism. In any event, the CCJE stresses that where such courts do exist, they must fulfil all the safeguards incumbent on ordinary courts.

38. In sum, the CCJE believes that specialisation can only be justified if it promotes the administration of justice, i.e. if it proves preferable in order to ensure the quality of both the proceedings and the judicial decisions.

C. Certain aspects of specialisation

1. Specialisation of judges

39. In the view of the CCJE the principles of this Opinion are applicable to the types of specialist courts considered below.

40. The replies to the questionnaire demonstrate that there are significant differences between member States concerning the types of judge used in “specialist” courts and tribunals.

41. Specialisation can be brought about by different means. Depending upon what the legal framework of the relevant state permits, there can be either specialist courts that are separate and distinct from the general organisation of the judiciary as a whole or specialist courts or chambers that are part of the general judicial system. The jurisdiction of specialist courts or chambers will often differ from that of general courts; there are frequently far fewer of them, and they are sometimes only found in a country’s capital. Specialist courts and chambers may include lay judges.

42. The most widespread means of achieving specialisation is by the creation of specialist chambers or departments. This can be achieved often by means of internal court rules. The main sectors of specialisation are: family and juvenile law; intellectual property law; commercial law; insolvency law; serious crimes; the investigation of crimes and the enforcement of criminal sanctions.

i. “Non-jurist judges”

43. In many Member States there are specialist courts or tribunals which consist of one or more judges with a legal training and one or more members of the court or the tribunal who are non-lawyers. There is a large variety of such "non-jurist judges”, and it is impossible to give a comprehensive analysis of them here. Frequently these "non-jurist judges” either represent one or other group of interests (e.g. employers or employees; landlords and tenants, échevins), or have a specific expertise appropriate to the specialist court or tribunal concerned.

ii. Professional judges

44. Professional judges may become specialist judges by several means. It may be by means of experience gained either as a specialist lawyer before appointment as a judge or as a result of experience in specialist work following the appointment as a judge. Alternatively, the specialist judge may have received specific training in a specialist area of the law or in a non-legal area and then been appointed to a specialist court or deal with specialist cases in a general court.

45. Specialisation of judges at the higher levels of a court structure where it exists should still permit a certain degree of versatility in the judges so that there can be flexibility in dealing with all types of cases at the higher level. This flexibility is necessary to ensure that appellate courts fulfil their legal and constitutional mission, i.e. to guarantee consistency in the interpretation and application of legislation and of case-law. Also, this flexibility will ensure that a specialised area is not dealt with, at an appellate level, by too narrow a group of judges, who might then be in the position to impose their view in a certain field and thus to prevent developments of the law in that area.

2. Specialisation of certain courts or courts within a larger group

46. In some jurisdictions there are specialist courts which exist apart from the generalist courts^{^[156]}. In some cases these separate specialist courts have been created as a result of EU instruments providing for the establishment of specialist courts or sections of courts with a larger jurisdiction^{^[157]}. In other cases the specialist court may be a part of a larger court grouping^{^[158]}. In each case the court itself is specialist as are the judges who sit in it. The structure adopted in each country is partly a result of history and partly a result of the demand for a particular type of specialist court or judge in that jurisdiction.

3. Regional distribution of specialist judges

47. It is necessary to take account of the fact that in some highly specialised areas the number of cases brought before courts is very low. In that case it may be necessary to concentrate the specialist judges in one court so as to ensure that they have a balanced caseload per judge and so that they can take on other, non-specialist work as well. However, if this concentration is carried too far there is the risk that the specialist court may become remote from the court users; a problem which in the view of the CCJE should be avoided.

4. Human, material and financial resources

48. It is essential that specialist judges and courts are provided with adequate human and material resources, especially information technology.

49. Where the expected caseload for specialist courts is small in comparison to other courts, consideration should be given to developing and using resources and technologies which can be used collectively by several specialist courts or better still by all courts. Merging human and material resources can be a means to avoid problems connected with organising specialisation. Creating large “justice centres” with generalist and specialist courts and panels could, however, with increasing distance between court locations, impede easy access to courts.

50. The requirements and costs of specialist courts and judges may be greater than those of generalist courts and judges, e.g. because special precautions are required, because files are voluminous, or because trials and judgements are lengthy.

51. When such additional cost items can be identified in a given field of specialisation, there is justification for charging a specific group of litigants with higher fees, in order to cover the whole or part of those extra costs. This may apply, for example, to commercial or industrial construction cases, or to patent or competition cases, but not, for example, to specialisations in child custody cases, child maintenance cases, or other types of family cases. Higher costs for specialised cases should not exceed the additional work undertaken by the courts and should be proportionate to the work entailed for the courts and to the benefits of specialisation, both for litigants and for the courts. Nor does the introduction of specialist courts simply with the aim of obtaining more revenue seem either sensible or justifiable.

D. Specialisation and status of the judge

1. Status of the specialised judge

52. In all the types of specialisation described above, it is important that the role of the judge as a member of the judiciary remains unaltered. The specialisation of judges cannot justify or demand any deviation from the principle of the independence of the judiciary in any of its aspects (i.e. the independence of both courts and individual judges, see CCJE Opinion No. 1 (2001)).

53. The guiding principle should be to treat specialist judges, with respect to their status, in no way differently from generalist judges. Laws and rules governing appointment, tenure, promotion, irremovability and discipline should therefore be the same for specialist as for generalist judges.

54. This can best be achieved by the existence of one constituent body of both generalist and specialist judges. A single corpus of judges will guarantee that all judges respect fundamental rights and principles which must be universally applicable. Accordingly, the CCJE is not in favour of the creation of different judicial bodies or systems according to particular specialisations, which could result in different judges being subject to different rules in different organisations.

55. The CCJE is aware that in many European countries there are, traditionally, several distinct judicial hierarchies (e.g. in ordinary and administrative courts). They may also be linked to differences in the status of judges. The CCJE considers that such separate hierarchies may complicate the administration of and access to justice.

56. In the CCJE’s view, it should be ensured that:

- jurisdictional disputes do not restrict access to justice or cause delays contrary to Article 6 of the Convention;

- appropriate access to other judicial hierarchies, specialist courts, bodies and functions is available to all judges;

- all judges of the same seniority receive the same remuneration, with the exception of any specific additional remuneration for special duties (see the following paragraph).

57. The principle of equal status for generalist and specialist judges should also apply to remuneration. Recommendation No. Rec(2010)12 of the Committee of Ministers provides in Article 54 that remuneration of judges should be “commensurate with their profession and responsibilities”, in order, inter alia, to “shield them from inducements aimed at influencing their decisions”^{^[159]}. Taking this into account, any additional salary or any other emolument granted by virtue solely of a judge’s specialisation does not seem justified, because the specifics of the profession and the burden of responsibilities, as a rule, are of equal weight for the generalist and the specialist judge. Additional salary, other emoluments or certain remuneration (e.g. in case of night duty) may be justified where specific grounds can be identified which permit the conclusion that either the specifics of the profession of the specialist judge or the burden of his/her responsibilities (including a personal burden that may come with an assignment in a specialist function) demand such compensation.

58. The rules of ethics and of criminal, civil and disciplinary liability of judges must not differ between generalist and specialised judges. Standards of judicial conduct as set out in CCJE Opinion No. 3 (2002) must apply equally to specialist and non-specialist judges. Sufficient grounds for any different treatment have not been identified.

59. If a specialist judge is likely to be dealing with only a small and specialist group of lawyers, or even litigants, he/she may need to take caution in his own conduct to ensure his/her impartiality and independence.

2. Evaluation and promotion

60. As regards evaluation of a judge’s work performance, the criteria are manifold and well known (see CCJE Opinions Nos. 3 and 10 (2007)). Specialisation in itself does not justify granting a higher value to the specialist judge’s work. Flexibility shown in accepting one or more fields of specialisation may be a relevant factor for evaluation of a judge’s work performance.

61. The council for the judiciary or other independent body responsible for evaluating the performance of judges should, therefore, be very careful in determining whether and to what extent the performance of an individual specialist judge is comparable to that of a generalist judge. This exercise requires particular diligence and consideration, as it is generally easier to obtain a clear picture of a generalist’s performance than that of a specialist who may be a member of a small group and whose work may not be as transparent or known for the evaluator.

62. With regard to promotion, similar considerations apply[160]. In the CCJE’s view to grant earlier promotions to specialist judges just because of their specialisation is not justifiable.

3. Availability of training and specialisation

63. The principles set out in the CCJE Opinion No. 4 (2003) for general training apply equally to specialist training. It follows from the fact that, in principle, the status of specialist judges does not differ from that of generalist judges that all the requirements as to safeguarding judges’ independence and as to providing the best possible quality of training apply both to the generalist judges’ and the specialist judges’ fields. Generally, training courses should be open to all judges.

64. In principle, a judge’s wish to specialise should be respected. In this regard the CCJE refers to its Opinion No. 10, and in particular to the provisions dealing with the selection of judges. Equally, sufficient training^{^[161]} should be available within a reasonable time once such a wish is known. Such training should be offered prior to the judge’s assignment in the specialist field and it should be completed before starting the new functions.

65. There must be a balance between training requirements and their usefulness and, on the other hand, the resources available. Therefore, specialist training cannot, for example, be expected where resources for such training cannot be provided or could only be provided at the expense of more important training needs. Assignment in a specialist field cannot be demanded if, for example, the expected caseload in the respective field is too small to justify specialist courts or panels. The size of the court, of the court district, of the region, even of the state, may warrant different solutions as to specialisation and with respect to training in special fields. Where appropriate, however, co-operation in continuous training across national borders could be helpful.

4. Role of the Council for the Judiciary

66. The powers and responsibilities of a high council for the judiciary, where such a body exists, or an equivalent body, have to be applied in the same manner to generalist and specialist judges. Specialists should be represented or have the opportunity to present their problems in the same way as generalists. Any preferential treatment of one group or another should be avoided, in the public interest.

5. Specialisation and participation in judges’ associations

67. Specialist judges must have the same right as all other judges to become and remain members of judges’ associations. In the interests of the cohesion of the judicial body as a whole, separate associations for specialist judges are not desirable. Their specific subject-orientated interests as specialist judges, such as professional exchanges, conferences, meetings etc. should be provided for; however, their status-related interests can and should be safeguarded within a general association of judges.

Conclusions

i. The CCJE stresses, above all, the fact that all judges, whether generalist or specialist, must be expert in the art of judging.

ii. In principle, the predominant role in judicial adjudication should be undertaken by “generalist” judges.

iii. Specialist judges and courts should only be introduced when necessary because of the complexity or specificity of the law or facts and thus for the proper administration of justice.

iv. Specialist judges and courts should always remain a part of a single judicial body as a whole.

v. Specialist judges, like “generalist” judges, must meet the requirements of independence and impartiality in accordance with Article 6 of the European Convention on Human Rights.

vi. In principle, generalist and specialist judges should be of equal status. The rules of ethics and liability of judges must be the same for all.

vii. Specialisation must not dilute the quality of justice, either in “generalist” courts or in specialist courts.

viii. Mobility and flexibility on the part of judges will often be sufficient to meet the needs for specialisation. In principle, the opportunity to specialise and to undertake training as such should be available to all judges. Specialist training should be organised by public judicial training institutions.

ix. Rather than having specialist, non-jurist assessors sitting in specialist panels of judges, it is preferable that experts be appointed by the court or the parties and their opinions be subject to challenges and submissions by the parties.

x. The powers and responsibilities of a council of the judiciary or similar body should apply equally to generalist and specialist judges.

opinion no. 16.(2013)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

the relations between judges and lawyers

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, for 2013, an Opinion on the relations between judges and lawyers with a view to the better quality and efficiency of justice.

2. The Opinion has been prepared on the basis of previous CCJE Opinions and the relevant instruments of the Council of Europe, in particular the European Charter on the Statute for Judges (1998), the Magna Carta of Judges (2010) and the Committee of Ministers’ Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities. It also takes account of the United Nations Basic Principles on the Independence of the Judiciary (1985), the United Nations Basic Principles on the Role of Lawyers (1990), the Bangalore Principles of Judicial Conduct (2002) and the Commentary of the Judicial Integrity Group on the Bangalore Principles (2007). Further, the Opinion draws on the work of the Council of Bars and Law Societies of Europe (CCBE), notably the Code of Conduct for European Lawyers (1998, amended in 2002 and 2006) and the Charter of Core Principles of the European Legal Profession (2006).

It takes account of the states’ replies to the questionnaire and the report drawn up by the scientific expert Ms Natalie FRICERO (France), as well as the contributions made in the conference in Paris on 7 November 2012, organised jointly by the CCJE and the Paris Bar Association, and the conference in Rome on 13 June 2013, organised by the CCJE, the Italian High Council for the Judiciary and the National Bar Council of Italy.

The CCJE has also consulted the CCBE in the course of the preparation of this Opinion.

II. RESPECTIVE ROLES OF JUDGES AND LAWYERS IN THE FUNCTIONING OF JUSTICE

3. States governed by the rule of law should organise their judicial systems in such a way that the supremacy of law and respect for fundamental rights and freedoms are guaranteed in conformity with the European Convention on Human Rights (hereafter the Convention), as well as the case-law of the European Court of Human Rights (hereafter the Court). Both judges and lawyers have vital roles to play in fulfilling this objective in the best possible way.

The CCJE has already acknowledged the essential role of co-operation among the various parties involved in the proper functioning of justice and the interaction between these actors. Thus, in paragraph 10 of its Opinion No. 12 (2009), the CCJE affirmed that the sharing of common legal principles and ethical values by all the professionals involved in the legal process is essential for the proper administration of justice.

4. Judges and lawyers have different roles to play in the legal process, but the contribution of both professions is necessary in order to arrive at a fair and efficient solution to all legal processes according to law.

5. Paragraph 2 of the UN Basic Principles on the Independence of the Judiciary stipulates that the judiciary shall decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. In the same document, paragraph 6 states that the principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

The CCJE stressed in its Opinion No. 1 (2001) that judicial independence is not a prerogative or privilege in the interests of the judges, but is a pre-requisite to the rule of law and a guarantee for those seeking and expecting justice.

6. Within the framework of their professional obligation to defend the rights and interests of their clients, lawyers must also play an essential role in the fair administration of justice. Paragraph 6 of the Commentary on the Charter of Core Principles of the European Legal Profession of the CCBE defines the lawyer’s role as follows: “The lawyer’s role, whether retained by an individual, a corporation or the state, is as the client’s trusted adviser and representative, as a professional respected by third parties, and as an indispensable participant in the fair administration of justice. By embodying all these elements, the lawyer, who faithfully serves his or her own client’s interests and protects the client’s rights, also fulfils the functions of the lawyer in Society - which are to forestall and prevent conflicts, to ensure that conflicts are resolved in accordance with recognised principles of civil, public or criminal law and with due account of rights and interests, to further the development of the law, and to defend liberty, justice and the rule of law”. As it is stated in paragraph 1.1 of the Code of Conduct for European Lawyers of the CCBE, respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society. The UN Basic Principles on the Role of Lawyers state that adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession. Principle 12 stipulates that lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.

7. Judges and lawyers must be independent in the exercise of their duties, and must also be, and be seen to be, independent from each other. This independence is affirmed by the statute and ethical principles adopted by each profession. The CCJE considers such independence vital for the proper functioning of justice.

The CCJE refers to Recommendation CM/Rec (2010)12, paragraph 7, which states that the independence of judges should be guaranteed at the highest possible legal level. The independence of lawyers should be guaranteed in the same way.

8. The CCJE refers to paragraph 12 of Recommendation CM/Rec(2010)12 which states that, without prejudice to their independence, judges and the judiciary should maintain constructive working relations with institutions and public authorities involved in the management and administration of the courts, as well as all the professionals whose tasks are related to the work of judges, in order to facilitate an effective and efficient administration of justice. Constructive relations are equally necessary in the course of proceedings, in order to obtain a fair and efficient solution to the legal process concerned.

9. Two areas of relations between judges and lawyers may be distinguished:

- on the one hand, the relations between judges and lawyers which stem from the procedural principles and rules of each state and which will have a direct impact on the efficiency and quality of judicial proceedings. In the conclusions and recommendations set out in its Opinion No. 11 (2008) on the quality of judicial decisions, the CCJE pointed out that the standard of quality of judicial decisions will clearly be the result of interactions between the numerous actors in the judicial system;

- on the other hand, the relations which result from the professional conduct of judges and lawyers and which require mutual respect for the roles played by each side and a constructive dialogue between judges and lawyers.

III. IMPROVEMENT OF PROCEDURAL RELATIONS, DIALOGUE AND COMMUNICATION DURING PROCEEDINGS

10. Judges and lawyers share a fundamental obligation, namely compliance with the procedural rules and the principles of a fair trial.

The CCJE is of the opinion that constructive relations between judges and lawyers will improve the quality and efficiency of proceedings. They will also help in meeting the parties’ needs: litigants expect that they and their lawyers will be heard and also expect judges and lawyers to contribute together to a fair resolution of their case according to law and within a reasonable time.

11. However, the quality and efficiency of judicial proceedings depend in the first place on adequate procedural legislation and rules on the principal aspects of procedure for civil, criminal and administrative cases. States should establish such provisions in accordance with Article 6 of the Convention. The drafting process for these provisions should involve the consultation of judges and lawyers, not in the interests of the two professions, but in the interest of the fair administration of justice. Consultation of court users is also important. It is also essential that these procedural frameworks are regularly evaluated and updated, where necessary, and that judges, lawyers and court users are involved in this process.

12. The CCJE considers that such legislation should provide judges with effective procedural tools to implement the principles of a fair trial and to prevent undue delays or illegitimate delaying tactics. Such legislation should be sufficiently firm, and should provide for clear and fair time-limits, while also permitting the necessary flexibility.

13. Procedural rules form an essential tool to enable the resolution of legal disputes. Procedural rules determine the respective roles of judges and lawyers. It is essential that both judges and lawyers have a good knowledge and understanding of these rules, in the interest of a fair and timely resolution of the proceedings.

14. Guidelines agreed upon at an institutional level can also be useful to encourage co-operation and dialogue. The CCJE considers that courts should encourage the establishment of good practices resulting from agreements between the courts and the Bar. Agreements concerning the management and conduct of proceedings have been established in many judicial systems, taking a variety of forms^{^[162]}. The CCJE reaffirms that such procedural agreements should comply with procedural law and should be made public in order to ensure transparency for lawyers and litigants.

15. In practice, procedural rules, whether they concern civil, criminal or administrative cases, are often complex and allow a variety of procedural stages and intermediate appeals. This may cause unreasonable delays and high costs to the parties, as well as to society in general. The CCJE strongly supports efforts to analyse and evaluate the existing procedural rules in member States and to develop, where necessary, more transparent and adequate rules.

The international exchange of experience, by both judges and lawyers, should foster the development of “best practices” in the area of procedural frameworks. However, the different social and legal traditions of countries should be taken into account.

16. Equal access to information on procedural and substantive laws, and also to landmark case-law, should be provided as far as possible, both for judges and lawyers. The CCJE refers to paragraph 24 of Opinion No. 14 (2011), in which it considered that the judiciary should make case law, or at least landmark decisions, available on the internet i) free of charge, ii) in an easily accessible form, and iii) taking account of personal data protection.

17. Judges and lawyers must co-operate in meeting the needs of the parties. To this end, the CCJE considers it important to develop planning hearings and procedural calendars, to facilitate, in the interests of the parties, an effective co-operation between judges and lawyers. Further, judges and lawyers must cooperate in facilitating the friendly settlements in the interests of the parties. In its Opinion No. 6 (2004), the CCJE recommended the development of arrangements for the friendly settlement of cases. Joint training sessions can improve the understanding of the respective roles of judges and lawyers in the field of friendly settlements of disputes, by the processes of conciliation or mediation.

18. It is necessary to establish proper communication between courts and lawyers to ensure the speed and efficiency of proceedings. The CCJE considers that states should introduce systems facilitating computer communication between the courts and lawyers, in order to improve the service for lawyers and to enable them to consult easily the procedural status of cases. In its Opinion No. 14 (2011) on “Justice and Information Technologies”, the CCJE notes that information technologies play a central role in the provision of information to judges, lawyers and other stakeholders in the justice system as well as to the public and the media.

IV. DEVELOPMENT OF MUTUAL UNDERSTANDING AND RESPECT FOR EACH OTHER’S ROLE - ETHICAL PRINCIPLES

19. Judges and lawyers each have their own set of ethical principles. However, several ethical principles are common to both judges and lawyers, e.g. compliance with the law, professional secrecy, integrity and dignity, respect for litigants, competence, fairness and mutual respect.

20. The ethical principles of judges and lawyers should also concern themselves with the relations between the two professions.

With regard to judges, the CCJE stated in Opinion No. 3 (2002), paragraph 23, that judges should show the proper consideration due to all persons (for example, parties, witnesses, counsel) and no distinction should be made based on unlawful grounds or which would be incompatible with the appropriate discharge of their functions. Paragraph 5.3 of the Bangalore Principles states that a judge shall carry out his/her judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. A judge must maintain order and dignity of debate in all proceedings before the court and be patient, dignified and courteous in relation to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity.

With regard to lawyers, paragraphs 4.1, 4.2, 4.3 and 4.4 of the CCBE Code of Conduct for European Lawyers express the following principles: a lawyer who appears, or takes part in a case, before a court or tribunal must comply with the rules of conduct applied before that court or tribunal. A lawyer must always have due regard for the fair conduct of the proceedings. A lawyer shall, while maintaining due respect and courtesy towards the court, defend the interests of the client honourably and fearlessly without regard to the lawyer’s own interests or to any consequences to him- or herself or to any other person. A lawyer shall never knowingly give false or misleading information to the court.

21. The CCJE considers that the relations between judges and lawyers should be based on the mutual understanding of each other’s role, on mutual respect and on independence vis-à-vis each other.

The CCJE accordingly considers it necessary to develop dialogues and exchanges between judges and lawyers at a national and European institutional level on the issue of their mutual relations. The ethical principles of both judges and lawyers should be taken into account. In this regard, the CCJE encourages the identification of common ethical principles, such as the duty of independence, the duty to sustain the rule of law at all times, co-operation to ensure a fair and swift conduct of the proceedings and permanent professional training. Professional associations and independent governing bodies of both judges and lawyers should be responsible for this process.

22. Training conferences for judges and lawyers should deal with their respective roles and with their relations, with the general aim of promoting the fair and efficient settlement of disputes, whilst respecting the independence of both sides. The CCJE refers to paragraph 10 of its Opinion No. 12 (2009), in which it considered that, where appropriate, joint training for judges, public prosecutors and lawyers on themes of common interest could contribute to the achievement of justice of the highest quality.

23. In the member States of the Council of Europe, judges are recruited in a wide variety of ways. The CCJE refers to the CEPEJ report “Evaluation of European Judicial Systems - Edition 2012”, Chapter 11.1. In some countries, judges are mainly recruited from amongst experienced lawyers. In other countries, judges and lawyers do not share a common career. In these countries, the development of mutual understanding between the two professions is particularly important. One possible way of fostering such understanding would be the establishment of internships for trainee-judges in law firms and for trainee-lawyers in courts. If this is done, it is essential that the requirements of the independence and impartiality of the judiciary are guaranteed and that internships are organised in a transparent way.

24. Relations between judges and lawyers should always preserve the court’s impartiality and image of impartiality. Judges and lawyers should be fully conscious of this, and adequate procedural and ethical rules should safeguard this impartiality.

25. Both judges and lawyers enjoy freedom of expression under Article 10 of the Convention.

Judges are, however, required to preserve the confidentiality of the court’s deliberations and their impartiality, which implies, inter alia, that they must refrain from commenting on proceedings and on the work of lawyers.

The freedom of expression of lawyers also has its limits, in order to maintain, as is provided for in Article 10, paragraph 2 of the Convention, the authority and impartiality of the judiciary[163]. Respect towards professional colleagues, respect for the rule of law and the fair administration of justice - the principles (h) and (i) of the Charter of Core Principles of the European Legal Profession of the CCBE - require abstention from abusive criticism of colleagues, of individual judges and of court procedures and decisions.

V. RECOMMENDATIONS

The CCJE reaffirms that “the sharing of common legal principles and ethical values by all the professionals involved in the legal process is essential for the proper administration of justice”, and sets out the following recommendations:

I. The CCJE recommends that states establish appropriate procedural provisions, which must define the activities of judges and lawyers and empower judges to implement effectively the principles of a fair trial and to prevent illegitimate delaying tactics of the parties. It also recommends that judges, lawyers and court users be consulted in the drafting of these provisions and that these procedural frameworks be regularly evaluated.

II. The CCJE supports the international exchange of experience between judges and lawyers with a view of developing “best practices” in the area of procedural frameworks, taking into account, however, the different social and legal traditions of the countries concerned.

III. The CCJE recommends that judges organise case management hearings within the framework of the relevant procedural laws, and establish, in consultation with the parties, procedural calendars, e.g. by specifying the procedural stages, setting out reasonable and appropriate timeframes and structuring the manner and timing of the presentation of written and oral submissions and evidence.

IV. The CCJE recommends developing lines of communication between courts and lawyers. Judges and lawyers must be in a position to communicate at all stages in proceedings. The CCJE considers that states should introduce systems facilitating computer communication between the courts and lawyers.

