(RECOMMENDATION No. R (94) 12 ON THE INDEPENDENCE, EFFICIENCY AND ROLE OF JUDGES AND THE RELEVANCE OF ITS STANDARDS AND ANY OTHER INTERNATIONAL STANDARDS TO CURRENT PROBLEMS IN THESE FIELDS)

1. The Consultative Council of European Judges (CCJE) has drawn up this opinion on the basis of the responses of States to a questionnaire, texts prepared by the Working Party of the CCJE and texts prepared by the Chair and Vice Chair of the CCJE and the specialist of the CCJE on this topic, Mr Giacomo OBERTO (Italy).

2. The material made available to the CCJE includes a number of statements, more or less official, of principles regarding judicial independence.

3. One may cite as particularly important formal examples:

· UN basic principles on the independence of the judiciary (1985),

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

4. Less formal developments have been:

· The European Charter on the Statute for Judges adopted by participants from European countries and two judges’ international associations meeting in Strasbourg on 8-10 July 1998, supported by the meeting of the Presidents of the Supreme Courts of Central and Eastern European countries in Kyiv on 12-14 October 1998, and again by judges and representatives from Ministries of Justice from 25 European countries meeting in Lisbon on 8-10 April 1999,

· Statements by delegates of High Councils of Judges, or judges’ associations, such as those made at a meeting in Warsaw and Slok on 23-26 June 1997.

5. Other material mentioned during the CCJE’s discussions includes:

· Beijing Statement on principles of the independence of the judiciary in the Lawasia Region (August 1997), now signed by 32 Chief Justices of that region,

· The Latimer House Guidelines for the Commonwealth (19 June 1998), the outcome of a colloquium attended by representatives of 23 Commonwealth countries or overseas territories and sponsored by Commonwealth judges and lawyers with support from the Commonwealth Secretariat and the Commonwealth Office.

6. Throughout the CCJE discussions, members of the CCJE emphasised that what is critical is not the perfection of principles and, still less, the harmonisation of institutions; it is the putting into full effect of principles already developed.

7. The CCJE also considered whether improvements or further developments of existing general principles may be appropriate.

8. The purpose of this opinion is to look in greater detail at a number of the topics discussed and to identify the problems or points concerning the independence of judges that would benefit from attention.

9. It is proposed to take the following topic headings:

· The rationale of judicial independence

· The level at which judicial independence is guaranteed

· Basis of appointment or promotion

· The appointing and consultative bodies

· Tenure - period of appointment

· Tenure - irremovability and discipline

· Remuneration

· Freedom from undue external influence

· Independence within the judiciary

· The judicial role

In the course of looking at these topics, the CCJE has sought to identify certain examples of difficulties regarding or threats to independence which came to its attention. Further, it has identified the importance of the principles under discussion to (in particular) the arrangements and practice regarding the appointment and re-appointment of judges to international courts. This topic is dealt with in paragraphs 52, 54-55).

The rationales of judicial independence

10. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. Judges are “charged with the ultimate decision over life, freedoms, rights, duties and property of citizens” (recital to UN basic principles, echoed in Beijing declaration; and Articles 5 and 6 of the European Convention on Human Rights). Their independence is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice.

11. This independence must exist in relation to society generally and in relation to the particular parties to any dispute on which judges have to adjudicate. The judiciary is one of three basic and equal pillars in the modern democratic state[1]. It has an important role and functions in relation to the other two pillars. It ensures that governments and the administration can be held to account for their actions, and, with regard to the legislature, it is involved in ensuring that duly enacted laws are enforced, and, to a greater or lesser extent, in ensuring that they comply with any relevant constitution or higher law (such as that of the European Union). To fulfil its role in these respects, the judiciary must be independent of these bodies, which involves freedom from inappropriate connections with and influence by these bodies[2]. Independence thus serves as the guarantee of impartiality[3]. This has implications, necessarily, for almost every aspect of a judge’s career: from training to appointment and promotion and to disciplining.

12. Judicial independence presupposes total impartiality on the part of judges. When adjudicating between any parties, judges must be impartial, that is free from any connection, inclination or bias, which affects - or may be seen as affecting - their ability to adjudicate independently. In this regard, judicial independence is an elaboration of the fundamental principle that “no man may be judge in his own cause”. This principle also has significance well beyond that affecting the particular parties to any dispute. Not merely the parties to any particular dispute, but society as a whole must be able to trust the judiciary. A judge must thus not merely be free in fact from any inappropriate connection, bias or influence, he or she must also appear to a reasonable observer be free there from. Otherwise, confidence in the independence of the judiciary may be undermined.

13. The rationale of judicial independence, as stated above, provides a key by which to assess its practical implications – that is, the features which are necessary to secure it, and the mean by which it may be secured, at a constitutional or lower legal level[4], as well as in day-to-day practice, in individual states. The focus of this opinion is upon the general institutional framework and guarantees securing judicial independence in society, rather than upon the principle requiring personal impartiality (both in fact and appearance) of the judge in any particular case. Although there is an overlap, it is proposed to address the latter topic in the context of the CCJE’s examination of judicial conduct and standards of behaviour.

The level at which judicial independence is guaranteed

14. The independence of the judiciary should be guaranteed by domestic standards at the highest possible level. Accordingly, States should include the concept of the independence of the judiciary either in their constitutions or among the fundamental principles acknowledged by countries which do not have any written constitution but in which respect for the independence of the judiciary is guaranteed by age-old culture and tradition. This marks the fundamental importance of independence, whilst acknowledging the special position of common law jurisdictions (England and Scotland in particular) with a long tradition of independence, but without written constitutions.

15. The UN basic principles provide for the independence of the judiciary to be “guaranteed by the State and enshrined in the Constitution or the law of the country”. Recommendation No. R (94) 12 specifies (in the first sentence of Principle I.2) that “The independence of judges shall be guaranteed pursuant to the provisions of the [European] Convention [on Human Rights] and constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law”.

16. The European Charter on the statute for judges provides still more specifically: “In each European State, the fundamental principles of the statute for judges are set out in internal norms at highest level, and its rules in norms at least at the legislative level”. This more specific prescription of the European Charter met with the general support of the CCJE. The CCJE recommends its adoption, instead of the less specific provisions of the first sentence of Principle I.2 of Recommendation No. R (94) 12.

Basis of appointment or promotion

17. The UN basic principles state (paragraph 13): “Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience”. Recommendation No. R (94) 12 is also unequivocal: “All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency”. Recommendation No. R (94) 12 makes clear that it is applicable to all persons exercising judicial functions, including those dealing with constitutional, criminal, civil, commercial and administrative law matters (as well as in most respects to lay judges and other persons exercising judicial functions). There is, therefore, general acceptance both that appointments should be made “on the merits” based on “objective criteria” and that political considerations should be inadmissible.

18. The central problems remain (a) of giving content to general aspirations towards “merits-based” appointments and “objectivity” and (b) of aligning theory and reality. The present topic is also closely linked with the next two topics (The appointing body and Tenure).

19. In some countries there is, constitutionally, a direct political input into the appointment of judges. Where judges are elected (either by the people as at the Swiss cantonal level, or by Parliament as at the Swiss federal level, in Slovenia and “the Former Yugoslav Republic of Macedonia” and in the case of the German Federal Constitutional Court and part of the members of the Italian Constitutional Court), the aim is no doubt to give the judiciary in the exercise of its functions a certain direct democratic underpinning. It cannot be to submit the appointment or promotion of judges to narrow party political considerations. Where there is any risk that it is being, or would be used, in such a way, the method may be more dangerous than advantageous.

20. Even where a separate authority exists with responsibility for or in the process of judicial appointment or promotion, political considerations are not, in practice, necessarily excluded. Thus, in Croatia, a High Judiciary Council of 11 members (seven judges, two attorneys and two professors) has responsibility for such appointments, but the Minister of Justice may propose the 11 members to be elected by the House of Representatives of the Croatian Parliament and the High Judiciary Council has to consult with the judiciary committee of the Croatian Parliament, controlled by the party forming the Government for the time being, with regard to any such appointments. Although Article 4 of the amended Croatian Constitution refers to the principle of separation of powers, it also goes on to state that this includes “all forms of mutual co-operation and reciprocal control of power holders”, which certainly does not exclude political influence on judicial appointments or promotion. In Ireland, although there is a judicial appointments commission[5], political considerations may still determine which of rival candidates, all approved by the commission, is or are actually appointed by the Minister of Justice (and the commission has no role in relation to promotions).

21. In other countries, the systems presently in place differ between countries with a career judiciary (most civil law countries) and those where judges are appointed from the ranks of experienced practitioners (e.g. common law countries, like Cyprus, Malta and the UK, and other countries like Denmark).

22. In countries with a career judiciary, the initial appointment of career judges normally depends upon objective success in examination. The important issues seem to be (a) whether competitive examination can suffice - should not personal qualities be assessed and practical skills be taught and examined? (b) whether an authority independent of the executive and legislature should be involved at this stage – in Austria, for example Personal senates (composed of five judges) have a formal role in recommending promotions, but none in relation to appointments.

23. By contrast, where judges are or may be appointed from the ranks of experienced practitioners, examinations are unlikely to be relevant and practical skills and consultation with other persons having direct experience of the candidate are likely to be the basis of appointment.

24. In all the above situations, it is suggested that objective standards are required not merely to exclude political influence, but for other reasons, such as the risk of favouritism, conservatism and cronyism (or “cloning”), which exist if appointments are made in an unstructured way or on the basis of personal recommendations.

25. Any “objective criteria”, seeking to ensure that the selection and career of judges are “based on merit, having regard to qualifications, integrity, ability and efficiency”, are bound to be in general terms. Nonetheless, it is their actual content and effect in any particular state that is ultimately critical. The CCJE recommended that 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”. Once this is done, those bodies or authorities responsible for any appointment or promotion will be obliged to act accordingly, and it will then at least be possible to scrutinize the content of the criteria adopted and their practical effect.

26. The responses to questionnaires indicate a widespread lack of any or any such published criteria. General criteria have been published by the Lord Chancellor in the UK, and the Scottish executive has issued a consultation document. Austrian law defines criteria for promotion. Many countries simply rely on the integrity of independent councils of judges responsible for appointing or recommending appointments, e.g. Cyprus, Estonia. In Finland, the relevant advisory board compares the candidates’ merits and its proposal of any appointment includes the reasons for its decision. Likewise in Iceland, the Selection Committee[6] provides the Minister for Justice with a written appraisal of applicants for district judgeships, while the Supreme Court advises on competence for appointment to the Supreme Court. In Germany, at both federal and Land level, councils for judicial appointments may be responsible for delivering written views (without detailed reasons) on the suitability of candidates for judicial appointment and promotion, which do not bind the Minister of Justice, but which may lead to (sometimes public) criticism if he does not follow them. The giving of reasons might be regarded as a healthy discipline and would be likely to give insight to the criteria being applied in practice, but countervailing considerations may also be thought to militate against the giving of reasons in individual cases (e.g. the sensitivity of the judgment between closely comparable candidates and privacy with regard to sources or information).

27. In Lithuania, although no clear criteria governing promotion exist, the performance of district judges is monitored by a series of quantitative and qualitative criteria based mainly on statistics (including statistics relating to reversals on appeal), and is made the subject of reports to the Courts Department of the Ministry of Justice. The Minister of Justice has only an indirect role in selection and promotion. But the monitoring system has been “strictly criticised” by the Lithuanian Association of Judges. Statistical data have an important social role in understanding and improving the workings and efficiency of courts. But they are not the same as objective standards for evaluation, whether in respect of appointment to a new post or promotion or otherwise. Great caution is required in any use of statistics as an aid in this context.

28. In Luxembourg, promotion is said to be based normally on the seniority principle. In the Netherlands there are still elements of the early seniority system, and in Belgium and Italy objectively defined criteria of seniority and competence determine promotion. In Austria, in relation to the recommendations for promotion made by the Personal senates (composed of five judges) to the Minister of Justice, the position by law is that seniority is considered only in case of equal professional ability of candidates.

29. The European Charter on the statute for judges addresses systems for promotion “when it is not based on seniority” (paragraph 4.1.), and the Explanatory Memorandum notes that this is “a system which the Charter did not in any way exclude because it is deemed to provide very effective protection for independence”. Although adequate experience is a relevant pre-condition to promotion, the CCJE considered that seniority, in the modern world, is no longer generally[7] acceptable as the governing principle determining promotion. The public has a strong interest not just in the independence, but also in the quality of its judiciary, and, especially in times of change, in the quality of the leaders of its judiciary. There is a potential sacrifice in dynamism in a system of promotion based entirely on seniority, which may not be justified by any real gain in independence. The CCJE considered however that seniority requirements based on years of professional experience can assist to support independence.

30. In Italy and to some extent Sweden, the status, function and remuneration of judges have been uncoupled. Remuneration follows, almost automatically, from seniority of experience and does not generally vary according to status or function. Status depends on promotion but does not necessarily involve sitting in any different court. Thus, a judge with appellate status may prefer to continue to sit at first instance. In this way the system aims to increase independence by removing any financial incentive to seek promotion or a different function.

31. The CCJE considered the question of equality between women and men. The Latimer House Guidelines state: “Appointments to all levels of the judiciary should have, as an objective, the achievement of equality between women and men”. In England, the Lord Chancellor’s “guiding principles” provide for appointment strictly on merit “regardless of gender, ethnic origin, marital status, sexual orientation….”, but the Lord Chancellor has made clear his wish to encourage applications for judicial appointment from both women and ethnic minorities. These are both clearly appropriate aims. The Austrian delegate reported that in Austria, where there were two equally qualified candidates, it was specifically provided that the candidate from the under-represented sex should be appointed. Even on the assumption that this limited positive reaction to the problem of under-representation would pose no legal problems, the CCJE identified as practical difficulties, first, that it singles out one area of potential under-representation (gender) and, secondly, that there could be argument about what, in the circumstances of any particular country, constitutes under-representation, for relevant discriminatory reasons, in such an area. The CCJE does not propose a provision like the Austrian as a general international standard, but does underline the need to achieve equality through “guiding principles” like those referred to in the third sentence above.

The appointing and consultative bodies

32. The CCJE noted the large diversity of methods by which judges are appointed. There is evident unanimity that appointments should be “merit-based”.

33. The various methods currently used to select judges can all be seen as having advantages and disadvantages: it may be argued that election confers a more direct democratic legitimacy, but it involves a candidate in a campaign, in politics and in the temptation to buy or give favours. Co-option by the existing judiciary may produce technically qualified candidates, but risks conservatism and cronyism (or “cloning”)[8] – and would be regarded as positively undemocratic in some constitutional thinking. Appointment by the executive or legislature may also be argued to reinforce legitimacy, but carries a risk of dependence on those other powers. Another method involves nomination by an independent body.

34. There is room for concern that the present diversity of approach may tacitly facilitate the continuation of undue political influence over appointments. The CCJE noted the view of the specialist, Mr Oberto, that informal appointment procedures and overtly political influence on judicial appointments in certain States were not helpful models in other, newer democracies, where it was vital to secure judicial independence by the introduction of strictly non-political appointing bodies.

35. The CCJE noted, to take one example of a new democracy, that in the Czech Republic judicial appointments are made by the President of the Republic, on the motion of the Minister of Justice and promotions (i.e. transfer to a higher court or to the position of a presiding or deputy presiding judge) by either the president or the Minister. No Supreme Judiciary Council exists, although judges sit on committees which select candidates for judicial appointment.

