Strasbourg, 19 March 2007
CCJE (2007) 3
Consultative Council of European Judges (CCJE)
The current situation in the Council of Europe’s Member States
For the attention of CCJE-GT
This document summarises the replies to the questionnaire provided by various member states of the Council of Europe which state that they have a Judicial Service Commission or an equivalent body.
In the first section, which relates to the current situation, the following points will be examined:
- The composition of these entities;
- Their remit.
In the second section, some new avenues to explore will be proposed, providing food for thought for the working group.
I. PRESENT SITUATION: JUDICIAL SERVICE COMMISSIONS OR EQUIVALENT BODIES OF EVERY KIND IN THE SERVICE OF THE INDEPENDENCE OF THE JUDICIAL SYSTEM
Judicial Service Commissions and equivalent bodies come in a huge variety of forms. This is a hindrance in determining a common, comprehensible definition for these institutions, which are nevertheless essential.
This diversity is particularly pronounced in the use of terminology, since the names given to Judicial Service Commissions and similar bodies differ greatly from one state to another.
- ‘Council of Justice’, ’High Council of Justice’ or equivalent (Armenia, Slovakia, Georgia, Belgium, Poland, Bosnia and Herzegovina, Croatia, Bulgaria, “former Yugoslav Republic of Macedonia”, Albania);
- ‘Judicial Service Commission’ or equivalent (Romania, Portugal, Moldova, Italy, France, the Netherlands, Cyprus);
- ‘National Courts Administration’ or equivalent (Norway, Denmark, Estonia);
- ‘Council or Board of Judges’ or equivalent (Lithuania, Czech Republic, Turkey);
- ‘General Council of the Judiciary’ (Spain).
This diversity, a result of each state’s culture and history, is also very apparent in the composition and remit of these bodies.
Consequently, the main difficulty that the members of the working group will face will be to identify the common features of these bodies and determine any common aspects of their structure.
A) A wide variety of compositions
The number of members of Judicial Service Commissions and equivalent bodies is a clear example of this great diversity: it ranges from 5 in Turkey, the Czech Republic and the Netherlands to 44 in Belgium.
Other examples are 9 members in Armenia and Norway, 11 in Denmark, Croatia and Estonia, 12 in Moldova, 13 in Cyprus, 14 in Romania, 15 in Lithuania, “the former Yugoslav Republic of Macedonia”, Albania and Bosnia and Herzegovina, 16 in France, 17 in Portugal, 18 in Slovakia, 19 in Georgia, 21 in Spain, 25 in Poland and Bulgaria, 27 in Italy.
There are many different possibilities:
- In most cases, Judicial Service Commissions or equivalent bodies are mainly composed of judges.
- In other countries, all the members are judges: Lithuania, Cyprus, Bulgaria, Turkey1.
- In others there is a perfect balance of judges and non-judges: Belgium.
- There are cases in which the majority of members are not judges: Portugal, Slovakia, Norway.
Two important common factors must be underlined:
- There is not one country where the Judicial Service Commission or equivalent body is made up solely of non-judges.
- In countries where the judges are the minority, the ratio of judges to non-judges is always nearly equal: for example – 8 out of 17 in Portugal and 4 out of 9 in Norway.
Some Judicial Service Commissions or equivalent bodies include ex officio members, who may, depending on the case, be:
- key political figures: the President of the Republic (Italy, France, Albania), the Minister for Justice (Georgia, Poland, France, Moldova, Estonia, Bulgaria, Turkey, “the former Yugoslav Republic of Macedonia”, Albania)
- judges from the Supreme Courts (Spain, Portugal, Slovakia, Georgia, Poland, Moldova, Cyprus, Italy, Estonia, Lithuania, Bulgaria, Turkey, “the former Yugoslav Republic of Macedonia”, Albania).
In some cases, the ex officio members chair the Judicial Service Commission or equivalent body. In others, their right to vote is withdrawn (Bulgaria).
- In most states, the appointment procedure involves the legislative, executive and judicial authorities, with the arrangements varying: each must elect or appoint a specific number of members.
For example :
In France, the President of the Republic appoints a non-judge, the President of each Assembly also appoints a non-judge, whereas the judges are elected by their peers.
In Georgia, 2 members are appointed by the President of Georgia and 5 by parliament, while the judges are elected by the “Conference of the Judges of Georgia” on the recommendation of the President of the Supreme Court.
In Poland, 1 member is appointed by the President, while 4 members are elected by the Assembly and 2 by the Senate, and judges are also elected by their peers.
- There are states in which the executive authority plays no part in the appointment process.