V. In order to meet the needs of the parties, the CCJE recommends developing arrangements for the friendly settlement of disputes. It considers that understanding the respective roles of judges and lawyers in the framework of friendly settlements by conciliation or mediation is a vital factor for developing this approach and that, as far as possible, joint training sessions on the various modes of friendly settlement should be provided.

VI. The CCJE recommends the development of dialogues and exchanges between judges and lawyers at an institutional level (both national and international) on the issue of their mutual relations, whilst taking full account of the ethical principles of both lawyers and judges. Such dialogue should facilitate mutual understanding of and respect for the role of each side, with respect for the independence of both judges and lawyers.

VII. The CCJE considers that, where appropriate, joint training for judges and lawyers on the themes of common interest can improve the quality and efficiency of proceedings.

opinion no. 17 (2014)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

the evaluation of judges' work, the quality of justice and respect for judicial independence

PART ONE: INTRODUCTION

A. Objects of the Opinion

1. The rule of law in a democracy requires not only judicial independence but also the establishment of competent courts rendering judicial decisions of the highest possible quality. The Consultative Council of European Judges (CCJE) has paid constant attention to two fundamental matters. First, the protection of judicial independence[164] and secondly, ways of maintaining and improving the quality and efficiency of judicial systems[165]. The individual evaluation of judges is relevant to both these issues. In this Opinion, the phrase “individual evaluation of judges” comprises the assessment of individual judges’ professional work and their abilities.

2. In accordance with the terms of reference entrusted to it by the Committee of Ministers, the CCJE resolved to focus on how the individual evaluation of judges’ work can improve the quality of justice without infringing judicial independence. This Opinion mainly addresses the individual evaluation of judges who have already been appointed to office for their period of tenure; it does not discuss either judges’ first appointment[166] or their initial training[167]. Though it touches upon the relationship between disciplinary proceedings and evaluation, the Opinion does not primarily address questions of discipline or criminal responsibility[168]. Nor does it discuss the evaluation of the performance of a country’s judicial system as a whole or of constituent courts in a judicial system. Those are major topics on their own which raise separate important issues and perspectives.

3. This Opinion has been prepared on the basis of previous CCJE Opinions and the Magna Carta of Judges (2010) and the relevant instruments of the Council of Europe, in particular the European Charter on the Statute for Judges (1998) and Recommendation CM/Rec(2010)12 of the Committee of Ministers on judges: independence, efficiency and responsibilities (hereafter Recommendation CM/Rec(2010)12). It also takes account of the United Nations Basic Principles on the Independence of the Judiciary (1985), the Bangalore Principles of Judicial Conduct (2002), the General Report[169] of the International Association of Judges (IAJ) (2006) (hereafter IAJ General Report), the OSCE Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia (2010) – Judicial Administration, Selection and Accountability (hereafter Kyiv Recommendations), and the Report of 2012-2013 of the European Network of Councils for the Judiciary (ENCJ) on minimum standards regarding evaluation of professional performance and irremovability of members of the judiciary (hereafter ENCJ Report). The Opinion takes account of the member states’ replies to the questionnaire on the individual evaluation and assessment of functioning judges and of a preparatory report drawn up by the expert appointed by the CCJE, Ms Anne SANDERS (Germany).

B. The key tasks of the judge as the object of the evaluation

4. Judges perform indispensable duties in each democratic society that respects the rule of law[170]. Judges must protect the rights and freedoms of all persons equally. Judges must take steps to provide efficient and affordable dispute resolution[171] and decide cases in a timely manner and independently and must be bound only by the law. They must give cogent reasons for their decisions[172] and must write in a clear and comprehensible manner[173]. Moreover, all binding decisions of judges must also be enforced effectively[174]. Judicial independence does not mean that judges are not accountable for their work. The CCJE has laid emphasis on maintaining and improving the quality and efficiency of judicial systems in the interest of all citizens[175]. Where it exists, the individual evaluation of judges should aim at improving the judiciary while ensuring the highest quality possible. That exercise must be done in the interest of the public as a whole.

C. Primacy of independence: the problem of reconciling evaluation with judicial independence

5. Judicial independence is a pre-requisite for safeguarding the rule of law and the fundamental guarantee of a fair trial[176]. As the CCJE has indicated in its previous Opinions, judicial independence can be compromised by various matters which may have an adverse impact on the administration of justice[177], such as a lack of financial resources[178], problems concerning the initial and in-service training of judges[179], unsatisfactory elements regarding the organisation of the judiciary and also the possible civil and criminal liability of judges[180].

6. Accordingly, the fundamental rule for any individual evaluation of judges must be that it maintains total respect for judicial independence[181]. When an individual evaluation has consequences for a judge’s promotion, salary and pension or may even lead to his or her removal from office, there is a risk that the evaluated judge will not decide cases according to his or her objective interpretation of the facts and the law, but in a way that may be thought to please the evaluators. Therefore, any evaluation of judges by members of the legislative or executive arms of the state is especially problematic. However, the risk to judicial independence is not completely avoided even if the evaluation is undertaken by other judges. Judicial independence depends not only on freedom from undue influence from external sources, but also requires freedom from undue influence internally, which might in some situations come from the attitude of other judges[182], including presidents of courts.

PART TWO: CURRENT PRACTICE IN MEMBER STATES

D. Why have evaluation at all and what types of evaluation are currently there?

7. Evaluation of judges is undertaken in order to assess the abilities of individual judges and the quality and quantity of the tasks they have completed. Evaluation is used, for example: to provide feedback, to identify training needs and to determine “performance based” salaries. It can also be used in order to seek out suitable candidates for promotion. It is argued by some that, in these ways, individual evaluation can, in principle, assist in improving the quality of a judicial system and can thereby also ensure the proper accountability of the judiciary towards the public.

8. The ENCJ Report distinguishes between countries using “formal” and “informal” evaluation systems. In summary, these systems are:

(I) Formal

9. In the case of most formal evaluations, the aims of the evaluation, the criteria used, the composition of the evaluating body, the procedure for evaluation and its possible consequences are all clearly set out in advance of any evaluation exercise. If evaluation is conducted in such a formal way, the rights and duties of the evaluated judge and the evaluating body will be regulated by means of primary or subordinate legislation.

(II) Informal

10. An informal evaluation will not use either formalised ratings or criteria. It will usually have no direct consequences for the evaluated judge. An informal evaluation might be conducted by way of a discussion which will allow the evaluated judge to address problems, show his or her abilities and agree on career goals[183]. An informal gathering of information about a judge who is a candidate for promotion[184] might also be regarded as an informal evaluation.

E. Evaluation as practiced in member states

(I) Where it is used

11. Twenty four member states explained in their answers to the questionnaire that they evaluate judges in a more or less formal way (Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Estonia, France, Georgia, Germany, Greece, Hungary, Italy, Republic of Moldova, Monaco, The Netherlands, Poland, Romania, Slovenia, Spain, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine). Estonia and Ukraine evaluate judges only before their permanent appointment. Nine member states (Czech Republic, Denmark, Finland, Iceland, Luxembourg, Norway, Sweden, Switzerland, United Kingdom) stated that they did not use a formal system of individual evaluation. However, Sweden uses certain evaluation tools in order to ascertain a small part of a judge’s wages according to his/her performance[185], Finland and Switzerland use them in preparation of career development discussions. In the United Kingdom, informal evaluation takes place when a judge’s application for promotion is under consideration.

(II) The aims of the countries that use it: quality of judges; promotion; remuneration and discipline

12. In the majority of countries that use some form of individual evaluation, it aims at assessing, maintaining and improving the quality of the work of judges and the judicial system. Many countries explained that the aim of evaluation is not only for assessing achievements and skills but also in order to identify training needs and to provide feedback. Many member states use evaluation as a basis for decisions on the promotion of judges. For some member states, evaluation is especially important when deciding on the lifetime appointment of recently appointed judges[186]. Other member states use evaluation to ascertain any elements of remuneration or pension based on the individual performance of a judge[187].

(III) Criteria used

13. In most member states, a number of quantitative and qualitative criteria are used for individual evaluation of judges. Thus factors such as the number of cases decided by the evaluated judge, the time spent on each case and the average time to complete a judgment are frequently taken into account as “quantitative” criteria. Many member states consider as important the number of decisions issued by the evaluated judge and/or the number of cases otherwise concluded (e.g. by settlement or withdrawal)[188]. In some member states, the productivity of a judge is measured against a fixed quota[189] or against the average number of decisions handed down by other judges[190]. As “qualitative” criteria, the quality of a judge`s analysis and the way in which the judge handles complex cases is considered of great importance in the evaluation process. In many member states, the number or percentage of decisions reversed on appeal are factors that are considered of great importance in the evaluation process[191]. In others[192], because of the principle of judicial independence, neither the numbers of decisions reversed on appeal nor the reasons for the reversal are taken into account, unless they reveal grave mistakes. Other factors considered are the ability to mediate between parties, the ability to draft clear and comprehensible judgments, the ability to cooperate with other colleagues, to work in areas of law that are new to the judge and the readiness to take on extra activities within the court’s administration such as mentoring and educating recently appointed judges or lawyers[193]. Organisational skills, work ethic[194] or scholarly activities such as publications and lecturing[195] are also treated as factors. Violations of ethical and professional rules/standards are considered in the evaluation process in almost all member states where there is an evaluation of judges and such principles are laid down. All member states which completed the questionnaires differentiate between the process of evaluation and disciplinary measures.

14. The way criteria are assessed in the evaluation process differs widely. Most member states report assigning ratings to evaluated judges. The rating systems used are roughly comparable and use grades such as “very good”, “good”, “sufficient” and “insufficient”[196] or A, B, C[197]. Some countries refer to the evaluated judge’s suitability for promotion in their ratings[198]. Other member states deny using formal ratings[199]. In some member states, data such as the number of cases a judge has decided will be turned into a percentage or into a figure which reflects the performance of each individual judge compared to other judges[200]. In some states, judges whose work has been studied are ranked from the best to the least good judge according to their evaluation[201]. Hungary determines the respective grade of a judge by matching a judge’s performance against a “productivity factor”. In other states, such quantitative and qualitative factors only provide the starting point for an individual assessment[202]. In some member states, the opinion of bar associations[203], litigants, colleagues and more senior judges[204] are taken into account.

(IV) Types of evaluation and methods/procedures used

15. In most countries, evaluations are conducted routinely and regularly. But member states have adopted different degrees of formality of procedure. Thus Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, France, Georgia, Germany, Greece, Hungary, Italy, Republic of Moldova, Monaco, Poland, Romania, Slovenia, Spain, “the former Yugoslav Republic of Macedonia” and Turkey all use formal evaluation systems. Finland, The Netherlands, Switzerland and the United Kingdom use more informal evaluation systems.

16. In some countries, the evaluation process is in the form of a career development discussion which may be more or less formal in nature. In that discussion, the evaluated judge and the evaluator/the evaluating commission consider career and development goals[205]. In some cases, the evaluation process starts with a self-assessment of the evaluated judge[206]. In other countries, a Council for the Judiciary or a subgroup of it gathers information on the work of the evaluated judge and will decide on the evaluation[207].

17. In other member states, a single evaluator, usually the president of the court where the evaluated judge performs his or her duties, gathers the relevant information on the judge’s work[208]. This will often involve reading the judge’s decisions, visiting hearings chaired by the judge and interviewing the individual judge. Often, the evaluator makes the final decision after the judge has had the opportunity to comment on a preliminary draft. In some member states, other professionals take part in the evaluation process[209]. In Poland, individual evaluation of judges is undertaken in the course of regular court inspections carried out by inspector judges from other courts[210].

18. Under most systems, the evaluated judge can comment on the draft opinion and is able to challenge the final decision.

19. Some countries reported that though there was no formal peer review procedure, judges were free to assist each other by giving advice and feedback informally[211]. In Austria, a voluntary peer evaluation project was initiated by the Austrian Judges’ Association. Judges visit each other’s hearings and provide informal feedback.

(V) Consequences

20. In most member states, the individual evaluation of judges is an important factor in relation to a judge’s chances for promotion and – in particular for a recently appointed judge - of obtaining security of tenure[212]. In some member states, evaluation also plays a role in determining performance related salaries and pensions[213]. Moreover, in some member states, poor performance can lead to the initiation of disciplinary procedures[214], pay cuts and even a judge’s dismissal from office[215].

PART THREE: ANALYSIS AND RECOMMENDATIONS

F. Why are there different types of evaluation?

(I) Judicial structure of a country (how judges are chosen, age, training, promotion etc.)

21. The decision of whether and, if so, how to evaluate judges is inextricably linked to the way in which the judicial structures of different member states have evolved. In particular the stage in their career at which a person is appointed a judge and the criteria by which they may be promoted to higher office would appear to be especially important in determining the type of evaluation that is used. For example, if newly appointed judges have had successful careers as practicing lawyers before appointment as judges (as in the Nordic countries, the United Kingdom and Cyprus) a judicial system might find less need for formal individual evaluation than a system where judges are appointed immediately or soon after finishing their legal education (as in France, Germany and Spain). In a legal system where promotions are made according to seniority (as, for example, in Luxembourg), a judge’s qualifications have less need to be assessed by means of individual evaluation.

(II) Culture of the country concerned

22. The decision whether and how to evaluate judges is also inextricably linked to the history and culture of a country and those of its legal system. Consequently, the assessment of the need for judicial evaluation differs widely in the member states. Romania and “the former Yugoslav Republic of Macedonia” explained that judicial independence[216] and the trust of the public in the judicial system[217] could be promoted through the individual evaluation of judges. Slovenia stated evaluation ensured judicial accountability and with it the quality of the judicial service. Spain argued that ascertaining a variable part of the salary according to the number of cases a judge had decided would respect judicial independence, whilst the evaluation of judges according to qualitative criteria[218] would endanger it. France and Germany, on the other hand, stated that evaluating only quantitative performance might compromise judicial independence. However, other countries, for example Norway and Switzerland, find evaluation unnecessary to ensure a legal system of high quality. Denmark, Luxembourg and Switzerland stated that individual evaluation of judges was simply incompatible with judicial independence. Here, a judge’s conduct may only be judged in the course of disciplinary procedures. Thus, it appears that what is regarded as imperative for judicial independence in one country is seen to be counterproductive for it in another.

G. The choice in principle: to evaluate or not to evaluate

23. Two key requirements of any judicial system must be to produce justice of the highest quality and proper accountability in a democratic society. Some form of evaluation of judges is necessary to meet these requirements. The fundamental question is whether such evaluation must be of a “formal” character. The CCJE encourages all member states to consider this question. The answer each member state gives will be in accordance with its judicial system, traditions and culture. If a member state decides that these two key requirements can be met by means other than formal evaluation of individual judges, it could decide not to have such a formal evaluation. If it concludes these requirements cannot be met by other means, the CCJE recommends the adoption of a more formal system of individual evaluation of judges as discussed below.

24. All evaluation should aim at maintaining and improving the quality of the work of judges and thereby the whole judicial system.

25. Informal assessment can take the form of assisting judges by giving them an opportunity for self-assessment, providing feedback and determining their training needs. All these can be effective ways of improving the skills of judges and thereby improving the overall quality of the judiciary. Informal peer review, self-evaluation by judges and advice among judges can also be helpful and should be encouraged[219].

H. If there is formal evaluation: how to do it?

(I) Possible aims and their effect on judicial independence

(a) Assisting with the problems of working conditions

26. Judicial systems should use information gathered in evaluation procedures not only to evaluate individual judges but also to provide material which can assist in improving the organisational structure of courts and the working conditions of judges. It would be particularly unjust that an individual judge be evaluated negatively because of problems caused by poor working conditions that he or she cannot influence, such as for example delays caused by massive backlogs, or because of lack of judicial personnel or an inadequate administrative system.

(b) Promotion

27. The CCJE[220] and the UN[221] both state that the appointment and promotion of judges should not be based on seniority alone but on objective criteria, in particular ability, integrity and experience. If promotions are made according to such objective criteria, it follows that when judges apply for promotion, they must, at that stage at least, be evaluated in some form. Therefore, gathering information on the suitability for promotion of a judge can be an important objective for the individual evaluation of judges.

28. In a few member states, it is the fact that a judge’s remuneration is influenced by his/her evaluation results[222]. However, the CCJE endorses the Recommendation of the Committee of Ministers Rec(2010)12 that “systems making judges’ core remuneration dependent on performance should be avoided as they could create difficulties for the independence of judges”[223]. The CCJE also endorses the view that a judge’s pension should not depend on performance.

(d) Discipline

29. Although violations of ethical and professional rules/standards can be considered in the evaluation process, member states should clearly differentiate between evaluation and disciplinary measures and processes. The principles of security of tenure and of irremovability are well-established key elements of judicial independence and must be respected[224]. Therefore, a permanent appointment should not be terminated simply because of an unfavourable evaluation. It should only be terminated in a case of serious breaches of disciplinary or criminal provisions established by law[225] or where the inevitable conclusion of the evaluation process is that the judge is incapable or unwilling to perform his/her judicial duties to a minimum acceptable standard, objectively judged. In all cases there must be proper procedural safeguards for the judge being evaluated and these must be scrupulously observed.

(II) Framework for formal evaluation

30. Where a system of formal individual evaluation is applied, its basis and main elements (criteria, procedure, consequences of the evaluation) should be set out clearly and exhaustively by primary legislation. Details can be regulated in subordinate legislation[226]. The Council for the Judiciary (where it exists) should play an important role in assisting in formulating these matters, especially the criteria.

(III) Criteria for formal evaluation

31. The formal individual evaluation of judges must be based on objective criteria published by the competent judicial authority[227]. Objective standards are required not merely in order to exclude political influence, but also for other reasons, such as to avoid the risk of a possible impression of favouritism, conservatism and cronyism, which exists if appointments/evaluations are made in an unstructured way or on the basis of personal recommendations[228]. These objective standards should be based on merit, having regard to qualifications, integrity, ability and efficiency[229].

32. The CCJE notes that the ENCJ Report recommends that the criteria for the evaluation of professional performance of judges should be comprehensive, and should include both quantitative and qualitative indicators, in order to allow a full and deep assessment of the professional performance of judges[230].

33. The CCJE notes that the Kyiv Recommendations[231] state that there should be evaluation according to the following criteria: professional competence (knowledge of law, ability to conduct court proceedings, capacity to write reasoned decisions), personal competence (ability to cope with the workload, ability to decide, openness to new technologies), social competences, i.e. ability to mediate, respect for the parties, and, in addition, the ability to lead for those whose positions require it.

34. In general, the CCJE agrees with the qualitative criteria identified in the Kyiv Recommendations. The CCJE considers that evaluations should not be based solely on quantitative criteria. Further, although the efficiency of a judge’s work can be an important factor for evaluation, the CCJE considers that a heavy reliance on the number of cases a judge has decided is problematic because it might lead to false incentives.

35. The quality of justice cannot be understood as if it were a synonym for mere “productivity” of the judicial system[232]. The CCJE cautions that insufficient funding and budget cuts might result in a judicial system overemphasising “productivity” in the individual evaluation of judges. Therefore, the CCJE stresses again that all the general principles and standards of the Council of Europe place a duty on member states to make financial resources available that match the needs of different judicial systems[233]. The CCJE believes that the quality, not merely the quantity, of a judge’s decisions must be at the heart of individual evaluation. In the Opinion No. 11 (2008), the CCJE discussed the importance of high quality judgments. In order to evaluate the quality of a judge’s decision, evaluators should concentrate on the methodology a judge applies in his/her work overall, rather than assessing the legal merits of individual decisions[234]. The latter must be determined solely by the appeal process. Evaluators must consider all aspects that constitute good judicial performance, in particular legal knowledge, communication skills, diligence, efficiency and integrity. To do that, evaluators should consider the whole breadth of a judge’s work in the context in which that work is done. Therefore, the CCJE continues to consider it problematic to base evaluation results on the number or percentage of decisions reversed on appeal[235], unless the number and manner of the reversals demonstrates clearly that the judge lacks the necessary knowledge of law and procedure. It is noted that the Kyiv Recommendations[236] and the ENCJ Report[237] reach the same view.

(IV) How to evaluate?

(a) Who does it: managers/judges/other professionals?

36. Evaluators should have sufficient time and resources to permit a comprehensive assessment of every judge’s individual skills and performance. The evaluated judge should be informed who the evaluators are and the judge must have the right to ask for the replacement of any evaluator who might objectively be perceived as biased.

37. In order to protect judicial independence, evaluation should be undertaken mainly by judges. The Councils for the Judiciary (where they exist) may play a role in this exercise[238]. However, other means of evaluation could be used, for example, by members of the judiciary appointed or elected for the specific purpose of evaluation by other judges. Evaluation by the Ministry of Justice or other external bodies should be avoided[239]; nor should the Ministry of Justice or other bodies of the executive be able to influence the evaluation process.

38. In addition, other professionals who can make a useful contribution to the evaluation process might participate in it. However, it is essential that such assessors are able to draw on sufficient knowledge and experience of the judicial system to be capable of properly evaluating the work of judges. It is also essential that their role is solely advisory and is not decisive.

(b) How is it to be done: sources of evidence

39. Sources of information used in the evaluation process must be reliable[240]. This is especially so in respect of information on which an unfavourable evaluation is to be based. Also, it is essential that such an evaluation is based on sufficient evidence. The evaluated judge should have immediate access to any evidence intended to be used in an evaluation so it can be challenged if necessary[241]. Individual evaluation of judges and the inspection assessing the work of a court as a whole should be kept entirely separate. However, facts discovered during a court inspection can be taken account in the individual evaluation of a judge[242].

40. A member state that decides to introduce individual formal evaluation must decide whether to evaluate judges regularly or only for special occasions, for example when a judge is a candidate for promotion[243]. Regular evaluations permit a full picture of a judge’s performance to be created. They should not take place too often, however, in order to avoid an impression of constant supervision which could, by its very nature, endanger judicial independence.

(d) Procedural fairness for the evaluated judge

41. As the CCJE has stated before, all procedures of individual evaluation should enable judges to express their views on their own activities and on the assessment that is made of these activities[244]. Any procedure should also enable them to challenge assessments before an independent authority or a court. The evaluated judge must therefore have the opportunity to contribute to the evaluation process in a way that is useful, for example by commenting on a preliminary draft or by being heard in the evaluation process. Moreover, the evaluated judge must have an effective right to challenge an unfavourable evaluation, particularly when it affects the judge’s “civil rights” in the sense of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The more serious the consequences of an evaluation can be for a judge, the more important are such rights of effective review.

(e) Consequences for judges and others

42. The CCJE cautions against expressing evaluation results only in terms of points, figures, percentages or numbers of decisions made. All such methods, if used without further explanation and evaluation, can create a false impression of objectivity and certainty. The CCJE also considers detailed permanent ranking of judges as a result of their evaluation[245] as undesirable. Not only does such a ranking give a false impression of objectivity and certainty; even worse, it is inflexible and difficult to change without engaging in an exercise that "re-ranks" all judges of a similar level. Thus, such a system is impractical and, particularly if it is made public, is unjust. It does nothing to improve either the efficiency of the judges or their independence.

43. However, a system of ranking for specific purposes, such as promotion, can be useful. For example, if two or more judges have applied or are being considered for appointment to one position, it is likely that the candidates will be put in some form of "ranking" for that purpose.

44. The results of an individual evaluation will probably have a direct effect on a judge’s career and particularly on his/her chances for promotion. Moreover, training needs and the allocation of additional resources[246] may be determined according to evaluation results. As already noted, except in exceptional circumstances, dismissal from office should not be the consequence of an unfavourable evaluation alone but only in the case of a serious breach of disciplinary rules or the criminal law, following a proper procedure and based on reliable evidence[247]. However, as already also noted, dismissal may be the consequence if the inevitable conclusion of the evaluation process is that the judge is incapable or unwilling to perform his/her judicial duties to a minimum acceptable standard, objectively judged. In all such cases, the need for procedural safeguards for the judge is particularly important and these must be scrupulously observed.

45. Using individual evaluation to determine the salaries and pensions of judges should be avoided[248]. Such a process could plainly influence judges’ behaviour (to the detriment of the parties in individual cases) and also endanger judicial independence[249].

I. Reconciliation of independence and evaluation in the light of this discussion; public accountability

46. The reconciliation of the principle of judicial independence with any process of individual evaluation of judges is difficult. But the correct balance is of crucial importance. Ultimately, judicial independence must be paramount at all times.

47. In summary, the means of achieving this balance include the following: (1) There must be plain and transparent rules with respect to the procedure, criteria and consequences of evaluation. (2) The evaluated judge should have the right to be heard in the process, and to challenge an unsatisfactory evaluation, including the right of immediate access to material relating to the evaluation. (3) Evaluation should not be based solely on the numbers of decided cases but should focus primarily on the quality of a judge’s decisions and also his/her judicial work overall. (4) Some consequences, such as the dismissal from office because of a negative evaluation, should be avoided for all judges who have obtained tenure of office, except in exceptional circumstances.