36. Recommendation No R (94) 12 presently hedges its position in this area. It starts by assuming an independent appointing body:

“The authority taking the decision on the selection and career of judges should be independent of the government and administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules”.

But it then goes on to contemplate and provide for a quite different system:

“However, where the constitutional or legal provisions and traditions allow judges to be appointed by the government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above.”

The examples which follow of “guarantees” offer even greater scope for relaxation of formal procedures – they start with an special independent body to give advice which the government “follows in practice”, include next “the right to appeal against a decision to an independent authority” and end with the bland (and imprecisely expressed) possibility that it is sufficient if “the authority which makes the decision safeguards against undue and improper influences”.

37. The background to this formulation is found in conditions in 1994. But the CCJE is concerned now about its somewhat vague and open nature in the context of the wider Europe, where constitutional or legal “traditions” are less relevant and formal procedures are a necessity with which it is dangerous to dispense. Therefore, the CCJE considered 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.

38. The CCJE recognised that it may not be possible to go further, in view of the diversity of systems at present accepted in European States. The CCJE is, however, an advisory body, with a mandate to consider both possible changes to existing standards and practices and the development of generally acceptable standards. Further, the European Charter on the statute for judges already goes considerably further than Recommendation No. R (94) 12, by providing as follows:

“In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.”

39. The Explanatory Memorandum explains that the “intervention” of an independent authority was intended in a sense wide enough to cover an opinion, recommendation or proposal as well as an actual decision. The European Charter still goes well beyond current practice in many European States. (Not surprisingly, delegates of High Councils of Judges and judges’ associations meeting in Warsaw on 23-26 June 1997 wanted even fuller judicial “control” over judicial appointments and promotion than advocated by the European Charter.)

40. The responses to questionnaires show that most European States have introduced a body independent of the executive and legislature with an exclusive or lesser role in respect of appointments and (where relevant) promotions; examples are Andorra, Belgium, Cyprus, Denmark, Estonia, Finland, France, Iceland, Ireland, Italy, Lithuania, Moldova, Netherlands, Norway, Poland, Romania, Russia, Slovakia, Slovenia, “the Former Yugoslav Republic of Macedonia” and Turkey.

41. The absence of such a body was felt to be a weakness in the Czech Republic. In Malta such a body exists, but the fact that consultation with it by the appointing authority[9] was optional was felt to be a weakness. In Croatia, the extent of potential political influence over the body was identified as a problem[10].

42. The following systems will serve as three examples of a higher judiciary council meeting the suggestions of the European Charter.

i) Under article 104 of the Italian Constitution, such a council consists of the President of the Republic, the First President and Procurator General of the Court of Cassation, 20 judges elected by the judiciary and 10 members elected by Parliament in joint session from among university professors and lawyers of 15 years standing. Under article 105, its responsibility is “to designate, to recruit and transfer, to promote and to take disciplinary measures in respect of judges, in accordance with the rules of the judicial organisation”.

ii) The Hungarian Reform Laws on Courts of 1997 set up the National Judicial Council exercising the power of court administration including the appointment of judges. The Council is composed of the President of the Supreme Court (President of the Council), nine judges, the Minister of Justice, the Attorney General, the President of the Bar Association and two deputies of Parliament.

iii) In Turkey a Supreme Council selects and promotes both judges and public prosecutors. It consists of seven members including five judges from either the Court of Cassation and the Council of State. The Minister of Justice chairs it and the Undersecretary of the Minister of Justice is also an ex-officio member of the Council.

43. A common law example is provided by Ireland, where the Judicial Appointments Board was established by Courts and Courts Officers Act 1995, section 13 for the purpose of “identifying persons and informing Government of the suitability of those persons for appointment to judicial office”. Its membership of nine persons consists of the Chief Justice, the three Presidents of the High Court, Circuit Court and District Court, the Attorney General, a practicing barrister nominated by the Chairman of the Bar, a practicing solicitor nominated by the Chairman of the Law Society, and up to three persons appointed by the Minister of Justice, engaged in or having knowledge or experience of commerce, finance or administration or with experience as consumers of court services. But it does not exclude all political influence from the process[11].

44. The German model (above) involves councils, whose role may be different depending on whether one is speaking of federal or Land courts and on the level of court. There are councils for judicial appointments whose role is usually purely advisory. In addition, several German Länder provide that judges shall be chosen jointly by the competent Minister and a committee for the selection of judges. This committee usually has a right of veto. It is typically composed of members of parliament, judges elected by their colleagues and a lawyer. The involvement of the Minister of Justice is regarded in Germany as an important democratic element because he is responsible to parliament. It is regarded as constitutionally important that the actual appointing body should not consist of judges alone or have a majority of judges.

45. Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges[12] - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long-entrenched and democratically proved systems.

Tenure - period of appointment

46. The UN basic principles, Recommendation No. R (94) 12 and the European Charter on the statute for judges all refer to the possibility of appointment for a fixed legal term, rather than until a legal retirement age.

47. The European Charter, paragraph 3.3 also refers to recruitment procedures providing “for a trial period, necessarily short, after nomination to the position of judge but before confirmation on a permanent basis”.

48. European practice is generally to make full-time appointments until the legal retirement age. This is the approach least problematic from the viewpoint of independence.

49. Many civil law systems involve periods of training or probation for new judges.

50. Certain countries make some appointments for a limited period of years (e.g. in the case of the German Federal Constitutional Court, for 12 years). Judges are commonly also appointed to international courts (e.g. the European Court of Justice and the European Court of Human Rights) for limited periods.

51. Some countries also make extensive use of deputy judges, whose tenure is limited or less well protected than that of full-time judges (e.g. the UK and Denmark).

52. 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:

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

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

53. The CCJE considered that when tenure is provisional or limited, the body responsible for the objectivity and the transparency of the method of appointment or re-appointment as a full-time judge are of especial importance (see also paragraph 3.3 of the European Charter).

54. The CCJE was conscious that its terms of reference make no specific reference to the position of judges at an international level. The CCJE is borne of a recommendation (no. 23) in the Wise Persons’ Report of 1998, that direct co-operation with national institutions of the judiciary should be reinforced, and Resolution No. 1 adopted thereafter by the Ministers of Justice at their 22^nd Conference meeting in Chisinau on 17-18 June 1999 referred to the CCJE’s role as being to assist in carrying out the priorities identified in the global action plan “for the strengthening of the role of judges in Europe and to advise …. whether it is necessary to update the legal instruments of the Council of Europe ….”. The global action plan is heavily focused on the internal legal systems of member states. But it should not be forgotten that the criteria for Council of Europe membership include “fulfilment of the obligations resulting from the European Convention on Human Rights” and that in this respect “submission to the jurisdiction of the European Court of Human Rights, binding under international law, is clearly the most important standard of the Council of Europe” (Wise Persons’ Report, paragraph 9).

55. The CCJE considered that the ever increasing significance for national legal systems of supranational courts and their decisions made it essential to encourage member States to respect the principles concerning independence, irremovability, appointment and term of office in relation to judges of such supranational courts (see in particular paragraph 52 above).

56. The CCJE agreed that the importance for national legal systems and judges of the obligations resulting from international treaties such as the European Convention 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.

Tenure - irremovability and discipline

57. 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: see the UN basic principles, paragraph 12; Recommendation No. R (94) 12 Principle I(2)(a)(ii) and (3) and Principle VI (1) and (2). The European Charter affirms that this principle extends to appointment or assignment to a different office or location without consent (other than in case of court re-organisation or temporarily), but both it and Recommendation No. R (94) 12 contemplate that transfer to other duties may be ordered by way of disciplinary sanction.

58. The CCJE noted that the Czech Republic has no mandatory retirement age, but “a judge may be recalled by the Minister of Justice from his position after reaching the age of 65”.

59. The existence of exceptions to irremovability, particularly those deriving from disciplinary sanctions, leads immediately to consideration of the body and method by which, and basis upon which, judges may be disciplined. Recommendation No. R (94) 12, Principle VI(2) and (3), insists on the need for precise definition of offences for which a judge may be removed from office and for disciplinary procedures complying with the due process requirements of the Convention on Human Rights. Beyond that it says only that “States should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself”. The European Charter assigns this role to the independent authority which it suggests should “intervene” in all aspects of the selection and career of every judge.

60. The CCJE considered

(a) that the irremovability of judges should be an express element of the independence enshrined at the highest internal level (see paragraph 16 above);

(b) that the intervention of an independent authority[13], with procedures guaranteeing full rights of defence, is of particular importance in matters of discipline; and

(c) that it would be useful to prepare standards defining not just the conduct which may lead to removal from office, but also all conduct which may lead to any disciplinary steps or change of status, including for example a move to a different court or area.

A detailed opinion on this matter containing draft texts for consideration by the CDCJ could be prepared by the CCJE at the later stage when it deals expressly with standards of conduct, although there is no doubt that they have a strong inter-relationship with the present topic of independence.

Remuneration

61. Recommendation No. R (94) 12 provides that judges’ “remuneration should be guaranteed by law” and “commensurate with the dignity of their profession and burden of responsibilities” (Principles I(2)(a)(ii) and III(1)(b)). The European Charter contains an important, hard-headed and realistic recognition of the role of adequate remuneration in shielding “from pressures aimed at influencing their decisions and more generally their behaviour ….”, and of the importance of guaranteed sickness pay and adequate retirement pensions (paragraph 6). The CCJE fully approved the European Charter’s statement.

62. While some systems (e.g. in the Nordic countries) cater for the situation by traditional mechanisms without formal legal provisions, the CCJE considered that it was generally important (and especially so in relation to the new democracies) to make specific legal provision guaranteeing judicial salaries against reduction and to ensure at least de facto provision for salary increases in line with the cost of living.

Freedom from undue external influence

63. Freedom from undue external influence constitutes a well-recognised general principle: see UN basic principles, paragraph 2; Recommendation No. R (94) 12, Principle I(2)(d), which continues: “The law should provide for sanctions against persons seeking to influence judges in any such manner”. As general principles, freedom from undue influence and the need in extreme cases for sanctions are incontrovertible[14]. Further, the CCJE has no reason to think that they are not appropriately provided for as such in the laws of member States. On the other hand, their operation in practice requires care, scrutiny and in some contexts political restraint. Discussions with and the understanding and support of judges from different States could prove valuable in this connection. The difficulty lies rather in deciding what constitutes undue influence, and in striking an appropriate balance between for example the need to protect the judicial process against distortion and pressure, whether from political, press or other sources, and the interests of open discussion of matters of public interest in public life and in a free press. Judges must accept that they are public figures and must not be too susceptible or of too fragile a constitution. The CCJE agreed that no alteration of the existing principle seems required, but that judges in different States could benefit from discussing together and exchanging information about particular situations.

Independence within the judiciary

64. The fundamental point is that a judge is in the performance of his functions no-one’s employees; he or she is holder of a State office. He or she is thus servant of, and answerable only to, the law. It is axiomatic that a judge deciding a case does not act on any order or instruction of a third party inside or outside the judiciary.

65. Recommendation No. R (94) 12, Principle I(2)(a)(i) provides that “decisions of judges should not be the subject of any revision outside the appeals procedures as provided for by law” and Principle I(2)(a)(iv) provides that “with the exception of decisions on amnesty, pardon or similar, the government or the administration should not be able to take any decision which invalidates judicial decisions retroactively”. The CCJE noted that the responses to questionnaires indicated that these principles were generally observed, and no amendment has been suggested.

66. The CCJE noted the potential threat to judicial independence that might arise from an internal judicial hierarchy. It recognised that judicial independence depends not only on freedom from undue external influence, but also freedom from undue influence which might in some situations come from the attitude of other judges. “Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law” (Recommendation No. R (94) 12, Principle I (2)(d). This means judges individually. The terms in which it is couched do not exclude doctrines such as that of precedent in common law countries (i.e. the obligation of a lower judge to follow a previous decision of a higher court on a point of law directly arising in the later case).

67. Principle I (2)(d) continues: “Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary”. This is, on any view, obscure. “Reporting” on the merits of cases, even to other members of the judiciary, appears on the face of it inconsistent with individual independence. If a decision were to be so incompetent as to amount to a disciplinary offence, that might be different, but, in that very remote case, the judge would not be “reporting” at all, but answering a charge.

68. The hierarchical power conferred in many legal systems on superior courts might in practice undermine individual judicial independence. One solution would be to transfer of all relevant powers to a Higher Judicial Council, which would then protect independence inside and outside of the judiciary. This brings one back to the recommendation of the European Charter on the statute for judges, to which attention has already been invited under the heading of The appointing and consultative bodies.

69. Court inspection systems, in the countries where they exist, should not concern themselves with the merits or the correctness of decisions and should not lead judges, on grounds of efficiency, to favour productivity over the proper performance of their role, which is to come to a carefully considered decision in keeping with the interests of those seeking justice[15].

70. The CCJE took note in this connection of the modern Italian system of separation of grade, remuneration and office described in paragraph 30 above. The aim of this system is to reinforce independence and it also means that difficult first instance cases (e.g. in Italy, Mafia cases) may be tried by highly capable judges.

The judicial role

71. This heading could cover a wide field. Much of this field will arise for detailed consideration when the CCJE considers the topic of standards and is better left until then. That applies to individual topics such as membership of a political party and engagement in political activity.

72. An important topic touched on during the CCJE meeting concerns the inter-changeability in some systems of the posts of judge, public prosecutor and official of the Ministry of Justice. In spite of this inter-changeability, the CCJE decided that the consideration of the role, status and duties of public prosecutors in parallel with that of judges lay outside its terms of reference. However, there remains an important question whether such a system is consistent with judicial independence. This is a subject which is no doubt of considerable importance to the legal systems affected. The CCJE considered that it could merit further consideration at a later stage, perhaps in connection with the study of rules of conduct for judges, but that it would require further specialist input.

Conclusions

73. The CCJE considered that the critical matter for member States is to put into full effect principles already developed (paragraph 6) and, after examining the standards contained in particular in Recommendation No. R (94) 12 on the independence, efficiency and role of judges, it concluded as follows:

(1) The fundamental principles of judicial independence should be set out at the constitutional or highest possible legal level in each member State and its more specific rules at the legislative level (paragraph 16).

(2) The authorities responsible in each member State 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 qualification, integrity, ability and efficiency (paragraph 25).

(3) Seniority should not be the governing principle determining promotion. Adequate professional experience is however relevant, and pre-conditions related to years of experience may assist to support independence (paragraph 29).

(4) The CCJE considered that the European Charter on the statute for judges – in so far as it advocated the intervention of an independent authority with substantial judicial representation chosen democratically by other judges – pointed in a general direction which the CCJE wished to commend (paragraph 45).

(5) The CCJE considered that when tenure is provisional or limited, the body responsible for the objectivity and the transparency of the method of appointment or re-appointment as a full-time judge are of especial importance (see also paragraph 3.3 of the European Charter) (paragraph 53).

(6) The CCJE agreed that the importance for national legal systems and judges of the obligations resulting from international treaties such as the European Convention 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 (paragraph 56).

(7) The CCJE considered that the irremovability of judges should be an express element of the independence enshrined at the highest internal level (paragraph 60).

(8) Judges’ remuneration should be commensurate with their role and responsibilities and should provide appropriately for sickness pay and retirement pay. It should be guaranteed by specific legal provision against reduction and there should be provision for increases in line with the cost of living (paragraphs 61-62).

(9) The independence of any individual judge in the performance of his or her functions exists notwithstanding any internal court hierarchy (paragraph 64).

(10) The use of statistical data and the court inspection systems shall not serve to prejudice the independence of judges (paragraphs 27 and 69).