In Croatia, membership is the result of a proposal by judges, lawyers and representatives of the university, subject to approval by parliament2.
- Finally, in other countries, it is the legislative authority that is absent from the appointment process. In the Netherlands for example, the appointment of the 5 members is a result of a proposal by the Minister of Justice, subsequently validated by Royal Decree.
From this analysis, some vital points are clear:
- Regarding the judges’ participation in electing or appointing members:
Depending on the case, the judges are elected by the whole of the judiciary or a representative body thereof (e.g. the ”Conference of the Judges of Georgia”). However, it is sometimes the case that the election is based on a list drawn up by the President of the Supreme Court (Georgia) or by judges’ associations (Spain). The judiciary’s participation may also involve drawing up a list of judge candidates, from which parliament then elects the members (Croatia).
- Regarding the appointment of non-judges, methods also vary. Sometimes the non-judges are figures who are appointed at the discretion of the competent authority (Romania, Portugal) or are chosen on the basis of their profession: barristers, university professors (Croatia, Estonia), members of parliament (Estonia). In contrast, other countries prohibit certain appointments due to incompatibility provisions: in France for example, the members from outside the system may not be from the national legal service or parliament.
B. The status of members: relative uniformity
Despite all this variety, the status of the members of Judicial Service Commissions and equivalent bodies is relatively uniform.
This applies firstly to their term of office, which is between three and six years. There is one noteworthy exception, however, namely Cyprus, where members remain in office until they reach retirement age3.
The same uniformity exists in respect of the restrictions usually applied to re-election/reappointment:
- renewal is not allowed in Romania and France;
- renewal is allowed only once in Norway, the Netherlands, Belgium, Lithuania, Bosnia and Herzegovina and Belgium.
There are, however, some exceptions, with no restrictions applied to renewal in Turkey.
Where incompatibility provisions are concerned, not all the replies to the questionnaire are clear on this subject, making it difficult to be certain of the situation. It is nevertheless possible to say that some states have laid down such provisions where members are concerned:
Belgium: members may not hold political office or be appointed to a leading position in the judiciary or prosecution service during their term of office.
Italy: members may not hold political office, engage in commercial activities or work for the Minister of Justice.
France: members may neither hold political office nor be promoted during their term of office.
C. A very wide variety of roles
Judicial Service Commissions have five main areas of responsibility:
► The first is the power to appoint and/or propose
There are significant differences between states where the level of participation in the process of appointing judges is concerned.
Judicial Service Commissions and equivalent bodies in certain countries control the whole process (Cyprus, Italy, Bosnia and Herzegovina, "the former Yugoslav Republic of Macedonia", Bulgaria4, Spain, Portugal, Belgium, Italy).
In others, they prepare proposals for appointments (Romania, Slovak Republic, Poland, Moldova, Belgium and Albania5).
In a third group of states, they give an opinion, which in some cases is binding. The states concerned are Estonia (except for Supreme Court judges), Lithuania, Czech Republic (only for the most important judges), Turkey and the Netherlands.
There is a fourth group within which the Judicial Service Commission has the power to issue an opinion or proposal, depending on the type of appointment: in France, for instance, the Commission has the power of proposal in respect of the most important posts, but issues opinions in respect of other posts.
Finally, there are certain countries whose Commissions have no powers in respect of appointments (Norway, Denmark).
►The second is discipline and professional ethics
- Disciplinary power
Judicial Service Commissions and equivalent bodies very frequently hold disciplinary responsibilities, but these are exercised in different ways:
In some states, the Judicial Service Commission or equivalent body bears responsibility for the entire disciplinary procedure. It takes the initiative, sometimes jointly with the Minister of Justice and/or the president of the court where the judge concerned holds office (Bulgaria) and decides on the penalty to be imposed (Bosnia and Herzegovina, "the former Yugoslav Republic of Macedonia").
There are other states where Judicial Service Commissions merely take the initiative of starting the procedure, which is then a matter for the ordinary courts (Portugal, Slovak Republic, Norway, Georgia, Cyprus) or for a separate disciplinary body. Belgium's system is fairly similar, but its Judicial Service Commission can only inform the body responsible for deciding the case.
Other countries combine these two paths: their Judicial Service Commission has cases referred to it by the Minister of Justice or the head of the court concerned (Romania, Italy, Croatia, Albania, Turkey, France) and imposes penalties, on the basis of different arrangements.
Lastly, some Judicial Service Commissions play no part at all in the disciplinary process (Netherlands, Denmark, Estonia, Czech Republic) or have a very limited role (Norway, Moldova). Here, ordinary courts are responsible for the disciplinary procedure.