48. The formal individual evaluation of judges, where it exists, should help to improve and maintain a judicial system of high quality for the benefit of the citizens of member states. This should thereby help maintain public confidence in the judiciary. This requires that the public must be able to understand the general principles and procedure of the evaluation process. Therefore, the procedural framework and methods of evaluation should be available to the public. Moreover, in the view of the CCJE, the individual evaluation process for career or promotion purposes should not take account of public views on a judge. They may not always be the result of complete or fully understood information or such views may possibly even be based on a misunderstanding of the judges’ work overall. The process and results of individual evaluations must, in principle, remain confidential and must not be made public. To do so would almost certainly endanger judicial independence, for the obvious reason that publication could discredit the judge in the eyes of the public and possibly make him/her vulnerable to attempts to influence him/her. In addition, publication may mean the judge is subjected to verbal or other attacks.

J. Recommendations

49. The CCJE makes the following principal recommendations:

1. Some form of evaluation of individual judges is necessary to fulfill two key requirements of any judicial system, namely justice of the highest quality and proper accountability in a democratic society (paragraph 23).

2. If, after careful analysis a member state decides that these key requirements cannot be met by other means (e.g. “informal” evaluation), the CCJE recommends the adoption of a more formal system of individual evaluation (paragraph 23).

3. The aim of all individual judicial evaluation adopted by a member state, whether it be “formal” or “informal”, must be to improve the quality of the work of the judges and, thereby, a country’s whole judicial system (paragraph 24).

4. The CCJE encourages all member states to use informal evaluation procedures that help improving the skills of judges and thereby the overall quality of the judiciary. Such means of informal evaluation include assisting judges by giving them an opportunity for self-assessment, providing feedback and informal peer-review (paragraph 25).

5. The basis and main elements for formal evaluation (where it exists) should be set out clearly and exhaustively in primary legislation. Details may be regulated by subordinate legislation which should also be published. The Council for the Judiciary (where it exists) should play an important role in assisting in formulating these matters, especially the criteria for evaluation (paragraph 30).

6. Evaluation must be based on objective criteria. Such criteria should principally consist of qualitative indicators but, in addition, may consist of quantitative indicators. In every case, the indicators used must enable those evaluating to consider all aspects that constitute good judicial performance. Evaluation should not be based on quantitative criteria alone (paragraphs 31-35).

7. Expressing evaluation results by numbers, percentages or by ranking judges without further information should be avoided as this could create a false impression of objectivity and certainty. The CCJE opposes any permanent ranking of judges. However, a system of ranking is acceptable for certain specific purposes such as promotion (paragraphs 42-43).

8. In order to safeguard judicial independence, individual evaluations should be undertaken primarily by judges. The Councils for the Judiciary (where they exist) may play a role in the process. Evaluations by the Ministry of Justice or other external bodies should be avoided (paragraph 37).

9. The sources of evidence on which evaluations are based must be sufficient and reliable, particularly if the evidence is to form the basis of an unfavourable evaluation (paragraphs 39, 44).

10. Individual evaluation of judges should - in principle - be kept separate, both from inspections assessing the work of a court as a whole, and from disciplinary procedures (paragraphs 29, 39).

11. It is essential that there is procedural fairness in all elements of individual evaluations. In particular judges must be able to express their views on the process and the proposed conclusions of an evaluation. They must also be able to challenge assessments, particularly when it affects the judge’s “civil rights” in the sense of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (paragraph 41).

12. An unfavourable evaluation alone should not (save in exceptional circumstances) be capable of resulting in a dismissal from office. This should only be done in a case of serious breaches of disciplinary rules or criminal provisions established by law or where the inevitable conclusion of the evaluation process is that the judge is incapable or unwilling to perform his/her judicial functions to an objectively assessed minimum acceptable standard. These conclusions must follow a proper procedure and be based on reliable evidence (paragraphs 29, 44).

13. The use of individual evaluations to determine the salary and pension of individual judges is to be avoided as this process could plainly influence judges’ behaviour and so endanger judicial independence and the interests of the parties (paragraphs 28, 45).

14. The principles and procedures on which judicial evaluations are based must be made available to the public. However, the process and results of individual evaluations must, in principle, remain confidential so as to ensure judicial independence and the security of the judge (paragraph 48).

opinion no.18 (2015)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

the position of the judiciary and its relation with the other powers of state in a modern democracy

______________________________________________________________________________

I. Introduction. The reason for the Opinion and its scope

1. Over recent decades, the relationship between the three powers of the state (legislative, executive and judicial) has been transformed. The executive and legislative powers have grown more interdependent. The power of the legislature to hold the executive to account has decreased[250]. At the same time, the role of the judiciary has evolved. The number of cases brought to the courts and the number of legislative acts the courts must apply have increased dramatically. The growth of executive power in particular has led to more challenges to its actions in court and this in turn has led some to question the scope of the role of the judiciary as a check on the executive. There has been an increasing number of challenges in the courts to legislative powers and actions. As a result, the judiciary has increasingly had to examine and has sometimes even restrained the actions of the other two powers[251]. Today, for parties in litigation, and for society as a whole, the court process provides a kind of alternative democratic arena, where arguments between sections of the public and the powers of the state are exchanged and questions of general concern are debated. Courts rule on issues of great economic and political importance. International institutions, especially the Council of Europe and the European Court of Human Rights (ECtHR), the European Union and the Court of Justice of the European Union (CJEU) have all had a considerable influence in member states, particularly in strengthening the independence of the judiciary and in its role in the protection of human rights. Moreover, the application of European and international rules and standards and the implementation of decisions of the ECtHR and the CJEU have provided new challenges for the judiciaries in the member states and sometimes their application by courts has been challenged by politicians or commentators.

2. Although, in general, “the separation of powers” is accepted by all member states, a number of conflicts and tensions have surfaced in recent years that raise concern. Such concerns have been expressed in the Reports of the Secretary General of the Council of Europe in 2014 and 2015[252] as well as in the Situation Reports of the CCJE in 2013 and 2015. For example: in some countries, new political majorities have questioned the position of judges who are already in post[253]. In 2015, the Secretary General of the Council of Europe noted shortcomings in the enforcement of court decisions[254]. In some member states, the executive exercises considerable influence over the administration of the judiciary, thereby bringing into question the institutional independence of the judiciary and the independence of individual judges[255]. Economic crises and chronic underfunding of the judicial system in several member states raise the question of the budgetary responsibility of the legislature towards the judiciary[256]. A lack of legislation or (at the other extreme) rapidly changing legislation may be contrary to the principle of legal certainty[257]. There have also been verbal attacks on the judiciary by members of the executive and legislature. In 2014 and 2015, the Secretary General of the Council of Europe remarked that politicians and other commentators who have publicly criticised court decisions in recent years have thereby undermined the public confidence in the judiciary in various countries[258]. Politicians and the media have suggested that judiciaries are not sufficiently “accountable” to society. Such comments, which have included statements which question the “legitimacy” of judiciaries, were reported by member states in response to the questionnaire sent out in preparation of this Opinion. Clearly, all these comments and actions must be viewed against the fact that today, in most European countries, traditional sources of authority are no longer as readily accepted as once they were. There has been a decline in “deference” towards public institutions. In the same vein, it is often stated nowadays that an application of basic democratic principles requires that there be a greater need for openness and transparency in the work of public institutions. All this means that those involved in providing public services have increasingly had to “account” for the way in which they carry out their work.

3. Therefore, in accordance with the terms of reference entrusted to it by the Committee of Ministers, the Consultative Council of European Judges (CCJE) resolved to reflect upon the legitimacy and accountability of the judiciary and the proper relationship between the three powers of state in a modern democracy and their responsibilities towards one another and to society in general in the 21^st century.

4. This Opinion examines the following questions:

i. What relationship should there be between the judicial power of a state and the legislative and the executive powers?

ii. On what bases do judiciaries establish their right to act as such in a democratic society? How is the “legitimacy” of judicial power demonstrated?

iii. To what extent and in what ways should judiciaries be accountable to the societies they serve and to the other powers of the state?

iv. How can the three powers of the state exercise their respective authority in such a way as to achieve and maintain a proper balance between themselves and also act in the interest of the society they all serve?

This Opinion will not examine the basic principles of judicial independence, since this was considered in CCJE Opinion No. 1 (2001). The relationship of courts with the media was discussed in Opinion No. 7 (2005) Part C, and so that also will not be examined in detail in this Opinion.

5. This Opinion has been prepared on the basis of previous CCJE Opinions, the CCJE Magna Charta of Judges (2010), and the relevant instruments of the Council of Europe, in particular the European Charter on the Statute for Judges (1998), and Recommendation CM/Rec(2010)12 of the Committee of Ministers on judges: independence, efficiency and responsibilities (hereafter “Recommendation CM/Rec(2010)12”). It also takes account of the OSCE Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia (2010) – Judicial Administration, Selection and Accountability (hereafter “Kyiv Recommendations”); the 2013-2014 Report of the European Network of Councils for the Judiciary (ENCJ) on Independence and Accountability of the Judiciary (hereafter “ENCJ Report 2013-2014”); the reports of the Venice Commission on the Rule of Law (March 2011), on the Independence of the Judicial System, part I: the Independence of Judges (March 2010) and the Opinion No. 403/2006 of the Venice Commission on Judicial Appointments adopted at its 70th Plenary Session on 16-17 March 2007 (hereafter “Venice Commission, Judicial Appointments, 2007”); the Bangalore Principles of Judicial Conduct (2002); the CoE Secretary General’s Reports (2014) and (2015); the New Delhi Code of Minimum Standards of Judicial Independence (New Delhi Standards 1982). This Opinion takes account of member states’ replies to the questionnaire on the independence of the judiciary and its relation with the other powers of the state in a modern democracy and of a preparatory report drawn up by the scientific expert appointed by the Council of Europe, Ms Anne SANDERS (Germany). Moreover, the Opinion has benefited from contributions made in a seminar held in Strasbourg on 19 March 2015[259]. The opinion has also benefited from the seminar organised by the Norwegian Association of Judges held in Bergen (Norway) on 4 June 2015[260].

II. The constitutional framework of a modern democracy: where does the judiciary fit in?

6. It is generally accepted that a modern democratic state should be founded on the separation of powers[261]. The judiciary is one of the three essential but equal pillars of a modern democratic state[262]. All three powers provide a public service and must hold each other accountable for their actions. In a democratic state which is subject to the rule of law, none of the three powers of state act for their own interest but in the interests of the people as a whole. In a democratic state bound by the rule of law, (“Etat de droit” or “Rechtsstaat”) all the three powers must act on the basis of and within the limitations provided by law. The responses of member states to the questionnaire show that all member states recognise these fundamental principles.

7. In a democratic society it is the responsibility of the legislature to design the legal framework in which and by which society lives. The executive power is responsible for the administration of society (in so far as state agents have to carry it out) in accordance with the legal framework established by the legislature. The judiciary’s function is to adjudicate between members of society and the state and between members of society themselves. Frequently the judiciary is also called upon to adjudicate on the relationship between two or even all three powers of the state[263]. All this must be done according to the rule of law. An independent and efficient court system is a corner stone of the rule of law[264]. The goal of any independent and efficient court system must therefore be to ensure the fair, impartial adjudication of legal disputes, thereby protecting the rights and liberties of all persons seeking justice. To achieve this goal, in any particular case the court must find the relevant facts in a fair procedure, apply the law and must provide effective remedies. In criminal cases, a court system must impartially and independently decide on whether and how certain actions deserve punishment[265]. In modern democratic states, an independent judiciary will ensure that governments can be held to account for their actions which are justiciable and will be responsible for ensuring that duly enacted laws are applied correctly. To a greater or lesser extent (depending on the particular constitutional arrangements in a state), the judiciary also ensures that the laws comply with any relevant constitutional provisions or higher law, such as that of the European Union[266].

8. The widely differing histories, cultures and legal traditions of the member states of the Council of Europe have produced different “models” of constitutional structures which are, in many cases, constantly developing. Globalisation and the increasing influence of international and European organisations necessitate changes in the constitutional structures of individual member states. In particular, decisions of the ECtHR have done much to advance the protection of human rights and judicial independence and have had their effect on member states’ constitutions. However, all these influences have also produced stresses on the relationship between the three powers of the state, especially in the relationship between the judiciary and the other two powers.

9. In principle the three powers of a democratic state should be complementary, with no one power being “supreme” or dominating the others[267]. In a democratic state, ultimately it is the will of the people, expressed through the proper democratic process that is supreme (sovereignty of the people). It is also fallacious to imagine that any one of the three powers of state can ever operate in complete isolation from the others. The three powers rely on one another to provide the totality of public services necessary in a democratic society. So, while the legislature provides the legislative framework, it is the judiciary that must interpret and apply it by virtue of its decisions and the executive is often responsible for the enforcement of judicial decisions in the interest of society[268]. In this way the three powers function in a relationship of interdependence, or of convergence and divergence. Accordingly, there can never be a complete “separation of powers”[269]. Rather, the three powers of the state function as a system of checks and balances that holds each accountable in the interest of society as a whole. It has to be accepted, therefore, that a certain level of tension is inevitable between the powers of the state in a democracy. If there is such “creative tension”, it shows that each power is providing the necessary check on the other powers and thus contributing to the maintenance of a proper equilibrium. If there were no such tension between the three powers, the suspicion might arise that one or two powers had stopped holding the other to account on behalf of society as a whole and thus, that one or more powers had obtained domination over the rest. Thus, the fact of tension between the judiciary and the other two powers of the state should not necessarily be seen as a threat to the judiciary or its independence, but rather as a sign that the judiciary is fulfilling its constitutional duty of holding the other powers to account on behalf of society as a whole.

III. Independence of the judiciary and separation of the powers

10. The judiciary must be independent to fulfil its role in relation to the other powers of the state, society in general, and the parties to litigations[270]. The independence of judges is not a prerogative or privilege granted in their own interest, but in the interest of the rule of law and of all those who seek and expect justice. Judicial independence is the means by which judges' impartiality is ensured. It is therefore the pre-condition for the guarantee that all citizens (and the other powers of the state) will have equality before the courts[271]. Judicial independence is an intrinsic element of its duty to decide cases impartially[272]. Only an independent judiciary can implement effectively the rights of all members of society, especially those groups that are vulnerable or unpopular[273]. Thus, independence is the fundamental requirement that enables the judiciary to safeguard democracy and human rights[274].

11. The principle of the separation of powers is itself a guarantee of judicial independence[275]. However, despite the frequently expressed importance of judicial independence, it must be pointed out that nobody – including the judiciary - can be completely independent from all influences, in particular social and cultural influences within the society in which it operates. After all: “No man is an island, entire unto itself”[276]. No judiciary – as with any power in a democratic state - is completely independent. The judiciary relies on the others to provide resources and services, in particular on the legislature to provide finances and the legal framework which it has to interpret and apply. Although the task of deciding cases according to the law is entrusted to the judiciary, the public relies on the executive to enforce judicial decisions. Shortcomings in the enforcement of judicial decisions undermine judicial authority and question the separation of powers[277]. Whilst all three powers share responsibility for ensuring that there is a proper separation between them, neither that principle nor that of judicial independence should preclude dialogue between the powers of the state. Rather, there is a fundamental need for respectful discourse between them all that takes into account both the necessary separation as well as the necessary interdependence between the powers. It remains vital, however, that the judiciary remains free from inappropriate connections with and undue influence by the other powers of the state[278].

IV. The legitimacy of judicial power and its elements

A. The importance of legitimacy

12. All three powers of the state exercise considerable authority. The legislature drafts laws and allocates the state’s budget. The executive exercises authority, even to the extent of using physical force (within the law) in order to uphold and enforce the laws of the land. The judiciary not only decide matters of fundamental importance to individual citizens and to society at large but also affect with their judgments and rulings even the ordinary affairs of every individual who seeks the aid of the courts. In order to do this, judges are given an authority and powers which are very far reaching. Such authority and powers are exercised on behalf of society as a whole. Consequently, society and the other powers of the state are entitled to be satisfied that all those given that authority and power (that is the judges individually and collectively), have a legitimate basis on which to exercise it in the name of society as a whole. In all modern democratic states at least one constituent body of the legislature is directly elected by the citizens of the state. There is force in the argument that legislatures and executives that are appointed (directly or indirectly) through elected representatives must thereby have “democratic legitimacy”. It is perfectly proper to ask: from where does the judicial power derive its “legitimacy”?

B. Different elements of legitimacy of judicial power

(1) The judicial power as a whole

13. The judicial power is created as a part of the constitutional framework of democratic states that are subject to the rule of law. By definition, therefore, if the constitutional framework of such a state is legitimate, then the basis of judicial power as a part of that constitution is just as legitimate and just as necessary a part of the democratic state as the other two component powers[279]. All member states have some form of a constitution which, by differing means, (e.g. by long custom or a popular vote) is accepted as being the legitimate foundation of the state. The constitutions of all member states recognise and create (whether explicitly or implicitly) the role of a judiciary which is there to uphold the rule of law and to decide cases by applying the law in accordance with legislation and case law. Thus, the fact that a constitution creates a judiciary to carry out this role must itself thereby confer legitimacy upon the judiciary as a whole. When deciding cases, each individual judge exercises his authority as a part of the judiciary. Accordingly, the very fact that the judiciary is a part of a state’s constitution provides legitimacy not only for the judiciary as a whole but each individual judge.

(2) Constitutional or formal legitimacy of individual judges

14. In order to perform the judicial functions legitimised by the constitution, each judge needs to be appointed and thus become part of the judiciary. Each individual judge who is appointed in accordance with the constitution and other applicable rules thereby obtains his or her constitutional authority and legitimacy. It is implicit in this appointment in accordance with constitutional and legal rules that individual judges are thereby given the authority and appropriate powers to apply the law as created by the legislature or as formulated by other judges. The legitimacy conferred on an individual judge by his appointment in accordance with the constitution and other legal rules of a particular state constitutes an individual judge’s “constitutional or formal legitimacy”.

15. The CCJE has noted the different methods of appointment of judges in the member states of the Council of Europe[280]. These include, for example: appointment by a council for the judiciary or another independent body, election by parliament and appointment by the executive. As the CCJE has pointed out, each system has advantages and disadvantages[281]. It can be argued that appointment by vote of Parliament and, to a lesser degree, by the executive can be seen to give additional democratic legitimacy[282], although those methods of appointment carry with them a risk of politicisation and a dependence on those other powers[283]. To counter those risks, the CCJE has recommended that every decision relating to a judge’s appointment or career should be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria[284]. The CCJE has also recommended the participation of an independent authority with substantial representation chosen democratically by other judges in decisions concerning the appointment or promotion of judges[285]. The constitutional legitimacy of individual judges who have security of tenure must not be undermined by legislative or executive measures brought about as a result of changes in political power.

(3) Functional legitimacy of individual judges

16. Judicial appointment in accordance with the constitution and law of a state, the exercise of the constitutional role of judges in deciding cases according to the legal framework designed by the legislature and the necessity that each judge must undertake to work within the established legal rules of conduct all provide an initial legitimacy for the judge. But legitimacy cannot rest there. As the CCJE has pointed out before, public confidence in and respect for the judiciary are the guarantees of the effectiveness of a judicial system[286]. To achieve and maintain legitimacy continuously, each judge and the judiciary as a whole can only do so by earning and retaining the confidence of the public. This second kind of legitimacy can be called “functional legitimacy”.

17. “Functional legitimacy” must be earned through work of the highest possible quality which respects high ethical standards. In its previous Opinions, the CCJE has discussed different aspects of good judicial work and the ways of maintaining and improving the quality and efficiency of judicial systems in the interest of the society. Thus the CCJE has given Opinions on various means of achieving this, i.e. initial and in-service training of judges[287], fair trial within a reasonable time[288], effective application of international and European law[289], councils for the judiciary at the service of society[290], the quality of judicial decisions[291], the effective enforcement of judicial decisions[292], information technologies[293], the specialisation of judges[294], and the evaluation of judges[295]. The CCJE has stated that, in order to provide judicial services of high quality, the judiciary must also work with prosecutors[296] and lawyers[297] in an appropriate way. By applying these principles, individual judges and so the judiciary as a whole should achieve the overall goal of providing judgments of the highest possible quality in accordance with high ethical standards. Individual judges and the judiciary collectively will maintain legitimacy and the respect of its citizens by their efficiency and the quality of their work.

18. Judges must fulfil their duties within the provisions set out in the disciplinary and procedural rules[298] and (obviously) the criminal law. The powers of a judge are linked to the values of truth, justice, fairness, and freedom. Therefore, judges must perform their duties according to the highest standard of professional conduct[299]. In its Opinion No. 3 (2002), the CCJE discussed such standards and principles of professional conduct[300]. Working within these principles helps to ensure the legitimacy of individual judges who are part of the judiciary as a whole.

19. Like all other powers, the judiciary must also earn trust and confidence by being accountable to society and the other powers of the state[301]. It is therefore necessary next to examine why and how the judicial power and individual judges are to be accountable to society.

V. Accountability of judicial power

A.Why is accountability important?

20. In recent years, public services have moved towards more openness and have accepted that they must provide a fuller explanation of their work for the public they serve. As a consequence, the notion of accountability to the public has become of increasing importance throughout public life[302]. A public body will be “accountable” if it provides explanations for its actions and, of equal importance, the public body assumes responsibility for them. This “accountability” is as vital for the judiciary as for the other powers of the state because it, like them, is there to serve the public[303]. Moreover, provided a careful balance is observed, the two principles of judicial independence and accountability are not irreconcilable opposites. In the judicial context, “accountable” must be understood as being required to give an account, that is: to give reasons and to explain decisions and conduct in relation to cases that the judges must decide. “Accountable” does not mean that the judiciary is responsible to or subordinate to another power of the state, because that would betray its constitutional role of being an independent body of people whose function is to decide cases impartially and according to law. If the judiciary were “accountable” to another power of state in the sense of being responsible or subordinate to it, then when cases involve those other powers of state, the judiciary could not fulfil its constitutional role as stated above.

21. The judiciary (as with the other two powers of state) provides a public service. It is axiomatic that it should account (in the sense explained above) to the society it serves. Judicial authority must be exercised in the interest of the rule of law and of those seeking and expecting justice[304]. Therefore, the judiciary faces the responsibility of demonstrating to the other powers of the state and to society at large the use to which its power, authority and independence have been put[305]. There has been an increasing demand by court users for a more effective court system. Better access to the courts has been considered of increasing importance[306]. Effectiveness and accessibility are aspects of demonstrating “accountability”. The CCJE has recognised these trends before. In stipulating that judicial systems should produce justice of the highest quality and of proper accountability in a democratic system, the CCJE has emphasised one aspect of providing judicial “accountability” to society at large[307].

22. There are further reasons why the judicial power should be accountable to the other powers of the state in the sense discussed above. First, it is the legislature which creates the legislative framework which the judiciary applies. Therefore, the legislature is entitled to have an account, in properly formulated reasons in decisions, of how the laws it has enacted are being interpreted and applied by the judiciary. Secondly, for the fulfilment of its duties towards society, the judiciary receives financial resources through decisions of the legislature and, in many member states, the executive. As the CCJE has stressed before, the general principles and standards of the Council of Europe place a duty on member states to make financial resources available that match the needs of different judicial systems[308]. It is evident from the responses to the CCJE questionnaire that the administrative and financial autonomy of judiciaries in member states varies considerably. The CCJE has recommended increasing the court’s administrative and financial autonomy in order to protect judicial independence[309]. However, whatever way the budgetary and administrative stewardship of the judiciary is organised in a particular state, a judiciary’s resources are allocated by parliament and come, ultimately, from tax paying citizens. Thus, just as the legislature and the executive are accountable for how they allocate resources, so also must the judiciary account to society for how the financial resources allocated to it are spent in the fulfilment of its duties towards society[310].

B. How is accountability to be carried out?

(1) What should the judiciary be accountable for?

23. Justice aims to resolve disputes and, by the decisions which it delivers, the judiciary fulfils both a “normative” and “educative” role, providing citizens with relevant guidance, information and assurance as to the law and its practical application[311]. Therefore, first and foremost, the judiciary must be accountable through the work of the judges in deciding the cases brought before them, more particularly through their decisions and the reasons given for them. Judicial decisions must be open to scrutiny and appeal[312]. This may be called “judicial accountability” and it is paramount. In accordance with the fundamental principle of judicial independence, the appeal system is in principle the only way by which a judicial decision can be reversed or modified after it has been handed down and the only way by which judges can be held accountable for their decisions, unless they were acting in bad faith.

24. In countries where judges are responsible for the management of the court system (which sometimes includes the court budget), the judiciary must be held accountable for their stewardship to the other powers of the state and to society at large[313]. In this area, judges entrusted with managing public funds are, in principle, in the same position as any other public authority that has responsibility for spending tax payers’ money.

(2) To whom are judges accountable?

25. Individual judges and the judiciary as a whole are accountable at two levels. First, they are accountable (in the sense described above) to the particular litigants who seek justice in particular judicial proceedings. Secondly, they are accountable (in the same sense) to the other powers of the state and, through them, to society at large.

(3) How is it done?