(11) The CCJE considered that it would be useful to prepare additional recommendations or to amend Recommendation No. R (94) 12 in the light of this opinion and the further work to be carried out by the CCJE.

opinion no. 3

of the consultative council of european judges (ccje)

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

on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality

1. The Consultative Council of European Judges (CCJE) drafted this opinion on the basis of replies by the Member States to a questionnaire and texts drawn up by the CCJE Working Party and the specialist of the CCJE on this topic, Mr Denis SALAS (France).

2. The present opinion makes reference to CCJE Opinion No. 1 (2001) (www.coe.int/legalprof, CCJE(2001) 43) on standards concerning the independence of the judiciary and the irremovability of judges, particularly paragraphs 13, 59, 60 and 71.

3. In preparing this opinion, the CCJE took into account a number of other documents, in particular:

- the United Nations "Basic principles on the independence of the judiciary" (1985);

- Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the independence, efficiency and role of judges;

- the European Charter on the Statute for Judges (1998) (DAJ/DOC(98) 23);

- the Code of judicial conduct, the Bangalore draft[17].

4. The present opinion covers two main areas:

- the principles and rules governing judges’ professional conduct, based on determination of ethical principles, which must meet very high standards and may be incorporated in a statement of standards of professional conduct drawn up by the judges themselves (A);

- the principles and procedures governing criminal, civil and disciplinary liability of judges (B).

5. The CCJE questioned, in this context, whether existing rules and principles were in all respects consistent with the independence and impartiality of tribunals required by the European Convention on Human Rights.

6. The CCJE therefore sought to answer the following questions:

- What standards of conduct should apply to judges?

- How should standards of conduct be formulated?

- What if any criminal, civil and disciplinary liability should apply to judges?

7. The CCJE believes that answers to these questions will contribute to the implementation of the framework global action plan for judges in Europe, especially the priorities relating to the rights and responsibilities of judges, professional conduct and ethics (see doc. CCJE (2001) 24, Appendix A, part III B), and refers in this context its conclusions in paragraphs 49, 50, 75, 76 and 77 below.

A. STANDARDS OF JUDICIAL CONDUCT

8. The ethical aspects of judges' conduct need to be discussed for various reasons. The methods used in the settlement of disputes should always inspire confidence. The powers entrusted to judges are strictly linked to the values of justice, truth and freedom. The standards of conduct applying to judges are the corollary of these values and a precondition for confidence in the administration of justice.

9. Confidence in the justice system is all the more important in view of the increasing globalisation of disputes and the wide circulation of judgments. Further, in a State governed by the rule of law, the public is entitled to expect general principles, compatible with the notion of a fair trial and guaranteeing fundamental rights, to be set out. The obligations incumbent on judges have been put in place in order to guarantee their impartiality and the effectiveness of their action.

1°) What standards of conduct should apply to judges?

10. Any analysis of the rules governing the professional demands applicable to judges should include consideration of the underlying principles and the objectives pursued.

11. Whatever methods are used to recruit and train them and however broad their mandate, judges are entrusted with powers and operate in spheres which affect the very fabric of people's lives. A recent research report points out that, of all the public authorities, it is probably the judiciary which has changed the most in the European countries[18]. In recent years, democratic societies have been placing increasing demands on their judicial systems. The increasing pluralism of our societies leads each group to seek recognition or protection which it does not always receive. Whilst the architecture of democracies has been profoundly affected, national variations remain marked. It is a truism that the East European countries that are emerging from authoritarian regimes see law and justice as providing the legitimacy essential for the reconstruction of democracy. There more than elsewhere, the judicial system is asserting itself in relation to other public authorities through its function of judicial supervision.

12. The powers entrusted to judges are subject not only to domestic law, an expression of the will of the nation, but also to the principles of international law and justice as recognised in modern democratic societies.

13. The purpose for which these powers are entrusted to judges is to enable them to administer justice, by applying the law, and ensuring that every person enjoys the rights and/or assets that are legally theirs and of which they have been or may be unfairly deprived.

14. This aim is expressed in Article 6 of the European Convention on Human Rights which, speaking purely from the point of view of users of the judicial system, states that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Far from suggesting that judges are all-powerful, the Convention highlights the safeguards that are in place for persons on trial and sets out the principles on which the judge's duties are founded: independence and impartiality.

15. In recent years, there has been some recognition of the need for increased assurances of judicial independence and impartiality; independent bodies have been set up to protect the judiciary from partisan interference; the significance of the European Convention on Human Rights has been developed and felt through the case-law of the European Court in Strasbourg and national courts.

16. Independence of the judge is an essential principle and is the right of the citizens of each State, including its judges. It has both an institutional and an individual aspect. The modern democratic State should be founded on the separation of powers. Each individual judge should do everything to uphold judicial independence at both the institutional and the individual level. The rationale of such independence has been discussed in detail in the Opinion N° 1 (2001) of the CCJE, paragraphs 10-13. It is, as there stated, inextricably complemented by and the pre-condition of the impartiality of the judge, which is essential to the credibility of the judicial system and the confidence that it should inspire in a democratic society.

17. Article 2 of the "Basic principles on the independence of the judiciary" drawn up by the United Nations in 1985 stipulates that "the judiciary shall decide matters before them impartially, on the basis of 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". Under Article 8, judges "shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary".

18. In its Recommendation N° R (94) 12 on the independence, efficiency and role of judges (Principle I.2.d), the Committee of Ministers of the Council of Europe stated that "judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law".

19. The European Charter on the Statute for Judges indicates that the statute for judges should ensure the impartiality which all members of the public are entitled to expect of the courts (paragraph 1.1). The CCJE fully endorses this provision of the Charter.

20. Impartiality is determined by the European Court both according to a subjective approach, which takes into account the personal conviction or interest of a particular judge in a given case, and according to an objective test, ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect[19].

21. Judges should, in all circumstances, act impartially, to ensure that there can be no legitimate reason for citizens to suspect any partiality. In this regard, impartiality should be apparent in the exercise of both the judge’s judicial functions and his or her other activities.

a. Impartiality and conduct of judges in the exercise of their judicial functions

22. Public confidence in and respect for the judiciary are the guarantees of the effectiveness of the judicial system: the conduct of judges in their professional activities is understandably seen by members of the public as essential to the credibility of the courts.

23. Judges should therefore discharge their duties without any favouritism, display of prejudice or bias. They should not reach their decisions by taking into consideration anything which falls outside the application of the rules of law. As long as they are dealing with a case or could be required to do so, they should not consciously make any observations which could reasonably suggest some degree of pre-judgment of the resolution of the dispute or which could influence the fairness of the proceedings. They should show the consideration due to all persons (parties, witnesses, counsel, for example) with no distinction based on unlawful grounds or incompatible with the appropriate discharge of their functions. They should also ensure that their professional competence is evident in the discharge of their duties.

24. Judges should also discharge their functions with due respect for the principle of equal treatment of parties, by avoiding any bias and any discrimination, maintaining a balance between the parties and ensuring that each receives a fair hearing.

25. The effectiveness of the judicial system also requires judges to have a high degree of professional awareness. They should ensure that they maintain a high degree of professional competence through basic and further training, providing them with the appropriate qualifications.

26. Judges must also fulfil their functions with diligence and reasonable despatch. For this, it is of course necessary that they should be provided with proper facilities, equipment and assistance. So provided, judges should both be mindful of and be able to perform their obligations under Article 6.1 of the European Convention on Human Rights to deliver judgment within a reasonable time.

b. Impartiality and extra-judicial conduct of judges

27. Judges should not be isolated from the society in which they live, since the judicial system can only function properly if judges are in touch with reality. Moreover, as citizens, judges enjoy the fundamental rights and freedoms protected, in particular, by the European Convention on Human Rights (freedom of opinion, religious freedom, etc). They should therefore remain generally free to engage in the extra-professional activities of their choice.

28. However, such activities may jeopardise their impartiality or sometimes even their independence. A reasonable balance therefore needs to be struck between the degree to which judges may be involved in society and the need for them to be and to be seen as independent and impartial in the discharge of their duties. In the last analysis, the question must always be asked whether, in the particular social context and in the eyes of a reasonable, informed observer, the judge has engaged in an activity which could objectively compromise his or her independence or impartiality.

29. Judges should conduct themselves in a respectable way in their private life. In view of the cultural diversity of the member states of the Council of Europe and the constant evolution in moral values, the standards applying to judges’ behaviour in their private lives cannot be laid down too precisely. The CCJE encourages the establishment within the judiciary of one or more bodies or persons having a consultative and advisory role and available to judges whenever they have some uncertainty as to whether a given activity in the private sphere is compatible with their status of judge. The presence of such bodies or persons could encourage discussion within the judiciary on the content and significance of ethical rules. To take just two possibilities, such bodies or persons could be established under the aegis of the Supreme Court or judges’ associations. They should in any event be separate from and pursue different objectives to existing bodies responsible for imposing disciplinary sanctions.

30. Judges' participation in political activities poses some major problems. Of course, judges remain citizens and should be allowed to exercise the political rights enjoyed by all citizens. However, in view of the right to a fair trial and legitimate public expectations, judges should show restraint in the exercise of public political activity. Some States have included this principle in their disciplinary rules and sanction any conduct which conflicts with the obligation of judges to exercise reserve. They have also expressly stated that a judge's duties are incompatible with certain political mandates (in the national parliament, European Parliament or local council), sometimes even prohibiting judges' spouses from taking up such positions.

31. More generally, it is necessary to consider the participation of judges in public debates of a political nature. In order to preserve public confidence in the judicial system, judges should not expose themselves to political attacks that are incompatible with the neutrality required by the judiciary.

32. From reading the replies to the questionnaire, it seems that in some States a restrictive view is taken of judges' involvement in politics.

33. The discussions within the CCJE have shown the need to strike a balance between the judges’ freedom of opinion and expression and the requirement of neutrality. It is therefore necessary for judges, even though their membership of a political party or their participation in public debate on the major problems of society cannot be proscribed, to refrain at least from any political activity liable to compromise their independence or jeopardise the appearance of impartiality.

34. However, judges should be allowed to participate in certain debates concerning national judicial policy. They should be able to be consulted and play an active part in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system. This subject also raises the question of whether judges should be allowed to join trade unions. Under their freedom of expression and opinion, judges may exercise the right to join trade unions (freedom of association), although restrictions may be placed on the right to strike.

35. Working in a different field offers judges an opportunity to broaden their horizons and gives them an awareness of problems in society which supplements the knowledge acquired from the exercise of their profession. In contrast, it entails some not inconsiderable risks: it could be viewed as contrary to the separation of powers, and could also weaken the public view of the independence and impartiality of judges.

36. The question of judges’ involvement in a certain governmental activities, such as service in the private offices of a minister (cabinet ministériel), poses particular problems. There is nothing to prevent a judge from exercising functions in an administrative department of a ministry (for example a civil or criminal legislation department in the Ministry of Justice); however, the matter is more delicate with regard to a judge who becomes part of the staff of a minister’s private office. Ministers are perfectly entitled to appoint whomsoever they wish to work in their private office but, as the minister’s close collaborators, such staff participates to a certain extent in the minister’s political activities. In such circumstances, before a judge enters into service in a minister’s private office, an opinion should ideally be obtained from the independent organ responsible for the appointment of judges, so that this body could set out the rules of conduct applicable in each individual case.

c. Impartiality and other professional activities of judges [20]

37. The specific nature of the judicial function and the need to maintain the dignity of the office and protect judges from all kinds of pressures mean that judges should behave in such a way as to avoid conflicts of interest or abuses of power. This requires judges to refrain from any professional activity that might divert them from their judicial responsibilities or cause them to exercise those responsibilities in a partial manner. In some States, incompatibilities with the function of judge are clearly defined by the judges' statute and members of the judiciary are forbidden from carrying out any professional or paid activity. Exceptions are made for educational, research, scientific, literary or artistic activities.

38. Different countries have dealt with incompatible activities to varying effects (a brief summary is annexed) and by various procedures, though in each case with the general objective of avoiding erecting any insurmountable barrier between judges and society.

39. The CCJE considers that rules of professional conduct should require judges to avoid any activities liable to compromise the dignity of their office and to maintain public confidence in the judicial system by minimising the risk of conflicts of interest. To this end, they should refrain from any supplementary professional activity that would restrict their independence and jeopardise their impartiality. In this context, the CCJE endorses the provision of the European Charter on the Statute for Judges under which judges' freedom to carry out activities outside their judicial mandate "may not be limited except in so far as such outside activities are incompatible with confidence in, or the impartiality or the independence of a judge, or his or her required availability to deal attentively and within a reasonable period with the matters put before him or her" (para. 4.2). The European Charter also recognises the right of judges to join professional organisations and a right of expression (para. 1.7) in order to avoid "excessive rigidity" which might set up barriers between society and the judges themselves (para. 4.3). It is however essential that judges continue to devote the most of their working time to their role as judges, including associated activities, and not be tempted to devote excessive attention to extra-judicial activities. There is obviously a heightened risk of excessive attention being devoted to such activities, if they are permitted for reward. The precise line between what is permitted and not permitted has however to be drawn on a country by country basis, and there is a role here also for such a body or person as recommended in paragraph 29 above.

d. Impartiality and judges’ relations with the media

40. There has been a general trend towards greater media attention focused on judicial matters, especially in the criminal law field, and in particular in certain west European countries. Bearing in mind the links which may be forged between judges and the media, there is a danger that the way judges conduct themselves could be influenced by journalists. The CCJE points out in this connection that in its Opinion No. 1 (2001) it stated that, while the freedom of the press was a pre-eminent principle, the judicial process had to be protected from undue external influence. Accordingly, judges have to show circumspection in their relations with the press and be able to maintain their independence and impartiality, refraining from any personal exploitation of any relations with journalists and any unjustified comments on the cases they are dealing with. The right of the public to information is nevertheless a fundamental principle resulting from Article 10 of the European Convention on Human Rights. It implies that the judge answers the legitimate expectations of the citizens by clearly motivated decisions. Judges should also be free to prepare a summary or communiqué setting up the tenor or clarifying the significance of their judgements for the public. Besides, for the countries where the judges are involved in criminal investigations, it is advisable for them to reconcile the necessary restraint relating to the cases they are dealing with, with the right to information. Only under such conditions can judges freely fulfil their role, without fear of media pressure. The CCJE has noted with interest the practice in force in certain countries of appointing a judge with communication responsibilities or a spokesperson to deal with the press on subjects of interest to the public.

2°) How should standards of conduct be formulated?

41. Continental judicial tradition strongly supports the idea of codification. Several countries have already established codes of conduct in the public sector (police), in regulated professions (solicitors, doctors) and in the private sector (press). Codes of ethics have also recently been introduced for judges, particularly in East European countries, following the example of the United States.

42. The oldest is the Italian "Ethical Code" adopted on 7 May 1994 by the Italian Judges' Association, a professional organisation of the judiciary. The word “code” is inappropriate, since it consists of 14 articles which cover the conduct of judges (including presidents of courts) in its entirety and includes public prosecutors[21]. It is clear that the code does not consist of disciplinary or criminal rules, but is a self-regulatory instrument generated by the judiciary itself. Article 1 sets out the general principle: "In social life, the judge must behave with dignity and propriety and remain attentive to the public interest. Within the framework of his functions and in each professional act he must be inspired by the values of personal disinterest, independence and impartiality".

43. Other countries, such as Estonia, Lithuania, Ukraine, Moldova, Slovenia, the Czech Republic and Slovakia, have a “judicial code of ethics” or “principles of conduct” adopted by representative assemblies of judges and distinct from disciplinary rules.

