D Implementation of the opinions of the CCJE in member states of the Council of Europe and proposals on the measures to be tak

Strasbourg, 18 September 2006

CCJE (2006) 6

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE)

Judicial partnership between courts, judges and associations of judges

Some preliminary considerations

To be adopted by the CCJE

during its 7^th meeting (Strasbourg, 8-10 November 2006)

In the meeting of the CCJE-GT in Bucharest I was asked to give a statement on the possibilities of a partnership between courts, judges and associations of judges.

The background was that the court of Kattowice in Poland and the court of Floridsdorf had started a project to establish such a partnership.

I.) Why court to court co-operation ?

There are two main fields of interest such partnerships could be used for. Firstly co-operation in international cases could be improved by finding the optimal way how to apply mutual treaties and international legal instruments. Also to learn to know the special legal regulations in the country of the partner court will facilitate the applying of the foreign law where ut is necessary. Secondly an exchange of experience of practice in questions of case management or administration of the courts may give some ideas for improvements at the respective other partner court. Last but not least an exchange of court decisions which deal with questions of European Law especially the European Convention on Human Rights would not only be of great interest for the two courts of the partnership but may also contribute to an uniformity of application of European Law.

There are several initiatives to spread out knowledge and practical experiences in European Law and its application. What are the benefits of a court to court co-operation. The court to court partnership is intended to be a long term relationship co-operation. This makes possible a better understanding of the working conditions and the concrete background the partners are facing. Exchange of idees and proposals for alternatives could be very concrete. The intended partnership will create a climate of trust and understanding, which will guarantee a good and effective outcome.

II.) Possible fields of co-operation

The partnership could include for instance the following fields of interest:

a) Deepening the knowledge of the legal situation in the other country (substantive law, procedural law, organisational law concerning the courts, new legislation, new legal institutions and so on)

b) Discussing the existing legal means of international co-operation between courts of the two countries, their practical application and possibilities of an improvement.

c) Exchange of experiences in the administration and organisation of the court to find the best practice (case management, distribution of cases; aquiration and distribution of resources, organisation of the different offices; statistics, use of IT; training; contacts with the media, security measures and so on)

d) Information about general issues relevant for judges and the judiciary (independence; recruitment and appointment of judges; initial and in-service training; finance and resources of the judiciary; ethics of judges; disciplinary measures, prevention of corruption and so on)

III.) Means of co-operation:

Means of co-operation could be:

a) visit of small groups of judges or certain staff at the other court

b) possibility for single persons to a study visit to the other court, giving this person the opportunity to share a certain period of working time with a member of the other court

c) establishing a possibility for direct contacts between the two courts

d) establishing a forum of exchange by the means of the Internet, where a structured discussion could take place

IV.) Obstacles

There are two obstacles: the different languages and the financial means.

a) Personal contact as well as every other form of exchange needs a translation into a language the other partner understands. If the partners are not able to use the same language either they can communicate in a third language both understand or the help of interpreters is necessary.

b) There will be costs for travelling and hosting expenses as well as costs for interpreters. Many courts would not be able to finance such expenses out of there normal budget. Extra financing will be necessary.

V) Selection of the partner

How to find the adequate partners ? In order to keep the obstacles mentioned in point IV as small as possible it would be preferable to look for a court located relatively near to the other and to choose a country where at least some colleagues might speak the language of the partner in spe. Essential is that there is a broad basis of willingness to participate not only form the heads of the jurisdiction but also from the other judges and staff. There should be a clarification about the different jurisdiction of the involved court. If there is interest to cover all fields of its own jurisdiction and the other court does not have jurisdiction in one or the other field the possibilities to get the missing practical experience by enlarging the team of co-operating experts by judges form other courts. Another point of consideration may be that similarities in the size of the courts, the location of the court in a big city or a rural surroundings might contribute to he effectiveness of the co-operation.

VI.) A possible role for the CCJE :

The CCJE on several occasions emphasised the necessity of training not only in domestic but also in European law and encouraged international co-operation. Its terms of reference explicitly include to encourage judicial partnerships between courts, judges and associations of judges.

In spite of the fact, that the main obstacle is seen in the lack of financial funding the CCEJ could contribute in the following ways:

a) It could establish a (Internet-) platform at its site at the Council of Europe to bring potential partners together: (Court X looks for a partner in country Y, please contact ...)

b) The CCJE/CCJE-GT/taskforce of the CCJE could comment on concrete projects of co-operation: The reason might be to help the partners of the project, or even - if there is any funding of the Council of Europe , as one precondition to be guaranteed financial support. This raises the question if guidelines/minimum standards/recommendation for such partnerships should be elaborated by the CCJE.

c) Its members could be encouraged/obliged to help with the project, for instance to comment on the opinions of the CCJE on the occasion of meetings of judges of both courts. Which deal with topics which the CCJE dealt with in one of its opinions.