Strasbourg, 27 October 2004

CCJE (2004) 33



Consultative Council of European Judges (CCJE)


Explanatory note and questionnaire on the theme “Justice and society”

prepared by
the Chair of the CCJE-GT

INTRODUCTION

1. In 2005 the Consultative Council of European Judges (CCJE) has the task1 of adopting an opinion on "justice and society" for the attention of the Committee of Ministers.

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

- the educational role of the courts in a democracy, relations with the public (see Part V b of the Action Plan);
- relations with all those involved in court proceedings (see Part V c of the Action Plan);
- accessibility, simplification and clarity of the language used by the courts in proceedings and decisions (see Part V d of the Action Plan);

3. This work will be carried out on the basis of:

- replies by delegations to a questionnaire;
- a report prepared by a specialist;
- the contributions of participants in the 2nd European Conference of Judges on the theme of "Justice and the Media", organised by the Council of Europe on the initiative of the Consultative Council of European Judges (CCJE) in co-operation with the Polish National Judicial Council and with the support of the Polish Ministry of Justice, taking place in Cracow (Poland) on 25 and 26 April 2005;
- a draft opinion to be prepared by the Secretariat and the Working Party of the CCJE in 2005.

4. The present text contains the questionnaire mentioned above.

5. In 2004, on the initiative of the Chair of the CCJE, the questionnaire, prepared by the Vice-Chair of the CCJE, was accompanied by an explanatory note to be used as a basis for discussion.

6. In view of the need for both the questionnaire and the explanatory note to be circulated well before the deadline for completion and thus better respond to the needs of the delegations of the CCJE, the present text referring to the 2005 activities will be submitted directly to the CCJE plenary meeting taking place in Strasbourg on 22-24 November 2004.

7. The explanatory note is worded to provide a separate introduction to each of the sections into which the questionnaire has been subdivided. This will help respondents deal in detail with all the implications of the questions asked (in italics) as they appear in the explanatory note.

8. Answers to the questionnaire should be accompanied by relevant documentation. Some specific items of documentation that may be useful are mentioned in paragraph 35 below.

A. THE EDUCATIONAL ROLE OF THE COURTS IN A DEMOCRACY.

9. Judicial decisions play a relevant role in democratic societies. Judicial decisions have an added value: if, on one hand, they settle disputes concerning individuals, on the other hand they play an "educational role" as they provide citizens with relevant information as to the application of the law in practice.

10. 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.2

11. More and more, however, countries have to face social attitudes, reflecting general tensions in modern democracies, expressing distrust in the courts, as well as the view that judges do not always reflect the will of the people.

12. In general, it is argued that although the courts exist to serve the people, the judge's duty is to apply the law in a fair and even-handed manner is little known. Adequate information about the functions of the judiciary and their mission, even when other state powers are involved, can effectively contribute toward an increased understanding of the courts as the cornerstone of democratic constitutional systems, as well as of the limits of their activities.

13. Furthermore, most citizens' knowledge of their court system is limited to their experiences as litigants, witnesses, or jurors. This implies, on one hand, that 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.2 below); on the other hand, it is also crucial that the judiciary itself, by in some way widening and improving the scope of its "educational role" as described above, which is no longer limited to delivering decisions, fills the function of communicator and facilitator, bridging the gap between citizens' expectations and the courts' mission.

14. If courts so far have accepted to participate in educational programmes to which they might have been invited, it is perhaps high time to abandon such an old approach ("If we're asked we'll go, but we're not often asked") and to view courts as the principal promoters of "court literacy" for the general public.

15. For example, 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 ("outreach programmes"). Such programmes usually incorporate the use of professionals with prepared resources and provide a network for teachers’ professional development.

16. The CCJE might be interested in learning about such experiences and may recommend the general support of the European judiciaries and the Council of Europe for some similar initiatives.

Questions

A.1. Please describe arrangements existing in your country aiming at informing justice users and/or the general public about the functioning of the judicial system. Please describe the specific information provided (nature of proceedings available; average length of proceedings 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) as well as the press resources used (printed citizen's guides, Internet facilities, information offices, etc.). Please also state which authorities provide such services, underlining the role of the courts themselves and/or of lawyers' associations (see paragraphs 12-15 of the CCJE's Opinion No. 6 (2004) on Fair Trial within a Reasonable Time and Judge’s Role in Trials taking into Account Alternative Means of Dispute Settlement). Please say whether a role is played by judges' professional associations and/or by the Judicial Service Commission/High Council for the Judiciary. Please say whether public interest organisations and universities have a role in the above.

A.2. Please describe the systems envisaged to satisfy the information needs of policy makers, academics, public interest groups and private citizens.

