Strasbourg, 10 November 2006
CCJE (2006) 4
Consultative Council of European Judges (CCJE)
Report to the Committee of Ministers on measures to make proper use of CCJE opinions in member states
1. In the Action Plan adopted at their Third Summit (Warsaw, 16-17 May 2005), the Heads of State and government of member States of the Council of Europe decided "to make proper use of the opinions given by the CCJE in order to help member states to deliver justice fairly and rapidly and to develop alternative means for the settlement of disputes". In order to implement this Action Plan, the Committee of Ministers1 has instructed the CCJE to "prepare ... a report containing detailed proposals on the measures to be taken in order to make proper use in member states of the opinions given by the CCJE".
2. The CCJE welcomes the fact that the Heads of State and government have acknowledged the value of making wider use of the CCJE's opinions.
A. CCJE: THE SPECIFIC EXPERTISE OF JUDGES MADE AVAILABLE TO THE COUNCIL OF EUROPE
a. The CCJE's “bridging role" between national judiciaries and the Committee of Ministers
3. The CCJE considers that it can make a valuable contribution to strengthening the role of national judiciaries in the supranational sphere, through both mutual co-operation and the activities of relevant Council of Europe bodies.
4. The Council of Europe attaches great importance to the quality of judicial systems, since the rule of law and human rights – the organisation's cornerstone values – rely on strong and independent national judicial systems, as is clearly indicated in Article 6 of the European Convention on Human Rights. This is the background to the Committee of Ministers' decision in 2000 to establish the CCJE, with the aim of strengthening national judiciaries while fully acknowledging the respective powers of the legislative and executive branches and of giving European citizens greater confidence in their justice systems.
5. Taking into account the specific role of the CCJE, the Committee of Ministers gave it unique terms of reference. The CCJE’s members are serving judges (that is not working for the executive branch) who act in their own name and not on behalf of any agency of their state. They are chosen not directly by governments but through contacts between the national authorities responsible for ensuring the independence and impartiality of judges and the national department responsible for managing the judicial system.
6. Professional associations of judges send representatives to CCJE meetings. The CCJE is thus the first and only body within an international organisation to be composed entirely of judges who retain their full independence.
7. The CCJE has a general responsibility for assisting the application of Article 6 of the European Convention on Human Rights by strengthening the rule of law and protecting human rights in democratic states. To that end, its key task is to help implement the framework Global Action Plan for judges in Europe, adopted by the Committee of Ministers on 7 February 2001.
8. Moreover, a Working group composed of a limited number of CCJE members is appointed every year to prepare draft opinions and some other tasks according to the terms of reference. The CCJE-GT thus contributes to expedite the progress of the work of the CCJE.
b. The CCJE’s advisory role
9. To achieve these objectives, the CCJE acts primarily as an advisor to the Committee of Ministers (and by extension to other Council of Europe bodies) on questions relating to the independence, impartiality and powers of judges. In order to carry out this advisory role - which may be traced back, at national level, to the consultative powers enjoyed by certain independent bodies charged with protection of the judiciary vis-à-vis the legislative and/or executive branches – the CCJE prepares "opinions" addressed to the Committee of Ministers.
10. The CCJE has adopted the following opinions for the attention of the Committee of Ministers of the Council of Europe:
§ Opinion No. 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges (Recommendation (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);
§ 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
§ Opinion No. 3 (2001) on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality;
§ Opinion No. 4 (2003) on appropriate initial and in-service training for judges at the 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 a fair trial within a reasonable time and judges’ role in trials, taking into account alternative means of dispute settlement;
§ Opinion No. 7 (2005) on relations between justice and society;
§ Opinion No. 8 (2006) on the role of the judge in the protection of the rule of law and human rights in the context of terrorism;
§ Opinion No. 9 (2006) on the role of national judges in ensuring an effective application of international and European law.
11. For 2007, the CCJE has been asked to produce an opinion on the institutional roles of councils of the judiciary or analogous bodies.
12. These opinions have been based on delegations' replies to questionnaires and reports prepared by specialists. Although they take account of existing national situations, they mainly contain proposals for improving the status of judges and the service provided to the users of justice.
13. Relying on its special expertise and the experience gained from the nine opinions it has formulated in six years, the CCJE has expressed its readiness to be consulted by the Committee of Ministers and other relevant Council of Europe bodies on judicial topics on which judges' opinions might be useful. This would allow the CCJE to make a still more active contribution to the work of the Organisation and to strengthen its active role in the European process towards the improvement of the efficiency of European judicial systems.