The decisions delivered in disciplinary cases are not always open to appeal (Armenia, Cyprus), or only in a very few types of cases, such as those relating to a violation of fundamental rights. In these, any challenges are made in the constitutional court (Norway, Slovak Republic).
- Ethical matters
The Judicial Service Commission or equivalent body is sometimes also responsible for issuing standards relating to ethics and professional conduct. This is how the Slovak Republic, Poland and Bosnia and Herzegovina drew up their codes of ethics.
- Complaints by individuals
Some states have a system for dealing with complaints by individuals where a judge is suspected of having acted unethically (Moldova, Albania, Denmark, Italy, Belgium, Spain6).
Generally, there is a complaint filtering system to prevent libellous complaints by individuals from reaching the Judicial Service Commission7.
► The third is budgetary matters and the administration of the courts
- Budgetary powers
In a very few countries, Judicial Service Commissions bear full responsibility for the judicial system budget (Norway, Netherlands, Denmark).
In Bosnia, the Judicial Service Commission has a very important role in this respect, as it even plays a part in drawing up this budget.
It is the Judicial Service Commission that proposes the budget in Georgia.
In other states, Judicial Service Commissions have a lesser role in this field, as they merely issue an opinion on the draft budget (Moldova, Belgium, Bulgaria, Cyprus) or approve the budget (Estonia, Lithuania).
A large number of Judicial Service Commissions, on the other hand, have no budgetary powers at all.
- Administrative powers
The substance of these powers is more difficult to assess, as they take a very large number of different forms.
It can nevertheless be stated that, overall, Judicial Service Commissions which have budgetary responsibilities also have responsibilities in respect of the administration of the courts (Norway, Netherlands, Denmark).
In "the former Yugoslav Republic of Macedonia", the Judicial Service Commission is responsible for drawing up programmes for the development of the courts.
In certain countries, Judicial Service Commissions exercise this power more indirectly, through opinions and recommendations.
- Judicial Service Commissions' or equivalent bodies' own budget
In most cases, Judicial Service Commissions or equivalent bodies do not have their own budget distinct from that of the Ministry of Justice or that of the courts (Portugal, Cyprus, Estonia, Lithuania, Czech Republic, Croatia, Turkey).
In the Netherlands and Denmark, in contrast, Judicial Service Commissions have power to negotiate their own budget, although this is an integral part of the Ministry of Justice budget.
The funds allocated for the functioning of Judicial Service Commissions may therefore be in competition with the budgets of the courts, which may have requirements that prove more urgent, such as the fight against crime.
► The fourth is judge training
The training of judges is now less and less within the remit of Judicial Service Commissions or equivalent bodies, being placed in the hands of independent authorities responsible for programmes, recruitment and competitions8.
The development of judge training schools explains this tendency. There is nevertheless broad co-operation between these schools and Judicial Service Commissions or equivalent bodies (Poland, Moldova, Lithuania, Bosnia and Herzegovina, "the former Yugoslav Republic of Macedonia", Bulgaria, France), especially in the field of training relating to ethics and professional conduct.
► The fifth is the power to give opinions
In certain states, Judicial Service Commissions and equivalent bodies exercise the power to give opinions to public authorities.
They may, for instance, issue an opinion when legislation is being drawn up (Poland, Cyprus, Denmark, Italy, Estonia, Romania, Belgium).
It is not clear from the replies given to the questionnaire whether these opinions are published.
France's Judicial Service Commission may issue an opinion on any matter relating to the functioning and independence of the courts, an opinion which is presented to the President of the Republic, who may publish it.
A few very general observations arise from this review of the situation:
There may be said to be two main types of Judicial Service Commissions or equivalent bodies: those of northern Europe, with a role more centred on the functioning of the court system (particularly the budget and the management of the courts), and those of southern and central Europe, the powers of which are more clearly focused on management of the judiciary
The face presented by Judicial Service Commissions and equivalent bodies differs very widely from one country to another, in terms of both their membership and their powers. These variations are a product of the history, traditions and political cultures of each state. All these bodies, however, strive for more independent courts, universally regarded as being fundamental to democracy. Furthermore, all, or virtually all, these states have given constitutional status to their Judicial Service Commission or equivalent body.
II. SOME NEW AVENUES TO EXPLORE
On the basis of the above, and in order to give the working party food for thought, this document attempts to trace some new avenues to explore in three different areas:
- Increasing the independence of Judicial Service Commissions and equivalent bodies by giving them the means of autonomous operation.
- Clarifying the powers of Judicial Service Commissions and equivalent bodies in the disciplinary sphere.