44. Codes of conduct have some important benefits: firstly, they help judges to resolve questions of professional ethics, giving them autonomy in their decision-making and guaranteeing their independence from other authorities. Secondly, they inform the public about the standards of conduct it is entitled to expect from judges. Thirdly, they contribute to give the public assurance that justice is administrated independently and impartially.

45. However, the CCJE points out that independence and impartiality cannot be protected solely by principles of conduct and that numerous statutory and procedural rules should also play a part. Standards of professional conduct are different from statutory and disciplinary rules. They express the profession’s ability to reflect its function in values matching public expectations by way of counterpart to the powers conferred on it. These are self-regulatory standards which involve recognising that the application of the law is not a mechanical exercise, involves real discretionary power and places judges in a relationship of responsibility to themselves and to citizens.

46. Codes of professional conduct also create a number of problems. For example, they can give the impression that they contain all the rules and that anything not prohibited must be admissible. They tend to oversimplify situations and, finally, they create the impression that standards of conduct are fixed for a certain period of time, whereas in fact they are constantly evolving. The CCJE suggests that it is desirable to prepare and speak of a “statement of standards of professional conduct”, rather than a code.

47. The CCJE considers that the preparation of such statements is to be encouraged in each country, even though they are not the only way of disseminating rules of professional conduct, since:

- appropriate basic and further training should play a part in the preparation and dissemination of rules of professional conduct[22];

- in States where they exist, judicial inspectorates, on the basis of their observations of judges' behaviour, could contribute to the development of ethical thinking; their views could be made known through their annual reports;

- through its decisions, the independent authority described in the European Charter on the Statute for Judges, if it is involved in disciplinary proceedings, outlines judges' duties and obligations; if these decisions were published in an appropriate form, awareness of the values underlying them could be raised more effectively;

- high-level groups, consisting of representatives of different interests involved in the administration of justice, could be set up to consider ethical issues and their conclusions disseminated;

- professional associations should act as forums for the discussion of judges' responsibilities and deontology; they should provide wide dissemination of rules of conduct within judicial circles.

48. The CCJE would like to stress that, in order to provide the necessary protection of judges' independence, any statement of standards of professional conduct should be based on two fundamental principles:

i) firstly, it should address basic principles of professional conduct. It should recognise the general impossibility of compiling complete lists of pre-determined activities which judges are forbidden from pursuing; the principles set out should serve as self-regulatory instruments for judges, i.e. general rules that guide their activities. Further, although there is both an overlap and an interplay, principles of conduct should remain independent of the disciplinary rules applicable to judges in the sense that failure to observe one of such principles should not of itself constitute a disciplinary infringement or a civil or criminal offence;

ii) secondly, principles of professional conduct should be drawn up by the judges themselves. They should be self-regulatory instruments generated by the judiciary itself, enabling the judicial authority to acquire legitimacy by operating within a framework of generally accepted ethical standards. Broad consultation should be organised, possibly under the aegis of a person or body as stated in paragraph 29, which could also be responsible for explaining and interpreting the statement of standards of professional conduct.

3°) Conclusions on the standards of conduct

49. The CCJE is of the opinion that:

i) judges should be guided in their activities by principles of professional conduct,

ii) such principles should offer judges guidelines on how to proceed, thereby enabling them to overcome the difficulties they are faced with as regards their independence and impartiality,

iii) the said principles should be drawn up by the judges themselves and be totally separate from the judges’ disciplinary system,

iv) it is desirable to establish in each country one or more bodies or persons within the judiciary to advise judges confronted with a problem related to professional ethics or compatibility of non judicial activities with their status.

50. As regards the rules of conduct of every judge, the CCJE is of the opinion that:

i) each individual judge should do everything to uphold judicial independence at both the institutional and the individual level,

ii) judges should behave with integrity in office and in their private lives,

iii) they should at all times adopt an approach which both is and appears impartial,

iv) they should discharge their duties without favouritism and without actual or apparent prejudice or bias,

v) their decisions should be reached by taking into account all considerations material to the application of the relevant rules of law, and excluding from account all immaterial considerations,

vi) they should show the consideration due to all persons taking part in the judicial proceedings or affected by these proceedings,

vii) they should discharge their duties with due respect for the equal treatment of parties, by avoiding any bias and any discrimination, maintaining a balance between the parties and ensuring each a fair hearing,

viii) they should show circumspection in their relations with the media, maintain their independence and impartiality by refraining from any personal exploitation of any relations with the media and from making any unjustified comments on the cases they are dealing with,

ix) they should ensure they maintain a high degree of professional competence,

x) they should have a high degree of professional awareness and be subject to an obligation of diligence in order to comply with the requirement to deliver their judgments in a reasonable time,

xi) they should devote the most of their working time to their judicial functions, including associated activities,

xii) they should refrain from any political activity which could compromise their independence and cause detriment to their image of impartiality.

B. CRIMINAL, CIVIL AND DISCIPLINARY LIABILITY OF JUDGES

4°) What criminal, civil and disciplinary liability should apply to judges?

51. The corollary of the powers and the trust conferred by society upon judges is that there should 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. The need for caution in the recognition of any such liability arises from the need to maintain judicial independence and freedom from undue pressure. Against this background, the CCJE considers in turn the topics of criminal, civil and disciplinary liability. In practice, it is the potential disciplinary liability of judges which is most important.

a. Criminal liability

52. Judges who in the conduct of their office commit what would in any circumstances be regarded as crimes (e.g. accept bribes) cannot claim immunity from ordinary criminal process. The answers to questionnaire show that in some countries even well-intentioned judicial failings could constitute crimes. Thus, in Sweden and Austria judges (being assimilated to other public functionaries) can be punished (e.g. by fine) in some cases of gross negligence (e.g. involving putting or keeping someone in prison for too long).

53. Nevertheless, while current practice does not therefore entirely exclude criminal liability on the part of judges for unintentional failings in the exercise of their functions, the CCJE does not regard the introduction of such liability as either generally acceptable or to be encouraged. A judge should not have to operate under the threat of a financial penalty, still less imprisonment, the presence of which may, however sub-consciously, affect his judgment.

54. The vexatious pursuit of criminal proceedings against a judge whom a litigant dislikes has become common in some European states. The CCJE considers that in countries where a criminal investigation or proceedings can be started at the instigation of a private individual, there should be a mechanism for preventing or stopping such investigation or proceedings against a judge relating to the purported performance of his or her office where there is no proper case for suggesting that any criminal liability exists on the part of the judge.

b. Civil liability

55. Similar considerations to those identified in paragraph 53 apply to the imposition on judges personally of civil liability for the consequences of their wrong decisions or for other failings (e.g. excessive delay). As a general principle, judges personally should enjoy absolute freedom from liability in respect of claims made directly against them relating to their exercise in good faith of their functions. Judicial errors, whether in respect of jurisdiction or procedure, in ascertaining or applying the law or in evaluating evidence, should be dealt with by an appeal; other judicial failings which cannot be rectified in this way (including e.g. excessive delay) should, at most, lead to a claim by the dissatisfied litigant against the State. That the state may, in some circumstances, be liable under the European Convention of Human Rights, to compensate a litigant, is a different matter, with which this opinion is not directly concerned.

56. There are however European countries, in which judges may incur civil liability for grossly, wrong decisions or other gross failings^{^[23]}, particularly at the instance of the state, after the dissatisfied litigant has established a right to compensation against the state. Thus, for example, in the Czech Republic the state may be held liable for damages caused by a judge’s illegal decision or incorrect judicial action, but may claim recourse from the judge if and after the judge’s misconduct has been established in criminal or disciplinary proceedings. In Italy, the state may, under certain conditions, claim to be reimbursed by a judge who has rendered it liable by either wilful deceit or “gross negligence”, subject in the latter case to a potential limitation of liability.

57. The European Charter on the statute for judges contemplates the possibility of recourse proceedings of this nature in paragraph 5.2 of its text - with the safeguard that prior agreement should obtained from an independent authority with substantial judicial representation, such as that commended in paragraph 43 of the CCJE’s opinion no. 1 (2001). The commentary to the Charter emphasises in its paragraph 5.2 the need to restrict judges’ civil liability to (a) reimbursing the state for (b) “gross and inexcusable negligence” by way of (c) legal proceedings (d) requiring the prior agreement of such an independent authority. The CCJE endorses all these points, and goes further. The application of concepts such as gross or inexcusable negligence is often difficult. If there was any potential for a recourse action by the state, the judge would be bound to have to become closely concerned at the stage when a claim was made against the state. The CCJE’s conclusion is that it is not appropriate for a judge to be exposed, in respect of the purported exercise of judicial functions, to any personal liability, even by way of reimbursement of the state, except in a case of wilful default.

c. Disciplinary liability

58. All legal systems need some form of disciplinary system, although it is evident from the answers given by different member states to the questionnaires that the need is much more directly felt in some, as opposed to other, member states. There is in this connection a basic distinction between common-law countries, with smaller professional judiciaries appointed from the ranks of experienced practitioners, and civil law countries with larger and on average younger, career judiciaries.

59. The questions which arise are:

i) What conduct is it that should render a judge liable to disciplinary proceedings?

ii) By whom and how should such proceedings be initiated?

iii) By whom and how should they be determined?

iv) What sanctions should be available for misconduct established in disciplinary proceedings?

60. As to question (i), the first point which the CCJE identifies (repeating in substance a point made earlier in this opinion) is that it is incorrect to correlate breaches of proper professional standards with misconduct giving rise potentially to disciplinary sanctions. Professional standards, which have been the subject of the first part of this opinion, represent best practice, which all judges should aim to develop and towards which all judges should aspire. It would discourage the future development of such standards and misunderstand their purpose to equate them with misconduct justifying disciplinary proceedings. In order to justify disciplinary proceedings, misconduct must be serious and flagrant, in a way which cannot be posited simply because there has been a failure to observe professional standards set out in guidelines such as those discussed in the first part of this opinion^{.^[24]}

61. This is not to say that breach of the professional standards identified in this opinion may not be of considerable relevance, where it is alleged that there has been misconduct sufficient to justify and require disciplinary sanction. Some of the answers to questionnaires recognise this explicitly: for example, professional standards are described as having "a certain authority" in disciplinary proceedings in Lithuania and as constituting a way "of helping the judge hearing disciplinary proceedings by illuminating the provisions of the law on judges" in Estonia. They have also been used in disciplinary proceedings in Moldova. (On the other hand, the Ukrainian and Slovakian answers deny that there is any relationship between the two).

62. In some countries, separate systems have even been established to try to regulate or enforce professional standards. In Slovenia, failure to observe such standards may attract a sanction before a "Court of Honour" within the Judges' Association, and not before the judges' disciplinary body. In the Czech Republic, in a particularly serious situation of non-observance of the rules of professional conduct, a judge may be excluded from the "Judges’ Union", which is the source of these principles.

63. The second point which the CCJE identifies is that it is for each State to specify by law what conduct may give rise to disciplinary action. The CCJE notes that in some countries attempts have been made to specify in detail all conduct that might give grounds for disciplinary proceedings leading to some form of sanction. Thus, the Turkish law on Judges and Prosecutors specifies gradations of offence (including for example staying away from work without excuse for various lengths of period) with matching gradations of sanction, ranging from a warning, through condemnation [i.e. reprimand], various effects on promotion to transfer and finally dismissal. Similarly, a recent 2002 law in Slovenia seeks to give effect to the general principle nulla poena sine lege by specifying 27 categories of disciplinary offence. It is, however, very noticeable in all such attempts that, ultimately, they all resort to general “catch-all” formulations which raise questions of judgment and degree. The CCJE does not itself consider that it is necessary (either by virtue of the principle nulla poena sine lege or on any other basis) or even possible to seek to specify in precise or detailed terms at a European level the nature of all misconduct that could lead to disciplinary proceedings and sanctions. The essence of disciplinary proceedings lies in conduct fundamentally contrary to that to be expected of a professional in the position of the person who has allegedly misconducted him or herself.

64. At first sight, Principle VI.2 of Recommendation No. R (94) 12 might be thought to suggest that precise grounds for disciplinary proceedings should always “be defined” in advance “in precise terms by the law”. The CCJE fully accepts that precise reasons must be given for any disciplinary action, as and when it is proposed to be or is brought. But, as it has said, it does not conceive it to be necessary or even possible at the European level to seek to define all such potential reasons in advance in other terms than the general formulations currently adopted in most European countries. In that respect therefore, the CCJE has concluded that the aim stated in pragraph 60 c) of its Opinion No. 1 (2001) cannot be pursued at a European level.

65. Further definition by individual member States by law of the precise reasons for disciplinary action as recommended by Recommended No. R (94) 12 appears, however, to be desirable. At present, the grounds for disciplinary action are usually stated in terms of great generality.

66. The CCJE next considers question (ii): by whom and how should disciplinary proceedings be initiated? Disciplinary proceedings are in some countries brought by the Ministry of Justice, in others they are instigated by or in conjunction with certain judges or councils of judges or prosecutors, such as the First President of the Court of Appeal in France or the General Public Prosecutor in Italy. In England, the initiator is the Lord Chancellor, but he has agreed only to initiate disciplinary action with the concurrence of the Lord Chief Justice.

67. An important question is what if any steps can be taken by persons alleging that they have suffered by reason of a judge's professional error. Such persons must have the right to bring any complaint they have to the person or body responsible for initiating disciplinary action. But they cannot have a right themselves to initiate or insist upon disciplinary action. There must be a filter, or judges could often find themselves facing disciplinary proceedings, brought at the instance of disappointed litigants.

68. The CCJE considers that the procedures leading to the initiation of disciplinary action need greater formalisation. It proposes that countries should envisage introducing a specific body or person in each country with responsibility for receiving complaints, for obtaining the representations of the judge concerned upon them and for deciding in their light whether or not there is a sufficient case against the judge to call for the initiation of disciplinary action, in which case it would pass the matter to the disciplinary authority.

69. The next question (iii) is: by whom and how should disciplinary proceedings be determined? A whole section of the United Nations Basic Principles is devoted to discipline, suspension and removal. Article 17 recognises judges' "right to a fair hearing". Under Article 19, "all disciplinary (…) proceedings shall be determined in accordance with established standards of judicial conduct". Finally, Article 20 sets out the principle that "decisions in disciplinary, suspension or removal proceedings should be subject to an independent review". At the European level, guidance is provided in Principle VI of Recommendation No. R (94) 12, which recommends that disciplinary measures should be dealt with by "a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself" and that judges should in this connection benefit, at the least, by protections equivalent to those afforded under Article 6.1 of the Convention on Human Rights. Further, the CCJE emphasises in this context that disciplinary measures include any measures adversely affecting a judge’s status or career, including transfer of court, loss of promotion rights or pay.

70. The replies to the questionnaire show that, in some countries, discipline is ensured by courts specialising in cases of this type: the disciplinary committee of the Supreme Court (Estonia, Slovenia - where each level is represented). In Ukraine, there is a committee including judges of the same level of jurisdiction as the judge concerned. In Slovakia, there are now two tiers of committee, one of three judges, the second of five Supreme Court judges. In Lithuania, there is a committee of judges from the various tiers of general jurisdiction and administrative courts. In some countries, judgment is given by a Judicial Council, sitting as a disciplinary court (Moldova, France, and Portugal).[25]

71. The CCJE has already expressed the view that disciplinary proceedings against any judge should only be determined by an independent authority (or “tribunal”) operating procedures which guarantee full rights of defence - see para. 60(b) of CCJE Opinion No. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges. It also considers that the body responsible for appointing such a tribunal can and should be the independent body (with substantial judicial representation chosen democratically by other judges) which, as the CCJE advocated in paragraph 46 of its first Opinion, should generally be responsible for appointing judges. That in no way excludes the inclusion in the membership of a disciplinary tribunal of persons other than judges (thus averting the risk of corporatism), always provided that such other persons are not members of the legislature, government or administration.

