Strasbourg, 17 December 2010
CONSULTATIVE COUNCIL EUROPEAN JUDGES (CCJE)
Strasbourg, 17-19 November 2010
1. The Consultative Council of European Judges (CCJE) met in Strasbourg, Palais de l’Europe (France) from 17 to 19 November 2010 chaired by Mr Orlando AFONSO (Portugal). The agenda and the list of participants are appended.
B. ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION
2. The CCJE invited the Committee of Ministers:
a. to take note of the “Magna Carta of judges (Fundamental principles)” adopted on the occasion of its 10th anniversary, summarising and codifying the main conclusions of the Opinions already adopted;
b. to take note of the Opinion No. 13 (2010) entitled “The role of judges in the enforcement of judicial decisions”;
and to transmit these two documents to the appropriate agencies in the member states and possibly having them translated into the appropriate languages, as well as to the CEPEJ, the CDCJ, the CDPC, the CDDH and the Department for the execution of European Court of Human Rights judgements so that these bodies take into account of it in their own work;
c. to take note of the present report as a whole.
C. ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION
3. thanked the Portuguese authorities for their support in the organisation of the 10th anniversary of the CCJE;
4. expressed the wish that the Magna Carta of judges (Fundamental principles) constitutes a useful tool for concerned national authorities and professionals in their efforts to promote a justice which is efficient and of quality;
5. invited its members to send to the Secretariat written information on recent developments in their countries regarding judges, to be included in the "country profile" section of its website;
6. took note of the declaration made by the member of the CCJE on behalf of Poland concerning the appointment of judges by the President of the Republic of Poland ;
7. took note of the declaration by the member of the CCJE on behalf of Bulgaria regarding the adoption of a Bulgarian Magistrates Code of Ethics and in particular of the fact that it has been prepared and adopted by the Supreme Judicial Council which is also the body competent for disciplinary matters concerning magistrates; decided to keep this item on the agenda of its next plenary meeting;
8. took note of the declaration made by the member of the CCJE on behalf of France concerning reforms of the Higher Judicial Council (“Conseil supérieur de la Magistrature”) and the constitutionality recourse (treatment of priority issues of constitutionality), as well as by the membre of the CCJE on behalf of Slovakia concerning future legislative changes concerning the status of judges and the Council of the Judiciary, and instructed its Bureau to address these requests, recalling in particular the authorities of those States the standards of the Council of Europe that could be jeopardized;
9. took note of the declaration made by the member of the CCJE on behalf of Serbia on the developments concerning the non re-election of judges, recalled that it adopted a Declaration on Serbia sent to the Serbian authorities in June 2010, and entrusted Mr. REISSNER Gerhard (Austria), who has been actively involved in this activity, with the follow-up of this issue of great concern as regards irremovability of judges;
10. underlined its concern about the increasing number of requests for specific assistance submitted to it by national bodies reporting breaches on the independence or the status of judges, expressed the wish for increased awareness by the various bodies of the Council of Europe, of the importance of these breaches and the consequences they can have on the Rule of law, instructed its Bureau to define for 2011 an effective method to deal with these requests in an efficient and useful manner, and suggested that additional budgetary resources could be assigned to carry out this task aiming at helping States to comply with the Council of Europe standarts concerning judges;
11. entrusted Mr Alain LACABARATS (France) with the preparation of a document summarizing all the attacks on the status of judges for which it has been seized in the framework of its terms of reference, in order to duly inform the Committee of Ministers;
