Strasbourg, 10 November 2006

CCJE (2006) 19

Consultative Council of European Judges (CCJE)

Declaration of Consultative Council of European Judges (CCJE) concerning recent legislative developments in Romania

Having considered, on the occasion of its 7th plenary meeting held in Strasbourg on 8-10 November 2006, the letter addressed to it by the Romanian Association of Magistrates, n°167 of 20 September 2006, by which this Association informed the CCJE about its “Open Letter” to several Romanian authorities, n° 166 of 18 September 20061;

Having considered the presentation concerning the situation of justice in Romania provided by the Romanian delegation within this Consultative Council of European Judges2;

Having been informed that the European Association of Judges – having observer status within this Consultative Council of European Judges – has adopted, on the occasion of its meeting in Siófok, 27 September – 2 October 2006, a resolution by which it expressed its “grave concern at legislative developments in Romania”; Having reserved further consideration of this matter under its terms of reference, allowing this Consultative Council of European Judges, if the Romanian authorities should so request, to provide practical assistance to enable states to comply with Council of Europe standards concerning judges3; Considering, however, the need, already at this stage, to express its worries about the above mentioned developments in Romania;

* * *

a) instructs its Secretariat to inform the Romanian Association of Magistrates, as well as the relevant authorities of Romania, about the strong concern that this Consultative Council of European Judges expresses regarding certain legislation recently enacted in Romania in the area of liability of judges;

b) recalls that - under European standards regarding judicial independence (see e.g. Recommendation Rec(1994)12 of the Committee of Ministers to the members States on the independence, efficiency and role of judges; Opinion No.1 of the Consultative Council of European Judges (CCJE) on standards concerning the independence of the judiciary and the irremovability of judges) - civil, criminal and disciplinary proceedings concerning judges must be surrounded of such guarantees that fully protect judicial independence, namely by excluding any administrative controls on judicial decisions;

b) recalls that the subject of civil, criminal and disciplinary liability of judges has been dealt with by this Council in its Opinion n° 3 (2001) on the principles and rules governing judges professional conduct, in particular ethics, incompatible behavior and impartiality;

c) stresses that under the above mentioned Opinion this Consultative Council has held that:

- “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”4;

- “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”5;

d) expresses to the relevant Romanian authorities the availability of this Consultative Council of European Judges for possible co-operation in conformity with its terms of reference;

e) invites judicial associations enjoying observer status at this Consultative Council to take note of this declaration.

1 See document CCJE (2006)8.
2 See document CCJE (2006)13.
3 See CCJE terms of reference for 2006, item 4.d.
4 See Opinion N° 3 (2001), paragraph 55.
5 See Opinion N° 3 (2001), paragraph 57.

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