72. In some countries, the initial disciplinary body is the highest judicial body (the Supreme Court). The CCJE considers that the arrangements regarding disciplinary proceedings in each country should be such as to allow an appeal from the initial disciplinary body (whether that is itself an authority, tribunal or court) to a court.

73. The final question (iv) is: what sanctions should be available for misconduct established in disciplinary proceedings? The answers to questionnaire reveal wide differences, no doubt reflecting the different legal systems and exigencies. In common law systems, with small, homogeneous judiciaries composed of senior and experienced practitioners, the only formal sanction evidently found to be necessary (and then only as a remote back-up possibility) is the extreme measure of removal, but informal warnings or contact can prove very effective. In other countries, with larger, much more disparate and in some cases less experienced judiciaries, a gradation of formally expressed sanctions is found appropriate, sometimes even including financial penalties.

74. The European Charter on the Statute for Judges (Article 5.1) states that "the scale of sanctions which may be imposed is set out in the statute and must be subject to the principle of proportionality". Some examples of possible sanctions appear in Recommendation No. R (94) 12 (Principle VI.1). The CCJE endorses the need for each jurisdiction to identify the sanctions permissible under its own disciplinary system, and for such sanctions to be, both in principle and in application, proportionate. But it does not consider that any definitive list can or should be attempted at the European level.

5°) Conclusions on liability

75. As regards criminal liability, the CCJE considers that:

i) judges should be criminally liable in ordinary law for offences committed outside their judicial office;

ii) criminal liability should not be imposed on judges for unintentional failings in the exercise of their functions.

76. As regards civil liability, the CCJE considers that, bearing in mind the principle of independence:

i) the remedy for judicial errors (whether in respect of jurisdiction, substance or procedure) should lie in an appropriate system of appeals (whether with or without permission of the court);

ii) any remedy for other failings in the administration of justice (including for example excessive delay) lies only against the state;

iii) it is not appropriate for a judge to be exposed, in respect of the purported exercise of judicial functions, to any personal liability, even by way of reimbursement of the state, except in a case of wilful default.

77. As regards disciplinary liability, the CCJE considers that:

i) in each country the statute or fundamental charter applicable to judges should define, as far as possible in specific terms, the failings that may give rise to disciplinary sanctions as well as the procedures to be followed;

ii) as regard the institution of disciplinary proceedings, countries should envisage introducing a specific body or person with responsibility for receiving complaints, for obtaining the representations of the judge and for considering in their light whether or not there is a sufficient case against the judge to call for the initiation of such proceedings;

iii) any disciplinary proceedings initiated should be determined by an independent authority or tribunal, operating a procedure guaranteeing full rights of defence;

iv) when such authority or tribunal is not itself a court, then its members should be appointed by the independent authority (with substantial judicial representation chosen democratically by other judges) advocated by the CCJE in paragraph 46 of its Opinion N° 1 (2001);

v) the arrangements regarding disciplinary proceedings in each country should be such as to allow an appeal from the initial disciplinary body (whether that is itself an authority, tribunal or court) to a court;

vi) the sanctions available to such authority in a case of a proven misconduct should be defined, as far as possible in specific terms, by the statute or fundamental charter of judges, and should be applied in a proportionate manner.

	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)

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. 7 (2005)

of the consultative council of european judges (ccje)

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

“justice and society”

INTRODUCTION

1. For 2005 the Consultative Council of European Judges (CCJE) was given the task[44] of adopting an opinion on "Justice and Society" for the attention of the Committee of Ministers of the Council of Europe.

2. In this regard, the CCJE considered the following points which appear in the Framework Global Action Plan for Judges in Europe:

q relations with the public, the educational role of the courts in a democracy (see Part V b of the Action Plan),

q relations with all those involved in court proceedings (see Part V c of the Action Plan);

q accessibility, simplification and clarity of the language used by the court in proceedings and decisions (see Part V d of the Action Plan).

3. The preparatory work was carried out on the basis of:

- consideration of the acquis of the Council of Europe as well as of the results of the 5^th meeting of the Presidents of European Supreme Courts on “The Supreme Court: publicity, visibility and transparency” (Ljubljana, 6-8 October 1999), the Conference of the Presidents of the Associations of Judges on “Justice and society” (Vilnius, 13-14 December 1999) and the European Ministerial Conference on Mass Media Policy (Kyiv, Ukraine, 10-11 March 2005);

- replies by delegations to a questionnaire (with an explanatory note) prepared by the Vice Chair of the CCJE and submitted to the CCJE plenary meeting which took place in Strasbourg on 22-24 November 2004;

- a report prepared by the specialist of the CCJE on this topic, Mr Eric COTTIER (Switzerland);

- the contributions of participants in the 2^nd European Conference of Judges on the theme of "Justice and the Media", organised by the Council of Europe within the framework of the Polish Chairmanship of the Committee of Ministers on the initiative of the CCJE in co-operation with the Polish National Council of the Judiciary and with the support of the Polish Ministry of Justice (Cracow, Poland, 25-26 April 2005)[45];

- a draft opinion prepared by the Working Party of the CCJE (CCJE-GT) in 2005.

4. In preparing this Opinion, the CCJE also considered the “Warsaw Declaration”, issued by the Third Summit of Heads of State and government of the Council of Europe, held in Warsaw on 16-17 May 2005, whereby the Summit reaffirmed the commitment “to strengthening the rule of law throughout the continent, building on the standard setting potential of the Council of Europe”. In this framework, the Heads of State and government stressed “the role of an independent and efficient judiciary in the member States”.

5. This Opinion concerns (A) the relations of the courts with the public, with special reference to the role of the courts in a democracy, (B) the relations of the courts with those involved in court proceedings, (C) the relations of the courts with the media, and (D) accessibility, simplification and clarity of the language used by the courts in proceedings and decisions.

A. THE RELATIONS OF THE COURTS WITH THE PUBLIC WITH SPECIAL REFERENCE TO THE ROLE OF THE COURTS IN A DEMOCRACY

6. The development of democracy in European states means that the citizens should receive appropriate information on the organisation of public authorities and the conditions in which the laws are drafted. Furthermore, it is just as important for citizens to know how judicial institutions function.

7. Justice is an essential component of democratic societies. It aims to resolve disputes concerning parties and, by the decisions which it delivers, to fulfil both a “normative” and an “educative” role, providing citizens with relevant guidance, information and assurance as to the law and to its practical application[46].

8. Courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; the public at large have respect for and confidence in the courts' capacity to fulfil that function^{^[47]}. However, the understanding of the role of the judiciary in democracies - especially, the understanding that the judge's duty is to apply the law in a fair and even-handed manner, with no regard to contingent social or political pressures – varies considerably in different countries and socio-economic settings in Europe. The levels of confidence in the courts' activity are consequently not uniform[48]. Adequate information about the functions of the judiciary and its role, in full independence from other state powers, can therefore effectively contribute toward an increased understanding of the courts as the cornerstone of democratic constitutional systems, as well as of the limits of their activity.

9. Most citizens' experience of their court system is limited to any participation they might have had as litigants, witnesses, or jurors. The role of the media is essential in broadcasting information to the public on the role and the activities of the courts (see section C below); but, aside from communication through the media, the CCJE's discussions have highlighted the importance of creating direct relations between the courts and the public at large. Integrating justice into society requires the judicial system to open up and learn to make itself known. The idea is not to turn the courts into a media circus but to contribute to the transparency of the judicial process. Admittedly, full transparency is impossible, particularly on account of the need to protect the effectiveness of investigations and the interests of the persons involved, but an understanding of how the judicial system works is undoubtedly of educational value and should help to boost public confidence in the functioning of the courts.

10. The first way to make judicial institutions more accessible is to introduce general measures to inform the public about courts’ activities.

11. In this connection, the CCJE would refer to its recommendations in Opinion No. 6 (2004) regarding the educative work of courts and the need to organise visits for schoolchildren and students or any other group with an interest in judicial activities. This does not alter the fact that it is also the state’s important duty to provide everyone, while at school or university, with civic instruction in which a significant amount of attention is given to the justice system.

12. This form of communication is more effective if those who work in the system are directly involved. Relevant school and university education programmes (not confined to law faculties) should include a description of the judicial system (including classroom appearances by judges), visits to courts, and active teaching of judicial procedures (role playing, attending hearings, etc.)[49]. Courts and associations of judges can in this respect co-operate with schools, universities, and other educational agencies, making the judge's specific insight available in teaching programmes and public debate.

13. The CCJE has already stated in general terms that courts themselves should participate in disseminating information concerning access to justice (by way of periodic reports, printed citizen's guides, Internet facilities, information offices, etc.) ; the CCJE has also already recommended the developing of educational programmes aiming at providing specific information (e.g., as to the nature of proceedings available; average length of proceedings in the various courts; court costs; alternative means of settling disputes offered to parties; landmark decisions delivered by the courts) (see paragraphs 12-15 of the CCJE's Opinion No. 6 (2004)).

14. Courts should take part in general framework programmes arranged by other state institutions (Ministries of Justice and Education, Universities, etc.). But, in the CCJE’s opinion, courts should also take their own initiatives in this respect.

15. Whereas relations with individual justice users have traditionally been dealt with by the courts, albeit in an unstructured way, courts have been reluctant in the past to have direct relations with the members of the general public who are not involved in proceedings. Publicity of hearings in the sense enshrined in Art. 6 of the European Convention on Human Rights (ECHR) has been traditionally viewed as the only contact between courts and the general public, making the mass media the sole interlocutors for courts. Such an attitude is rapidly changing. The duties of impartiality and discretion which are the responsibility of judges are not to be considered today as an obstacle to courts playing an active role in informing the public, since this role is a genuine guarantee of judicial independence. The CCJE considers that member states should encourage the judiciaries to take such an active role along these lines, by widening and improving the scope of their “educative role" as described in paragraphs 9-12 above. This is no longer to be limited to delivering decisions; courts should act as “communicators” and “facilitators”. The CCJE considers that, while courts have to date simply agreed to participate in educational programmes when invited, it is now necessary that courts also become promoters of such programmes.

16. The CCJE considered direct initiatives of the courts with the public, not depending on the activity of the media and/or actions for which other institutions are responsible. The following measures were considered and recommended:

- creation of offices in courts in charge of reception and information services;

- distribution of printed materials, opening of Internet sites under the responsibility of courts;

- organisation by courts of a calendar of educational fora and/or regular meetings open in particular to citizens, public interest organisations, policy makers, students ("outreach programmes").

17. A specific discussion was devoted by the CCJE to these "outreach programmes". The CCJE notes with interest that in some countries courts have been known to organise, often with the support of other social actors, educational initiatives that bring teachers, students, parents, lawyers, community leaders and the media into the courts to interact with judges and the justice system. Such programmes usually incorporate the use of professionals with prepared resources and provide a network for teachers’ professional development.

18. Some actions are tailored for individuals who, because of their socio-economical and cultural conditions, are not completely aware of their rights and obligations, so that they do not exert their rights or, worse still, find themselves involved in legal proceedings due to not carrying out their obligations. The image of justice in the neediest social groups is therefore dealt with through programmes that are closely linked to arrangements for "access to justice", including but not limited to legal aid, public information services, free legal counsel, direct access to the judge for small claims, etc. (see section A of the CCJE's Opinion No. 6 (2004)).

19. The CCJE recommends a general support from the European judiciaries and the states, at the national and international levels, for judicial "outreach programmes" as described above; they should become a common practice. The CCJE considers that such programmes go beyond the scope of general information to the public. They aim at shaping a correct perception of the judge's role in society. In this context, the CCJE considers that – while it is for the Ministries of Justice and Education to provide for general information on the functioning of justice and to define school and university teaching syllabi - courts themselves, in conformity with the principle of judicial independence, should be recognised as a proper agency to establish "outreach programmes" and to hold regular initiatives consisting in conducting surveys, arranging focus groups, employing lawyers and academics for public fora, etc. In fact, such programmes have the goal of improving the understanding and confidence of society with regard to its system of justice and, more generally, of strengthening judicial independence.

20. In the CCJE's opinion, in order to develop the above programmes judges should be given the opportunity to receive specific training as to relations with the public. Courts should also have the possibility to employ staff specifically in charge of liaising with educational agencies (public relations offices, as mentioned above, could also be given this task).

21. It seems to the CCJE that a role co-ordinating the various local initiatives, as well as promoting nation-wide "outreach programmes", should be given to the independent body mentioned in paragraphs 37 and 45 of its Opinion No. 1 (2001). This independent body may also, by incorporating the use of professionals with prepared resources, satisfy more sophisticated information needs issuing from policy makers, academics, public interest groups.

22. The CCJE has already advised that appropriate funding, not subject to political fluctuations, should be provided for judicial activities and that judicial bodies should be involved in decisions concerning budget allocations by legislatures, e.g. through a co-ordination role of the above mentioned independent body (see Opinion No. 2 (2001), paragraphs 5, 10 and 11). The CCJE recommends that adequate funding should also be provided for activities explaining and making transparent the judicial system and the principles of justice in society by the court system itself, according to the principles stated in its Opinion No. 2 (2001). Expenses related to "outreach programmes" should be covered by a special budget item, so that they are not charged to the operating budget of courts.

23. The CCJE's discussions showed that, in order to effectively shape a correct perception of justice in society, similar principles, as developed for judges, may apply for public prosecutors. Bearing in mind the acquis of the Council of Europe concerning public prosecutors[50], it seems important to the CCJE that public prosecutors, with regard to the part of the proceedings falling within their jurisdiction, should contribute to the supply of information to the public.

B. THE RELATIONS OF THE COURTS WITH PARTICIPANTS IN COURT PROCEEDINGS

24. The image that the public has of the justice system is influenced by the media, but is also very much shaped by the impressions gleaned by citizens who participate in trials as parties, jurors or witnesses.

25. Such impressions will be negative if the justice system, through its actors (judges, public prosecutors, court officials), appears biased or inefficient in any way. Negative perceptions of this kind will easily spread.

26. The CCJE has dealt in previous Opinions (especially Opinions No. 1 (2001), No. 3 (2002) and No. 6 (2004)) with the need for judges to maintain (in fact and in appearance) strict impartiality and for courts to achieve a just resolution of disputes within a reasonable time. The present Opinion is concerned with the avoidance or correction of ignorance and misapprehensions about the justice system and its operation.

27. The CCJE considers that, in order to foster better understanding of the role of the judiciary, an effort is required to ensure in so far as possible that the ideas that the public has about the justice system are accurate and reflect the efforts made by judges and court officials to gain their respect and trust concerning courts’ ability to perform their function. This action will have to show clearly the limits of what the justice system can do.