(a) Different elements of accountability

26. There are different forms of accountability. First, as explained above, judges are made to account for their decisions through the appeal process (“judicial accountability”). Secondly, judges must work in a transparent fashion. By having open hearings and by giving reasoned judgments which are made available to the public (save in exceptional circumstances), individual judges will explain their actions and their decisions to the litigants who are seeking justice, the judge is also rendering an account of his or her actions to the other powers the state and to society at large. This form of accountability can be described as “explanatory accountability”. Thirdly, if a judge has engaged in improper actions he/she must be held accountable in a more robust way, e.g. through the application of disciplinary procedures and, if appropriate, the criminal law. This can be called “punitive accountability”.

(b) Explanatory accountability

(i) Open hearings and judgments

27. Fundamental tenets of judicial work, such as the requirement to hold public hearings and to give reasoned decisions that are available to the public, are founded on the principle that judges must give an account of their conduct and decisions. In public hearings, judges hear the evidence of the litigants and witnesses and the submissions of lawyers. Judges will (usually) explain the law publicly. The public at large can attend public court hearings to learn about the law and the judge’s (or judges’) conduct toward the parties before them[314]. This open procedure ensures a fair trial in accordance with Article 6 of the European Convention on Human Rights. Moreover, by attending hearings, (or, in some states, by viewing hearings on television[315] or on line) and through reporting of hearings, the public can understand better the judicial process. By this means, judges and the judiciary overall are also held to account. While formal procedural rules are important for public confidence in the judiciary, the practical experiences of citizens observing the judiciary in action and the availability of accurate information published by the media about the conduct of individual trials are of decisive importance[316].

28. Judges must give reasons for their decisions, which should be made public save in exceptional circumstances. In this way, judges account for their decisions and enable the litigants and society at large to understand and to question their reasoning. Decisions must therefore be readily comprehensible, as the CCJE has stated before[317]. In a case where the losing party does not agree with the decision, it can be appealed. The existence (even threat) of an appeal system should ensure a high standard of judicial decision making that is made within a reasonable time. This is in the interest of the parties and of society at large. In a case where a trial has not been concluded within a reasonable time[318], special legal remedies can be sought, preferably in local courts or, if such remedies are not available, in the European Court of Human Rights. After the duty of the judge is completed and the decision is handed down, the public interest demands that it must be swiftly and effectively enforced[319]. In this respect, the judiciary is often reliant on the executive power to give effect to its decisions.

(ii) Other mechanisms of explanatory accountability

29. There are several other ways that the judiciary can be made to account for its work and – if applicable – for its stewardship of the system for the administration of justice. Such means must never be misused by the other powers of state to interfere with the work of the judiciary. One obvious means is external: for example, by annual reports which are available to the general public. Other external methods by which the judiciary can be held accountable are: audits of a public audit committee, the work of inspectorates[320] and investigations. At a local or national level, many member states have set up “Ombudsman”, Public or Citizens’ Advocates or Mediators, or Inspectors General, appointed by the executive or by parliament, often with a significant degree of independence. These often work to hold the judiciary accountable. (The question of how to achieve a proper balance between accounting and external interference will be discussed in Section VI below).

30. The other means is internal: by the individual evaluation of judges. In most member states, judges are subject to some form of individual evaluation at some stage or other of their careers after appointment. Evaluation can be a useful means to hold judges accountable. As explained by the CCJE, the individual evaluation of the judges’ work can help to gain information on the abilities of individual judges and of the strength and weaknesses of a judicial system. Evaluation can help to identify the best candidates for promotion thereby maintaining or even improving the quality of a judicial system[321]. Evaluation must not be abused, e.g. to put political pressure on a judge or to question individual judgments.

(iii) Discussion with other powers of state

31. Each of the three powers of the state depends on the other two to work effectively. Discussion between all is crucial to improve the effectiveness of each power and its cooperation with the other two powers. Provided that such discussions are undertaken in an atmosphere of mutual respect and have particular regard to the preservation of the independence and impartiality of any judges participating in such exchanges[322], these discussions will be beneficial to all three powers of the state[323]. The CCJE has stressed the importance of judges participating in debates concerning national judicial policy. In addition, the judiciary should be consulted and play an active part in the preparation of any legislation concerning their status and the functioning of the judicial system[324]. The expertise of judges is also valuable when it comes to matters outside judicial policy. For example, by giving evidence to parliamentary committees, representatives of the judiciary (e.g. the highest authority of the judiciary or the High Council of Justice) can raise concerns about legislative projects and give the perspective of the judiciary on various practical questions. Some member states reported positive experiences with such exchanges[325]. In some member states, the judiciary engages in dialogue with the executive, when judges take a temporary leave of absence to work in the civil or criminal department of a ministry of justice[326]. In other member states, however, this is seen as a violation of judicial independence[327].

(iv) Dialogue with the public

32. As the CCJE has noted before, dialogue with the public, directly or through the media, is of crucial importance in improving the knowledge of citizens about the law and increasing their confidence in the judiciary[328]. In some member states, the appointment of lay judges is seen as providing a helpful link between the judiciary and the public. The CCJE recommended in its Opinion No. 7(2005) on “justice and society“ that the judiciary and individual courts should actively reach out to the media and the public directly[329]. For example, courts should assume an educative role by organising visits for schoolchildren and students, by providing information, and by actively explaining court decisions to the public and the media in order to improve understanding and prevent misunderstandings[330]. While there is a risk in engaging with the media, courts can help avoiding public misrepresentations through active contact and explanation. In so doing, the judiciary can be accountable to the society and ensure that the public perceptions of the justice system are accurate and reflect the efforts made by judges. In this way, the judges can also educate the public that there are limits to what a judicial system can do[331].

(c) “Punitive accountability”

33. As the CCJE has discussed previously, all judicial actions must be in accordance with the applicable principles of professional conduct, established disciplinary rules and – within conditions which preserve judicial independence and impartiality – the criminal law. Principles of professional conduct will be separate from their enforcement through disciplinary systems[332]. Given the importance of ethics and integrity for the public’s confidence in the judiciary, judges must behave with integrity both in their official functions and in their private lives[333] and will be accountable for their conduct if it is outside accepted norms. Sometimes the conduct of individual judges is too aberrant for mere explanation to suffice. The corollary of society granting such extensive powers and trust to judges is that there must be some means of holding judges responsible, and even removing them from office, in cases of misbehaviour so gross as to justify such a course[334]. This is particularly so in cases of judicial corruption[335], which fundamentally undermine public confidence in judicial impartiality and independence. In other cases of judicial misconduct, criminal[336], civil[337], or disciplinary liability[338] will be appropriate, depending on the nature of the misconduct.

VI. How do the requirements of “legitimacy” and “accountability” affect the relationship that the judiciary has with the other two powers of the state?

34. Legitimacy and accountability are closely linked. The judiciary should strive to retain and demonstrate its legitimacy by being accountable to the public. The principal means of doing so are by providing work of the highest possible quality and by explaining its actions and conduct to the other powers of the state and, both through them and directly, to society at large. As already noted, no one power of the state can act in complete isolation and separately from the other two. All powers function in a relationship of interdependence. Exchange and dialogue between the judiciary and the other powers of the state is therefore recommended. However, while all the mechanisms described above can be valuable in ensuring that the judiciary is accountable, they also bear the risk of being misused.

35. The full recognition of the basic safeguards of judicial independence, such as security of tenure, no change of function or location without a judge’s consent, appointment and promotion free from political influence, sufficient remuneration, and safety of life and property[339], is a prerequisite for any satisfactory discussions between the three powers of the state. If such basic safeguards are respected, judicial independence will not suffer but, on the contrary, will benefit from an increased legitimacy earned through a combination of the satisfactory exercise of the judiciary’s constitutional function and the judges’ participation in exchanges. Continuance of both judicial independence and judicial legitimacy are not automatic: both have to be constantly earned[340]. The judiciary’s legitimacy and its independence is safeguarded best by excellent performance. To achieve this and earn the respect of the public, an independent and accountable judiciary is open to justified criticism, learns from its mistakes and thereby continually improves its work. This way, independence and accountability do not contradict but, rather, enhance each other. However, it is important to emphasise that a judge is not responsible for the politics of a previous government or regime. Judges must not be subjected to criticism or a disciplinary process simply because they applied the law as laid down by a previous regime, unless they misapplied the law in bad faith.

36. It is especially difficult to balance the need to safeguard the judicial process from distortion and pressure from political sources against the need for open discussion of matters of public interest concerning the administration of justice. On the one hand, as the CCJE has pointed out, judges must accept that they are public figures and must not be over-sensitive[341]. Thus, when judges engage with the other powers of the state and society at large, they must take responsibility themselves to safeguard their independence[342] and impartiality. On the other hand, in all their dealings with the judiciary the other powers of the state must respect the principles of judicial independence and impartiality. Dialogue between the judiciary and other powers of state as well as with the public at large can be misused to violate judicial independence. For example, it is not acceptable for other powers of the state to criticise judicial decisions in a way that undermines judicial authority and encourages disobedience and even violence against judges[343]. It is also not acceptable that valid critical comments by a member of the judiciary of one of the other powers of state (or a member of it) that are made in the course of judicial duties should be met by removal from judicial office by one or other power of the state[344]. It is essential that dialogue between the three powers of the state and between the judiciary and the general public, as well as any inspections and investigations that are undertaken, are conducted in a climate of mutual respect. These processes must never be used to influence a particular judicial decision or to encourage disrespect or disobedience to judicial decisions.

37. With respect to civil, criminal and disciplinary liability (what has been called above “punitive accountability”), the CCJE stresses that the principal remedy for judicial errors that do not involve bad faith must be the appeal process. In addition, in order to protect judicial independence from undue pressure, great care must be exercised in framing judges’ accountability in respect of criminal, civil and disciplinary liability[345]. The tasks of interpreting the law, weighing of evidence and assessing the facts that are carried out by a judge to determine cases should not give rise to civil or disciplinary liability against the judge, save in cases of malice, wilful default or, arguably, gross negligence[346]. Furthermore, in the event that the state has had to pay compensation to a party because of a failing in the administration of justice, only the state, not a litigant, should have the power to establish, through court action, any civil liability of a judge[347].

38. It is appreciated that there are considerable differences in the constitutional structures of member states with the result that there is a considerable variation in the experience of individual states’ on how the three powers interact. However, every country can learn from the experience of others. Not only can best practices be shared; first and foremost, international exchanges can help understand common problems and principles. Thus the experiences and practices of all member states should be shared through international and European institutions, including in particular the bodies of the Council of Europe.

VII. The need for restraint in the relations between the three powers

39. As already discussed, the three powers function in a relationship of interdependence. In that sense there can never be a complete “separation of powers”. However, in order to achieve a proper balance of the three powers of state, each power must exercise proper restraint in its relations with the other powers.

A. “Judicial restraint”

40. The judiciary, as one of the three powers of the state, is accountable to the society it serves. Accordingly, the judiciary, like the other powers of the state, must always have the best interest of the public as its fundamental concern. This requires that the judiciary must recognise the social and economic conditions in which the other two powers of the state have to work. Moreover, the judiciary must be aware that there are limits to judicial and legal intervention in relation to political decisions that have to be made by the legislative and executive powers. Therefore, all courts within the judicial power must take care not to step outside the legitimate area for the exercise of judicial power. The CCJE recognises that both the legislative and the executive powers have legitimate concerns that the judicial power should not overstep its role.

41. In its dealings with the other two powers of state, the judiciary must seek to avoid being seen as guarding only its own interests and so overstating its particular concerns. Rather, the judiciary must take responsibility for the society it serves. The judiciary must show understanding and responsibility towards the needs of the public and the exigencies of the public purse. The judiciary can provide their insights on the possible effect of proposed legislation or executive decisions on the ability of the judiciary to fulfil its constitutional role. Judiciaries must also take care not to oppose all proposed changes in the judicial system by labelling it an attack on judicial independence. But, if judicial independence or the ability of the judicial power to exercise its constitutional role are threatened, or attacked, the judiciary must defend its position fearlessly. Examples of decisions which might come into those categories are massive reductions in legal aid or the closure of courts for economic or political reasons.

42. If it is necessary to criticise another power of the state or a particular member of it in the course of a judgment in a dispute or when it is necessary in the interests of the public, that must be done. For example, therefore, courts may criticise legislation or the failure of the legislative to introduce what the court would regard as adequate legislation. However, just as with the other powers of the state in relation to the judiciary, criticism by the judiciary must be undertaken in a climate of mutual respect. Judges, like all other citizens, are entitled to take part in public debate, provided that it is consistent with maintaining their independence or impartiality. The judiciary must never encourage disobedience and disrespect towards the executive and the legislature. In their professional and private relations with the representatives of the other powers, judges must avoid any conflict of interest and avoid any behaviour that might create a perception that judicial independence and impartiality and the dignity of the judiciary in general is impugned. As long as criticism is undertaken in a climate of mutual respect, it can be beneficial to society as a whole. However, it cannot be too often emphasised that it is not acceptable that reasonable critical comments from the judiciary towards the other powers of the state should be answered by removals from judicial office or other reprisals[348]. The CCJE also emphasizes that inadmissible behaviour by representatives of the legislative and executive powers and by politicians may occur in the form of connivance and, in certain cases, support for aggression or even radical, violent and unlawful actions against the judiciary[349]. Direct or indirect support for such actions against the judiciary is totally unacceptable. Not only are such actions a direct attack on judicial independence, they also stifle legitimate public debate by judges.

B. Restraint of the other powers

43. Judicial restraint must be matched by an equal degree of responsibility and restraint from the other powers of the state. Above all the other powers of the state must recognise the legitimate constitutional function that is carried out by the judiciary and ensure it is given sufficient resources to fulfil it. This function of adjudicating on all legal disputes and of interpreting and applying the law is as fundamental to the well-being of a modern democratic state governed by the rule of law as are the functions of the legislative and executive powers of the state. In a state governed by the principle of separation of powers, interferences between the action of one branch of the State and other branches must be maintained within the bounds of the law and internationally accepted standards. The CCJE considers that, when an unwarranted interference does occur, the powers of the state should loyally cooperate to restore the balance and so the confidence of society in a smooth functioning of public institutions. In all cases of conflict with the legislature or executive involving individual judges the latter should be able to have recourse to a council for the judiciary or other independent authority, or they should have some other effective means of remedy[350].

(1) Questioning the appointment of judges already selected

44. Decisions which remove basic safeguards of judicial independence are inacceptable even when disguised[351]. For example, a new parliamentary majority and government must not question the appointment or tenure of judges who have already been appointed in a proper manner. The tenure of individual judges can only be questioned if some breach of disciplinary rules or the criminal law by an individual judge is clearly established in accordance with proper judicial procedures.

(2) Legislation: changes to the system of justice

45. The question of when and how often legislation should be changed falls within the responsibility of the legislature. However, too many changes within a short period of time should be avoided if possible, at the very least in the area of the administration of justice[352]. Where changes to the system of justice are made, care must be taken to ensure that they are accompanied by adequate financial, technical and procedural provisions and that there will be sufficient human resources[353]. Otherwise there is a risk of instability in the proper administration of justice and the public might perceive (wrongly) that any failings in administering a new system were the fault of the judiciary. That can lead to unnecessary mistrust and conflict.

(3) Legislature: parliamentary investigation committees

46. There is a danger of an overlap between the proper role of the judges and that of parliamentary investigation committees. The CCJE recognises that national or local parliamentary bodies may, under the legislation of many member states, set up committees of inquiry to investigate social phenomena or alleged breaches of or a poor application of law. The powers of these committees are often similar to those of judicial authorities, such as the power to summon witnesses, order disclosure or seizure of documentary evidence, etc. In the CCJE’s opinion, in order to preserve a proper separation of powers, in general the reports of committees of inquiry should never interfere with investigations or trials that have been or are about to be initiated by judicial authorities. If such reports must comment on existing judicial decisions in individual cases, they must do so with proper respect and should refrain from expressing any criticism in terms that would amount to a revision of decisions made. However, if the inquiry is investigating possible defects in the administration of justice which have been highlighted by a particular case, those proceedings can, with due care, be examined. An inquiry can never replace a proper judicial process.

(4) “Ombudsman”, Public or Citizens’ Advocates or Mediators, and Inspectors General

47. “Ombudsman”, Public or Citizens’ Advocates or Mediators and Inspectors General appointed by the executive or by parliament often act with a significant degree of independence. They have the task of protecting the interests of the public by investigating and addressing complaints by individuals alleging violation of rights, usually by public entities. The tasks of such bodies is to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. This may, however, interfere with the development of individual cases that have been or are about to be initiated before a court. Such interventions must be prevented. Therefore, the CCJE recommends that legislation of member States clarifies the relationships between “ombudsman”’ (or similar agencies’) powers and the powers of the courts. A good solution may be found in the rule, adopted in some states, whereby resort to such agencies should be made available before addressing the court; but when court proceeding are initiated, parties may appear before the agency only upon the recommendation of the judge in charge of the case.

(5) Administration of courts and Inspections

48. Over the last decades, self-administration by the judiciary has been introduced or its scope enlarged in many member states. The models used in respect to the administration of the judiciary vary. In some countries, the administration of justice is undertaken by the Ministry of Justice; in others by independent agencies and in others by Councils for the judiciary. The CCJE has made recommendations on these issues[354]. In some countries, the executive, through ministries of Justice have exerted considerable influence on the administration of courts through directors of courts and judicial inspections, or, in cases where the court administration is directly dependent on a ministry of Justice. 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.

49. Problems on the interaction between the executive and the judiciary can occur in those states in which the Minister of Justice or other ministries or agencies, e.g. those having a power of audit and/or financial control, have the power to order inspections at courts. Such inspections may have different goals. For example, the inspection may be in order to acquire information to decide on financial allocations, or to obtain information concerning possible re-organisation of the court service, or to obtain information in order to take possible disciplinary actions against court staff and/or judges. Inspectorates are sometimes composed of judges or former judges, and are sometimes even established within High Councils for Justice. The CCJE considers that, while an insight by external investigators can help to see shortcomings in a particular institution, such as the judiciary, it is vital that, the activities of inspectors should never interfere with the development of judicial investigations and trials. The right of other powers of the state to be informed of or to investigate the system of justice should in all cases be exercised having regard to the limits imposed by judicial independence and (where provided for by law) by the secrecy of judicial investigations. Inspections should never concern individual cases, in particular cases that are pending trial.

(6) Budgetary autonomy

50. The consequences of public financial difficulties, especially those resulting from the economic crisis since 2008, have caused serious problems in many member states. Access to courts and legal aid has been reduced, the workload of the courts has increased and the judiciary has been restructured. In their answers to the questionnaire, many member states reported discussions concerning the remuneration of judges. Salaries for judges have been frozen for many years or even lowered in recent years.

51. It is accepted that, subject to constitutional provisions, ultimately the decisions on the funding of the system of justice and the remuneration of judges must fall under the responsibility of the legislature. However, European standards should always be obeyed. The CCJE has made recommendations about the funding of the judiciary[355]. The judiciary should explain its needs to parliament and, if applicable, to the ministry of Justice. In the case of a severe economic downturn, judges, like all other members of society, have to live within the economic position of the society they serve. However, chronic underfunding of the judicial system should be regarded by society as a whole as unacceptable. This is because such chronic underfunding undermines the foundations of a democratic society governed by the rule of law.

(7) Criticism by members of the executive and legislature

52. Politicians and others in public positions in member states often make comments that either demand that judicial powers be restricted or show little understanding of the role of an independent judiciary. Such comments are made especially during election campaigns, when decisions on constitutional issues have been given, or on pending cases. In principle, the judiciary must accept that criticism is a part of the dialogue between the three powers of the state and with the society as a whole. However, in the view of the CCJE, there is a clear line between freedom of expression and legitimate criticism on the one hand, and disrespect and undue pressure against the judiciary on the other. Politicians should not use simplistic or demagogic arguments to make criticisms of the judiciary during political campaigns just for the sake of argument or in order to divert attention from their own shortcomings. Neither should individual judges be personally attacked. Politicians must never encourage disobedience to judicial decisions let alone violence against judges, as this has occurred in some member states. The executive and legislative powers are under a duty to provide all necessary and adequate protection where the functions of the courts are endangered by attacks or intimidations directed at members of the judiciary. Unbalanced critical commentary by politicians is irresponsible and causes a serious problem because public trust and confidence in the judiciary can thereby be unwittingly or deliberately undermined. In such cases, the judiciary must point out that such behaviour is an attack on the constitution of a democratic state as well as an attack on the legitimacy of another state power. Such behaviour also violates international standards.

53. Individual courts and the judiciary as a whole need to discuss ways in which to deal with such criticism. Individual judges who have been attacked often hesitate to defend themselves (particularly in the case of a pending trial) in order to preserve their independence and to demonstrate that they remain impartial. In some countries, councils for the judiciary or the Supreme Court will assist judges in such situations. These responses can take the pressure off an individual judge. They can be more effective if they are organised by judges with media competence.

54. The rule that any analyses and criticisms by one power of state of the other powers should be undertaken in a climate of mutual respect applies as much to the judiciary as it does to members of the legislature and the executive. In fact, it is even more important for the judiciary to take extra care, because judges often have to decide whether the executive or the legislature have conducted themselves according to law. Furthermore, there will be no confidence in the decisions of a judiciary which permits its members to make unreasonable or disrespectful comments of the other powers of state. Those types of remark will only lead to a “war of words” which will itself undermine public confidence in the judiciary. Ultimately, a “war” like this could lead to the judiciary being unable to carry out its constitutional function of deciding disputes between citizens and between citizens and the state in a manner that is, and is seen to be, both independent and impartial. That would be to the detriment of society and democracy, which it is the judiciary’s duty to serve and safeguard.

VIII: Summary of principal points

1. The judiciary is one of the three powers of state in a democracy. They are complementary, with no one power being “supreme” or dominating the others (paragraph 9).

2. In a democratic state, the three powers of the state function as a system of checks and balances that holds each accountable in the interest of society as a whole (paragraph 9).

3. The principle of the separation of powers is itself a guarantee of judicial independence. The judiciary must be independent to fulfil its constitutional role in relation to the other powers of the state, society in general, and the parties to any particular dispute (paragraph 10).

4. The legitimacy of the judiciary and individual judges is given, first and foremost, by the constitution of each of the member states, all of which are democracies governed by the rule of law. The constitution creates the judiciary and thereby confers legitimacy on the judiciary as a whole and the individual judges who exercise their authority as part of the judiciary: “constitutional legitimacy”. The constitutional legitimacy of individual judges who have security of tenure must not be undermined by legislative or executive measures brought about as a result of changes in political power (paragraphs 13 - 15 and 44).

5. This constitutional legitimacy of the judiciary is reaffirmed by public confidence in and respect for the judiciary. These must be constantly earned and retained by the judiciary through excellent work of the highest standards: this is what the CCJE calls “functional legitimacy” (paragraphs 16 – 19).

6. The judiciary (like the other two powers of state) provides a public service. Therefore, the judiciary, like the other powers, has the responsibility of demonstrating to the other powers of the state and to society at large the use to which its power, authority and independence have been put. This can be called “accountability” (paragraphs 20 - 22). This “accountability" takes several forms.

7. First, there is the appeal system. The appeal system is, in principle, the only way by which a judicial decision can be reversed or modified after it has been handed down and the only way by which judges acting in good faith can be held accountable for their decisions. The CCJE has called this “judicial accountability” (paragraphs 23, 26).

8. Secondly, judges are made accountable by working in a transparent fashion, by having open hearings and by giving reasoned judgments, engaging with the public and the other powers of state. The CCJE has called this form of accountability “explanatory accountability” (paragraphs 27-32).

9. Thirdly, if a judge has engaged in improper actions of a sufficiently serious nature, he or she must be held accountable in a robust way, e.g. through the application of disciplinary procedures and, if appropriate, the criminal law. The CCJE has called this “punitive accountability”. Care must be taken, in all cases, to preserve judicial independence (paragraphs 33 and 37).

10. With regard to the relations between the three powers of the state: first, judges, like all other citizens, are entitled to take part in public debate, provided that it is consistent with maintaining their independence and impartiality (paragraph 42).

11. The other powers of the state should recognise the legitimate constitutional function that is carried out by the judiciary and ensure it is given sufficient resources to fulfil those functions. Analyses and criticisms by one power of state of either of the other powers should be undertaken in a climate of mutual respect (paragraph 42).

12. The judiciary must be aware that there are limits to judicial and legal intervention in relation to political decisions that have to be made by the legislative and executive powers. Therefore, all courts within the judicial power must take care not to step outside the legitimate area for the exercise of judicial power (paragraph 40).

13. Decisions of the legislative or executive powers which remove basic safeguards of judicial independence are unacceptable even when disguised (paragraph 44).

14. Ministries of Justice must not exert influence on the administration of courts through directors of courts and judicial inspections in any way that might endanger judicial independence. The presence of officials of the executive within the organising bodies of courts and tribunals should be avoided. Such a presence can lead to interference in the judicial function, thus endangering judicial independence (paragraphs 48-49).

15. In order to preserve a proper separation of powers, committees of inquiry or investigation (whether parliamentary or otherwise), should never interfere with investigations or trials that have been or are about to be initiated by judicial authorities. Such non-judicial investigations are never a substitute for a judicial process (paragraph 46).

16. The CCJE recommends that legislation of member States clarifies the relationships between the powers of the “Ombudsman” (or similar agencies’) and the powers of the courts (paragraph 47).