- Affirming the strategic role of Judicial Service Commissions and equivalent bodies in safeguarding the independence of the courts.
A. Increasing the independence of Judicial Service Commissions and equivalent bodies by giving them the means of autonomous operation
Seek a single term to designate Judicial Service Commissions and equivalent bodies in all Council of Europe member states
It has already been stated that the varied nature of Judicial Service Commissions and equivalent bodies is a product of the history, traditions and political cultures of each state, although each pursues the same aim of safeguarding the independence of the courts. Finding a single term to designate all such bodies in all Council of Europe member states would help to assert a common culture in relation to the rule of law and the independence of the courts. It would also give Judicial Service Commissions a higher profile and give greater importance to their activity in the political world and in civil society in all these states.
Bring the membership of Judicial Service Commissions and equivalent bodies fully into line with the composition of civil society
- Guarantee equal representation of men and women in Judicial Service Commissions and equivalent bodies;
- Seek ways of ensuring that civil society and the public are represented in Judicial Service Commissions and equivalent bodies.
Consolidate the status of the members of Judicial Service Commissions and equivalent bodies
- Ensure that the members of Judicial Service Commissions and equivalent bodies cannot be promoted in any way whatsoever during their term of office.
- Make provision for a universal set of incompatibility provisions applicable to members of Judicial Service Commissions and equivalent bodies during their term of office: prohibition of the holding of any parliamentary or political office, of any major responsibilities as head of an industrial, commercial or financial enterprise, and of any office within the Ministry of Justice.
Ensure the independent functioning of Judicial Service Commissions in terms of budget and resources
- Give Judicial Service Commissions the power and capacity to negotiate and effectively to organise their own budget.
- Give Judicial Service Commissions and equivalent bodies the means to operate autonomously: dedicated premises, secretariat, computing resources, freedom of movement in the courts.
Guarantee the capacity of Judicial Service Commissions and equivalent bodies to organise themselves in order to carry out their duties
In order to enable Judicial Service Commissions and equivalent bodies to carry out their duties and effectively to guarantee the independence of the courts, it is important for them to have the capacity to organise themselves, so that they are neither answerable for their activities to the political authority nor dependent thereon.
- Systematically send to Judicial Service Commissions and equivalent bodies inspectors' reports on the functioning of the courts drawn up at the Ministry of Justice.
- Allow Judicial Service Commissions and equivalent bodies to obtain information directly about the functioning of the courts, either by visiting them or through the availability of a dedicated inspectorate.
- Allow Judicial Service Commissions and equivalent bodies to elect one of their own members to chair their sittings and to set their own agendas for their meetings.
B. Clarifying the powers of Judicial Service Commissions and equivalent bodies in the disciplinary sphere
Guarantee compliance with Article 6, para 1 of the European Convention during disciplinary procedures
Ensure effective separation between the prosecution and decision-taking functions during disciplinary proceedings in Judicial Service Commissions and equivalent bodies: it is vital for the disciplinary body not to be involved in decisions on prosecution, as is the case in certain states.
The decision to bring judges before Judicial Service Commissions or equivalent bodies ruling on disciplinary matters must be able to be taken only by Ministers of Justice, by heads of courts and, possibly - in accordance with arrangements to be defined - by members of the public claiming to have suffered damage.
Allow Judicial Service Commissions and equivalent bodies independently to conduct the preliminary investigations required for disciplinary matters to be determined
This recommendation assumes that Judicial Service Commissions or equivalent bodies have sufficient resources at their disposal to carry out these investigations themselves (subject to the provisions of Article 6, para 1 of the European Convention) or to entrust these to a dedicated inspectorate.
C. Affirming the strategic role of Judicial Service Commissions and equivalent bodies in safeguarding the independence of the courts
Guarantee and broaden the power of Judicial Service Commissions and equivalent bodies to issue opinions
- While respecting the principle of the separation of powers, grant to Judicial Service Commissions and equivalent bodies the right to issue an opinion on any bill or draft legislation relating to justice, on the draft budget for the judicial system and, in general, on any matter relating to the independence of that system.
- Ensure that the arrangements for giving such opinions guarantee the freedom of action of the Judicial Service Commission or equivalent body: the initiative for issuing an opinion must rest with the Commission, and the opinion must be published if the Commission so desires.
In those states where a code of ethics is currently being drawn up, make Judicial Service Commissions or equivalent bodies responsible for this process in its entirety
While the possible drafting of a code of ethics for judges certainly implies co-operation between all the players, professional or not, the legitimacy attached to their status and role means that Judicial Service Commissions or equivalent bodies must have a prime role to play in this process.