28. To improve their relations with the public, a number of justice systems or individual courts have set up programmes which help to shape: (a) the ethical training of judges, court staff, lawyers, etc; (b) court facilities; (c) judicial proceedings.

a) ethical training of judges, court staff, lawyers, etc

29. Some training programmes are intended to ensure that courts are seen, under all aspects of their behaviour, to be treating all parties in the same way, i.e. impartially and without any discrimination based on race, sex, religion, ethnic origin or social status. Judges and court staff are trained to recognise situations in which individuals may feel that a biased approach is, or seems to be, being taken, and to deal with such situations in a way that enhances confidence in and respect for the courts. Lawyers organise and are given special ethical training to prevent them from contributing, whether intentionally or not, to mistrust of the justice system.

b) court facilities

30. Some programmes tackle the causes of potential mistrust vis-à-vis the courts that lie in their internal organisation. For instance, moving the public prosecutor’s chair away from the bench and placing it at the same level as the defence will reinforce the impression of equality of arms which a court is supposed to convey. Likewise, the removal from court premises of any visual allusion, for example to a specific religion or political authority, may help to dispel fears of unwarranted bias or a lack of independence of judges. Allowing the accused to appear without handcuffs in court even if he or she has been detained pending trial – save in cases where there is a security risk – and replacing enclosures in courtrooms with other security measures can help to give a clearer impression that the presumption of innocence which defendants enjoy is effectively guaranteed by the courts. A mention should also be made of the benefits, in terms of improving courts’ transparency, of setting up court reception services to provide the users of judicial services with information about the conduct of proceedings or the progress made in a particular case, to help users with formalities and, if the layout of the buildings so requires, to accompany them to the office or the courtroom they are looking for.

c) judicial proceedings

31. Some measures are intended to do away with those parts of the proceedings which may cause offence (compulsory religious references in oaths, forms of address, etc.). Others are intended to introduce procedures which ensure for example that, before appearing in court, parties, jurors or witnesses are received, on their own or in group, by court staff who describe to them, either orally or using audiovisual material produced in collaboration with social scientists, what their court experience is expected to be like. The aim of these presentations is to dispel any misconceptions about what actually happens in courts.

32. The CCJE supports all the steps described in paragraphs 29, 30 and 31 where they strengthen the public perception of impartiality of judges and enable justice to be carried out properly.

C. THE RELATION OF THE COURTS WITH THE MEDIA

33. The media have access to judicial information and hearings, according to modalities and with limitations of established by national laws (see, e.g. Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings). Media professionals are entirely free to decide what stories should be brought to the public’s attention and how they are to be treated. There should be no attempt to prevent the media from criticising the organisation or the functioning of the justice system. The justice system should accept the role of the media which, as outside observers, can highlight shortcomings and make a constructive contribution to improving courts’ methods and the quality of the services they offer to users.

34. Judges express themselves above all through their decisions and should not explain them in the press or more generally make public statements in the press on cases of which they are in charge. Nevertheless it would be useful to improve contacts between the courts and the media:

i) to strengthen understanding of their respective roles;

ii) to inform the public of the nature, the scope, the limitations and the complexities of judicial work;

iii) to rectify possible factual errors in reports on certain cases.

35. Judges should have a supervisory role over court spokespersons or staff responsible for communicating with the media.

36. The CCJE would refer to the conclusions of the 2^nd European Conference of Judges (see paragraph 3 above) in which the Council of Europe was asked both to facilitate the holding of regular meetings between representatives of the judiciary and the media and to consider drafting a European declaration on relations between justice and the media complementing Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings.

37. States should encourage exchanges, in particular by round tables, on the rules and practices of each profession, in order to highlight and explain the problems they face. The CCJE considers that the Council of Europe could usefully establish or promote such contacts at European level, so as to bring about greater consistency in European attitudes.

38. Schools of journalism should be encouraged to set up courses on judicial institutions and procedures.

39. The CCJE considers that each profession (judges and journalists) should draw up a code of practice on its relations with representatives of the other profession and on the reporting of court cases. As the experience of states which already have such a system shows, the judiciary would define the conditions in which statements may be made to the media concerning court cases, while journalists would produce their own guidelines on reporting of current cases, on the publicising of the names (or pictures) of persons involved in litigation (parties, victims, witnesses, public prosecutor, investigating judge, trial judge, etc.), and on the reporting of judgments in cases which attracted major public interest. In conformity with its Opinion No. 3 (2002), paragraph 40, the CCJE recommends that national judiciaries take steps along these lines.

40. The CCJE recommends that an efficient mechanism, which could take the form of an independent body, be set up to deal with problems caused by media accounts of a court case, or difficulties encountered by a journalist in the accomplishment of his/her information task. This mechanism would make general recommendations intended to prevent the recurrence of any problems observed.

41. It is also necessary to encourage the setting up of reception and information services in courts, not only, as mentioned above, to welcome the public and assist users of judicial services, but also to help the media to get to understand the workings of the justice system better.

42. These services, over which judges should have a supervisory role, could pursue the following aims:

- to communicate summaries of court decisions to the media;

- to provide the media with factual information about court decisions;

- to liaise with the media in relation to hearings in cases of particular public interest.

- to provide factual clarification or correction with regard to cases reported in the media (see also paragraph 34, iii above). The court reception services or spokesperson[51] could alert the media to the issues involved and the legal difficulties raised in the case in question, organise the logistics of the hearings and make the appropriate practical arrangements, particularly with a view to protecting the people taking part as parties, jurors or witnesses.

43. All information provided to the media by the courts should be communicated in a transparent and non-discriminatory manner.

44. The question of whether TV cameras should be allowed into courtrooms for other than purely procedural purposes has been the subject of wide-ranging discussions, both at the 2^nd Conference of European Judges (see paragraph 3 above) and at meetings of the CCJE. Some members of the CCJE have expressed serious reservations about this new form of public exposure of the work of the courts.

45. The public nature of court hearings is one of the fundamental procedural guarantees in democratic societies. While international law and national legislation allow exceptions to the principle that judicial proceedings should be conducted in public, it is important that these exceptions should be restricted to those permitted under article 6.1. of the ECHR.

46. The principle of public proceedings implies that citizens and media professionals should be allowed access to the courtrooms in which trials take place, but the latest audiovisual reporting equipment gives the events related such a broad impact that they entirely transform the notion of public hearings. This may have advantages in terms of raising public awareness of how judicial proceedings are conducted and improving the image of the justice system, but there is also a risk that the presence of TV cameras in court may disturb the proceedings and alter the behaviour of those involved in the trial (judges, prosecutors, lawyers, parties, witnesses, etc.).

47. Where television recording of judicial hearings occurs, fixed cameras should be used and it should be possible for the presiding judge both to decide on filming conditions and to interrupt filming broadcasting at any time. These and any other necessary measures should protect the rights of the persons involved and ensure that the hearing is properly conducted.

48. The opinion of the persons involved in the proceedings should also be taken into account, in particular for certain types of trial concerning people’s private affairs.

49. In view of the particularly strong impact of television broadcasts and the risk of a tendency towards unhealthy curiosity, the CCJE encourages the media to develop their own professional codes of conduct aimed at ensuring balanced coverage of the proceedings they are filming, so that their account is objective.

50. There may be overriding reasons justifying the filming of hearings for specific cases which are strictly defined, for example for educational purposes or to preserve a record on film of a hearing of particular historical importance for future use. In these cases, the CCJE emphasises the need to protect the persons involved in the trial, particularly by ensuring that filming methods do not disrupt the proper conduct of the hearing.

51. While the media plays a crucial role in securing the public’s right to information, and acts, in the words of the European Court of Human Rights, as “democracy’s watchdog”, the media can sometimes intrude on people’s privacy, damaging their reputation or undermining the presumption of their innocence, acts for which individuals can legitimately seek redress in court. The quest for sensational stories and commercial competition between the media carry a risk of excess and error. In criminal cases, defendants are sometimes publicly described or assumed by the media as guilty of offences before the court has established their guilt. In the event of a subsequent acquittal, the media reports may already have caused irremediable harm to their reputation, and this will not be erased by the judgment.

52. Courts need therefore to accomplish their duty, according to the case-law of the European Court of Human Rights, to strike a balance between conflicting values of protection of human dignity, privacy, reputation and the presumption of innocence on the one hand, and freedom of information on the other.

53. As stated in the conclusions of the 2^nd European Conference of Judges (see paragraph 3 above), criminal-law responses to violations of personality rights (such as reputation, dignity or privacy) should be limited to quite exceptional cases[52]. However, the courts do have a duty to ensure that civil damages are awarded, taking account not just of the damage incurred by the victim, but also the seriousness of the infringements suffered and the scale of the publication concerned.

54. The courts should be entitled, in exceptional cases that are strictly defined in order to avoid any accusation of censorship, to take urgent measures to put an immediate stop to the most serious infringements of people’s personality rights (such as reputation, dignity or privacy), through the confiscation of publications or through broadcasting bans.

55. When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases.

D. ACCESSIBILITY, SIMPLIFICATION AND CLARITY OF THE LANGUAGE USED BY THE COURTS IN PROCEEDINGS AND DECISIONS

56. The language used by the courts in their procedures and decisions is not only a powerful tool available to them to fulfil their educational role (see paragraph 6 above), but it is obviously, and more directly, the "law in practice" for the specific litigants of the case. Accessibility, simplicity and clarity of the language of courts are therefore desirable[53].

57. The CCJE notes that in some European countries, judges believe that very short judgments reinforce the authority of the judgment; in some other countries, judges feel obliged, or are obliged by the law or practice, to explain extensively in writing all aspects of their decisions.

58. Without having the aim to deal in depth with a subject which is heavily influenced by national legal styles, the CCJE considers that a simple and clear judicial language is beneficial as it makes the rule of law accessible and foreseeable by the citizens, if necessary with the assistance of a legal expert, as the case-law of the European Court of Human Rights suggests.

59. The CCJE considers that judicial language should be concise and plain, avoiding - if unnecessary - Latin or other wordings that are difficult to understand for the general public[54]. Legal concepts and rules of law may be quite sufficiently explained by citing legislation or judicial precedents.

60. Clarity and concision, however, should not be an absolute goal, as it is also necessary for judges to preserve in their decisions precision and completeness of reasoning. In the CCJE's opinion, legislation or judicial practice concerning reasoning of judgments should provide that some form of reasoning always exists, and that sufficient discretion is left to the judge in choosing whether to give, where permissible, an oral judgment (which may be transcribed from a recording upon request or in case of need) and/or a short written reasoned judgment (e.g. in the form of the "attendu" style decision adopted in some countries) or an extensive written reasoned judgment, in all those cases in which reference to established precedents is not possible and/or the factual reasoning so requires. Simplified forms of reasoning may apply to orders, writs, decrees and other decisions that have a procedural value and do not concern the substantive rights of the parties.

61. An important aspect of accessibility of law, as enshrined in judicial decisions, is represented by their ready availability to the general public[55]. In view of this goal, the CCJE recommends that at least all Supreme Court and other important court decisions be accessible through Internet sites at no expense, as well as in print upon reimbursement of the cost of reproduction only; appropriate measures should be taken, in disseminating court decisions, to protect privacy of interested persons, especially parties and witnesses.

SUMMARY OF THE RECOMMENDATIONS AND CONCLUSIONS

A. The relations of the courts with the public with special reference to the role of the courts in a democracy

A.1. It is the state’s important duty to provide everyone, while at school or university, with civic instruction in which a significant amount of attention is given to the justice system (see paragraph 11 above).

A.2. Relevant school and university education programmes should include a description of the judicial system, visits to courts, and active teaching of judicial procedures. Courts and associations of judges can in this respect co-operate with schools, universities, and other educational agencies, making the judge's specific insight available in teaching programmes and public debate (see paragraph 12 above).

A.3. Courts should take part in general framework programmes arranged by other state institutions and take an active role in providing information to the public (see paragraphs 14 and 15 above).

A.4. The following measures are thus recommended (see paragraphs 16 to 19 above):

- creation of offices in courts in charge of reception and information services;

- distribution of printed materials, opening of Internet sites under the responsibility of courts;

- organisation by courts of a calendar of educational fora and/or regular meetings open to citizens, public interest organisations, policy makers, students, etc.;

- “outreach programmes” and programmes for access to justice.

A.5. Judges should be given the opportunity to receive specific training as to relations with the public and courts should also have the possibility to employ staff specifically in charge of liaising with educational agencies (see paragraph 20 above).

A.6. A role co-ordinating the various local initiatives, as well as promoting nation-wide "outreach programmes", should be given to the independent body mentioned in paragraphs 37 and 45 of its Opinion No. 1 (2001) (see paragraph 21 above).

A.7. Adequate funding, not charged to the operating budget of courts, should be provided to the courts for activities explaining and making transparent the principles and the mechanisms of justice in society as well as for expenses related to "outreach programmes" (see paragraph 22 above).

A.8. Public prosecutors, with regard to the part of the proceedings falling within their jurisdiction, should contribute to the supply of information to the public (see paragraph 23 above).

B. The relations of the courts with participants in court proceedings

B.1. The CCJE considers that, in order to foster better understanding of the role of the judiciary, an effort is required to ensure in so far as possible that the ideas that the public has about the justice system are accurate and reflect the efforts made by judges and court officials to gain their respect and trust concerning courts’ ability to perform their function. This action will have to show clearly the limits of what the justice system can do (see paragraphs 24 to 27 above).

B.2. The CCJE supports all the steps aiming at strengthening the public perception of impartiality of judges and enabling justice to be carried out (see paragraphs 28 to 32 above).

B.3. Such initiatives may include (see paragraphs 28 to 32 above):

- training programmes in non-discrimination and equal treatment organised by courts for judges and court staff (in addition to the similar programmes organised by lawyers or for lawyers); court facilities and arrangements designed to avoid any impression of inequality of arms;

- procedures designed to avoid giving unintended offence and to ease the involvement of all concerned in judicial proceedings.

C. The relations of the courts with the media

C.1. The CCJE considers that it would be useful to improve contacts between the courts and the media (see paragraph 34 above):

- to strengthen understanding of their respective roles;

- to inform the public of the nature, the scope, the limitations and the complexities of judicial work;

- to rectify possible factual errors in reports on certain cases.

C.2 Judges should have a supervisory role over court spokespersons or staff responsible for communicating with the media (see paragraph 35 above).

C.3. The CCJE considers that states should encourage exchanges, in particular by round tables, on the rules and practices of each profession and that the Council of Europe could usefully establish or promote such contacts at European level, so as to bring about greater consistency in European attitudes (see paragraph 36 and 37 above).

C.4. Schools of journalism should be encouraged to set up courses on judicial institutions and procedures (see paragraph 38 above).

C.5. The CCJE considers that each profession (judges and journalists) should, draw up a code of practice on its relations with representatives of the other profession and on the reporting of court cases (see paragraph 39 above).

C.6. The CCJE recommends that an efficient mechanism be set up, which could take the form of an independent body to deal with problems caused by media accounts of a court case or difficulties encountered by a journalist in the accomplishment of his/her information task, to make general recommendations intended to prevent the recurrence of any problems observed (see paragraph 40 above).

C.7. It is also necessary to encourage the setting up of reception and information services in courts under the supervision of the judges in order to help the media to get to understand the workings of the justice system better by (see paragraphs 41 and 42 above):

- communicating summaries of court decisions to the media;

- providing the media with factual information about court decisions;

- liaising with the media in relation to hearings in cases of particular public interest;

- providing factual clarification or correction with regard to cases reported in the media.

C.8. The CCJE considers that all information provided to the media by the courts should be communicated in a transparent and non-discriminatory manner (see paragraph 43 above).

C.9. The CCJE considers, that where television recording of judicial hearings occurs, fixed cameras should be used and it should be possible for the presiding judge both to decide on filming conditions and to interrupt filming broadcasting at any time. These and any other necessary measures should protect the rights of the persons involved and ensure that the hearing is properly conducted. Furthermore, the opinion of the persons involved in the proceedings should also be taken into account, in particular for certain types of trial concerning people’s private affairs (see paragraphs 44 to 48 above).