12. re-elected Mr Orlando AFONSO (Portugal) Chair and Mr Gerhard REISSNER (Austria) Vice-Chair of the CCJE for 2011; re-elected Mr Raffaele SABATO (Italy), member of the Bureau for a term of two years, it being understood that he would hold his seat alongside Mr Paul MAFFEI (Belgium) elected for two years in 2009;
13. appointed Ms Aneta ARNAUDOVSKA ("former Yugoslav Republic of Macedonia"), Ms Nina BETTETO (Slovenia), Mr José Francisco COBO SÀENZ (Spain), Mr Niels ENGSTAD (Norway), Mr Alain LACABARATS (France), Ms Irena PIOTROWSKA (Poland), Mr Duro SESSA (Croatia), Mr Virgilijus VALANČIUS (Lithuania) and Mr Bart VAN LIEROP (the Netherlands) as members and Mr Jean-Claude WIWINIUS (Luxembourg) as substitute in the select working party responsible for preparing the draft Opinion on non-materialisation of the judicial process (CCJE-GT) for submission to the 12th plenary meeting of the CCJE;
14. agreed that the draft Opinions to be prepared in 2011 could be preceeded by a brief questionnaire, the replies to which would usefully supplement the material existing in Europe on non-materialisation of the judicial process; instructed the Secretariat to prepare, in co-operation with Mr Alain LACABARATS (France), this questionnaire and send it to all members of the CCJE by 15 January 2011 in order to receive the replies by 1 March 2011; instructed the Secretariat, in the light of the technical nature of the topic to be treated, to appoint a scientific expert who will be entrusted with the task of the processing of the replies in a preparatory report;
15. welcomed the adoption by the Committee of Ministers of the Recommendation (2010)12 on judges: independence, efficiency and responsibilities, as well as the opportunity which was offered to the CCJE to participate concretely and usefully to its drafting;
16. thanked Mr Bart VAN LIEROP and Mr Reinier VAN ZUTPHEN (Netherlands) who welcomed the 18th meeting of the CCJE-GT and the 7th meeting of the CCJE-BU in the Hague, as well as Ms Aneta ARNAUDOVSKA ("the former Yugoslav Republic of Macedonia") who welcomed the 19th meeting of the CCJE-GT and the 8th meeting of the CCJE-BU in Ohrid and in Skopje during this country’s Chairmanship of the Committee of Ministers, and entrusted them to thank their national authorities for the excellent quality of the organisation of these meetings;
17. proposed to hold its 12th plenary meeting from 7 to 9 November 2011 and the 20th and 21th meetings of the working party (CCJE-GT) from 28 to 30 March and from 15 to 17 June 2011.
1. Adoption of the agenda
2. Information by the President and the Secretariat
3. Magna Carta
· Examination of the draft Magna Charta with a view of its adoption
4. Official ceremony for the 10th anniversary of the CCJE
· Programme (14h00 – 17h00)
- Opening speech
- Presentation of previous works by past presidents
- Official presentation of the Magna Charta
- Debate with the participants on the following topics :
(1) To what purposes are CCJE Opinions used at national level ? (
(2) What should be the priorities of the CCJE in the next future ?
- Cocktail given by the Secretary General
5. Draft Opinion No.13 of the CCJE for 2010
· Examination of the draft Opinion No.13 on the role of judges in the enforcement of judicial decisions with a view of its adoption
6. Preparation of Opinion 2011
· Discussion on the theme of the Opinion no.14 on non-materialisation of the judicial process: drafting of a questionnaire, scientific expert(s), possible conference
7. Working structure of the CCJE
· Election of the Chair and the Vice-Chair of the CCJE
· Election of a member of the Bureau of the CCJE
· Nomination of the Working Group of the CCJE for 2011
8. Situation in member States concerning judges
9. Communication strategy of the CCJE and visibility of its work
10. Calendar of future meetings of the CCJE and the CCJE-GT in 2011
11. Any other business
LIST OF PARTICIPANTS
Mr Perikli ZAHARIA, Judge of the Supreme Court of the Republic of Albania,TIRANA
Mme Cristina RODRIGUEZ GALAN, Représentation Permanente de l’Andorre au Conseil de l’Europe, STRASBOURG
Mr Stepan MIKAELYAN, Cour civile d'appel de l'Arménie, YEREVAN
Mr Gerhard REISSNER, (Vice-Chair of the CCJE/Vice-Présidente du CCJE)
Vice-President of the Austrian Association of Judges, President of the District Court of Floridsdorf, VIENNA
Mr Ilgar GILIJOV, Judge Supreme Court, BAKU
M. Paul MAFFEI, Conseiller à la Cour de Cassation, BRUXELLES
BOSNIA AND HERZEGOVINA/BOSNIE ET HERZEGOVINE :
Ms Meddzida KRESO, Court of Bosnia and Herzegovina, SARAJEVO,