17. Chronic underfunding of the judiciary should be regarded by society as a whole as an unacceptable interference with the judiciary’s constitutional role, because it undermines the foundations of a democratic society governed by the rule of law (paragraph 51).

Analyses and criticisms by one power of state of the other powers should be undertaken in a climate of mutual respect. Unbalanced critical commentary by politicians is irresponsible and can cause a serious problem. It can undermine public trust and confidence in the judiciary and could, in an extreme case, amount to an attack on the constitutional balance of a democratic state (paragraph 52). Individual courts and the judiciary as a whole need to discuss ways in which to deal with such criticism (paragraph 53).

The executive and legislative powers are under a duty to provide all necessary and adequate protection where the functions of the courts are endangered by physical attacks or intimidations directed at members of the judiciary (paragraph 52).

Politicians must never encourage disobedience to judicial decisions let alone, as it has happened in certain states, violence against judges (paragraph 52).

opinion no.19 (2016)

of the consultative council of european judges (ccje)

to the attention of the committee of ministers of the council of europe

the role of court presidents

______________________________________________________________________________

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[356], 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^{^[357]};

· the Bars^{^[358]};

· 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[359]. 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^{^[360]}, 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^{^[361]}. Court presidents, acting as guardians of the court’s independence, impartiality and efficiency, should themselves respect the internal independence of judges within their courts[362].

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[363].

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[364].

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^{^[365]}. 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[366].

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[367].

C. Managerial role[368]

24. The CCJE recognises that the managerial role of court presidents in member states varies[369]. 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[370].

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^{^[371]}.

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[372].

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[373] 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”[374].

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^{^[375]}.

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^{^[376]}. 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[377]. 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”[378].

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[379]. 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^{^[380]};

· preparing annual reports for the attention of the Parliament on the current state of affairs within the judiciary[381].

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).

[1] The CCJE will not attempt to precise the extensive literature on the subject of separation of powers, and the text gives only a simplified account, as is aptly demonstrated in The Judiciary and the Separation of Powers by Lopez Guerra (Venice Commission paper for a Conference for Constitutional and Supreme Court Judges from the Southern African Region, February 2000).

[2] For a more sophisticated analysis identifying the impossibility, and it can be said, undesirability, of anyone being completely independent of all influence, e.g. social and cultural parameters, see The Role of Judicial Independence for the Rule of Law, Prof. Henrich (Venice Commission paper for workshop in Kyrgystan, April 1998).

[3] See paragraph 12 below.

[4] see paragraphs 14-16 below.

[5] See further paragraph 43 below.

[6] consisting of three lawyers appointed by the Minister of Justice on the recommendation of the Supreme Court, the Judges Association and the Association of Attorneys, on whose applications and qualifications the Supreme Court also comments.

[7] The CCJE is however aware of some cases, where such a system appears to work successfully, e.g. for the appointment of the Chief Justice in India and Japan.

[8] see paragraph 24 above.

[9] the President on advice from the Prime Minister.

[10] see paragraph 20 above.

[11] see paragraph 20 above.

[12] See paragraphs 38-39 above.

[13] See paragraphs 37 and 45 above.

[14] See also the balance between the general principle of freedom of expression and the exception (where steps are required to maintain the authority and impartiality of the judiciary) in Article 10 of the ECHR.

[15] see also paragraph 27 above.

[16] See the Opinion N° 1 (2201) on standards concerning the independence, efficiency and role of judges, under the heading “the appointing and consultative bodies”

[17] This has since been revised in November 2002, to become The Bangalore Principles of Judicial Conduct. The CCJE did not have these Principles before it. The Explanatory Note to them acknowledges the input of the CCJE’ s Working Party in June 2002.

[18] Les mutations de la justice. Comparaisons européennes, Ph. Robert and A. Cottino (ed.), Harmattan, 2001.

[19] See for exemple Piersack case, judgment of 1 October 1982, Series A 53, para. 30, De Cubber case, judgment of 26 October 1984, Series A 86, para. 24, Demicoli case, judgment of 27 August 1991, Series A 210, para. 40, Sainte-Marie case, judgment of 16 December 1992, Series A 253-A, para. 34.

[20] For a detailed analysis of incompatibilities, see the Communication by Jean-Pierre Atthenont, presented at the seminar organised by the Council of Europe on the statute for judges (Bucharest, 19-21 March 1997) and the Communication by Pierre Cornu presented at a seminar organised by the Council of Europe on the statute for judges (Chisinau, 18-19 September 1997).

[21] It covers relations with individuals, the duty of competence, the use of public resources, the use of professional information, relations with the press, membership of associations, the image of impartiality and independence, the obligation to act correctly with collaborators, conduct in office and outside and the duties of presiding judges.

[22] In his summary report, presented following the first meeting of the Lisbon Network, Daniel Ludet stressed that training should offer a link and encourage discussion of judges' professional practices and the ethical principles on which they are based (see Training of judges and prosecutors in matters relating to their professional obligations and ethics. 1st meeting of the members of the network for the exchange of information on the training of judges and prosecutors, Council of Europe Publishing).

[23] Merely because the State has been held liable for excessive delay, it by no means follows, of course, that any individual judge is at fault. The CCJE repeats what it said in paragraph 27 above.

[24] It was for these reasons that the CCJE Working Party, during and after its meeting with the United Nations Commissioner for Human Rights on 18^th June 2002, qualified its otherwise substantially positive attitude to the Bangalore Code in its present draft form by disagreeing with the direct link which it drew between the principles of conduct which it stated and the subjects of complaints and discipline (see paragraph 2(iii) of Appendix V, doc. CCJE-GT (2002) 7): see the CCJE-GT’s comments No. 1 (2002) on the Bangalore draft.

[25] In England, the Lord Chancellor is responsible for initiating and deciding disciplinary action. By agreement disciplinary action is initiated only with the concurrence of the Lord Chief Justice, and thereafter (unless the judge concerned waives this) another judge of appropriate standing, nominated by the Lord Chief Justice, is appointed to investigate the facts and to report, with recommendations. If the Lord Chief Justice concurs the Lord Chancellor may then refer the matter to Parliament (in the case of higher tier judges) or remove a lower tier judge from office, or take or authorise any other disciplinary action.

[26] Resolution (78) 8 on legal aid and advice.

[27] Recommendation No R (84) 5 of the Committee of Ministers to member States on the principles of civil procedure designed to improve the functioning of justice.

[28] See part C, letter b.

[29] The issues of caseload and case management were dealt with within the framework of the 1^st European Conference of Judges (see paragraph 8 above).

[30] Recommendation No. R (86) 12 of the Committee of Ministers to the member States concerning measures to prevent and reduce the excessive work-load in the courts. It covers:

(a) conciliation (or, to use the more current term, “mediation”) procedures, including lawyers’ duty to promote conciliation;

(b) other extra-judicial dispute resolution procedures, including arbitration (and, although not expressly mentioned, ombudsmen);

(d) the removal from judges of non-judicial tasks;

(e) trial at first instance by single judges (as opposed to panels);

(f) reviewing the competence of courts, to ensure a balanced distribution of workload;

(g) evaluating the impact of legal (expenses) insurance, to see whether it encourages the filing of ill-founded claims.

Recommendation No. R (94) 12 of the Committee of Ministers to the member States reminded states that their duty to provide proper working conditions for judges included “taking appropriate steps to assign non-judicial tasks to other persons” in conformity with the earlier Recommendation.

[31] Recommendation No. R (87) 18 of the Committee of Ministers to the member States concerning the simplification of criminal justice.

[32] The Recommendation No. R (95) 12 of the Committee of Ministers to the member States on the management of criminal justice contains a variety of recommendations to address the increase in the number of complexity of cases, unwarranted delays, budgetary constraints and increased expectations from public and staff, under the headings of (I) Setting of objectives, (II) Management of workload, (III) Management of infrastructure, (IV) Management of human resources and (V) Management of information and communication.

[33] See section D of this Opinion.

[34] Cf its Opinion No. 2 (2001) on the Funding and Management of Courts, paragraphs 12-13.

[35] The CCJE refers to its Opinion No. 3 (2002), where it considered judicial ethics.

[36] Concerning the last, see paragraph 26 above.

[37] A similar problem arises in respect of agreements (now permitted in the United Kingdom) for conditional fees – that is agreements whereby lawyers’ fees are not to be paid by the claimant instructing the lawyer unless the claim succeeds, but are then payable by the losing defendant together with an uplift of up to 100% which goes to the benefit of the winning claimant’s lawyers. Such agreements can be used by an impecunious claimant to vex defendants and force them to settle, since (i) the claimant and his lawyers have no incentive to agree a reasonable fee - on the contrary; and (ii) unless the claimant takes out legal expenses insurance, the defendant if he wins is unlikely to recover any costs from the losing claimant. The English courts have recently taken firmer control to limit the fees that can be agreed under such agreements and the conditions on which they can be made.

[38] One should consider if this is compatible with the public nature of the Prosecutor's Office in many countries.

[39] Generally up to one-third of the length of the sentence that would otherwise be passed.

[40] Cf CCJE Opinion No. 2 (2001).

The Council of Europe has produced the following Recommendations relating to alternative dispute resolution:

- Recommendation No R (98) 1 of the Committee of Ministers to the member States on family mediation;

- Recommendation No R (99) 19 of the Committee of Ministers to the member States concerning mediation in penal matters;

- Recommendation Rec (2001) 9 of the Committee of Ministers to the member States on alternatives to litigation between administrative authorities and private parties;

- Recommendation Rec (2002) 10 of the Committee of Ministers to the member States on mediation in civil matters.

[42] The Conference mainly concentrated on ADR in civil matters.

[43] Paragraph 14 of Appendix to Recommendation No. R (99) 19 only states that "Participation in mediation should not be used as evidence of admission of guilt in subsequent legal proceedings".

[44] See specific terms of reference of the CCJE for 2004-2005, adopted by the Committee of Ministers at the 876^th meeting of the Ministers’ Deputies (17 March 2004, item 10.1).

[45] The Conference participants – i.e. judges and other people with a professional interest in the subject, including representatives of the media and international organisations, parliamentarians and experts on the subject under discussion – focused, on the one hand, on the relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the case-law of the European Court of Human Rights, and Council of Europe texts and other instruments on the right to public information, which the press effectively safeguards, and, on the other, on the requirements of the right to a fair public trial by an independent and impartial tribunal with a view to protecting human dignity, privacy, the reputation of others and the presumption of innocence, the ultimate aim being to find ways of striking a balance between conflicting rights and freedoms.

[46] See Conclusions of the Fifth Meeting of the Presidents of European Supreme Courts, Ljubljana, 6-8 October 1999, paragraph 2.

[47] See, e.g., European Court of Human Rights, case Sunday Times vs. United Kingdom, judgment of 26 April 1979, Series A, No. 30 where the notions mentioned in the text are said to be included in the phrase "authority of the judiciary" contained in art. 10 of the ECHR.

[48] See Conclusions of the Meeting of the Presidents of the Associations of Judges on "Justice and Society", Vilnius, 13-14 December 1999, paragraph 1.

[49] See Conclusions of the Meeting of the Presidents of the Associations of Judges on "Justice and Society", Vilnius, 13-14 December 1999, paragraph 1.

[50] See, on this subject, Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the Role of Public Prosecution in the Criminal Justice System.

[51] See Conclusions of the 5^th Meeting of the Presidents of European Supreme Courts, Ljubljana, 6-8 October 1999, paragraph 4, where it is also made clear that a spokesperson should not give a personal opinion on a decision already delivered or a case still pending.

[52] See paragraph 28 of the Action Plan adopted by the Ministerial Conference on Mass Media Policy (Kyiv, 10-11 March 2005), whereby the necessity of a review of the situation in member States regarding legislation on defamation was affirmed.

[53] See Conclusions of the 5^th Meeting of the Presidents of European Supreme Courts, Ljubljana, 6-8 October 1999, paragraph 1.

[54] See Conclusions of the Meeting of the Presidents of the Associations of Judges on "Justice and Society", Vilnius, 13-14 December 1999, paragraph 1.

[55] See Conclusions of the 5^th Meeting of the Presidents of European Supreme Courts, Ljubljana, 6-8 October 1999, paragraph 1.

[56] Warsaw, 16 - 17 May 2005.

[57] 956th meeting of Ministers’ Deputies (15 February 2006).

[58] Council of the European Union, 5771/1/06.

[59] 804th meeting of Ministers’ Deputies, 11 July 2002.

[60] 917th meeting of Ministers’ Deputies, 2 March 2002.

[61] Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression), and Article 11 (freedom of assembly and association).

[62] See European Court of Human Rights, judgement Chahal v. the United Kingdom (15.11.1996), paragraph 79: "[the European Court of Human Rights] is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.”

[63] See European Court of Human Rights, judgement Chahal v. the United Kingdom (15.11.1996), paragraphs 80 and 149.

[64] Adopted by the Committee of Ministers on 15 December 2004.

^{^[65]}See European Court of Human Rights, judgement Chahal v. the United Kingdom (15.11.1996), paragraph 151: "In such cases, given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State."

[66] See Recommendation Rec(2004)20: The proceedings should be adversarial in nature. All evidence admitted by the tribunal should in principle be made available to the parties with a view to adversarial argument (paragraph B.4.d).

[67] The European Court of Human Rights deals with the access to evidence of the parties and defense lawyers in the Chahal judgment by referring indirectly to the Canadian legislation: "“The intervenors (…) were all of the view that judicial review did not constitute an effective remedy in cases involving national security.  Article 13 required at least that some independent body should be appraised of all the facts and evidence and entitled to reach a decision which would be binding on the Secretary of State. In this connection, Amnesty International, Liberty, the AIRE Centre and JCWI (…) drew the Court's attention to the procedure applied in such cases in Canada.  Under the Canadian Immigration Act 1976 (as amended by the Immigration Act 1988), a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.”

[68] See, for example, European Court of Human Rights, judgement Maaouia v. France (5.10.2000), paragraph 40: “The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention”.

[69] See European Court of Human Rights, judgement Mamatkulov and Askarom v. Turkey, 4.02.2005, paragraph 124: “Indeed it can be said, that, whatever the legal system is question, the proper administration of justice requires that no irreparable action be taken while proceedings are pending”.

[70]See also the already mentioned Chahal judgement, according to which the Convention prohibits in absolute terms torture.

[71] See also, for the role that the public prosecution services may play in ensuring protection of human rights, Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice. The CCJE will examine in detail, in a future opinion, the relations between the judiciary and public prosecution (see Framework Global action plan for Judges in Europe, Document CCJE (2001) 24).

[72] See for instance: "Venice Commission: Internal Security Services in Europe" (CDL/Inf (98)6).

[73] According to the Recommendation Rec(2005)10, special investigation techniques are: “techniques applied by the competent authorities in the context of criminal investigations for the purpose of detecting and investigating serious crimes and suspects, aiming at gathering information in such a way as not to alert the target persons".

[74] Article 5 paragraph 3 of the European Convention of Human Rights: “Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a Judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”; Article 5 paragraph 4 of the European Convention of Human Rights: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. “

Furthermore, in the judgement Brogan and others v. the United Kingdom (29.11.1988), the European Court of Human Rights states in paragraph 61 that the investigation of terrorist offences undoubtedly presents the authoritites with special problems. The Court accepts that, subject to the existence of adequate safeguards, the context of terrorism in the case at hand "has the effect of prolonging the period during which the authoritites may, without violating Article 5 paragraph 3, keep a person suspected of serious terrorist offences in custody before bringing him before a Judge or other judicial officer. The difficulties alluded to by the Government, of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 paragraph 3, for example in calling for appropriate procedural precautions in view of the nature of the suspected offences. However, they cannot justify, under Article 5 paragraph 3 dispensing altogether with "prompt" judicial control". The Court adds that the scope for flexibility in interpreting and applying the notion of "promptness" is very limited (paragraph 62). In the Court's view, even the shortest of the four periods of detention in the case at hand, four days and six hours spent in police custody, falls outside the strict constraints as to time permitted by the first part of Article 5 paragraph 3. "The undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5 paragraph 3."

[75] See Framework Global action plan for Judges in Europe, adopted by the Committee of Ministers at its 740^th meeting, Document CCJE (2001) 24.

[76] Recommendation Rec(2005)9 of the Committee of Ministers of the Council of Europe to Member States on the protection of witnesses and collaborators of justice. See also Guidelines on the Protection of Victims of Terrorist Acts, adopted by the Committee of Ministers of the Council of Europe on 2 March 2005, Recommendation Rec(85)11 of the Committee of Ministers to Member States on the position of the victim in the framework of criminal law and procedure and Recommendation Rec(97)13 of the Committee of Ministers to Member States concerning intimidation of witnesses and the rights of the defence.

[77] See Guidelines on the protection of victims of terrorist acts: "Victims of terrorist acts should receive fair, appropriate and timely compensation for the damages which they suffered. When compensation is not available from other sources, in particular through the confiscation of the property of the perpetrators, organisers and sponsors of terrorist acts, the State on the territory of which the terrorist act happened must contribute to the compensation of victims for direct physical or psychological harm, irrespective of their nationality (principle 7.1)".

[78] Adopted by the Committee of Ministers at its 740^th meeting, Document CCJE (2001) 24.

[79] The notion of European law is herein used in a broader sense, so as to include the instruments of the Council of Europe, especially the European Convention on Human Rights, as well as European Community Law and other instruments of the European Union, where appropriate and as far as applicable to the member States.

[80] See point IV (d) of the Framework Global Action Plan for Judges in Europe.

[81] Member States of the Council of Europe participate in the so-called “Lisbon Network” (the network for the exchange of information on the training of judges and prosecutors), composed of national agencies responsible for training of judges and prosecutors.

[82] See in particular the conclusions of the second meeting of the Lisbon Network (Bordeaux, 2-4 July 1997).

[83] See also paragraph 65 of the CCJE’s Opinion No. 6 (2004) on fair trial within a reasonable time and judge’s role in trials taking into account alternative means of dispute settlement.

[84] See point IV c of the Framework Global Action Plan for Judges in Europe.

[85] See point IV (b) of the Framework Global Action Plan for Judges in Europe.

[86] See in particular the conclusions of the second meeting of the Lisbon Network (Bordeaux, 2-4 July 1997).

[87] The CCJE finds it relevant to recall that under Protocol no14 to the European Court of Human Rights, opened for signature in May 2006, the Committee of Ministers will be empowered, if it decides by a two-thirds majority to do so, to bring proceedings before the Court where the State refuses to comply with a judgment. The Committee of Ministers will also have a new power to ask the Court for an interpretation of a judgment. This is to assist the Committee of Ministers in its task of supervising the execution of judgments and particularly in determining what measures may be necessary to comply with a judgment.

[88] This wording is already being used by the European Network of Councils for the Judiciary (ENCJ).

[89] Adopted by the Committee of Ministers at its 740^th meeting – Document CCJE(2001)24.

[90] The detailed situation in the member states is described in the experts' reports (see paragraph 7) and in the national answers to the questionnaire which are available on the web site of the CCJE: www.coe.int/CCJE.

[91] Some Councils are responsible for safeguarding the independence of judges, but are also responsible for public prosecutors. The CCJE has chosen to focus on the role of the Councils for the Judiciary as regards judges, according to its general mission. This does not prevent this Opinion applying, so far as it concerns judges, to those Councils which are common to judges and prosecutors. The possible issues relating to prosecutors have not been addressed in this Opinion. They might be examined at a later stage, where appropriate in cooperation with the Consultative Council of European Prosecutors (CCPE).

[92] In particular Principle I, 2.c. and Principle VI.3.

[93] See document CDL-AD(2007)028

[94] This principle has been stated by the CCJE in its Opinion No.1 (2001).

[95] See Recommendation No.R(94)12.

[96] The CCJE has not considered here the possible question of a Council for the Judiciary composed both by judges and prosecutors – see also footnote 4 above.

[97] See also the European Charter on the statute for judges, paragraph 1.3.

[98] See, with reference to judges involved in training activities, Opinion No.4 (2003) of the CCJE, paragraph 21.

[99] See also Opinion No.4 (2003) of the CCJE.

[100] See also Opinion No.1(2001) of the CCJE.

[101] Opinion No.6(2004) of the CCJE shows that this question should not be confused with the appreciation of the professional abilities of judges and it should take into consideration the specific nature of the judicial activity, to avoid assimilating it to an ordinary public service.

[102] See paragraph 71 of Opinion N° (2003) 3 of the CCJE.

[103] The significance of the training for maintenance and development of professional competence of judges is emphasised in various documents of the United Nations and the Council of Europe. See Opinion No.4 (2003) of the CCJE and the Lisbon Network Report on the contribution of judicial training bodies to the concrete implementation of Opinion No.4 (2003) of the CCJE of 11.10.2006

[104] See Opinion No.9 (2006) of the CCJE.

[105] Especially the problem with duration of procedures in certain disputes, the most common breaches of human rights, backlog of cases, infringements of the law which most commonly lead to annulment and modification of judicial decisions, changes in the legislation, legal gaps which cause differences in the interpretation of the law, the need for harmonization of the case law, disciplinary procedures and their outcomes.

[106] See also Opinion No.2 (2001) of the CCJE.

[107] All the texts on these issues demonstrate the spirit in which the Council of Europe addresses the need of quality of justice: “in the Council of Europe’s view, the quality approach cannot refer to a single decision, but, as part of a comprehensive approach, depends on the quality of the judicial system, including judges, defence lawyers and court personnel, as well as the quality of the process leading up to decisions. The Council of Europe therefore recommends that efforts to improve the situation focus on each of these points” (unofficial translation), (Jean-Paul JEAN, “La qualité des décisions de justice au sens du Conseil de l’Europe”, Colloquy organised on 8 and 9 March 2007 by the Faculty of Law and Social Sciences, University of Poitiers, on “The quality of judicial decisions” – see “CEPEJ Studies” N°4).

[108] See also the conclusions of the Conference on the quality of judicial decisions which was organised in the Supreme Court of Estonia in Tartu (18 June 2008) with the participation of the Estonian judicial community and the Working Party of the CCJE.

[109] See the questionnaire on the quality of judicial decisions and the replies on the website of the CCJE: www.coe.int/ccje.

[110] Specifically concerning procedural laws, the CCJE wishes to recall here its Opinion No. 6 (2004), by which it recommended, in view of ensuring quality judicial decisions delivered in a reasonable timeframe, that legislators make optimal choices in the balance between length of trials and availability of ADR, plea-bargaining schemes, simplified and/or accelerated and summary procedures, as well as procedural rights of the parties, etc. Furthermore, financial resources should be guaranteed for ADR schemes.

[111] See CCJE’s Opinion N° 1 (2001), paragraph 61.

[112] See CCJE’s Opinion N° 2 (2001).

[113] See CCEJ’s Opinion No. 4 (2003).

[114] Brochures, case studies of good and bad practices, standard models for writing judgments together with methodologies, fact sheets and bench books, developed for training purposes could be broadly disseminated among judges.

[115] In its Opinion No. 6 (2004), the CCJE, developing the principles set out in Recommendation No. R (84) 5, stressed the importance of the judge’s active role in the management of civil proceedings (see in particular paragraphs 90‑102 and 126).

[116] Reference should be made in this connection to Opinion No. 7 (2005) of the CCJE, especially paragraphs 56 to 61.

[117] Exceptions may include, among others, decisions involving the management of the case (e.g. adjourning the hearing), minor procedural issues or essentially non-contentious issues (judgments by default or by consent), decisions by an appeal court affirming a first instance decision after hearing similar arguments on the same grounds, jury decisions and some decisions concerning leave to appeal or to bring a claim, in countries where such leave is required.

[118] See in particular ECr.HR: Boldea vs Romania, 15 February 2007, § 29; Van de Hurk vs the Netherlands, 19 April 1994, § 61.

[119] See in particular ECr.HR : Boldea vs Romania, 15 February 2007, § 29; Helle vs Finland, 19 February 1997, § 60.

[120] The expression “European Law” is intended to include the acquis of the Council of Europe and European Community Law.

[121] See Opinion No. 9 (2006) of the CCJE.

[122] See Opinion No. 6 (2004) of the CCJE, paragraph 130.

[123] See Opinion No. 6 (2004) of the CCJE, part B paragraph 34 and Opinion No. 10 (2007) of the CCJE, paragraphs 52 to 56 and 78.

[124] See Opinion No. 6 (2004) of the CCJE, paragraph 36.

[125] These Councils for the Judiciary should be constituted and operate in the manner recommended by the CCJE in its Opinion No. 10 (2007).

[126] This Declaration is accompanied by an Explanatory Note. This Declaration has been jointly drafted by the Working Groups of the CCJE and the CCPE in Bordeaux (France) and has been officially adopted by the CCJE and the CCPE in Brdo (Slovenia) on 18 November 2009.

[127] This Declaration is accompanied by an Explanatory Note. This Declaration has been jointly drafted by the Working Groups of the CCJE and the CCPE in Bordeaux (France) and has been officially adopted by the CCJE and the CCPE in Brdo (Slovenia) on 18 November 2009.

[128] See in particular Opinion No.1 (2001) of the CCJE on standards concerning the independence of the judiciary and the irremovability of judges and Recommendation Rec(94)12 on the independence, efficiency and role of judges.

[129] See also the CCPE Opinion N°3 (2008) on the role of public prosecutor outside the criminal law field.