C.10. The CCJE encourages the media to develop their own professional codes of conduct aimed at ensuring balanced coverage of the proceedings they are filming, so that their account is objective (see paragraph 49 above).

C.11. The CCJE considers that there may be overriding reasons justifying the filming of hearings for restricted use specified by the court (for example for educational purposes or to preserve a record on film of a hearing of particular historical importance for future use), in these cases, it is necessary to protect the persons involved in the trial, particularly by ensuring that filming methods do not disrupt the proper conduct of the hearing (see paragraph 50 above).

C.12. The CCJE considers that criminal-law responses to violations of personality rights should be limited to quite exceptional cases. However, the judges do have a duty to ensure that civil damages are awarded, taking account not just of the damage sustained by the victim, but also the seriousness of the infringements suffered and the scale of the publication concerned. The courts should be entitled, in exceptional cases, to take urgent measures to put an immediate stop to the most serious infringements of people’s personality rights through the confiscation of publications or through broadcasting bans (see paragraphs 51 to 54 above).

C.13. When a judge or a court is challenged or attacked by the media for reasons connected with the administration of justice, the CCJE considers that in the view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges (see paragraph 55 above).

D. Accessibility, simplification and clarity of the language used by the courts in proceedings and decisions

D.1. The CCJE considers that accessibility, simplicity and clarity of the language of courts are desirable (see paragraphs 56 to 58 above).

D.2. The CCJE considers that judicial language should be concise and plain, avoiding - if unnecessary - Latin or other wordings that are difficult to understand for the general public. Legal concepts and rules of law may be quite sufficiently explained by citing legislation or judicial precedents (see paragraph 59 above).

D.3. In the CCJE's opinion, judicial reasoning should always be precise and complete, though simplified reasoning may be appropriate in procedural matters, and judges may, where permissible, give their reasoning orally (subscription to later transcription if required) rather than in writing (see paragraph 60 above).

D.4. The CCJE recommends that at least all Supreme Court and other important court decisions be accessible through Internet sites at no expense, as well as in print upon reimbursement of the cost of reproduction only; however appropriate measures should be taken in disseminating court decisions, to protect privacy of interested persons, especially parties and witnesses (see paragraph 61 above).

opinion no. 8 (2006)

of the consultative council of european judges

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

the role of judges in the protection of the rule of law and human rights in the context of terrorism

A. INTRODUCTION

a. General context

1. In order to implement the Action Plan adopted at the 3^rd Summit of the Heads of state and Government of the Council of Europe[56], inviting European states to ensure an efficient protection of human rights while intensifying the fight against terrorism, the Committee of Ministers entrusted the Consultative Council of European Judges (CCJE) with the task to adopt in 2006 an Opinion on the role of the Judge and the balance between protection of the public and human rights, in the context of the fight against terrorism[57].

2. The Council of Europe has made specific efforts in the fight against terrorism, in order to strike a proper balance between the safeguard of individual rights and freedoms and public security. The Council of Europe’s actions are based on three objectives:

· strengthening legal action against terrorism ;

· safeguarding fundamental democratic values;

· addressing the causes of terrorism.

3. This specific action has resulted in a number of legal instruments of the Council of Europe, which are inter alia the following:

· European Convention on the Suppression of Terrorism [ETS No. 90 ] and Amending Protocol [ETS No. 190 ] ;

· European Convention on Extradition [ETS No. 24 ] and first and second Additional Protocols [ETS No. 86 and ETS No. 98 ] ;

· European Convention on Mutual Assistance in Criminal Matters [ETS No. 30 ] and first and second Additional Protocols [ETS No. 99 and ETS No. 182 ] ;

· European Convention on the Transfer of Proceedings in Criminal Matters [ETS No. 73] ;

· European Convention on the Compensation of Victims of Violent Crimes [ETS No. 116 ] ;

· Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime [ETS No. 141 ];

· Convention on Cybercrime [ETS No. 185] and Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems [ETS No. 189 ] ;

· Council of Europe Convention on the Prevention of Terrorism [CETS No. 196] ;

· Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds from crime and on the financing of terrorism [CETS No. 198].

4. In the context of this Opinion, the CCJE also refers to other relevant international instruments by the European Union (see in particular the EU Action Plan on combating terrorism)[58] and by the United Nations, and inter alia:

· Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973 ;

· International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979 ;

· International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997 ;

· International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999 ;

· International Convention for the Suppression of Acts of Nuclear Terrorism, New York, 13 April 2005 ;

· Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963 ;

· Convention for the Suppression of Unlawful Seizure of Aircraft, signed at the Hague on 16 December 1970 ;

· Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971 ;

· Convention on the Physical Protection of Nuclear Material, signed at Vienna on 3 March 1980 ;

· Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 24 February 1988 ;

· Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988 ;

· Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988 ;

· Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on 1 March 1991.

5. As some of their provisions are relevant in this specific context, the CCJE also wishes to recall the Geneva Conventions of 12 August 1949:

· Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;

· Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;

· Convention (III) relative to the Treatment of Prisoners of War;

· Convention (IV) relative to the Protection of Civilian Persons in Time of War.

6. The CCJE additionally wishes to recall its 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 and Opinion No. 7 (2005) on justice and society.

b. Reconciliation of Human Rights with the need to take measures against terrorism

7. The Council of Europe has already underlined on several occasions that the fight against terrorism is possible, while respecting human rights.

8. With this aim in July 2002 the Committee of Ministers adopted[59] the Guidelines on human rights and the fight against terrorism. These guidelines affirm the obligation of the state to protect everyone against terrorism, while reiterating the need to avoid arbitrary measures, and to ensure that all measures taken to combat terrorism be lawful, and that torture be prohibited.

9. The legal framework set out in the guidelines concerns, in particular, the collecting and processing of personal data, measures which interfere with privacy, arrest, police custody and pre-trial detention, legal proceedings, extradition and the compensation of victims.

10. Pursuant to this, in March 2005 the Committee of Ministers adopted[60] the Guidelines on the protection of victims of terrorist acts which recognise their suffering and the need to support them.

11. Everyday experience and current events show that, while terrorism is not a new problem, it has recently taken on an unprecedented international scale. Fighting terrorism is a specific and particularly difficult challenge for the states and law enforcement agencies and subsequently for the court system, which must react creatively, within the framework of the European Convention of Human Rights.

12. There is an obvious conflict between terrorism and the exercise of individual rights and freedoms because terrorism not only seriously jeopardises fundamental rights, including the right to life and to bodily integrity, and undermines the principles of rule of law and pluralist democracy, but it also is likely to lead states to impose restrictions which themselves, unless care is taken, might be detrimental to human rights.

13. Within this framework the CCJE has considered it appropriate, as a body composed solely of judges, to examine the role of the judge in the protection of the Rule of law and Human Rights in the context of terrorism.

14. The CCJE considers that the judge, charged with the dual functions of dealing with transgressions of the law and protecting constitutional rights and freedoms of individuals, must have an essential role in the legal frameworks devised by the states, and must be granted all necessary powers to fruitfully perform such tasks.

15. The CCJE considers that, if terrorism must be regarded as creating a special situation justifying temporary and specific measures which limit certain rights because of the exceptional danger it poses, these measures must be determined by the law, be necessary and proportionate to the aims of a democratic society (see, as regards the right of expression, Article 10 paragraph 2 of the European Convention of Human Rights, and, in general, principle 3 of the Guidelines on human rights and the fight against terrorism), and be subject to scrutiny and control with regard to their legitimacy by those judges that, according the legal traditions of the several states, ordinarily have jurisdiction in the area of the law concerned (civil, criminal or administrative courts – as opposed to tribunaux d'exception operating outside the ordinary legal system - see also paragraphs 26, 33-34 and 42 and following below).

16. These measures may in no case infringe the citizens’ rights and freedoms to such an extent that the basic principles of democratic societies are themselves put at risk.

17. In view of the above general considerations, it is appropriate to examine the implications of measures that may be taken within the frameworks of administrative law (part B) and criminal law (part C) in the fight against terrorism, and also the role of the judge in the protection of freedom of expression (part D).

B. Administrative law measures

18. In the discharge of their duty to protect their populations by preventing terrorist acts, states may through their administrative authorities take measures which are distinct from the criminal sanctions applied to terrorist offences already committed.

19. Deportation of foreigners, visa and residence permits requirements, identity controls, prohibition of associations, prohibition of assemblies, wire-tapping, installation of video-cameras and monitoring activities by use of information technology are all examples of such preventive measures.

20. Such preventive measures - like penal measures - require that a balance be maintained between the obligation to protect people against terrorist acts and the obligation to safeguard human rights.

21. Judges should have a very important role to play in ensuring that such a balance is properly struck. Of course, it is primarily for the states to enact and the administrative authorities to apply the measures necessary to strike such a balance. When the courts take due account of the legislation passed to combat perceived terrorist threats, such legislation and administrative actions must be subject to judicial scrutiny and review to ensure that they are legal, necessary and proportionate.

22. In this context international and European legal instruments must be observed, including the obligations which stem from the European Convention on Human Rights. The protection of national security may result in the restriction of some individual rights of the Convention[61].

23. Preventive measures against terrorism must, however, never breach fundamental rights such as right to life (Article 2 of the European Convention on Human Rights) or prohibition of torture or inhuman or degrading treatment or punishment (Article 3 of the European Convention on Human Rights).

24. With respect to Article 3, the CCJE notes that the European Court of Human Rights states that terrorism cannot justify derogation from the absolute prohibition of torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct[62]. The Court took the view that, in assessing whether there is a real risk of treatment in breach of Article 3 in expulsion cases, the fact that the person is perceived as a danger to the national security of the state is not a material consideration[63].

25. Effective access to judicial review of administrative acts aimed at preventing terrorism should be ensured as provided by Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts[64]. To be effective under Article 13 of the European Convention on Human Rights the remedy should exist regardless of the question whether the person concerned is perceived as a danger to national security[65].

26. Judicial review comprises the review of any violation of law by those judges that, according the legal traditions of the several states, ordinarily have jurisdiction in the area of the law concerned (for this and the following requirements, see Rec(2004)20 mentioned in paragraph 25). The court – usually a civil or an administrative court - should be in a position to examine all of the legal and factual issues and should not be bound by the fact-finding of the authorities.

27. The right to a fair hearing in particular shall be guaranteed (Article 6 of the European Convention on Human Rights). This implies inter alia that there shall be equality of arms between the parties to the proceedings and that the proceedings shall be adversarial in nature.

28. The right to a fair hearing requires that all evidence admitted by the court should in principle be made available to the parties with a view to adversarial arguments[66]. The question arises as to what extent limitations to access to documents, witnesses or other sources of evidence might be admissible, if security reasons are involved. When access to evidence is granted to lawyers and not to the parties personally, because direct disclosure to persons concerned of sources of evidence may jeopardise the public interest, potentially difficult issues arise as to whether it is or not a substantial limitation of effective remedy and of defense[67]. Whatever the solution might be as regards access to evidence by the parties and defence lawyers, the CCJE is of the opinion that no limitations should apply to the possibility for the judge to have direct and personal access to documents, witnesses and other sources of evidence, in order to allow the court to ascertain all relevant facts and thus rule on an effective remedy (Article 13 of the European Convention on Human Rights).

29. The above stated principles also apply to the decisions concerning expulsion or deportation of an alien or refusal of a residence permit or of any form of protection (for example refugee status or subsidiary protection), if charges of a terrorist danger are involved.

30. Although Article 6 of the European Convention on Human Rights is not applicable as regards expulsion and deportation of aliens,[68] the right to a fair hearing has to be observed also with respect to these measures (see Recommendation Rec(2004)20, paragraph 4).

31. The CCJE considers that similar judicial supervisory powers should be effectively guaranteed with regard to the application of limitations to aliens’ freedom of movement pending procedures of expulsion or deportation. In addition, surveillance on conditions of such limitations should be guaranteed on a similar basis as for detention conditions.

32. At any rate no irreparable action can be taken while proceedings are pending[69]. This means that a deportation during proceedings is never admissible if absolute rights such as those protected by Article 2 or Article 3 of the European Convention on Human Rights are at risk[70]. Interests of public order or national security – as for example mentioned by Article 1 of the Protocol No. 7 to the European Convention on Human Rights of 22 November 1984 – are immaterial, if absolute rights are involved.

33. The CCJE considers that, because of the delicate task of guaranteeing fundamental rights and freedoms, supervision of all administrative law measures concerning expulsion of aliens (as well as their provisional surveillance), visa requirements, identity controls, prohibition of association, prohibition of assemblies, wire-tapping, installation of video-cameras, the search for persons by use of information technology, should be entrusted to ordinary courts (including administrative courts) composed of professional judges, established by the law, with full guarantees of independence.

34. The task of providing an effective remedy may only be entrusted to the ordinary judiciary and/or judges, as they are established according to the legal traditions of some countries, having specialised knowledge (e.g. administrative judges – see paragraph 26 above).

C. Criminal law measures

35. The need for a response to acts of terrorism by criminal law measures has long since been affirmed in Council of Europe texts (see Recommendation 703(1973) of the Parliamentary Assembly on international terrorism); such a response entails the taking by the states of appropriate measures concerning substantive law (a); part (b) will be devoted to the unchanged role of the judge in terrorist criminal proceedings.

a. Substantive law

36. Many states have included the specific offence of "terrorism" in their domestic criminal laws, thus reflecting a common desire expressed in various international instruments of the United Nations, the Council of Europe and the European Union.

37. In view of the gravity of the offences which are regarded as terrorist as well as of procedural consequences stemming from them, it is important that the basic principles of criminal law be applicable to terrorist offences as to any other criminal offence, and that the elements of such offence be clearly and precisely defined.

38. Compliance with these criteria is essential, not only for proof of guilt in offences involving direct attack on persons or property, but also in any case in which domestic legislations provide for classifying certain other conducts, such as preparation for or financing of terrorist activities, as terrorist.

39. As terrorism does not respect national boundaries, the states’ legal response to it must be international. Existing international legal instruments in this field provide a common normative basis for the fight against terrorism. It would assist national judges, especially in the field of inter-state cooperation (e.g. in relation to exchange of information and judicial assistance), if the international community were to develop agreed definitions of terrorist offences conforming to the standards of Article 7 of the European Convention on Human Rights. Judges, as interpreters of the law, should - on their part - keep into account the international dimension of the phenomenon when applying the law.

b. The role of the judge remains unchanged in terrorist criminal proceedings

40. In the context of criminal law also, judges have a central role in ensuring that a proper balance is struck, as regards both substantive and procedural law, between the need to detect and pursue offences of terrorism and the safeguarding of the human rights of those suspected of and charged with such offences.

41. Having regard to the above mentioned needs, some questions concerning the role of the judge in proceedings in the field of terrorism may be addressed.

i. The refusal of "tribunaux d'exception"

42. The CCJE notes that a virtually universal response by European states to the requirement of a balance between security against terrorism and the safeguarding of human rights has been the refusal to establish "tribunaux d'exception" (see paragraph 15 above) as a reaction to the current threat posed by terrorism.

43. States should trust their existing court structures to strike such a balance - in compliance with the law generally applicable in democratic states, including international Conventions and in particular the European Convention of Human Rights.

44. The CCJE considers that the role of the judge in cases concerning terrorist acts must not differ from the role of the judge plays in relation to the other offences, and that the nature of the subject matter does not justify a departure from ordinary rules governing the courts’ competence.

45. Nonetheless, the importance of terrorism suggests that crimes relating of category should be dealt with by courts having jurisdiction to hear and determine the most serious crimes, where such competence is divided between national courts.