B. BETTER PUBLICISING CCJE's OPINIONS AND MAKING THEM MORE ACCESSIBLE
a. More translations
14. Irrespective of the quality of their content, CCJE opinions will be of limited value if they are only available in the two official languages of the Council of Europe. Judges and courts operating in the 46 member countries, which are among the main targets of these opinions, do not necessarily understand English or French.
15. In 2005, CCJE's opinions were made available to the public as booklets published in English and French by the Council of Europe. The opinions are also available on the CCJE pages of the Council of Europe Internet site, in English, French and German, and in certain cases in Russian. Translations into other national languages exist too; these translated opinions appear on web sites of the national judiciaries. Member states should take steps to translate more systematically the opinions into other national languages. A standard formula inviting states to translate the opinion could appear at the foot of each new CCJE's opinion.
b. Improved dissemination and use
16. The dissemination of opinions has helped to improve the CCJE's visibility, vis-à-vis national and international authorities and the public at large. It is now considered to be a forum in which European judicial bodies can express their views and its opinions have acquired a more general status as declarations of good practice and benchmarks for national and international policies in the field of justice.
17. The CCJE now believes that a further concerted effort is needed to improve national and international authorities' and the public's awareness of CCJE's opinions and their content. Existing opinions therefore need to be disseminated still more widely in all the member states, since improving the quality of justice is a challenge faced by all and the opinions can serve as valuable tools for national courts and decision makers.
As far as possible, therefore, member states should take the following steps:
- ensure that opinions are available in all court libraries, and on the Internet pages of courts;
- ensure that each country's highest court and all the other courts, its ministry of justice and associations of judges are all properly informed of the existence of each opinion;
-systematically cite and use opinions at national seminars and conferences or while drafting texts concerned with judicial training, judicial ethics, relations between the media and the justice system, and so on.
The members of the CCJE (in particular, by reporting on the CCJE’s work when participating in meetings of judges) and associations with observer status with the CCJE (for instance within the framework of conferences or colloquies) should be involved in this dissemination process.
19. To determine concretely whether these measures are effective in practice, the CCJE thinks it would be useful to carry out an assessment of the impact of opinions in member states, for example with the aid of a questionnaire. This would help to identify shortcomings in the system for disseminating opinions and the reasons why they are not properly applied, with a view to improving the situation. The CCJE could carry out this exercise on a regular basis.
C. STRENGTHENING THE ROLE OF THE CCJE
a. Organising the European Conferences of Judges
20. One of the means used by the Council of Europe to strengthen links with European judicial bodies and encourage exchanges of ideas on problems faced by all modern judicial systems was to establish the "European conferences of judges"2. The contributions of those attending these conferences have subsequently been taken into account in opinions and their conclusions in English and French have been published as Council of Europe documents.
21. One of the distinguishing features of these conferences is that they are aimed at all judges, irrespective of specialisation or position in the judicial hierarchy. As such, they form another channel for disseminating CCJE opinions.
22. The conferences, which are flexible arrangements and relatively simple to organise, offer a valuable forum for promoting reflection and analysing new trends. Thus, to answer specific problem areas in the judicial field, CCJE would therefore like future European conferences of judges (which could be articulated in workshops, in order to improve the quality of the work achieved) to be organised by the Council of Europe, according to specific needs.
23. The conferences should be widely publicised well in advance, particularly with the aid of the Council of Europe's Directorate of Communication, which has the necessary resources and skills, and steps should be taken to improve the publication arrangements for their proceedings, in terms of both quality and quantity of documentation, for which professional assistance might be sought.
b. Strengthening practical assistance to member states
24. The committee's terms of reference authorise the CCJE to provide practical assistance to help states comply with Council of Europe standards relating to judges. This means that it may be called on to deal with specific judicial problems and visit countries to discuss ways of improving the current situation in both law and practice3. Such activities have proved to be very useful, in particular when the conclusions adopted at the end of the meetings have been used by national authorities as tools to realise the envisaged improvements.
25. However, because of constraints of time and material resources, the CCJE has had to confine its practical assistance role to occasions when visits could coincide with working party meetings.
26. CCJE believes that these activities should be developed, both quantitatively and qualitatively, with the aid of specialist teams capable of carrying out technical visits in response to real and properly justified national needs.
27. Having issued a series of opinions, e.g. relating to the independence, impartiality, careers, discipline and training of judges and the relationship between justice and society, the CCJE is now well equipped to assist national judicial authorities in these areas.
28. The CCJE might also enter into fruitful co-operation with independent national bodies such as judicial service commissions or the authorities responsible for judicial training, where appropriate in conjunction with the Lisbon Network.
