Duro Sessa

President of Supreme Court of Republic of Croatia

President of CCJE


(Contribution to the Conference “Courts Management and Access     to Justice System, Krakow, Friday December 8th 2017.)

Citizens expect that judges will act and rule in accordance with the law and applicable procedural rules, based solely only on the elements brought before and presented to them, free of without any influence or external pressure, and with no threat of sanctions or expectation perspective of personal gain. 

It should be underlined that   crucial guarantee of judicial independence is a judge's security of tenure and the rule that they shall only be promoted or transferred with their free consent.

However, apart from legal guarantees of judicial independence, if they exist, independence of judges and independence of judiciary also depends on the mind-set of a judge, his/her personal values and standards which need to be upheld and developed throughout his/her career.

Even   with   statutory   guarantees   of judicial independence, ruling in an independent manner is also a state of mind. It involves know-how and behaviour that must be taught, cultivated and developed throughout an entire career.

 Members of the judiciary should preserve their independence from legislative and executive powers and other influential circles including media. This can be achieved by observing strict rules in establishment such relations and refraining from all inappropriate relations with the representatives of these powers and influential circles.

They must be seen by citizens and persons under a court's jurisdiction as figures which respect these principles.

In particular, judges must find a way to   protects themselves against   close relations with   various   national or local   figures.

Various conflicts of interests and ethical dilemmas might arise from contacts with persons involved in the administration of justice, institutions, partner associations, the local business community or the media.

Public trust in independence of judiciary should be upheld and preserved by judges, through avoiding any honorary distinctions for themselves. However, a judge should be also prone to impact of public opinion, i.e. any cultural or social prejudices and political, philosophical or religious convictions.

All sad above puts judges in the position to be extremely conscious of their duties but no proper judicial system can only rely on individual ability of judges to protect, follow and serve to the public in independent and impartial way.

The state, legislator and executive power must, in the interest of their citizens and in at the present time in interest of international community create such legal environment on the highest level to enable judges to be independent, to be impartial and to be trusted by the society.

As, independence is “condition sine qua non” of any standard of judicial profession it could be stated, and I hope that you will agree with me, that independence of judiciary has two dimensions:

First one is procedural where rules of procedure, rules of recusal, rules of natural judge are assurance that judges will act equally in all cases towards all parties.

Second one is political dimension.

Perhaps one could be surprised will  how we can speak about political dimension of independence of judges and is it “contradictio in ajecto” to connect political system and independence of justice.

The link is that politics, through legislator and through executive power creates frame for proper functioning of judges. If politics decides not to follow standards of independence of judges, it will be difficult to speak of independent judiciary.

Main elements, among others, of political dimension are demonstrated through:

a.     System of appointment of judges

b.    Security of tenure

c.      Working conditions

d.    Disciplinary, criminal and civil liability of judges

EU Charter on Fundamental Rights in Article 47 says:

  Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

As we can see,  rights of citizens cannot   be protected if we do not have independent and impartial tribunal, independent and impartial judges and independent and autonomous justice system.

Coming back to the elements of independent judiciary and judges first one is system of appointment.

From, CCJE Opinion No.1, paragraph 45. to CCJE Opinion No.10, and Council of Ministers Recommendation 2010(12) it is beyond any reservation that judges should be appointed by specific body, Judicial Council, where at least one half of its members should be judges elected by their pears without any interference from political authorities or judicial hierarchies. The same path should be followed when selection and appointment of presidents of courts is in question as it is stated in CCJE Opinion No.19. (see para 38.)

Of course any decision concerning the selection and career of judges should be based on objective criteria pre-established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.

There should be no discrimination against judges or candidates for judicial office on any ground.

The question of term of office is closely connected with the question of irremovability of judges.

From UN Basic Principles, CCJE Opinion No. 1. and Recommendation 2010(12) fundamental shelter of judicial independence is that tenure is guaranteed until mandatory retirement age which includes the respect of legal certainty and legal expectations of judges as it in brief was stated  cases  Volkov vs Ukraine or Baka vs Hungary.

Furthermore, security of tenure and irremovability are key elements of the independence of judges.

The terms of office of judges should be established by law.

 A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds. (Recommendation 2010(12) para 50).

The question of criminal, civil and disciplinary liability of judges is last but not the least core element of status of judges  and reflects what are real intentions of State powers towards establishing true independence of judges.

CoE standards in this respect are stated in CCJE Opinion No.3. and above mentioned Recommendation.

In regard to criminal liability judges should be criminally liable in ordinary law for offences committed outside their judicial office but criminal liability should not be imposed on judges for unintentional failings in the exercise of their functions.

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

i)       the remedy for judicial errors  should lie in an appropriate system of appeals

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.

 As regards disciplinary liability, the CCJE considers that:

-         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;

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

-         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

-         the arrangements regarding disciplinary proceedings in each country should be such as to allow an appeal from the initial disciplinary body

-         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.

At the very end I would like to stress that arguing the rightfulness of proposed changes using comparative method is wrong and  usually is misleading. The simple fact is that in judicial systems in the world one can find different examples how fundamental issues of judiciary are statutory arranged but that could never be a reason to make step back of already gained level of principles of independence  of judiciary.

That is way any measure what governments are making in this fielad should be only measured in comparison to the European standards inshrined in various documents of CoE and judgments of the ECHR.