A.3. Please describe specifically the educational role of judicial decisions in your country. Please describe how judicial decisions are made known to the general public and how accurate such information is. Please consider that what is relevant is information provided to the public and not to legal professionals. Please also consider that the role of the press will be dealt with in a subsequent section (C.2) of this questionnaire.

A.4. Please say whether school and university education programmes in your country (even outside law faculties) include a description of the judicial system and visits to courts. Please specify outside actors that are employed by educational institutions (e.g. in classroom appearances) to provide programmes (judges, court staff, academics, lawyers, non-governmental organisations). Please say whether courts have staff specifically in charge of liaising with educational agencies (P.R. offices or the like). Please describe educational methods (e.g., role playing, attending hearings, etc.).

A.5. Please say whether courts in general, or some courts, have "outreach programmes" (see above) or at least regular programmes consisting in conducting surveys, holding focus groups, employing lawyers and academics for public forums, etc.

A.6. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).

B. THE RELATIONS OF THE COURTS WITH THOSE INVOLVED IN COURT PROCEEDINGS

17. Individuals that do not belong to legal professions often come into direct contact with court proceedings when they are litigants, witnesses, experts, jurors, etc. Although the role of the media in shaping the public opinion is most relevant, the impressions of citizens as they participate in proceedings in the above roles is also a key element which establishes the image of justice in society.

18. If people, and especially litigants, involved in court proceedings feel that judges or court staff show, for example, racial or gender bias and/or that the trial in which they are involved suffers from unjustified delay, the perception of those citizens will easily spread.

19. It might be argued that there is little room for action by the court system itself in this field: it is the culture of a specific society at a certain historical stage that determines the role of the judiciary; beyond that, it is self-evident, and it is inherent in the concept of litigation, that there always will be dissatisfied litigants, who will view a certain decision (and consequently a certain judge, or a group of judges, or the court system as a whole) as being unfair or even biased.

20. Such objections may be well-founded; nonetheless the CCJE might consider that, for the sake of contributing to a better understanding of the role of the judiciary, action is necessary to ensure that, in so far as possible, the image of justice perceived by individuals involved in court proceedings is accurate and that it corresponds to the efforts of judges and court staff to win respect for and confidence in the courts' capacity to fulfil their functions.

21. In order to improve relations with those involved in court proceedings, several court systems or individual courts have developed programmes that have an impact on:

a) Training of judges, lawyers and court staff; training in deontology

There have been programmes aiming to ensure that, in verbal and non-verbal communication, courts appear to treat all litigants equally, impartially, and without regard to race, gender, ethnicity, or socio-economic status. Judges and court personnel are instructed to recognise situations that, even on the level of appearance, might create in an individual a perception of a prejudiced attitude, and are trained to deal with such situations in a way that reinforces confidence and respect for the judge. Lawyers receive specific training in deontology, aimed at ensuring that they do not reinforce, either intentionally or unintentionally, by verbal or non-verbal communication, attitudes of distrust in the court system.

b) Court infra-structures

Some programmes are aimed at removing causes of distrust in the courts, that may lie in the infra-structural organisation of courts. For example, in some cases, removing the stall for the public prosecutor from the vicinity of the court's bench, and placing it at the same level as the place for the defence lawyer might have reinforced the image of equality of arms; removing references to a specific religious creed from the court scene might have reduced the fear of a religious bias; ordering that the accused person appear free before the judge, even if in detention, and substituting other safety measures for the presence of enclosures in the courtroom, might have reinforced the image of presumption of innocence.

c) Court procedure

Some actions are aimed at removing some traditional procedural steps and language that might be wrongly perceived (oaths, ways of addressing people, etc.). Some other actions introduce procedures providing that, before a court appearance, litigants or witness, are met individually or in groups, by court officers who offer oral or audio-visual presentations, developed in co-operation with social scientists, on how their court experience is likely to develop; the goal of such presentations is to prevent false perceptions of court life.

d) Access to justice programmes

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 "access to justice" programmes, that include, but are not limited to, legal aid (public information services, free legal counsel, direct access to the judge for petty claims, etc. - see section A of the CCJE's Opinion No. 6 (2004) on Fair Trial within a Reasonable Time and Judge’s Role in Trials taking into Account Alternative Means of Dispute Settlement)

Questions

B.1. Please provide detailed information on programmes with the above mentioned objectives being carried out or planned in your court system.

B.2. Please describe who takes part in programmes.

B.3. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).

C. THE RELATIONS OF THE COURTS WITH THE PUBLIC

i. DIRECT RELATIONS OF THE COURTS WITH THE PUBLIC

22. Whereas relations with individual justice users have traditionally been dealt with by the courts, albeit in an unstructured way, courts have been reluctant 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 ECHR has been traditionally viewed as the sole contact between courts and the general public.