Ms Maiia ROUSSEVA, Judge, Sofia City Court, SOFIA
Mr Duro SESSA, Justice of Supreme Court, ZAGREB
Mr Stelios NATHANAEL, Judge, Supreme Court of Cyprus, NICOSIA
CZECH REPUBLIC/REPUBLIQUE TCHEQUE :
Judge Jiri LNENICKA, PRAGUE
Justice Lene Pagter KRISTENSEN, Supreme Court, COPENHAGEN
Ms Linda LAURITSEN, Judge, City Court of Roskilde, ROSKILDE
Mrs Julia LAFFRANQUE, Judge, Supreme Court, TARTU
Mr Timo ESKO, Justice, Supreme Court of Finland, HELSINKI
M. Alain LACABARATS, Président de Chambre, Cour de Cassation, PARIS
Mr Irakli ADEISHVILI, Judge, Chairman of the Chamber of Civil Cases, Tbilisi City Court, TBILISI
Mr Otto MALLMANN, Presiding Judge, Federal Administrative Court, LEIPZIG
Mr Gerassimos FOURLANOS, Judge, Supreme Court, ATHENS
Mr Arpád OROSZ, Judge, Supreme Court, BUDAPEST
Ms Justice Hjördís HÁKONARDÓTTIR, Justice of the Supreme Court of Iceland, REYKJAVÍK
Mr John MacMENAMIN, Judge, High Court, DUBLIN
M. Raffaele SABATO, Juge Tribunal de Naples, NAPLES
Ms Aija BRANTA, Judge, Constitutional Court of the Republic of Latvia, RIGA
M. Lothar HAGEN, Juge, Cour de Justice, VADUZ
Mr Virgilijus VALANČIUS, President of the Supreme Administrative Court of Lithuania, President of the European Association of Judges, VILNIUS
M. Jean-Claude WIWINIUS, Président de Chambre, Cour Supérieure de Justice, LUXEMBOURG
M. Jean-Marie HENGEN, Juge de Paix Directeur, Justice de Paix Esch-sur-Alzette, ESCH-SUR-ALZETTE
Hon. Mr Justice Geoffrey VALENCIA, ATTARD
Mr Xenofon ULIANOVSCHI, Deputy President of the Court of Appeal, CHISINAU
M. Jérôme FOUGERAS-LAVERGNOLLE, Juge d’Instruction, Juge tutélaire, MONACO
Ms Valentina PAVLICIC, Judge, High Court of Podgorica, PODGORICA
Mr Bart VAN LIEROP, Conseiller Gerechtshof Den Haag, THE HAGUE
Mr Reinier van ZUTPHEN, Chairman of the Dutch Association of Judges and Prosecutors (NVVR) and Vice-President of the Districht Court of Utrecht, UTRECHT
Mr Nils A. ENGSTAD, Judge, Hålogaland Court of Appeal, TROMSØ
Mr Bård TØNDER, Judge, Supreme Court, OSLO
Ms Irena PIOTROWSKA, Judge, Court of Appeal, Warsaw, Council of the Judiciary, WARSAW
M. Orlando AFONSO, Juge, Cour Supreme, ALMADA (Chair of the CCJE/Présidente du CCJE)
Ms Aida–Rodica POPA, Judge of the High Court of Cassation and Justice, BUCHAREST
RUSSIAN FEDERATION / FEDERATION DE RUSSIE :
Mr Nikolay ROMANENKOV; Justice, Supreme Court of the Russian Federation, MOSCOW
SERBIA / SERBIE :
Ms Spomenka ZARIĆ, Judge of the Supreme Court, BELGRADE
Ms Alena POLÁČKOVÁ, Judge, Supreme Court, BRATISLAVA
Ms. Nina BETETTO, Supreme Court of the Republic of Slovenia, LJUBLJANA
M. José Francisco COBO SÀENZ, Magistrat, President of the 2nd Seccion at the Audiencia Provincial (Navarra), PAMPLONA
SWEDEN/ SUEDE :
Ms Charlotte BROKELIND, Chief Judge, Eksjo District Court, EKSJO
Mr Carl Gustav FERNLUND, Justice of the Supreme Administrative Court, STOCKHOLM
SWITZERLAND / SUISSE :
M. Jean FONJALLAZ, Juge fédéral, Tribunal fédéral, av. du Tribunal-Fédéral 29, LAUSANNE
“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA”/“L’EX-REPUBLIQUE
YOUGOSLAVE DE MACEDOINE” :
Mrs Aneta ARNAUDOVSKA, Judge, Director of the Academy for Training of Judges and Prosecutors, SKOPJE
Mr Levent KURT, Judge, Head of Department, International Law and Foreign Affairs, Ministry of Justice, ANKARA
Mr Viktor GORODOVENKO, Head of the Court of Appeal Zaporizhska region, ZAPORIZHYA
UNITED KINGDOM/ ROYAUME-UNI
Lord MANCE, Supreme Court, LONDON
Mr Yukio TAKEUCHI, Justice of the Supreme Court of Japan, TOKYO
Mr Takashi NAKAMARU, Judge of Nagoya High Court, TOKYO
Mr MINAMI Hiroyuki, Consul, Consulate-General of Japan, STRASBOURG
GROUPEMENT EUROPEEN DES MAGISTRATS POUR LA MEDIATION (GEMME)
Mme Hélène GEBHARDT, Secrétaire générale GEMMME France
EUROPEAN COMMITTEE ON LEGAL COOPERATION (CDCJ) / COMITE EUROPEEN DE COOPERATION JURIDIQUE (CDCJ)
Mr Edwin KILBY, Head of European Policy, European and International Division, Ministry of Justice, LONDON
Mme Simonz GABORIAU, Magistrat, Membre du Conseil d’Administration de MEDEL, PARIS
TRANSPARENCY AND EFFICIENCY OF THE JUDICIAL SYSTEM OF UKRAINE
Mr Vasyl HUMENIUK, Judge, Supreme Court of Ukraine
Mr Oleh KRYVENDA, Judge, Supreme Court of Ukraine
CONSEIL SUPÉRIEUR DE LA JUSTICE CSM
M. Rui Francisco COELHO, LISBONNE
SECRETARIAT DU CONSEIL DE L’EUROPE
(CCJE E-mail : email@example.com)
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Directorate General of Human Rights and Legal Affairs / Justice Division