29. The CCJE considers that, in the framework of the practical assistance given by the CCJE to member states, steps should be taken to allow independent bodies responsible for defending judicial independence and impartiality to enjoy a special relationship with the Council. The Committee of Ministers could also encourage ministries of justice of member states to consult the CCJE about proposed judicial reforms, to ensure that they take full account of relevant CCJE opinions.
30. Such co-operation with national bodies might also enable the committee to quantify the use countries make of its opinions. Briefly, a better understanding of problems "at the coal face" can help the CCJE to ensure that the topics chosen for its opinions are both relevant and topical. The international associations of judges with observer status on the committee could make a further contribution to such understanding by submitting proposals based on their knowledge and expertise. They can act as real "boosters" for hearings or initiatives to be organised by the CCJE.
c. Diversification of CCJE's activities
31. Policy makers and judicial bodies must be able to rely on the CCJE's ability to respond rapidly to requests for opinions on clearly defined, practical issues that constitute a serious problem at national level. Where appropriate, comparative European studies might be one valuable contribution the CCJE could make to contribute to resolve such problems.
32. In this context, the Committee of Ministers could also request opinions from the CCJE on new topics that could offer European judicial systems a practical basis for improving the quality of justice.
33. The CCJE might equally play a more active role when Council of Europe bodies are informed of specific situations concerning judges. For example the Committee of Ministers, the Secretary General or the Parliamentary Assembly could thus ask the CCJE, as provided for by its terms of reference, according to specific modalities defined on a case by case basis, to act as adviser or to report on specific situations.
34. Furthermore, the CCJE should be in a position to deal with specific national problems concerning judges, if and only if the request has been sent through official channels via an association of judges enjoying observer status within the CCJE.
35. In this way, as well as drawing up general opinions, the CCJE would make a still greater contribution to improving the situation of judges in our member states, in line with European standards.
36. The CCJE's current terms of reference authorise it to hold hearings4. Such hearings would offer it an additional means of identifying judicial problems in member states and obtaining practical information on specific matters that might be brought to its attention. The CCJE's terms of reference should include a list of subjects on which it might organise hearings, reflecting issues of judicial concern in individual states and relevant work being undertaken by other European judicial bodies, to which these hearings and their findings could then make a specific contribution.
37. Its terms of reference also authorise the CCJE to encourage partnerships in the judicial field involving courts, judges and judges’ associations, namely by organising judicial exchanges aimed at making European judges more aware of the supranational dimension of their work and the problems this entails. Such exchanges between courts could be organised through study visits, direct contacts between two courts or a forum on the internet.
38. CCJE's activities should be followed by a specific press release for each new opinion, plenary meeting and working group meeting.
39. It could also be helpful to develop relations with the European Court of Human Rights or the European Court of Justice, other international organisations, the European Union and non-member states5.
To enable Council of Europe member states to make best use of CCJE's opinions, the latter recommends that the Committee of Ministers take the following steps:
a. ensure that information on the CCJE's activities in general and its opinions in particular are generally accessible and available in printed and electronic form in the various languages of the member states, where appropriate;
b. invite member states to make more use of CCJE's opinions in national debates and national judicial reforms;
c. facilitate European conferences of judges organised by the Council of Europe to develop into events that are genuinely open to debates on current European judicial problems to be attended by a large public concerned;
d. authorise the CCJE to offer member states practical assistance in securing compliance with Council of Europe judicial standards by enabling it to establish special relationships with national judicial bodies;
e. give the CCJE the means to carry out its full mandate, by allowing it to organise hearings and partnerships;
f. make maximum use of the authority granted to relevant Council of Europe and national judicial bodies to submit to the CCJE request for concrete opinions, within a short timeframe, on specific issues relating to judges;
g. encourage initiatives enabling the CCJE to develop relationships with non member states and international organisations.
5 The CCJE has already taken a number of significant steps in this regard:
§ the committee has co-operated, through its Working Group, with the United Nations special rapporteur on the independence of judges on the drafting of the "Bangalore Principles of Judicial Conduct";
§ following the first European conference of judges, the Quebec Court of Appeal organised a training session on mediation for European judges in Montreal from 3-7 October 2005, which several members of the CCJE attended.
§ discussion on Opinion No.1 (2001) in the framework of the international colloquy on the theme: ”The independence of the judiciary. The role of the High Council for the Judiciary. Prospects and challenges” organised by the Council for Federal Judiciary of Mexico on the occasion of its 10th anniversary (7-8 November 2005), in which a member of the CCJE participated.