[130] For judges see for example the Opinion No. 3 (2002) of the CCJE on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behavior and impartiality (2002) and The Bangalore Principles of Judicial Conduct (adopted by the UN ECOSOC in 2006) and the Universal Charter of the Judge, adopted by the Central Council of the International Association of Judges on 17 November 1999 in Taipei (Taiwan). For prosecutors besides the UN guidelines on the role of the prosecutors (1990), see the European Guidelines on Ethics and Conduct for Public Prosecutors (The Budapest Guidelines) adopted by the Prosecutors General of Europe on 31 May 2005 at their Conference in Budapest.

[131] See Opinion No. 4 (2003) of the CCJE on appropriate initial and in-service training for judges at national and European levels and Opinion No. 10 (2007) of the CCJE on the Council for the Judiciary at the service of society, paragraphs 65-72.

[132] See Opinion No. 8 (2006) of the CCJE on the role of judges in the protection of the rule of law and human rights in the context of terrorism.

[133] See e.g. the CCPE Opinion N°3 on “the role of public prosecution outside the criminal law field”.

[134] On this issue, see European Court of Human Rights, Olujic v. Croatia, (Application no. 22330/05)

[135] See among others: principle I of the appendix to Recommendation Rec (2003)13 and the corresponding Explanatory Memorandum.

[136] Proposed for judges and for journalists by Opinion No. 7 of the CCJE on justice and society, paragraph 39 (2005).

[137] See e.g. Opinion No. 3 of the CCJE on ethics and liability of judges, paragraph 40 (2003).

[138] See e.g. European Court of Human Rights, Daktaras v. Lithuania (Application no. 42095/98) and Olujić v. Croatia, (Application no. 22330/05).

[139] See the 2010 terms of reference of the CCJE approved by the Committee of Ministers at the 1075th meeting of the Ministers Deputies (20th January 2010).

[140] See Privalikhin vs. Russia of 12 May 2010: the Court reaffirmed that in order to decide if the execution delay was reasonable, the Court will look at how complex the enforcement proceedings were, how the applicant and the authorities behaved, and what the nature of the award was (see also Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).

[141] See for example, Immobiliare Saffi v. Italy, 28 July 1999, and other 156 cases v. Italy; Zielinski and Pradal and Gonzales and others v. France, 28 October 1999; Cabourdin v. France, 11 April 2006.

[142] See for example, Van de Hurk v. the Netherlands, 19 April 1994; Findlay v. The United Kingdom, 25 February 1997, especially §77.

[143] See Koltsov v. Russia, 24 February 2005, §16; see also Petrushko v. Russia, 24 February 2005, §18; Metaxas v. Greece, 27 May 2004, §19.

[144] Such compensation is also a direct requirement of the ECHR (in particular Article 1 of Protocol no. 1). According to the Court, the mere fact that the authorities complied with the judgments cannot by viewed as automatically depriving the applicant of his/her victim status under the Convention, if no adequate redress was offered for the delay in proceedings (see for example, Petrushko v. Russia, 24 February 2005, §15). The adequate compensation eventually paid after the delay must take into account the various circumstances with a view to compensate the gap between the sum due and the sum finally paid to the creditor and to compensate for losses of use (see for example, Akkus v. Turkey, 9 July 1997, Angelov v. Bulgaria, 22 April 2004, Eko-Elda Avee v. Greece, 9 March 2006). Redress may also be demanded for non-pecuniary damages (see for example, Sandor v. Romania, 24 March 2005). The absence of state responsibility for delay under these different heads of prejudice could not be justified by the impossibility of establishing any culpa or fault on the part of public authorities (see Solodyuk v. Russia, 12 July 2005, §16).

[145] On the relationships between symbolism and justice and the risks in the de-ritualisation of the judicial process which is a trend of modern democracies, see A. Garapon, “Bien juger – Essai sur le rituel judiciaire” (Odile Jacob, Paris, 2001), also offering an extensive bibliography in an appendix.

^{^[146]} See for example Regulation (EC) No 1896/2006 of 12.12.2006 (on European Payment Order) and Regulation (EC) No 805/2004 of 21.4.2004 (on European Enforcement Order for uncontested claims).

^{^[147]}See OJ C127, 29.4.2011, p.1 : Council conclusions inviting the introduction of the European Case Law Identifier (ECLI) and a minimum set of uniform metadata for case law.

^{^[148]} See also Opinions of the CCJE No.1(2001) para 9, No.10(2007) and No. 11(2008).

[149] Although these reference documents do not deal specifically with the specialisation of judges, they cover specialist judges where the principles which they set out are applicable to all judges.

[150] In the CCJE’s questionnaire, the following specialisations were identified as examples common in many European countries: Family courts, Juvenile courts, Administrative courts/councils of state, Immigration/Asylum Courts, Courts of public finances, Military Courts, Tax Courts, Labour/social courts, Courts for agricultural contracts, Consumers’ claims courts, Small claims courts, Courts for wills and inheritances, Patent/copyrights/trademark courts, Commercial courts, Bankruptcy courts, Courts for land disputes, Cours d’arbitrage, Serious crimes courts/courts of assize, Courts for the supervision of criminal investigations (e.g. authorising arrest, wire-tapping etc.), Courts for the supervision of criminal enforcement and custody in penitentiaries.

European Union law stipulates the creation of specialist chambers or courts in specific legal fields such as Community trademarks (Community Trade Mark Courts, Art. 90 of the Regulation (EC) No. 40/94 of the Council of 20 December 1993 on Community trade marks) and Community designs (Community Design Court, Art. 80 of Regulation (EC) No. 6/2022 of the Council of 12 December 2001 on Community designs).

[151] For example, at Assize Courts in several member States “jurors” are defined as persons who are chosen at random to be part of a jury, as opposed to persons who sit as non-legally trained members of a court; see also paragraph 43 below. Such jurors may in criminal cases decide upon the sentence as well as decide the guilt of a defendant, and in civil cases they may decide upon damages.

[152] An example here is a patent court with non-jurist judges having specific technical knowledge.

[153] “Specialist courts” must be distinguished from “ad hoc” or extraordinary courts – see also paragraph 37 below.

[154] As, for example, in the areas of health, industrial accidents, fire, building, technological affairs etc.

[155] See Opinion No. 1 (2001) of the CCJE, paragraphs 57, 59 and 60.

[156] Examples might be the tribunaux de commerce in France, labour tribunals in Belgium, Employment Tribunals in the UK.

[157] See examples listed in footnote 2.

[158] In England and Wales the Patent Court is a part of the Chancery Division which deals mostly with property and tax disputes. The Commercial Court is a part of the Queen’s Bench Division, which deals with contract and delict disputes and administrative law issues.

[159] See also CCJE Opinion No. 1, paragraph 61.

[160] See CCJE Opinion No. 1, paragraph 29.

[161] See CCJE Opinion No. 4, paragraph 30.

[162] See CEPEJ Studies No. 16, Contractualisation and judicial process in Europe.

[163] See also ECHR Nikula v. Finland, 21 March 2002; ECHR Amihalachioaie v. Moldova, 20 April 2004.

[164] See the CCJE Opinion No. 1(2001).

[165] See the CCJE Opinions No. 3(2002), No 4(2003), No. 6(2004), No. 11(2008), No. 14(2011).

[166] See the CCJE Opinion No. 1(2001), paras 17-56.

[167] See the CCJE Opinion No. 4(2003), paras 23-30.

[168] See the CCJE Opinion No. 3(2002), para 51-77.

[169] This Report is entitled “How can the appointment and assessment (qualitative and quantitative) of judges be made consistent with the principle of judicial independence?“, see at http://www.iaj-uim.org/iuw/wp-content/uploads/2013/02/I-SC-2006-conclusions-E.pdf .

[170] See Recommendation CM/Rec(2010)12, paras 59 – 65.

[171] See the CCJE Magna Carta of Judges (2010), para 15.

[172] See the CCJE Opinion No. 11 (2008), para 36.

[173] See the CCJE Opinion No. 11 (2008), para 32.

[174] See the CCJE Opinion No. 13(2010), Conclusion A; the CCJE Magna Carta of Judges (2010), para 17.

[175] See the CCJE Opinions No. 1(2001), No. 3(2002), No 4(2003), No. 6(2004) and No. 11(2008).

[176] See the CCJE Opinion No. 1(2001), para 10; Recommendation CM/Rec(2010)12, paras 3 and 11; the CCJE Magna Carta of Judges (2010), para 2.

[177] See the CCJE Magna Carta of Judges (2010), paras 3 and 4.

[178] See the CCJE Opinion No. 2(2001), para 2.

[179] See the CCJE Opinion No. 4(2003), paras 4, 8, 14 and 23-37.

[180] See the CCJE Opinion No. 3(2002), para 51.

[181] See the CCJE Opinion No. 1(2001), especially para 45, the CCJE Opinion No. 6(2004), para 34.

[182] See the CCJE Opinion No. 1(2001), para 66, Recommendation CM/Rec(2010)12, paras 22-25.

[183] See e.g. the system in Finland and the Netherlands.

[184] As in the United Kingdom.

[185] However, stringent safeguards are in place to protect a judge’s independence in the process.

[186] Bulgaria, Estonia, Germany, Hungary, Ukraine.

[187] Spain, Sweden (however, only a very small percentage of the salary is set individually and stringent safeguards are in place to protect the judges’ independence). In Belgium and Bulgaria, a judge’s salary can be reduced because of poor evaluation results. In Turkey, salaries and pensions may be increased because of evaluation results.

[188] Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Estonia, France, Germany, Greece, Hungary, Italy, Poland, Romania, Slovenia, Spain (when performance based salaries are determined), “the former Yugoslav Republic of Macedonia”, Turkey.

[189] Bosnia and Herzegovina, Spain.

[190] Germany, Poland,

[191] Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Georgia, Greece, Hungary, Republic of Moldova, Poland, Romania, Spain, “the former Yugoslav Republic of Macedonia”, Turkey.

[192] France and Germany.

[193] Austria, Germany, Slovenia.

[194] Germany, Poland, Sweden.

[195] Croatia, Germany.

[196] Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, France, Germany, Greece, Italy, Republic of Moldova, Monaco, Romania, Slovenia, “the former Yugoslav Republic of Macedonia”.

[197] Georgia, Turkey.

[198] Hungary, Slovenia.

[199] Cyprus (with productivity factor), Estonia, Finland, The Netherlands, Sweden, UK.

[200] Bulgaria, Croatia, Estonia, Spain, “the former Yugoslav Republic of Macedonia”, Turkey.

[201] Croatia.

[202] Austria, France, Germany.

[203] Greece.

[204] Austria, Germany, Hungary, Monaco, United Kingdom.

[205] Belgium, Finland, France, Monaco, Romania, Switzerland.

[206] Belgium, France, Romania.

[207] Albania, Austria, Bulgaria, Austria, Croatia, Estonia, Italy, Republic of Moldova, Slovenia, “the former Yugoslav Republic of Macedonia”, Turkey.

[208] Germany, Greece, Hungary, The Netherlands.

[209] Legal academics and Bar Associations in Estonia; Bar Associations in Greece and psychologists in certain circumstances in Romania.

[210] Greece uses a roughly comparable system.

[211] Bosnia and Herzegovina, Finland, Germany, Greece.

[212] Bulgaria, Estonia, Georgia, Germany, Greece, Ukraine.

[213] Bulgaria, Sweden (however, only a very small percentage of the salary is set individually and stringent safeguards are in place to protect a judge’s independence in the process), Spain, Turkey.

[214] Belgium, Bulgaria, Croatia, Cyprus, Greece, Hungary, Poland, Slovenia.

[215] Austria, Estonia, only in rare cases: Greece, Hungary, Italy, Republic of Moldova, Poland, Romania, Slovenia, “the former Yugoslav Republic of Macedonia”.

[216] “The former Yugoslav Republic of Macedonia”.

[217] Romania.

[218] However, in Spain, qualitative criteria are taken into account when a judge’s promotion is in question.

[219] See the CCJE Opinion No. 11(2008), para 70.

[220] See the CCJE Opinion No. 1(2001), paras 17 and 29.

[221] See UN Basic Principles on the Independence of the Judiciary (1985), para 13.

[222] Spain, Sweden (however, only a very small percentage of the salary is set individually).

[223] See Recommendation CM/Rec(2010)12, para 55; see also the IAJ General Report (2006), Conclusions, para 12.

[224] See Recommendation CM/Rec(2010)12, para 49.

[225] See Recommendation CM/Rec(2010)12, para 50.

[226] See the ENCJ Report 2012-2013, sections 4.17-4.18.

[227] See Recommendation CM/Rec(2010)12, para 58.

[228] See the CCJE Opinion No. 1(2001), para 24.

[229] See the CCJE Opinion No. 1(2001), para 25.

[230] See the ENCJ Report 2012-2013, section 4.8.

[231] See the Kyiv Recommendations (2010), para 27.

[232] See the CCJE Opinion No. 6(2004), para 42.

[233] See Recommendation CM/Rec(2010)12, para 32, and CCJE Opinion No. 2(2001), para 4.

[234] See the CCJE Opinion No. 11(2008), para 57.

[235] See the CCJE Opinion No. 11(2008), para 74, and CCJE Opinion No. 6(2004), para 36.

[236] See the Kyiv Recommendations (2010), para 28.

[237] See the ENCJ Report 2012-2013, section 4.12.

[238] See the CCJE Opinion No. 10 (2007), paras 42 and 52-56.

[239] See the ENCJ Report 2012-2013, sections 4.13-4.15.

[240] See the ENCJ Report 2012-2013, section 4.16.

[241] See the ENCJ Report 2012-2013, section 4.19.

[242] As in Austria or Bulgaria.

[243] As in Croatia or United Kingdom.

[244] See Recommendation CM/Rec(2010)12, para 58. See also the ENCJ Report 2012-2013, section 4.19.

[245] As in Albania.

[246] See the ENCJ Report 2012-2013, section 4.11.

[247] See Recommendation CM/Rec(2010)12, paras 49 and 50.

[248] However, in Sweden only a very small amount of a judge’s salary is determined by evaluation results and stringent safeguards are in place to protect a judge’s independence.

[249] See the IAJ General Report (2006), Conclusions, para 12. See also Recommendation CM/Rec (2012)12, para 55.

[250] See Gardbaum, “Separation of Powers and the Growths of Judicial Review in Established Democracies (or Why Has the Model of Legislative Supremacy Mostly Been Withdrawn From Sale?)”, 62 American Journal of Comparative Law (2014) 613.

[251] Scholars have identified a “global expansion of judicial power”: see Tate and Vallinder (eds), Global Expansion of Judicial Power, New York University Press, 1997.

[252] See respectively the Secretary General’s Reports on the “State of Democracy, Human Rights and the Rule of Law in Europe” for 2014 and 2015, hereafter referred to respectively as the “CoE Secretary General’s Report (2014)” and the “CoE Secretary General’s Report (2015)”.

[253] See the CCJE report on the situation of the judiciary and judges in the member states of the Council of Europe (2013), paras 13-18.

[254] See the CoE Secretary General’s Report (2015), p. 14, 17, 27.

[255] See the CoE Secretary General’s Report (2015), p. 20-21.

[256] See for legal aid: the CoE Secretary General’s Report (2015) p. 22-23.

[257] See the CoE Secretary General’s Report (2015), p. 19.

[258] See the CoE Secretary General’s Report (2014), p. 22; the CoE Secretary General’s Report (2015), p. 27.

[259] In addition to the members of the CCJE Working Group, the seminar was attended by Professor Robert Hazell (the Constitution Unit, University College, London, United Kingdom), Mr Andrew Drzemczewski (Head of Legal Affairs and Human Rights Department of the Secretariat of the Parliamentary Assembly of the Council of Europe), Ms Anna Maria Telvis and Ms Ann Speck (Human Rights Association) and Mr Ziya Tanyar (Secretariat of the Venice Commission of the Council of Europe).

[260] Contributions made by Professor Jørn Øyrehagen Sunde (University of Bergen), Ms Hanne Sophie Greve (President of the Gulating Court of Appeal, former judge at the European Court of Human Rights) and Ms Ingjerd Thune (President of the Norwegian Association of Judges).

[261] See the CCJE Opinion No. 3(2002), para 16.

[262] See the CCJE Opinion No. 1(2001), para 11; see also the CCJE Magna Charta of Judges (2010), para 1.

[263] The CCJE recognises that this last task is sometimes carried out by a Constitutional Court and that, in some systems, the Constitutional Courts are not necessarily seen as part of the judiciary.

[264] See the CoE Secretary General’s Report (2014), p. 22.

[265] See also for the functions of the judiciary: Garapon, Perdriolle, Bernabé, Synthèse du rapport de l’HEJ La prudence et l’authorité: L’office du juge au XXIe siecle (2013).

[266] See the CCJE Opinion No. 1(2001), para 11.

[267] Alexander Hamilton, in Federalist 78, described the judiciary as the least dangerous of the three powers because it had “no influence over either the sword or purse..... It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments“. Hamilton’s view may not reflect the reality of judicial power over executive or even legislative action in Europe of the 21^st century.

[268] See the CCJE Opinion No. 13(2010) on the role of judges in the enforcement of judicial decisions.

[269] See Aharon Barak, “The Judge in a Democracy” (Princeton Press 2008), Ch. 2.

[270] See the CCJE Opinion No. 1(2001), paras 11, 12.

[271] See the CCJE No. 3(2002), para 9.

[272] For example: all English and Welsh judges on appointment have to swear to decide cases “according to the laws and usages of this Realm, without fear or favour, affection or ill will”.

[273] See e.g. the judgments of the ECtHR in the following cases: Orsus v. Coratia of 16.03.2010 – 15766/03 – para 147; Sejdić and Finci v. Bosnia and Herzegovina of 22.12.2009 – 27996/06 and 34836/06 – para 43; Muñoz Díaz v Spain of 08.12.2009 – 49151/07 – para 61, D.H. and others v. Ukraine of 23.11.2007 – 57325/00 - para 176; Gorzelik v. Poland of 17.2.2004 - 44158/98, paras 89-90, Metropolitian Church of Bessarabia v. Moldova of 13.12.2001 – 45701/99 - para 116, Sidiropopulos v. Greece of 10.07.1998 – 26695/95 - para 41, see on the protection of minorities by courts: Sandalow, Judicial Protection of Minorities, Mich. L. Rev. 75 (1977) 1162; Cover, The Origins of Judicial Activism in the Protection of MInorities, Yale Law School Legal Repository (1982).

[274] See Volkov v. Ukraine of 09.1.2013 - 21722/11 - para 199.

[275] See also the CoE Secretary General’s Report (2014), p. 22.

[276] The English poet John Donne in Meditation XVII.

[277] See the CoE Secretary General’s Report (2015), p. 14, 17, 27, see also the CCJE Opinion No. 13(2010) on the role of judges in the enforcement of judicial decisions.

[278] See the CCJE Opinion No. 1(2001), para 11.

[279] See the CCJE Opinion No. 1(2001), para 11; see also the CCJE Magna Charta of Judges (2010), para 1.

[280] See the CCJE Opinion No. 1(2001), paras 19-23; see also the Venice Commission, Judicial Appointments, 2007, paras 9-17.

[281] See the CCJE Opinion No. 1(2001), para 33.

[282] See e.g.: Fabian Wittreck, Die Verwaltung der Dritten Gewalt, Mohr–Siebeck, Tübingen, 2006. He argues that the legitimacy of all officials in a state derives ultimately from “the will of the people” (Art. 20(2) of the German Constitution). A similar argument can be advanced for other constitutions. See e.g. the Art. 3 of the Declaration of the Rights of Man and of the Citizen of 1789, integrated into the French Constitution: “The principle of any Sovereignty lies primarily in the Nation” (“Le principe de toute Souveraineté réside essentiellement dans la Nation”).

[283] See the CCJE Opinion No. 1(2001), para. 33.

[284] See the CCJE Opinion No. 1(2001), para 37.

[285] See the CCJE Opinion No. 1(2001), para 45, rec. 4; Opinion No. 10(2007), paras 48-51. According to the ECtHR, judicial appointments by the legislature and the executive are permissible as long as the appointed judges are free from influence or pressure when carrying out their adjudicatory role. See: Flux v. Moldova of 3.7.2007 – 31001/03 - para 27. The notion of separation of powers and its importance for judicial appointment has also been discussed by the ECtHR: see Volkov v. Ukraine of 9.1.2013 - 21722/11 - para 109, and Maktouf and Damjanovic v. Bosnia and Herzegovina of 18.7.2013 – 34179/08 - para 49. The Venice Commission considers appointment of ordinary judges by vote of the Parliament inappropriate (Venice Commission, Judicial Appointments, 2007, para 12) and recommends appointment by a council for the judiciary with a substantial number or majority of members being elected by the judiciary: Venice Commission, Judicial Appointments, 2007, para 29.

[286] See the CCJE Opinion No. 3(2002), para 22.

[287] See the CCJE Opinion No. 4(2003).

[288] See the CCJE Opinion No. 6(2004).

[289] See the CCJE Opinion No. 9(2006).

[290] See the CCJE Opinion No. 10(2007)

[291] See the CCJE Opinion No. 11(2008).

[292] See the CCJE Opinion No. 13(2010).

[293] See the CCJE Opinion No. 14(2011).

[294] See the CCJE Opinion No. 15(2012).

[295] See the CCJE Opinion No. 17(2014).

[296] See the CCJE Opinion No. 12(2009).

[297] See the CCJE Opinion No. 16(2013).

[298] One example of a necessary procedural rule is the need for a judge to recuse himself where there may be an actual or perceived conflict of interest.

[299] See the CCJE Opinion No. 3(2002), para 8.

[300] See also the CoE Secretary General’s Report (2015), p. 9.

[301] In its 2013-2014 Report, the ENCJ has explained that a judiciary that claims independence but which refuses to be accountable to society will not enjoy the trust of society. See the ENCJ Report 2013-2014, p. 4.

[302] See for a discussion of judicial accountability: Graham Gee, Robert Hazell, Kate Malleson and Patrick o’Brien “The Politics of Judicial Independence in the UK’s Changing Constitution”, Camebridge University Press, 2015, pp. 16 – 22.

[303] See on the importance of good governance and judiciary in the CCJE Opinion No. 7(2005), the CCJE Opinion No. 10(2007) and the CCJE Opinion No. 14(2011).

[304] See the CCJE Opinion No. 1(2001), para 11; Opinion No. 10(2007), para 9.

[305] See the ENCJ Report 2013-2014, p. 13.

[306] See the CCJE Opinion No. 6(2004), para 1.

[307] See the CCJE Opinion No. 17(2014), para 23.

[308] See Recommendation CM/Rec(2010)12, para 32, and the CCJE Opinion No. 2(2001), para 4; Opinion No. 10(2007), para 37; Opinion No. 17(2014), para 35.

[309] See the CCJE Opinion No. 2(2001), para 14, and Opinion No. 10(2007), para 12.

[310] There is a duty of the other powers of the state to provide adequate funds for the judiciary: CCJE Opinion No. 2 (2001).

[311] See the CCJE Opinion No. 7(2005), para 7.

[312] Contini and Mohr “Reconciling independence and accountability un judicial systems“, 3 Utrecht Law Review (2007) 26, 31-32, called this “legal and judicial accountability“.

[313] Contini and Mohr “Reconciling independence and accountability un judicial systems“, 3 Utrecht Law Review (2007) 26, 33-34, called this “managerial accountability“.

[314] On relations of the courts with participants in court proceedings, see the CCJE Opinion No. 7(2005), paras 24-26. Exceptions can be made in cases where the litigants’ interests for their privacy demand it.

[315] See on the sensitive issue of television in court procedures: the CCJE Opinion No. 7(2005), paras 44-50.

[316] See the CCJE Opinion No. 7(2005), paras 9, 24-26; see also Bühlmann and Kunz, “Confidence in the Judiciary: Comparing the Independence and Legitimacy of Judicial Systems“, West European Politics Vo. 34, No. 2 (2011) 317, 332.

[317] See about the quality of judicial decisions the CCJE Opinion No. 11(2008); Opinion No. 7(2005), para 56.

[318] See the CCJE Opinion No. 6(2004).

[319] See the CCJE Opinion No. 13(2010); see the CoE Secretary General’s Report (2015), p. 14, 17, 27.

[320] See the CCJE Opinion No. 1(2001), paras 27, 69 rec. 10.

[321] See the CCJE Opinion No. 17(2014).

[322] See the ECtHR: Baka v. Hungary of 27.5.2015 - 20261/12 – paras 99-102

[323] Contini and Mohr “Reconciling independence and accountability in judicial systems“, 3 Utrecht Law Review (2007) 26, 41-42, advocated the concept of “cooperative accountability“.

[324] See the CCJE Opinion no. 3(2002), para 34; Belgium and Montenegro reported exchanges of this kind.

[325] See on relations between judges and parliament in the UK: Graham Gee, Robert Hazell, Kate Malleson and Patrick O’Brien: “The Politics of Judicial Independence in the UK’s Changing Constitution”, Cambridge University Press, 2015, pp. 92-125.

[326] See the CCJE Opinion No. 3(2203), para 36.

[327] See the Decision of the Constitutional Court of Lithuania of 21.12.1999, IV.9.