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Note for the president of the Consultative Council for European Judges (CCJE)
(Paris, November 12th, 2010)
On June 29th and September 27th 2010, the two main unions for judges in France, the “Union syndicale des magistrates (USM)” et “le Syndicat de la magistrature (SM)” have referred the situation in France regarding the principle of independence of judges to the CCJE.
Among the points raised, I wish to draw special attention to the following two questions.
1 - The High Council of the Judiciary (“le Conseil supérieur de la magistrature”; hereafter “CSM”)
The CSM was recently subjected to a major reform that was passed by Parliament in July 2008 and will be entering into force early 2011.
Beyond a core provision transferring the presidency of the CSM from the President of the Republic to the First President of the Cour de cassation, it is worth noting that the functions of the CSM fall far short of the CCJE’s recommendations for such bodies stated in its 10th Opinion.
Above all, in view of the directions expressed in this Opinion, it is the composition of the CSM that is problematic since provisions have been made for a new French CSM consisting of a minority of judges.
Moreover, the Constitutional Council, which was called upon to rule on the compatibility of this reform with the Constitution, decided that the First President of the Cour de cassation could not sit on the CSM, in matters of appointment and judges’ discipline, when it would come to filing available positions or carrying out disciplinary proceedings against a judge from this Court.
The absence of a foreseen mechanism to replace the First President results in a worsened under-representation of judges in the CSM, in particular when it comes to nominating the candidates to exercise the highest judicial offices.
2 – Processing priority preliminary rulings on constitutionality (“Questions prioritaires de constitutionnalité”; hereafter “QPC”)
The letters issued by the two unions describe the QPC mechanism that was recently introduced into French law: any citizen may, as part of a trial, plead the unconstitutionality of the legislation applicable to the dispute. If he or she considers the issue serious, the judge shall transfer it to the Cour de cassation, which will also assess the seriousness of the issue and transmit it, if appropriate, to the Constitutional Council, which alone has the authority to make a final decision on the constitutionality of the statutory provision.
The reform, in force since 1 March 2010, also provided that those issues should be examined within the Cour de cassation by a special Bench presided by the First President and including the presidents of the chambers as well as two trial judges.
The law provided that the QPC shall be given priority before any other ground of defence, therefore the Cour de cassation held that this priority mechanism could be in contradiction with the principle of supremacy of European Union law and accordingly gave, on April 16 2010, a decision asking a preliminary question to the ECJ.
The mere fact that the Cour de Cassation asked this question has raised protests which exceed the amount of criticism which can be accepted against judicial decisions. This is the point made by the two unions in their letters of referral.
Furthermore, the Parliament voted as a matter of urgency, in June 2010, on the occasion of a text relating to the CSM, a legislative amendment abolishing altogether the special Bench of the Cour de Cassation, which had been established three months earlier. Henceforth, all QPCs are examined, by the various chambers of the Cour de cassation, depending on the field concerned.
Following a paper presented to the Members of Parliament in the days following the decision made by the Cour de Cassation, this elimination, devoid of any serious justification, occurred shortly after the reform had entered into force and is seen as a sanction against the decision of 16 April 2010, which was interpreted by its detractors as a way for the Cour de Cassation to express an assumed hostility against the QPC mechanism.
Some commentators have argued against this text, which was presented as “punitive legislation” (Félix Rome, Recueil Dalloz, 1 July 2010) or an “outrageously punitive solution” (Pascale Deumier, Revue trimestrielle de droit civil 2010, page 512).