23. Such an attitude - which implied a passive role of courts in the public arena, in conformity with a traditional conception of the duties of impartiality and discretion, and made the mass media the sole interlocutors for courts - is rapidly changing (see para. 5 above).

24. The CCJE should investigate what form of direct contact with the public, i.e. not passing through journalistic mediation, is necessary and/or desirable.

25. The following examples could be considered:

- creation of P.R. offices in courts;
- distribution of printed materials, opening of Internet sites;
- organisation of a calendar of educational forums and/or regular meetings open to citizens, public interest organisations, policy makers, etc.

Questions

C.1. Please provide detailed information on programmes with the above mentioned objectives, being carried out or planned in your court system:

C.2. Please describe who takes part in such programmes.

C.3. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).

ii. INDIRECT RELATIONS OF THE COURTS WITH THE PUBLIC - JUSTICE AND THE MEDIA

26. The 2nd European Conference of Judges to be held in Cracow (Poland) on 25 and 26 April 2005 on the theme of "Justice and the Media" will certainly provide relevant materials to guide the CCJE's preparation of what appears to be the "core" subject of the CCJE's 2005 Opinion, i.e. the indirect relations of the court system with the public, by way of journalistic mediation. Since the conference will be open to media representatives, parliamentarians, representatives of interested international organisations and experts on the questions under discussion, the CCJE will have the possibility to collect various points of view.

27. The CCJE's future Opinion should try to recommend actions, on the part of the States and specifically of the judiciaries, that would help, on the basis of the principles elaborated by the European Court of Human Rights,3 reconcile protection of freedom of expression and the right to information, on the one hand, and the right to a fair trial, protection of private life, reputation and human dignity and the presumption of innocence, on the other. Reference must be made mainly to Articles 6, 8 and 10 of the ECHR.

28. A first section of the "justice and the media" chapter of the future Opinion may consequently deal with the fundamental aspects of relations among the potentially conflicting values protected by the European Convention on Human Rights.

29. On such an essentially theoretical subject, the specialist's report will be a sufficient basis for the CCJE's work. Thus, it is not necessary to ask the delegations further questions.

30. A second section of the "justice and the media" chapter of the future Opinion might:
- compare national regulations and practices concerning access by journalists to judicial information and the public presentation of such information;
- describe relationships between judges and journalists in their day-to-day interactions;
- recommend "good practices" (to be implemented by judges and journalists, with possible involvement of professional organisations and/or media regulatory agencies and Judicial Service Commissions) that may strike a balance among conflicting values.

31. In order to make such work possible, a survey of the experiences of several systems is necessary, in order to pinpoint the relevant differences.

Questions

C.4. Please describe existing restrictions to the right to information in the field of judicial (civil, administrative, criminal) activity. Please describe the norms concerning secrecy of judicial investigations and/or other norms preventing dissemination of information on the development of a judicial case (e.g. secrecy of witness depositions, of filing a civil party suit within a criminal case, etc.). Please clarify at what stage in proceedings judicial information may be made public. Please also say if there is law or court practice preventing dissemination of names (or pictures) of persons involved in the case (parties, witnesses, public prosecutor, investigating judge, trial judge, etc.).

C.5. Please provide any information you deem useful as to the implementation of:

C.5.1 The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108);

C.5.2. Recommendation Rec(2002)2 of the Committee of Ministers to member States on access to public documents;

C.5.3. Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings, and Council of Europe instruments mentioned therein.

C.6. What are the procedures, if any, that guarantee access to information and access by journalists to court hearings and judicial files? Please make appropriate references to existing regulations on this matter. Do courts have spokespersons? Are they judges? Are judges allowed, by regulations and/or by deontological rules, to make statements to the press? If so, under what circumstances?

C.7. Are television cameras allowed into the courtrooms? If so, what rules should govern the broadcasting of the recorded TV images in order to prevent the risk of manipulation?

32. Another approach the CCJE should take in preparing the future Opinion should concern the role played by judicial authorities in the supervision of media activities in a State governed by the Rule of Law. In a third section of the "justice and the media" chapter of the Opinion, the CCJE might therefore examine potential judicial procedures enabling judges to supervise the media vis-à-vis case-law of the European Court of Human Rights and national legislation and practices.

33. Specifically, one should consider the implications of:

- protection of human dignity and freedom of expression;
- protection of fundamental rights of the person, vis-à-vis the journalist's responsibility in cases where incorrect information is provided;
- the role of protective and compensatory measures in cases involving protection of private life.

34. Although some of the above topics are theoretical, in order that the specialist's report forms a sufficient basis for the CCJE's work, an overview is needed as preparatory work when dealing with some other aspects of delegations’ experiences.