[328] See the CCJE Opinion No. 7(2005).

[329] See the CCJE Opinion No. 7(2005), C.

[330] See the CCJE Opinion No. 7(2005), paras 7-23.

[331] See the CCJE Opinion No. 7(2005), para 27.

[332] See the CCJE Opinion No. 3(2002), para 49, recommendation iii.

[333] See the CCJE Opinion No. 3(2002), para 50, recommendation ii.

[334] See the CCJE Opinion No. 3(2002), para 51.

[335] See the CoE Secretary General’s Report (2015), p. 24-25; see also the work of GRECO in the fourth evaluation round www.coe.int/greco.

[336] See the CCJE Opinion No. 3(2002), paras 52-54.

[337] See the CCJE Opinion No. 3(2002), paras 55-57.

[338] See the CCJE Opinion No. 3(2002), paras 58-74; see also Kyiv Recommendations, paras 25-26.

[339] See the CCJE Opinion No. 1(2001); Recommendation CM/Rec(2010)12, Chapter II, V, VI; see the CCJE Magna Charta of Judges (2010), paras 2-13;

[340] See the ENCJ Report 2013-2014, p. 4, 9.

[341] See the CCJE Opinion No. 1(2001), para 63.

[342] The ENCJ Report describes the perception of judges of their own independence as an aspect of “subjective independence“, the ENCJ Report 2013-2014, p. 13, 3.3.2.

[343] See Recommendation CM/Rec(2010)12, para 18.

[344] See ECtHR: Baka v. Hungary of 27.5.2015 - 20261/12.

[345] See Recommendation CM/Rec(2010)12, Chapter VII; the CCJE Opinion No. 3(2002), para 51; see for an example of such a misuse: Volkov v. Ukraine, ECtHR of 9.1.2013 - 21722/11 – esp. para 199.

[346] See the CCJE Opinion No. 3 (2002), paras 75, 76; see also Recommendation CM/Rec(2010)12, paras 66-71. The liability of the state is another matter with which this Opinion is not concerned. In the following decisions, the CJEU held in favour of state liability for damage caused by judicial decisions. The CJEU did not mention a liability of the judges who gave the judgments which caused the damage in question: CJEU (30 Sept. 2003, C-224/01, Köbler vs. Austria; Great Chamber, 13 June 2006, C-173/03, Traghetti del Mediterraneo s.p.a. in liquidazione v. Repubblica Italiana; 24 November 2011, C-379/10, Commission v. Repubblica Italiana; 9 Sept. 2015, C‑160/14, João Filipe Ferreira da Silva e Brito v. Estado português).

[347] See Recommendation CM/Rec (2010)12, paras 66 and 67. See the CCJE Magna Carta of Judges (2010), para 22.

[348] See ECtHR: Baka v. Hungary of 27.5.2015 - 20261/12.

[349] See the Open Letter of the Supreme Court of Ukraine, p. 2.

[350] See Recommendation(2010)12, Art. 8.

[351] See the CCJE report on the situation of the judiciary and judges in the member states of the Council of Europe (2013), paras 13-18.

[352] See the CoE Secretary General’s Report (2015), p. 17.

[353] See the CCJE Opinion No. 11(2008).

[354] See the CCJE Opinion No. 10(2007).

[355] See the CCJE Opinion No. 2(2001).

[356] 38 members of the CCJE have replied to the questionnaire.

[357] See CCJE Opinion No.12(2009), Bordeaux Declaration, paragraph 3.

[358] See CCJE Opinion No. 16(2013), paragraph 10.

[359] See CCJE Opinion No. 18(2015), paragraphs 48 and 49.

[360] See CCJE Opinion No.12(2009), Bordeaux Declaration, paragraph 11; see CCJE Opinion No. 7(2005) on justice and society.

[361] See the judgments of the European Court of Human Rights (hereafter the ECtHR): Baka v. Hungary Grand Chamber no. 20261/12, 23 June 2016, paragraph 4 of the concurring opinion of Judge Sicilianos; Parlov-Tkalčić v. Croatia, no. 24810/06, 22 December 2009, paragraph 86; Agrokompleks v. Ukraine, no. 23465/03, 6 October 2011, paragraph 137; Moiseyev v. Russia, no. 62936/00, 9 October 2008, paragraph 182. “The absence of sufficient guarantees ensuring judges’ independence within the judicial branch, and especially vis-à-vis their superiors within the judicial hierarchy, could lead the Court to conclude that an applicant’s doubts as to the independence and impartiality of a court may be said to have been objectively justified“, see Baka v. Hungary cited above, paragraph 4 of the concurring opinion of Judge Sicilianos; Parlov-Tkalčić v. Croatia, cited above, paragraph 86; Agrokompleks v. Ukraine, cited above, paragraph 137; Moiseyev v. Russia, cited above, paragraph 184; and Daktaras v. Lithuania, no. 42095/98, paragraphs 36 and 38, ECHR 2000‑X.

[362] ECtHR Judge Siciliano has raised the question whether Article 6(1) of the ECHR could be interpreted in such a way as to recognise, in parallel to the right of persons involved in court proceedings to have their cases heard by an impartial court, a subjective right for judges to have their individual independence safeguarded and respected by the state, see the ECtHR judgment: Baka v. Hungary Grand Chamber no. 20261/12, 23 June 2016, paragraphs 5-6 and 13-15 of the concurring opinion of Judge Sicilianos.

[363] In exercising this duty, the court presidents can use the tools and instruments developed by the European Commission for the Efficiency of Justice (CEPEJ) such as the revised Saturn Guidelines for Judicial Time Management (CEPEJ(2014)16), Time Management Checklist (CEPEJ(2005)12REV) and others.

[364] In some member states, such advisory bodies are statutory prescribed by law. See the work of the Council of Europe's Group of States against Corruption (GRECO) in the fourth round evaluation that deals with the prevention of corruption among parliamentarians, judges and prosecutors: GRECO has issued recommendations to many of the member states towards establishing a mechanism for providing confidential counseling on ethics and integrity issues to judges in the course of fulfilment of their duties.

See http://www.coe.int/t/dghl/monitoring/greco/evaluations/index_en.asp.

[365] See the Council of Europe Plan of Action on strengthening judicial independence and impartiality (CM(2016)36final), Action 2.1.

[366] See CCJE Opinion No. 17(2014), conclusion 11, see also CCJE Opinion No. 10(2007), paragraphs 42 and 53.

[367] See CCJE Opinion No. 10(2007), paragraphs 42 and 64.

[368] See CCJE Opinion No. 6(2004), paragraphs 52-55.

[369] See CCJE Opinion No. 18(2015), paragraph 48.

[370] See the Council of Europe Plan of Action on strengthening judicial independence and impartiality (CM(2016)36final), Action 1.5 (the first two paragraphs).

[371] See CCJE Opinion No. 2(2001), paragraph 13; see also the document “Training to leadership” of the European Judicial Training Network (EJTN) of June 2016.

[372] See CCJE Opinion No. 10 (2007), paragraph 51.

[373] See Recommendation CM/Rec(2010)12, Chapter VI, paragraphs 44 and 45.

[374] See CCJE Opinion No. 1(2001) on standards concerning the independence of the judiciary and the irremovability of judges, paragraphs 25 and 29.

[375] See CCJE Opinion No. 17(2014) on the evaluation of judges' work, the quality of justice and respect for judicial independence.

[376] See CCJE Opinion No. 17(2014), paragraph 13.

[377] See i.a. Recommendation CM/Rec(2010)12, Chapter 6, paragraphs 49 and 50.

[378] See the judgment of the ECtHR: Baka v. Hungary Grand Chamber no. 20261/12, 23 June 2016, paragraph 17 of the joint concurring opinion of Judges Pinto de Albuquerque and Dedov.

[379] See CCJE Opinion No. 1(2001) on standards concerning the independence of the judiciary and the irremovability of judges.

[380] See CCJE Opinion No. 2(2001), paragraph 10.

[381] See the Council of Europe Plan of Action on strengthening judicial independence and impartiality (CM(2016)36final), Action 1.5 (the third paragraph).

	What are the obligations by which judges are bound ?
	Source	Date	In relation to the law	In relation to the office	Personal qualities
ANDORRA	Qualified Justice Act	1993		professional secrecy	Duty to act with reservation
AZERBAIJAN			loyalty to the law	honesty, objectivity, incorruptibility
BELGIUM	Judicial code	1967, an Act of 1999 was to reform the system, but the implementing decree was never adopted and now Parliament is seeking to repeal the Act	obligation to adjudicate under pain of a denial of justice	obligation under the Constitution to state the reasons for decisions, to deal with cases within a specified time
CYPRUS	Courts of justice law		oath of loyalty to the Republic and to the Constitution	judicial oath to exercise his duties without favoritism, without allowing himself to be impressed, without allowing himself to be influenced by his passions
CZECH REP	New Act on courts and judges	Entered into force on 1 April 2002	must interpret the law to the best of his abilities, according to his knowledge and his convictions	impartiality, reasonable time, loyalty in carrying out duties, must do nothing which would compromise the dignity of the judicial system and the confidence which it must inspire	no right to strike, no right to take part in a public demonstration prejudicial to his activities, must not be a member of a political party.
ESTONIA	Status of Judges Act	a new Act is being debated in 2002
FINLAND	Constitution, oath, Code of Procedure, Act on Civil Servants		obey the law	impartiality, efficiency, reasonable time, secrecy of deliberations	behaviour in accordance with the office
FRANCE			judges are required to adjudicate, even when the law is silent, under pain of a denial of justice	not to infringe the principle of the secrecy of the deliberations, duty of reserve, no right to strike	refrain from any political deliberation, from any display of hostility to the powers of the Republic
GERMANY	German Judiciary Act			principle of moderation in expressing views, keeping the deliberations secret, not compromising confidence in the independence of the judicial system in his work	… and outside his duties
ICELAND	Constitution and European Act on the Judiciary	1998		must carry out their duties with complete independence, without ever being subject to the authority of anyone whomsoever, within a reasonable time	must maintain their level of legal knowledge and be attentive to their extra-judicial activities
IRELAND	Oath provided for in the Constitution	1937	comply with the Constitution and the law	Carry out his duties as a judge faithfully and to the best of his abilities, without fear or favour
ITALY	Law on the judges’ discipline	1946
JAPAN	Constitution, Court Organisation Law	1947 (both)	compliance with the Constitution and with law	independence in the exercise of their conscience, impartiality and fairness	requirements of devotion to duty and secrecy; must refrain from any conduct casting doubt on their integrity
LIECHTENSTEIN	Constitution and Court Organisation Act	1921 and 1922, Bill on judiciary currently being examined	duties of officials in general, Civil Servants Act 1938
LITHUANIA	Courts Act	2002	obey the Constitution and the law	satisfy the requirements of judicial ethics, impartiality, deal with cases within a reasonable time, stand down if necessary, disclose that members of his family are to appear before the court in which he works
LUXEMBOURG	No law defining judges’ duties
MALTA	First oath of allegiance before the President provided for in the Constitution, second oath in the Code of Judicial Organisation and Procedure		adjudicate in accordance with the law and Maltese custom, to the honour of God and the Maltese Republic	act honestly and fairly, must not communicate with the parties or advise them except in public, in court or with the leave of the President, provide reasons for his decisions, explain the reasons for delays
MOLDOVA	Law on the status of the judiciary		strict observance of the requirements of the law in the interests of justice, protector of individual freedoms	safeguard the honour and dignity of citizens, the high culture of the judiciary, be impartial and human, not discredit justice, compromise the honour or dignity of the judiciary, cause doubts as to their objectivity
NETHERLANDS	Art. 29 of the “Organisation of the Judiciary Act”	1827	They will be loyal to the King, they will maintain and obey the Constitution	They will carry out their duties impartially, honestly and conscientiously
NORWAY	Constitution, oath of obedience and loyalty to the Constitution and the King, Court of Justice Act			must give an undertaking in writing to carry out the duties of his post conscientiously
POLAND	Constitution, laws, codes and rules of procedure – oath before the President, internal rules of the courts	Acts of 1984, 1995 and 1997 updated in October 2001	loyalty to the nation, guardian of the law	Meticulously observe the obligations associated with his work, comply with the oath, loyalty, impartiality, dignity and honesty in the administration of justice, secrecy of the deliberations	obligation to declare assets and resources, avoid any conflict of interests
PORTUGAL	The status of judges			Common duties to all the public function, duty of reservation, must wear gown	must reside in the place in which they sit; judges of the lower courts must not be absent from that place except at weekends and during holidays; other judges must not be absent for more than three consecutive days and not more than 10 days in a year, declared to the Judicial Service Board; political activities prohibited
ROMANIA	Article 24 of the Constitution Articles 82-87 of the Judicial Organization 92/92 Act	1991 1992	Oath of loyalty to the constitution and law	must not do anything which would compromise the dignity of the profession	must not do anything which would compromise their personal dignity
SLOVAK REP	Act on judges and lay judges	2000		Impartiality, reasonable time, loyalty in carrying out duties, must do nothing which would compromise the dignity of judicial system and the confidence which it must inspire, must refuse gifts, not allow himself to be influenced by his relationships, including by the media	must have reached the age of 30 years, have completed higher studies in law, be capable of being a judge, in particular as regards his health and his integrity, must reside permanently in Slovakia, must have been through a selection procedure
SLOVENIA	Judicial Service Act	1994, 1996 et 1998		conduct himself in his professional life in such a way as not to call in question his impartiality, his independence or the reputation of the judicial system.	In the exercise of his personal freedoms and rights, a judge must always take into account his duty to protect the independence and impartiality of justice and must not compromise the reputation of justice.
SWEDEN	Constitution, Codes of Procedure (oath) and Public Employment Act		must observe the law, must not manipulate it	an honest and upright judge: impartial, must administer justice to the best of his abilities and his conscience, must not be involved in corruption or personal, family or friendly favours, must not find the innocent guilty or vice versa, must observe the secrecy of the deliberations
SWITZERLAND
TURKEY	Constitution of the Republic of Turkey and Law on the Judges and Public Prosecutors.	Both in 1982	loyalty to the Constitution, to the law and to his convictions provided they are compatible with the law	protect their independence, even though they may be linked to the Ministry in their administrative duties	no official functions, unless prescribed by law
UKRAINE	Law on the status of judges		Loyalty to the law and to the Constitution, objectivity, must deal fully and conscientiously with the cases brought before him	must submit himself to the discipline and to the organisation of work in the court; professional secrecy
UNITED KINGDOM	Common law		Oath of loyalty and allegiance to the Crown while observing the law	apply the law independently and impartially

	Is there a judge’s code of conduct?
	Drafted by...	Adopted by...	Date	Obligations	Sanction
ANDORRA	NO
AZERBAIJAN	YES, prepared and adopted by all the judges and by the Judicial Council			Same as the provisions of the Statutes	Disciplinary proceedings
BELGIUM	NO
CYPRUS	NO, but standards exist on recruitment in order to ensure the high moral quality of the future judge noted in his practice as a lawyer
CZECH REP	YES AND NO, but 7 brief principles have been drawn up by the Judges’ Union (an organisation representing 50% of judges) and could be made into a Code	Approved by a representative assemble of judges	2000	7 principles setting out the duties and conduct of the judge in his professional life	No cases
ESTONIA	YES, Association of Estonian Judges	Delegation by Parliament in the Judges Act for adoption by the Judges’ Conference	1994	35 basic rules on professional conduct (conscience and diligence in work, professional relations, independence and impartiality) and restriction of personal freedoms (extra-judicial activities, private relations)	No actual sanction but may help to judge in disciplinary proceedings by shedding light on the provisions of the Judges Act
FINLAND	NO
FRANCE	NO
GERMANY	NO
ICELAND	NO, some unwritten rules
IRELAND	NO, but a report on the ethics and professional conduct of judges in 1999 recommended that an ethics and professional conduct committee draw up a Code which would be given to all new judges when taking up their posts. Such a committee does not yet exist. The law is in the course of being reformed.
ITALY	YES, National Association of Judges	National Association of Judges, with the authority of the government and the legislature	1994	Dignity and correctness in private life, sense of public duty, disinterested exercise of the judicial function, independence, impartiality, attention given to relations with citizens, professional conscience, continuous training, procedures for using the resources of the administration, professional secrecy, discipline of relations with the media, no protection from conflicts of political or financial interests, concern to examine his impartiality, relations with his peers and judicial personnel	It is primarily a means of self-regulation. A sanction may be available if the breach is one covered by the disciplinary provisions or the general law.
JAPAN	YES, stipulated in certain laws, although there is no independent code of conduct
LIECHTENSTEIN	NO
LITHUANIA	YES, National Judges’ Association	National Congress of all judges	1998	Independence, conduct and duties of the judge, then outside his judicial duties, etc.	NO, but authority in disciplinary proceedings
LUXEMBOURG	NO, a Committee which examined the question concluded that it was preferable to stick to general unwritten rules.
MALTA	YES, drafted by the judiciary	All except 1 judge, presented to the President at the head of the Justice Administration Committee, which accepted the Code with few amendments	2000	28 paragraphs reflecting agreement on good practice, confirming the values to which judges have adhered when taking the oath, image of justice for those subject to it who must also be effectively sanctioned if necessary	"The Code itself” is not accompanied by sanctions
MOLDOVA	YES, by the CSM	Judges’ Conference	2000	Confidentiality, correctness, punctuality, temperance, must be sober, polite, formal, calm, tolerant, must listen, must sanction those who do show contempt of court, , must not discuss the case with the parties other then during the proceedings, respect human rights, no discrimination	YES, disciplinary
NETHERLANDS	NO
NORWAY	No code, despite an attempt in 1999 by the Norwegian Law Court Commission, which is now pending before Parliament
POLAND	NO, but the National Council on the Judiciary is authorised to draft such a code, and has since July 2001 been working on a collection of principles relating to judges’ ethics
PORTUGAL	NO
ROMANIA	NO, but there are some general rules in the Judicial Organisation Act	Romanian Parliament	1992	Magistrates shall refrain from any acts or deeds able to compromise their dignity in function and in society. Magistrates shall be forbidden to be affiliated to political parties or to be engaged in public activities with a political character. Magistrature is incompatible with any other public a private office, except that of an academic professional activity. Magistrates shall be forbidden the exercise of trading activities, participation in the management of trading, civil companies or of autonomous companies, either directly or through interposed persons. They shall also be forbidden the participation in the administration of such companies or autonomous companies. Other obligations for judges are considered conditions for being judge: ex. Good reputation or characteristic for judge’s activity: ex. independence, impartiality, secret of deliberation	Penal and disciplinary proceedings.
SLOVAK REP	YES	President of the Council of the Judiciary and the Minister for Justice	2001	Private life, professional life and professional duties	NO, only the Judges Act
SLOVENIA	YES (it has just replaced a former Code of Professional Responsibility dating from 1972), by a group of judges from the Judges’ Association	Association	2001	9 principles : independence, impartiality and neutrality, ability, diligence, incompatibilities/compatibilities, discretion, professional relations, reputation.	No, but there is a Court of Honour which may deal with an infringement without any sanction being imposed.
SWEDEN	No specific code, but there is an historical model which serves to inspire judges’ conduct, namely the General Code of Law (1734), which includes an old code which is not binding on judges	Olaus Petri in the sixteenth century; a judges’ association has recently been working on a draft code which has not been completed, in the face of numerous critics	1540		By another system, the law empowers the Ombudsman and the Justice Chancellor to criticise a judge publicly for his conduct
SWITZERLAND	There are practically no written rules at federal level or to a large extent at local level
TURKEY	Law on the Judges and the Public Prosecutors and rules of conduct	Parliament, Supreme Council of Judges and Public Prosecutors	1982	Same as the provisions of the Statutes	Disciplinary proceedings
UKRAINE	YES, taken up by a Congress of Judges in 1999 on the basis of experiences in Canada, America and Russia, in particular, together and amendments and proposals by Ukrainian judges	Council of Judges	2002	Obedience of the law, impartiality, maintenance of legitimate expectations, loyalty, justice and equity, sincerity, conduct faithful to the oath	NO, in accordance with the wishes of the Congress of Judges
UNITED KINGDOM	NO, but there are some informal guides which some (Judicial Studies Board, Scottish Justice Minister and a doctrine in Northern Ireland) would wish to see placed on a formal basis without constituting statutory duties	Established by the Lord Chancellor by agreement with the Lord Chief Justice		Before being appointed, judges are informed of what is expected of them in terms of conduct

	Incompatibilities
	Source	Type of incompatibility	Exceptions
ANDORRA	Law on Justice (L.Q.J.)	Any other public office; commercial, industrial or professional activities; work as a lawyer or legal aid work
AZERBAIJAN	"this question is unclear for us"
BELGIUM		A judge may not, at the same time, be a public prosecutor, elected representative, solicitor, bailiff, barrister, soldier or religious officer, or hold paid political or administrative office of any kind
CYPRUS		Any other post or profession	Lectures and legal writings
CZECH REPUBLIC		No political office (eg President of the Republic or member of parliament), no government department or business activity. Scientific work, teaching and literary and artistic activities are allowed, as is work as a political adviser, if they do not undermine the dignity of the judiciary and the confidence it should inspire.
ESTONIA		No political mandate or activity, no other posts except teaching or research; may not sit on the boards of public or private companies
FINLAND	Act on Civil Servants	any public office, any civil, commercial and salaried profession or activity	permission may be obtained from the court or a higher court
FRANCE		Incompatibility with all types of public office, any civilian, commercial or salaried profession and work as an arbitrator
GERMANY	German Judiciary Act	Idea of the separation of powers: no administrative activity (except in the court, research and teaching); may belong to a political party and stand for election as member of parliament: if elected, is suspended from duties as a judge; advisory and conciliation activities prohibited	The government may authorise a judge to sit as an arbitrator or be heard as an expert by an arbitration tribunal
ICELAND	1998 Act on the Judiciary	May not accept a post or have a holding in a company if this is incompatible with his/her office or likely to impair the quality of his or her work.	Teaching, chairing committees, lectures writings, etc. Permission to engage in non-judicial activities must be requested from the Judicial Office Committee
IRELAND	Constitution of 1937	No judge shall be eligible. to be a member of either house of parliament or to hold “any other office or position of emolument”.
ITALY	Royal decree of 30 January 1941	No job or public or private office except as member of parliament or of a charitable organisation, no commercial, industrial or professional activity. The High Council for the Judiciary may authorize “tasks of any other kind”.	Teaching and scientific activities possible with authorisation - under strict conditions - from High Council. Arbitration is only exceptionally authorised.
JAPAN	Court Organisation Law	Prohibition of political and commercial activities and of receiving remuneration other than for holding judicial office.	Permission may be obtained from the Supreme Court for receiving remuneration other than for holding judicial office
LIECHTENSTEIN	Article 6, 1938 Civil Servants Act	No other remunerated or particularly time-consuming activity without authorisation from the government, which considers whether it is compatible with the work of a judge, which is generally the case for part-time research and teaching
LITHUANIA	2002 Judicial Act	No political activity, may not be called up for military service, no lucrative private activity, though compensation is allowed in the case of teaching, no work in an association if it impairs the judge’s independence	Lecturing and legal writings
LUXEMBOURG	Constitution and Judicial Organisation Act	No paid employment
MALTA	Code of Organisation and Civil Procedure, Code of Ethics	No personal involvement or involvement as counsel in a case that has already been opened or is probably within the judge’s remit, no other activity, even temporary, except in an international judicial body or the university	With the consent of the President of the Republic
MOLDOVA	Status of Judges Act	No other public or private office or post as member of parliament or local authority adviser; may not belong to political parties or other socio-political organisations; may not engage in business or in written or oral consultation except for close relatives. Publications and media appearances possible if they do not concern domestic policy issues.
NETHERLANDS	Art. 44 “Organisation of the Judiciary Act (1827/2001)”; Act concerning incompatibilities national and European parliaments (1994)	Judges may not be (the Dutch equivalent of) barrister, solicitor, notary-public; they may not act in other professions that entail the giving of legal aid or advice; judges of the Supreme Court may not be a member of the Dutch or the European Parliament.
NORWAY	Courts of Justice Act and State Basic Agreement	Judges are relatively free; only Supreme Court judges are subject to specific provisions. Generally speaking, however, they may be barristers, mediators or jurors without having to resign.	The law before parliament, which is to replace tolerant case law, contains strict provisions on the prohibition, authorisation and declaration of ancillary activities and makes the incompatibility rules stricter.
POLAND	Constitution and Statute	No other work except scientific publications and part-time teaching, provided these do not affect the judge’s work; no activity or lucrative position that could tarnish the image of the judiciary; no political activity	The application must be forwarded to the hierarchical superior (president of the court or supreme court or the minister)
PORTUGAL		No public or private professional post; incompatibilities applicable to civil servants in general	Teaching and legal research may be authorised by the Judicial Service Commission, but may not be remunerated
ROMANIA		No political activity, no post other than collaboration with scientific publications and teaching
SLOVAK REPUBLIC	2000 Act	No political posts in the broad sense of the term, including government departments and the army, no lucrative private activity except scientific, teaching or artistic activity, and then on condition that it does not undermine the dignity of the post of judge.
SLOVENIA	Constitution and Judicial Organisation Act	Any administrative or political post, any commercial or professional activity, lucrative activity or involvement in the management of companies, and anything that might tarnish the reputation of the judiciary. Teaching and research are authorised subject to this condition.
SWEDEN	Laws and constitution	No judge is subordinate to another judge or public official
SWITZERLAND		No other public office or post, no other career or profession, no post as director, manager or member of a body running a lucrative establishment, no post assigned or title or declaration awarded by foreign authorities	The court may authorise work as an expert or arbitrator and other ancillary activities and lay down the relevant conditions provided the independence and prestige of the judiciary are not impaired
TURKEY	Law on the Judges and Public Prosecutors	No public activity unless authorised by law, no profit bringing activity.
UKRAINE	No incompatibilities formally provided for
UNITED KINGDOM	Guidelines	May not sit as an arbitrator or engage in any lucrative professional activity (save writing or editing) or any professional activity (save writing or editing) or any political activity; substantial restrictions also apply when a judge has left office