46. The CCJE acknowledges that local circumstances or needs pertaining to judges’ security may sometimes justify the recourse to specialised courts competent for terrorist cases.

47. At any rate, it is important that these particular courts are composed of independent judges and apply ordinary rules of procedure fully respecting the right of defence and, in principle, the right to a public hearing, in such a way that fairness of the proceeding is in all cases guaranteed.

48. It is necessary to avoid a situation where on the one hand investigators have specific expertise in the area of terrorism, but, on the other hand judges and public prosecutors may encounter difficulties because of a lack of information and knowledge.

49. Training of judges must address all the areas of criminal and financial law relevant for the understanding of terrorist activities, and must involve an international dimension with the aim of promoting creation of judicial networks that are essential for exchange of information and other forms of cross-border co-operation.

50. Training initiatives should also aim at emphasising the particular function of judges, who must always preserve a balance between the necessity of repressing crime and respect of fundamental rights even when dealing with terrorist activities.

ii. The role of the judge during investigations

51. The CCJE considers that, however serious the offence may be, the courts should, at all stages of investigations, ensure that restrictions of individual rights be limited to those strictly necessary for the protection of public interest[71]. The courts should evaluate the validity and legitimacy of evidence collected by investigators and have the legal power to refuse evidence obtained by means of torture or inhuman or degrading treatment, or by violating the rights of the defence, or by other illegal actions. The courts should ensure that decisions concerning investigations be in accordance with the rules of fair trial and equality of arms.

52. Although investigations are conducted in some states by special information services, which are an essential instrument for investigation or prevention of crime, the activities of such information services must not develop in violation of applicable laws, and must be subjected to democratic control conforming to requirements of the European Convention of Human Rights[72].

53. The CCJE considers that all orders of freezing, seizure or confiscation of assets, aimed at preventing financing of terrorism, should be strictly prescribed by law and ultimately be subject to the court’s authorisation and regular supervision, as they can seriously infringe the rights of privacy and property.

54. The Council of Europe adopted a Recommendation Rec(2005)10 of the Committee of Ministers to member states on special investigation techniques in relation to serious crimes including acts of terrorism[73].

55. This recommendation stresses that use of special investigation techniques is a crucial tool in the context of fight against serious crimes, actually committed or at the preparatory stage, but it also stipulates that such techniques may be only resorted to within the framework and under conditions that must be clearly defined by the law, under adequate supervision of judicial authorities or other “independent bodies”. The CCJE doubts that supervision may be possibly entrusted to the competence of “independent bodies” other than those judges that, according the legal traditions of the several states, ordinarily have jurisdiction in the area of the law concerned (see paragraph 26 above); the concept of “independent bodies” lacks precision and does not guarantee fairness of the proceeding as required by Art. 6 paragraph 1 of the European Convention of Human Rights.

56. The CCJE considers that such special investigation techniques must respect the principles of legality and proportionality; that they must in any case be viewed as temporary measures and their application should be regularly supervised (including, in principle, a previous authorisation) by the competent court.

iii. The role of the judge during detention

57. The CCJE recalls that the provisions of Article 5 paragraphs 3 and 4 of the European Convention of Human Rights shall be respected as to pending trial detention and conviction of persons in relation to terrorist charges[74]. Detention is a sanction to be imposed by a court on persons whose guilt has been established. However, under exceptional cases, persons can be detained before a judicial decision has been taken as a preventive measure (custody, refusal of bail before a formal charge, etc., both before and during trial).

· Detention of suspects

58. As to custody or detention prior to a decision establishing guilt, the practice differs from state to state in the scope of the measures restricting human rights which each tolerates. Thus, while certain countries have, in terrorist cases, extended the period of police custody, or even detention on remand, for which the ordinary law provides, others do not intend to depart from the provisions of ordinary law.

59. As freedom of movement is one of fundamental rights of democratic states, the CCJE considers not only that measures likely to interfere with the exercise of this right must be clearly determined by the law, but also that judges – in their capacity as guarantors of individual freedoms – must have the task to supervise custody and detention measures ordered before guilt has been established.

60. This supervision implies that the judge should be able to verify the existence of legal and factual conditions for detention (therein included the verification of suspicion grounds, on the basis of charges that should be readily made known to the person detained), to make sure that personal dignity and the right of defence be guaranteed, to ensure that restrictions to these rights made necessary by the nature of facts are strictly proportional to the goal to be achieved and that they do not adversely affect the principle itself of a right to defence, to test that the person detained be not subjected to torture or any other inhuman or degrading treatment, to declare as unlawful detention measures that are secret, or unlimited in duration (it being for the judge to set the period of detention), or that do not provide for appearance before a court established according to the law. If, in performing such functions, the judge learns that a person may have been subject to secret arrest, detention and/or transportation, he should refer the matter to the authorities responsible for criminal investigations.

· Post trial detention

61. As for detention of persons whose guilt has been established, the CCJE considers that the seriousness of terrorist crimes does not justify any derogation from general rules established by the law in the area of criminal proceedings and detention measures; in particular it cannot authorise a judge to apply a criminal sanction according to standards of evidence that derogate from general rules.

· Detention conditions

62. This Opinion is not the appropriate place to discuss conditions of detention, though this matter deserves further consideration in a future Opinion by the CCJE[75]. This subject reflects the difficulty of meeting the requirements of both human rights and protection of the public interest. In many countries there is a great temptation to give automatic priority to security matters, which may entail a risk of abuse.

63. The CCJE, for present purposes only, draws the attention to Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006.

64. Persons detained as terrorist suspects should be guaranteed prompt access to legal assistance and representation by a lawyer of their choice, wherever they are detained. Courts should be able to grant appropriate relief and make appropriate orders to ensure that detained persons are not subject to inhuman or degrading treatment or punishment and, to that end, should be able (if they so determine, also of their own motion) to inspect any place of detention and have free access to any person detained there.

iv. The role of the judge in the protection of witnesses, victims and collaborators of justice

65. Trials for terrorist offences are often based on testimony of people who are closely connected to terrorist groups and who are more vulnerable than others to the use of intimidation against them or against people close to them; this poses the question of protection of these persons.

66. Victims of terrorist acts should also be protected against pressures or threats that may be likely to prevent them from appearing in court.

67. Protection of witnesses would prove difficult on a merely national basis, given the conditions in the country where they are located. International co-operation which accords with standards that have already been developed in other fields is therefore necessary[76].

68. A judge has to strike a balance between the need for protection of the witnesses/victims of the crime and the right of the defendant to a fair trial. This balance poses difficulties when the witnesses and victims are under a protection programme, in which cases contact between the suspects and/or their defence lawyers may be prevented, even during a trial.

69. The CCJE suggests that, since the role of the judge includes fully ensuring right to defence and equality of arms, judges – in cases in which witnesses are absent from court or anonymous and therefore the defendant was unable to challenge and question them - should base no conviction solely or to a decisive extent on the statements of witnesses to investigators.

70. Further challenges face the court systems when the fight against terrorism is based on elements obtained from intelligence services (often involving the transfrontier provision of intelligence). The protection of sources, witnesses and intelligence service members is there at stake. The CCJE considers that in this field similar principles as those mentioned in paragraph 69 must be applied.

71. On the other hand, the CCJE considers that the judge should also take into account the international legal provisions, including anti terrorist legislation, safeguarding the position of the victims of serious crimes, especially when they are witnesses in a case. It is for the judge to ensure at every stage of the procedure that all effective measures are taken for the alleged victims to fully exercise their rights while at the same time fully respecting the rights of the defendant. When the relevant power is not entrusted to other authorities, or in cases where such authorities fail to provide adequate measures, the judge should be able to ensure the safety of the victims, the protection of their family and private life, their access to justice, and fair treatment, free legal aid. No unreasonable limitation should be placed on such power by other organs of the state for financial or other reasons.

72. The CCJE also suggests that, when specific conditions to be set by the law are met, the victim be granted adequate compensation, for example from the state or by the confiscation of the property of the perpetrators in order to be used to compensate the victims[77].

73. Finally the CCJE stresses that it is necessary for the state to ensure the safety of investigators, judges and personnel in the judiciary involved in dealing with terrorism matters.

D. The role of the Judge in the protection of freedom of expression anD OTHER RIGHTS AND FREEDOMS

74. Terrorism strikes at the very fabric of democracy.

75. Despite the increase of terrorist activities, the CCJE considers that the national judge should always respect the basic principles of the rule of law, which are essential in democratic society, including the freedom of expression and other individual rights. As the fight against terrorism must never lead to the undermining of the values and freedoms that terrorists intend to destroy, it is vital for democracies that courts remain the guardians of the crucial demarcating line between a democratic society and a society that fights back using methods that themselves unduly curtail freedom of expression or infringe other rights and freedoms, such as the rights of minorities or political freedoms.

76. In discussing the role of the judge, as interpreter of the law, in the process of identifying conducts coming under the definition of terrorism, the CCJE may make reference, e.g., to the Council Framework Decision 2002/475/JHA by which the European Union has required member states to treat as terrorist offences and to punish a list of national offences “which, given their nature or context, may seriously damage a country or an international organization where committed with the aim of seriously intimidating a population, or unduly compelling a Government or international organization to perform or abstain from performing any act, or seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country of an international organization”. Member states are also required to make punishable intentional acts of “directing a terrorist group” or participating in its activities …. with knowledge that such participation will contribute to its criminal activities and to make punishable inciting or aiding or abetting, or generally attempting to commit any of the offences previously referred to.

77. However, recital (10) of the Framework Decision records that nothing in it is to be interpreted as being intended to reduce or restrict fundamental rights or freedoms (including the right of assembly and association, freedom of expression, the right to join trade unions, to strike and demonstrate, etc.); article 5 provides also that the penalties to be imposed must be not merely effective and dissuasive, but also proportionate. The CCJE shares such an approach.

78. In particular, the CCJE understands and accepts the need and duty of states to secure a free and safe society, but it considers that this should be achieved through the law and its due application without sacrificing fundamental freedoms.

79. Specific problems are posed by voices that seek to justify terrorism as a reaction to suggested political, ideological, religious and economic oppression in particular areas of the world. Since in some instances these conducts may represent a danger for democratic societies, the extended prohibition of expressions of praise or glorification ("Apologie du terrorisme") has thus become, in recent times, a significant additional response to the threat of terrorism.

80. A clear distinction exists in principle between statements or other conducts representing the exercise of fundamental rights and freedoms, even though highly contentious or politically motivated, and illegitimate incitement, encouragement, support or praise for acts of criminal terrorism. This distinction needs in the first instance to be drawn by legislatures and applied by the executive, but the way in which it is drawn and applied must remain susceptible to review by the courts. While the courts in a democracy can and should take account of the views of other branches of the state, they have an independent duty to consider the need for and proportionality of measures which may infringe fundamental rights guaranteed by the national constitution or the European Convention on Human Rights.

81. Terrorist offences should be defined in legislation and subject to the ordinary criminal law. The determination of whether a particular activity contravenes the law should also be made by the ordinary courts, in accordance with the rule of law and the European Convention on Human Rights and on the basis of evidence obtained by admissible means, not involving any improper pressure. Courts may take pre-emptive measures available in the civil and criminal law fields to prohibit or restrain the preparation or dissemination of material the issue or use of which would involve or incite the commission of a terrorist offence.

82. Judges face difficult and sometimes controversial decisions when determining whether national legislation complies with fundamental rights or freedoms and when determining whether particular conduct constitutes a terrorist offence within the scope of such legislation. The difficulties may be particularly acute when the issue is whether words or conduct amount to illegitimate incitement to commit a terrorist act, or to praising terrorism. Practice also shows that judges, on the basis of present definitions of terrorism at the national and international level, may face difficulties to determine whether certain violent political actions, usually committed or to be committed abroad, and/or their financing or the training or recruiting in order to commit the same, should be regarded as terrorist acts or should not, as may happen in some cases involving individual or collective self-defence under article 51 of the Charter of the United Nations.

83. Terrorist cases, and especially those posing the above mentioned difficulties, are usually closely followed by the media and the general public, often with criticism and debate concerning judicial decisions. The efforts of States to prevent terrorism have led to criminalising of certain acts the classification of which as a crime is separated by a thin line from actions which might constitute the exercise of freedom of expression or political freedoms. The CCJE considers that the decision of the States to entrust judges the responsibility of making such distinction makes it necessary that such trials be conducted in a calm atmosphere.

84. It is for both politicians and the media to refrain from attempting to apply pressure on or to attack judges, beyond what may be considered legitimate criticism. It is the duty of an appropriate independent body to react to such attacks (see the CCJE's Opinion No. 6, paragraph C.13). The CCJE considers that the judiciary, on its part, should ensure that trials are conducted by well trained professional judges; appropriate training actions should help judges develop their understanding of terrorism and of its historical, political and social context.

85. The basic message is that the threats to security and the Rule of law posed by terrorism should not give rise to measures which themselves tend to undermine fundamental democratic values, human rights or principles of the Rule of law. This is a message which, if put into effect, reduces the risk that measures taken with a view to countering terrorism will themselves fuel new tensions or even promote terrorism itself. It is a message which needs to be understood and accepted in democracies by the public, politicians, media and courts alike.

Summary of the Recommendations and conclusions

In the light of the above considerations, the CCJE recommends that the states:

a. consult the national judiciaries when elaborating a legislation that might affect substantial and procedural rights and ensure that all administrative or repressive measures taken, which would affect the rights of people in the fight against terrorism, be controlled by an independent judicial authority;

b. refuse to establish tribunaux d'exception or legislation incompatible with universally recognised rights, either in the context of administrative actions to prevent acts of terrorism or in the context of a criminal trial ;

c. to be vigilant that the fundamental principles of criminal law apply in the same way to acts of terrorism as they do to any other offences, and to ensure that the constitutive elements of these offences are clearly and precisely defined;

d. to facilitate international cooperation in the fight against terrorism, particularly when elaborating, under the auspices of the international organizations, concerted definitions of offences related to terrorism;

e. to guarantee the security of witnesses and victims of acts of terrorism, as well as of investigators, judges and other judicial staff involved in these cases;

The CCJE also recommends that national judiciaries:

a. develop their understanding of terrorism and of its historical, political and social context, as well as their knowledge of relevant national and international legal instruments;

b. in discharging their functions as interpreters of the law and guarantors of individual rights and freedoms, ensure, on the one hand, that the offence of "terrorism" (including incitement, preparations to commit such acts and the financing of such acts) reaches the goal set by legislators, and, on the other hand, that prosecutions for “terrorism” are not abused in its scope, and to see that the protection of the public interest is reconciled with respect for human rights and fundamental freedoms;

c. to constantly ensure that a balance is struck between the need to protect witnesses and the victims of acts of terrorism and the rights of the persons involved in these acts.

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. 1 (2001)

on standards concerning the independence of the judiciary and the irremovability of judges

The rationales of judicial independence

The level at which judicial independence is guaranteed

Basis of appointment or promotion

opinion no. 2 (2001)

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

Conclusion

opinion no. 3

on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality

A P P E N D I X

Incompatibilities

opinion no. 4

on

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

opinion no. 5 (2003)

on

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

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

opinion no. 7 (2005)

“justice and society”

opinion no. 8 (2006)

the role of judges in the protection of the rule of law and human rights in the context of terrorism

opinion no. 9 (2006)

the role of national judges in ensuring an effective application of international and european law

opinion no.10 (2007)

the council for the judiciary at the service of society

opinion no.11 (2008)

the quality of judicial decisions