Questions

C.8. In the light of national law and case-law, please describe criminal and civil implications of libel, slander, and/or similar violations of a person's reputation. Please give information about penalties provided for by law or judicial practice, as for criminal law, with special reference to violations committed by journalists. Are there different thresholds for responsibility, e.g. for public figures and for private individuals? If so, is there, however, protection for private life of public figures, and under what circumstances?

C.9. What degree of professional diligence and integrity is requested from journalists? What criteria govern the distinction between lawful and unlawful acts, if the information provided is false? Are there differences between facts reported as such or the uttering of mere opinions? Is the fact that information comes from a qualified source (e.g. a police officer) an element that permits disclosure in any case or at least exempts the journalist from verification? What precautions are requested in the broadcasting, e.g., news concerning provisional arrest of a citizen on the basis of criminal charges? Do police officers and/or prosecution offices and/or investigating judges hold press conferences? If so,what are the procedures?

C.10. Please provide information as to the amount of compensation afforded by courts to the victims of the above violations. Are there established criteria? Do such criteria depend on the social status of the person in question?

C.11. What is the legal regime of rectification of inaccurate information? Is spontaneous rectification such that criminal liability is excluded, or compensation diminished?

C.12. Please describe protective measures available, respectively within criminal and civil procedures (e.g. seizure of publications, order not to distribute a book, etc.). Are there measures in your system that are or might be considered as a form of preventive censorship? Is there a role for the executive branch in supervising the media?

C.13. In the event that a judge or a court is attacked by the press for reasons connected with the administration of justice, is there a role for the Judicial Service Commission and/or judicial associations? Is the judge bound by a duty of discretion even if a press campaign has been started attacking him or her?

35. In order for the 2nd European Conference of Judges taking place in Cracow, Poland, on 25-26 April 2005 on the theme of "Justice and the Media", as well as for the preparation of the CCJE's Opinion, to be prepared in the most accurate way, national delegations are also kindly requested to append to their answers to the questionnaire:

- national legislation on access to information, journalists' access to court hearings and files, and the statutory foundation of journalists' liability;
- relevant national case-law on freedom of expression, protection of private life and human dignity;
- statements of "good practices" implemented at national level with a view to improving relations between justice and the media.

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

36. The language of court decisions is not only a powerful tool available to the courts to fulfil their educational role (see paragraph 3 above), but it is obviously, and more directly, the "law in practice" for the specific litigants of the case. Accessibility, simplification and clarity of the language of courts is therefore necessary.

37. Substantial research already exists on the language used in court decisions, on a comparative law basis. However, it is essential that in its 2005 Opinion the CCJE expresses the judges' views on this topic.

38. The CCJE could, for example:

- recommend that legislation concerning reasoning of judgments provide that some form of reasoning should always exist, and that sufficient discretion is left to the judge in choosing whether to adopt an oral judgement (to be transcribed from a recording only upon request and in case of need) and/or a short written reasoned judgment (e.g. in the shape of the "attendu" style decision adopted in France) 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;

-recommend that simplified forms of reasoning apply to orders, writs, decrees and other decisions that have a procedural value and do not concern the substantive rights of the parties;

- recommend that all decisions be concise and make use of plain language, avoiding Latin or other wordings that are difficult to understand if not necessary, and that the functions of legal institutes referred to be explained briefly, if necessary.

- recommend that all court decisions be readily accessible through Internet sites, and in print upon reimbursement of the cost of reproduction only.

Questions

1. D.1. Due to the fact that most of the problems involved are of a theoretical nature, delegations are only requested to describe the prevailing attitude in the national legal community about conciseness of judgements (e.g., in some countries, judges believe that very short judgments reinforce the authority of the judgement; in some other countries, judges feel obliged, or are obliged by the law, to adequately explain in writing, for example, the criteria and calculations adopted to award damages or to make orders related to costs).
D.2. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).

1 See Revised Specific Terms of Reference of the CCJE for 2004 and 2005.
2 See, e.g., ECHR, Sunday Times (No. 1), 55, where the notions mentioned in the text are said to be included in the phrase "authority of the judiciary" contained in art. 10 of the Convention.
3 A basic reference list of case law of the European Court of Human Rights concerning most subjects dealt with in section C.2. of the Explanatory Note and Questionnaire may include (in alphabetical order): Allenet De Ribemont v. France; Amihalachioaie v. Moldova; B. v. the United Kingdom and P. v. the United Kingdom; Barfod v. Denmark; De Haes and Gijsels v. Belgium; Du Roy and Malaurie v. France; Gaskin v. the United Kingdom; Hrico v. Slovakia; Observer and Guardian v. the United Kingdom; Perna v. Italy; Prager and Oberschlick v. Austria; Sunday Times v. the United Kingdom.

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