	Circumstances in which impartiality may be called into question
	Source	Circumstances
ANDORRA	Law on Justice (L.Q.J.)	Family proximity, to have been lawyer or representative; commercial or economic legal relationship. To have had a litigation with a Party or his lawyer, interest in the object of the litigation, hierarchical or friendly relationship.
AZERBAIJAN	Question brought to the discussion by the Attorney General’s Department in a situation referred to by law
BELGIUM	Case-law based on the provisions of the Code and the legislation on standing down and on incompatibilities
CYPRUS	Case-law of the Supreme Court	Conflict of family or personal interests, knowing the case or the parties
CZECH REP	Codes of Civil and Criminal Procedure, mechanism for … seeking damages from a judge who has misused his authority
ESTONIA		Conflict of interests, any relationship which might adversely affect the credibility of the judicial system, bias
FINLAND	Code or Procedure	Family connections, conflict of interest, bias, involvement in the case and other reasons, which bring the judge’s impartiality under reasonable suspicion
FRANCE		A judge may be challenged and must refrain from hearing a case in various circumstances which call his objective and subjective impartiality into question: family or friendly relations, conflict of financial interests, where he has already taken a decision or delivered an delivered in the same case, where there is a link of subordination
GERMANY	Code of Civil Procedure	Family connections, a case in which the judge has given evidence or been examined as an expert, or in which he has already taken a decision, doubts in respect of his impartiality may thus be revealed by a conflict of financial or friendly interests or a stated preference for one of the parties
ICELAND	Law on Civil Procedure and Law on Criminal Procedure	Party to the dispute, has given advice to a party to a case, having a family, friendly or professional relationship with one of the parties; is a witness in a case or has a close relation to a witness.
IRELAND	Nemo judex in causa sua rule of law	No conflict of personal, family or financial interests, no bias or prejudice, otherwise the judge must stand down
ITALY	Codes of Civil and Criminal Procedure	Conflict of family, personal or professional interests, knowledge of the case or of the parties, bias and prejudice.
JAPAN	Constitution and Codes of Civil and Criminal Procedure such as the party of a case being his/her relative	Apart from compliance with the rules on incompatibilities, judges may be challenged and/or are required to withdraw from proceedings in certain circumstances
LIECHTENSTEIN		Conflicts of personal or family interests, bias, raised by the Court of its own motion or by the parties
LITHUANIA	Code of civil procedure	Conflict of personal or family interests, bias, involvement in the case as a witness
LUXEMBOURG	Article 521 of the New Code of Civil Procedure, Article 542 of the Code of Criminal Investigation, Article 6 of the European Convention on Human Rights	Where the judge’s impartiality is challenged or where there is a reasonable doubt as to the fairness of the proceedings
MALTA	A comprehensive list of circumstances in which the judge must stand down or the parties refuse to allow him to deal with the case is set out in the code of Judicial Organisation and Civil Procedure	Conflict of personal or family interests, bias, involvement in the case as a witness
MOLDOVA	Codes of Civil Procedure and Criminal Procedure	Must stand down where he has a direct or indirect interest in the case or where there is a family connection with the parties
NETHERLANDS	Civil Procedure Act, Criminal Procedure Act, Administrative Procedure Act	“Facts or circumstances that could call the impartiality of the judge into question” (The law does not go into detail, jurisprudence conforms to the guidelines set by the European Court of Justice)
NORWAY	Courts of Justice Act	Family connections with the parties or their legal advisers, provided that confidence in the judge may be affected, the judge must stand down (conflict of interests in the majority of cases)
POLAND	Laws on Criminal and Civil Procedure	Where the judge knows the parties or is familiar with the case because he has already taken part in it (close involvement with one of the parties or with the case in a personal or professional capacity); two categories of case: iudex inhabilis and iudex suspectus
PORTUGAL	Statute on the Judiciary, Code of Civil Procedure, Code of Criminal Procedure	A judge may not sit in a court in which a member of his family works, where there is a reasonable doubt as to the fairness of the proceedings or where he asks to be relieved of the case in the event of a conflict of personal, economic or family interests, he cannot have been involved in the case or have taken part in it in a different capacity
ROMANIA	Legislation	Close connection with one of the parties, political influence, media pressure, friendly relations
SLOVAK REP		Any circumstances in which, in the performance of his duties, in his private life or after he has left office, the judge brings the dignity of his office into disrepute or jeopardises the necessary confidence in the judicial system.
SLOVENIA	Codes of Civil and Criminal Procedure, ECHR	Where the judge is a party to the proceedings or is involved in the case, or has a connection with such a person, if he has given evidence or been involved in the case as an expert witness, if he has taken part in a decision taken or delivered in the case, if there is a reasonable doubt as to his impartiality.
SWEDEN	Codes of Procedure	Family connection, conflict of personal, financial or political interests, bias, professional or personal involvement in the case
SWITZERLAND	Legislation and case-law	...consistent with the case-law of the European Court of Human Rights
TURKEY	Codes of Criminal and Civil Procedure	Bias, conflict of interests, personal involvement in an offence as victim, witness, counsel, arbitrator or through a family connection
UKRAINE	Codes of Procedure	Close connection with one of the parties, personal interest in the case, or where the performance of the judge’s duties would in any way call his impartiality into question
UNITED KINGDOM	ECHR

	Criminal or civil liability of judges
	Criminal liability			Civil liability	Procedures
	Offences	Sanctions		Civil liability	Procedures
ANDORRA	Criminal code, Article 114, corruption, corrupt practices			Judges bear civil liability in the event of fraud in the performance of their duties	In criminal matters, a judge can be arrested only where is caught in the act of committing an offence; temporary suspension from duties is automatic, with the consent of the Supreme Judicial Council
AZERBAIJAN	Where a judge knowingly convicts an innocent party, for example	Prison or damages		A higher court rehearing a case may find that the judge who dealt with the case at first instance is liable	The President and the Council of Judges decide to proceed by referring the matter to the Attorney General’s department, the judge will be tried by an ordinary court
BELGIUM	Offences against the general law on the occasion or in the exercise of his duties	Penalties prescribed under the general law		Mechanism for seeking damages from a judge who has misused his authority which allows a judge to be held personally liable in the event of fraudulent intent or fraud on the part of the judge, the State may also be held liable for misconduct by a judge	In criminal matters, the action is in the hands of the Public Prosecutor attached to the Court of Appeal, in civil matters the proceedings are held before the Court of Cassation
CYPRUS	The Constitution guarantees immunity for the judges of the Supreme Constitutional Court and of the High Court (now combined into the Supreme Court).. Common law and equity ensure that judges of the lower courts also enjoy immunity
CZECH REP	In connection with the exercise of duties		Where there has been an unlawful decision or a harmful activity, the damage is made good by the State, which is entitled to bring an action for indemnity if the judge has been found guilty of a disciplinary offence		Criminal proceedings against a judge must be authorised by the President of the Republic; jurisdiction lies with the ordinary courts, according to the procedures of the general law
ESTONIA	Where the judge has deliberately delivered an illegal decision	Removal from office	No personal liability on the part of the judge, State liability		The representative of the Attorney General’s department addresses the Supreme Court, which ascertains that the prosecution may be brought under the Criminal Code and the Code of Criminal Procedure, with the consent of the President of the Republic.
FINLAND	Offences described in the Criminal Code committed in the course of duties	Penalties prescribed by general law, including removal from office	Liability for damage caused in the exercise of the judge’s duties. The compensation is as a rule paid by the State, which in certain cases may be reimbursed by the judge.		Ordinary procedures, which, according to the Constitution, may be instituted by anyone whose rights have been offended (exceptions and special procedure for members of the Supreme Courts).
FRANCE	Offences defined by law	Penalties prescribed by the general law	Civil liability only where the judge is personally at fault		Normal criminal procedure, a civil action is available only against the State, which has a right to bring an action for indemnity
GERMANY	Breaches of the Criminal Code involving misuse of their judicial office and corruption.	Penalties prescribed under the general law	Personal civil liability limited by Article 839(2) of the Civil Code, where the act giving rise to the damage is a criminal offence. State liability is incurred in other cases, and the State can bring an action for indemnity whenever it is ordered to pay damages		Normal criminal and civil procedures
ICELAND	Where the judge has deliberately delivered an unjust decision, where he uses illegal procedures to obtain admissions or where he orders illegal arrests or investigations	Aggravated penalties prescribed by the general law	The State bears civil liability but may recover from the judge if the fault was deliberate		Procedures laid down by the general law
IRELAND	Complete immunity for judicial office is recognised at common law
ITALY	Prescribed in the Criminal Code and aimed particularly at the judge in the performance of his judicial duties, such as corruption	Penalties prescribed by the general law		Civil liability for gross negligence or a denial of justice was provided for in a Law of 1988 which marked a break from the relative immunity from liability denounced in a referendum. The State acts as guarantor and can bring an action for indemnity against the judge, the amount of damages is limited if the damage was caused unintentionally.	Specific rules on jurisdiction in order to ensure that the case is dealt with in a different area, examination of the admissibility of applications (can a problem raised by corrected by a remedy? does the complaint relate to the interpretation of the law?). Cases are heard by the ordinary courts
JAPAN	Ordinary criminal liability			Under a precedent established by the Supreme Court in 1955, judges have no personal, civil liability for damage caused to parties in the performance of duty
LIECHTENSTEIN	Offences under the general law, plus certain particular offences such as malfeasance in office or corruption	Penalties prescribed by the general law, a judge who is sentenced to a term of imprisonment of more than one year is removed from his post		General rules on the civil liability of the State, which may bring an action for indemnity	Ordinary courts and procedures in criminal matters and in civil matters; the Supreme Court has jurisdictions to hear appeals
LITHUANIA	Breaches of the Criminal Code involving misuse of their judicial office and corruption	Penalties prescribed under the general law		The State alone is liable, but has a right to bring an action for indemnity against the judge	Any criminal prosecution or detention must be approved by Parliament; the judge is then suspended from office pending the outcome of the proceedings.
LUXEMBOURG	Article 4 of the Civil Code, abuse of powers and denial of justice	Fines, prohibition on exercising duties or from occupying public posts or office		Only State liability can be incurred (procedure under the general law, Law of 1 September 1988)	Article 639 of the New Code of Civil Procedure for seeking damages from a judge who has misused his authority
MALTA	The Criminal Code makes express provision for cases in which a judge dismisses or refuses to hear a lawfully submitted application for habeas corpus; like any holder of public authority: misuse of powers or malfeasance, corruption, financial misappropriation	Penalties prescribed by the general law		No special rules; there is no known case of an attempt to render a judge civilly liable	The ordinary procedures of the ordinary criminal courts
MOLDOVA	The general law, under the principle that all are equal before the law			No civil liability for judges	Criminal prosecution authorised by the CSM and the President of the Republic or Parliament, depending on circumstances, and heard before the higher courts.
NETHERLANDS	General law applies			Only State liability can be incurred	General law applies, no special procedures
NORWAY	Offences against the general law			An action to establish civil liability on the part of the judge is available only if the decision has been set aside and if the judge committed an offence when taking it	The charges against a judge are defined by the King’s Council and the judge is always tried by a higher court than the one in which he sits
POLAND	Offences connected with judicial activities and duties			The judge may be held personally liable in accordance with the general law, the State may be held liable in a case of unintentional fault or misconduct in office (an action for indemnity is limited to three months’ salary, is unlimited in a case of serious breach), there is no liability for the consequences of a judgment	Criminal proceedings and custodial measures must be authorised by the Disciplinary Court (except where the person is caught in the act of committing the offence): the Disciplinary Court may also suspend the judge from office; an appeal lies to a higher court
PORTUGAL	Offences against the general law committed on the occasion or in the exercise of the judge’s duties, special offences of misuse of powers, abuse of authority, misappropriation of public funds, denial of justice, breach of secrecy	Penalties prescribed by the general law		A judge incurs civil liability only where the facts causing the damage have lead to a criminal conviction for bribery, misappropriation of public funds or prevarication, the judge is required to reimburse the compensation paid by the State or to indemnify the State	Ordinary criminal procedure before a higher court than that in which the judge sits in criminal matters, and before the court where the facts arose in civil matters
ROMANIA	General law	General law		General law	Ordinary procedures and courts in civil matters; in criminal matters, prior opinion of the Minister or the President, then ordinary procedures and courts (higher courts for judges at a certain level in the hierarchy)
SLOVAK REP	Offences committed in the course of the judge’s duties	Imprisonment, loss of professional and honorary qualifications, prohibition on practising, fines			In criminal matters, proceedings must be authorised by the body which appointed or elected the judge and are brought at the initiative of the President of the court concerned or the Minister for Justice
SLOVENIA	Malfeasance having given rise to a deliberate offence	Penalties prescribed by the general law, which may have the consequence of removal from office			In criminal matters, any proceedings or detention must be authorised by Parliament
SWEDEN	Offence committed in the exercise of duties set out in the Criminal Code: breach of duty, corruption, breach of professional secrecy	Penalties prescribed by the general law (fines, prison) and possibly disciplinary consequences, including removal from office		Damage caused in the exercise of the judge’s duties, the State is generally liable for the negligence of a public servant, the judge may be personally liable where there are aggravating circumstances	In criminal matters, if the judge is a judge of the Supreme Court on the Ombudsman and the Justice Chancellor can bring proceedings
SWITZERLAND	Offences connected with the judge’s activities or official position			Only the State can bear civil liability, the direct civil liability of the judge is precluded	In criminal matters, only Parliament can authorise proceedings; it may also provisionally suspend the judge from office; the case falls within the jurisdiction of the ordinary courts
TURKEY	Code of Criminal Procedure: misuse or abuse of office, corruption, favouritism	Imprisonment		Code of Civil Procedure: civil consequences of a criminal offence, arbitrary decisions, illegal decisions, decisions dictated by personal considerations or by considerations extraneous to the case	Criminal proceedings require the consent of the Supreme Council of Judges and Public Prosecutors, which who appoints the investigators and the prosecutor, decides if a matter is disciplinary and forwards the documents to the competent authorities – special procedure in cases of treachery (felony)
UKRAINE		Penalties prescribed by the general law, plus removal from office.		No civil liability for judges	Ordinary criminal procedure, however any preventive detention of a judge must be exceptional and authorise by the Supreme Council. The judge is suspended from office immediately an action is initiated. The competent court is a Court of Appeal designated for the purpose, where the judge has never worked
UNITED KINGDOM	Immunity at common law in the exercise of judicial duties, otherwise immunity only if the judge has acted in good faith

	Disciplinary proceedings
	Circumstances	Procedure	Authority	Sanction
ANDORRA	Serious or very serious breaches set out in Articles 83 and 84 of L.Q.J.	The Supreme Judicial Council takes the initiative for an investigation upon application by an injured person, a citizen who was aware of the facts, the Attorney General’s department or the president of the court concerned	Supreme Judicial Council	Article 85 of L.Q.J., reprimand, fine, suspension of post, removal from office
AZERBAIJAN		In the even of minor offences	The Minister requests the Judges’ Council to deal with the case	Warning or dismissal
BELGIUM	Breach of the rules of conduct laid down by law or deriving from case-law, i.e. confidence in the judicial institution		The judge appears before his President, the First President of the Court of Appeal or before the General disciplinary Assembly of either the Court of Appal or the Court of Cassation, depending on his grade and the gravity of the breach or of the penalty available	Warning, simple censure, censure with a reprimand, suspension for between 15 days and 1 year, dismissal
CYPRUS	Mental or physical incapacity preventing the judge from carrying out his duties, breach of his ethical duties	The Supreme Court appoints an investigating judge and then decides to send the judge before the disciplinary body	Supreme Council of the Judicature	Reprimand or removal from office
CZECH REP	Breach of the disciplinary rules laid down in a Law of 2002	The Minister for Justice or the President of the Court concerned or the President of the Supreme Court decide to bring proceedings within two months of becoming aware of the facts, which must not have happened more than two years previously	Disciplinary Court composed of five judges appointed by a President of a Court appointed by agreement with the Judicial Council for a period of three years, an appeal lies to the Supreme Court.	Reprimand, temporary reduction in salary, suspension from duties as president, suspension from duties as a judge
ESTONIA	Failure to follow procedures and any breach or conduct that jeopardises confidence in the judicial system	Proceedings initiated by the President of the Supreme Court or the Minister for Justice	Disciplinary Committee of the Supreme Court	Warning, reprimand, fine, removal from office (can only be ordered by the Supreme Court in plenary assembly)
FINLAND	No disciplinary proceedings: also minor offences (breach of duty) may result in criminal proceedings
FRANCE	Breach of the duties associated with his post, dishonourable unscrupulous or undignified conduct		Supreme Council of the Judiciary, under the presidency of the First President of the Court of Cassation	From a simple reprimand recorded in the file to removal from office
GERMANY	Breach of the duties defined in the Statutes, proceedings are very rarely brought	Procedure administered by a special department	The Federal Service Court, a Division of the Federal Court of Justice composed of professional judges appointed for life and other career judges	Reprimand, fine, reduction in salary, transfer to another post, removal from office
ICELAND	A breach in discharge of judicial functions.	A complaint in writing may be lodged before the Committee on Judicial Functions by any person who has suffered harm owing to the conduct of a judge. If found valid, the judge is invited to comment before the Committee rules.	a) Committee on Judicial Functions composed of three members appointed by the Minister for Justice (one proposed by the Assembly of Icelandic Judges and one proposed by the Faculty of Law) b) President of Court	Admonition, personal opinion (removal from office only by conclusions of court proceedings in a more serious matters)
IRELAND	There is only a procedure before Parliament for removal from office; it resembles the impeachment procedure deriving from common law and is rarely used.
ITALY	Any breach of the duties associated with his post, public or private conduct adversely affecting the confidence and prestige that a judge and the judicial institution must inspire (cases determined by the case-law)	Proceedings initiated by the Attorney General’s representative at the Court of Cassation or on application by the Minister for Justice. The procedure is judicial in nature, with all the guarantees provided by such a procedure	Disciplinary court composed of nine judges who are members of the Supreme Council of the Judiciary elected by their peers; two of them must have been nominated by Parliament
JAPAN	Court Organisation Law, Law for Impeachment of Judges and Law on Disciplinary Actions against Judges	Stipulated in the Law on Disciplinary Actions against Judges and Law for Impeachment of Judges	Hearing by a court of a level higher than that to which the judge concerned belongs in the impeachment procedure in which the most serious cases are handled, hearing by the Court of Impeachment made up of Diet members.	The disciplinary procedure: Caution or fines / the impeachment procedure: Dismissal
LIECHTENSTEIN	Those laid down in the Statutes of Officials of the State	No specific procedure, similar to criminal procedure	Higher court in the case of ordinary judges and Supreme Court in the case of higher judges	Reprimand, temporary reduction in salary, dismissal
LITHUANIA	Breach of judge’s duties, flagrant breach of the law, failure to observe rules on incompatibility	The Judicial Council or the President of the Court may initiate disciplinary proceedings	Ethical and Disciplinary Committee of the Judicial Council (composed of judges – elected or appointed – and of representatives of the other Powers), which refers the case to a Court of Honour, which, where it decides that a judge is to be dismissed, proposes that sanction to the President or to Parliament	Reprimand or removal from office
LUXEMBOURG	Article 155 of the Law on the Judicial Organisation, wide definition	Article 157 et seq.		Article 156
MALTA	Constitution. Inability (physical or mental) to carry out his duties or particularly serious misconduct	S. 971 of the Constitution S. 8 of Act No. 41 of 1944	Removal from office by the President on an address from Parliament (approved by two thirds of the votes). Before this steps is taken the case is investigated by the Commission for the Administration of Justice when it is found that the judge has a case to answer	Removal from office
MOLDOVA	Premeditated breach of the law in administering justice, disciplinary offence, public activity of a political nature, breach of the rules on incompatibilities, systematic or serious breach of the Code of Conduct	Disciplinary proceedings may be brought by: the President of the Supreme Court, the President of the Supreme Council of the Judiciary, any member of the Supreme Council of the Judiciary	Disciplinary Board of the supreme council of the Judiciary	Observation, warning, dismissal
NETHERLANDS	In case of minor breaches of duties or rules of conduct by the judge, the president of the court can issue a warning. It the judge is convicted or committing a crime and/or is sentenced to a prison sentence, if he is declared bankrupt or legally unfit and, more generally, if he acts in such a way that justice or the confidence of the judiciary is seriously impaired, the Supreme Court can suspend or dismiss the judge.
NORWAY	A current Bill seeks to put an end to the practice whereby judges, like all senior officials, are not subject to disciplinary proceedings	A party, a witness or a lawyer with a complaint about the conduct of a judge in the exercise of his duties may bring the matter before the Disciplinary Committee – the Committee’s decision may be reviewed by an ordinary court composed of lay judges	A committee composed of two judges, one lawyer and two outsiders, all appointed by the Government	Warning and reprimand only; removal from office, as provided for in the Constitution, for grave and repeated offences involves a special procedure provided for in the Constitution
POLAND	Breach of the dignity of his office, flagrant breach of the rules of law, minor offences	Closely resembles criminal proceedings; proceedings are administered by judges elected for the purpose, on application by the Minister, the Supreme Court or any head of court, the National Council of the Judiciary or Prosecutor elected himself; the proceedings are held in public and the judge is defended by counsel	Different disciplinary courts deal with matters arising in the ordinary courts, the administrative courts, the military courts and the Supreme Court: there are three judges at first instance and seven judges hear appeals	Warning, reprimand, removal from post – whether definitive or merely be way of transfer – removal from office
PORTUGAL	Breach of professional duties, acts or omissions in the capacity of judge which are incompatible with the dignity essential to the exercise of judicial functions (in varying degrees, which determine the sanction)	Provided for in the Statutes of Judges	Supreme Council of the Judiciary; and appeal lies to the Supreme Court	Fine of between 5 days’ and 90 days’ remuneration, transfer, suspension for between 20 days and 240 days, compulsory retirement, removal from office
ROMANIA	Professional misconduct and conduct contrary to the interests of the service or to the prestige of the judicial system (delays in dealing with cases, absence, acting in the judge’s personal interest, interference in the work of judges, breach of secrecy)	Proceedings initiated by the Ministry, investigation carried out by judges of the same rank, defence provided by a judge	Supreme Council of the Judiciary, then at last resort before the Supreme Court	Reprimand, warning, reduction in salary, block on promotion, transfer, suspension, removal from office
SLOVAK REP	Breach of the disciplinary rules laid down in a Law of 2000 or the consequences of a criminal conviction	The Minister of Justice or the President of the Court concerned are competent to initiate proceedings	Disciplinary Courts	Admonition, temporary reduction in salary, suspension, removal from office
SLOVENIA	Very strict cases provided for by the Law on the Judicial Organisation	Proceedings on the initiative of the President of the Court, then application of the ordinary criminal procedure	Disciplinary Court composed of one judge of the Supreme Court as President and four judges representing the different levels of courts	Transfer, suspension of all promotion, reduction in salary, removal from office
SWITZERLAND	Switzerland is not concerned
TURKEY	Failure to carry out duties, misconduct, insulting behaviour in the course of work, absence, delays, time-wasting, bringing the image of justice into disrepute, malfeasance, failure to fulfil administrative and ministerial duties	Depending on the hierarchical level, inspectors appointed by the Minister, who takes the initiative for proceedings, observance of the rights of defence	Supreme Council of the Judges and Prosecutors (which is also competent for appointments and career management)	Warning, reprimand, delay in and block on promotion, withholding of salary, compulsory transfer, dismissal
UKRAINE	Flagrant breach of the law, failure to fulfil duties as judge and those duties which that post imposes in the judge’s private life		Disciplinary Committees	Reprimand or recommendation to the High Council on Justice that the judge be removed from office
UNITED KINGDOM	Particular serious misconduct	On the initiative of the Lord Chancellor and the Lord Chief Justice	By the Queen on address of both Houses of Parliament in the case of the senior judiciary and by the Lord Chancellor in the case of the rest of the judiciary (but in each case, no such steps would be taken without obtaining an independent judicial report and without the concurrence of the Lord Chief Justice)	Removal from office (extremely rare)

The rationales of judicial independence

The level at which judicial independence is guaranteed

Basis of appointment or promotion

Conclusion

A P P E N D I X

Incompatibilities

on

on

the position of the judiciary and its relation with the other powers of state in a modern democracy