Of course, we can not challenge the authority of Parliament to pass laws on judicial organization it considers appropriate for the situation of a State and the way a certain type of litigation is processed, nor can we forget it may pass, under certain conditions set by the European Court of Human Rights, statutory reforms to suppress judicial interpretations it considers inappropriate and unjustified.
But it is clear from both texts passed at a European level for over 15 years (Recommendation R (94)12; Opinion No. 1 and 10 of the CCJE) and the European Court of Human Rights case-law (Jean-François Renucci, Traité de droit européen des droits de l’homme, LGDJ 2007, No. 315 and 316), that the executive and legislative powers should not interfere in the functioning of the courts by exerting illegitimate pressure on judges and undermining their independence.
Given the conditions under which the French Parliament's decision was made regarding the Cour de Cassation, one must seriously question whether such reform can be justified by any compelling reason of public interest.
President of Chamber of the Cour de Cassation
Member and former president of the CCJE
List of the decisions taken by the Bureau of the CCJE (CCJE-BU)
during its informal meeting (Strasbourg, 16 November 2011)
Organisation of the 11th plenary meeting of CCJE
1. The Bureau examined the draft agenda of the 11th plenary meeting of CCJE (CCJE Document (2010) OJ1) which begins the next day, the timetable and in particular the organisation of the ceremony on the occasion of the 10th anniversary CCJE (Thursday, 18 November from 14.00 to 17.30).
2. The Bureau examined the draft Magna Carta and finalised a new draft to be submitted for adoption to the CCJE (CCJE Document (2010) 3Prov2).
3. The Bureau took note of a letter from the Italian High Judicial Council (CSM) welcoming the adoption by the CCJE of the Magna Carta and decided to transmit the letter and information to the CCJE.
Draft Opinion of the CCJE on enforcement of judicial decisions
4. The Bureau examined the draft Opinion containing the proposed amendments (few) submitted by the members of the CCJE and expressed the wish that there will be no new substantive amendments presented during the plenary meeting requiring the CCJE to open an in-depth discussion, contrary to the recommendations formulated by the Secretariat to the CCJE members before the meeting.
Targeted activities in member States concerning the status of judges
5. The Bureau took note of the increasing number of requests adressed to the CCJE as regards the status of judges and expressed its concern about the protection of judicial independence as an essential element of the rule of law.
6. It examined all requests mentioned below, while being aware of the low impact that its decisions may have on the matter due to lack of time and budget resources and personnel.
7. The Bureau agreed on the necessity to adopt a uniform, efficient and useful procedure for dealing with such specific requests, which could contribute to stop these breaches to the status of judges. It expressed the wish to obtain from the various relevant bodies of the Council of Europe sufficient means to carry out this task which is included in its terms of reference.
Spain (Interference by the executive):
8. The Bureau entrusted P. Mafféi with the preparation of a draft letter for signature by the President of theCCJE inviting the Europe Foundation to refer to previous responses made by the CCJE in the absence of new facts concerning the situation denounced.
France (Reform of the High Judicial Council (CSM) and priority issues of constitutionality)
9. The Bureau took note of the information note prepared by A. Lacabarats (France) as it appears in Appendix III of this document, summarising the file sent to the CCJE by the two main unions of French magistrates. The Bureau decided at first to draft a CCJE Declaration expressing its concern about the various breaches to the independence and status of the judge. It finally found it more efficient to prepare, to the attention of the Committee of Ministers of the Council of Europe, a general document summarising all the breaches to the judges in all Member States sent to the CCJE.
Serbia (overall procedure for re-election of judges and problem of non re-elected judges):
10. The Bureau was informed that G. Reissner (Austria) was contacted again by the European Commission to represent the CCJE in an expert mission in Serbia this time on election monitoring to the High Judicial Council. The Bureau welcomed the possible continuation of such cooperation between the European Commission and the CCJE. It decided to ask, at the plenary meeting, the member of the CCJE on behalf of Serbia on the current situation regarding the judges who were not re-elected as well as on the follow-up given at national level to the Declaration CCJE on Serbia that has been sent to the Serbian authorities last May.
Romania (Draft law aimed to engage the responsibility of judges)
11. The Bureau took note of a letter sent to the President of the CCJE by the Association of Romanian Magistrates explaining that a draft law would enable individuals who were not be satisfied by a decision of the Supreme Court to engage the responsibility of judges in case of bad faith or gross negligence. The Committee decided to prepare a response.
Poland (Appointment of judges by the President of the Republic), Bulgaria (Preparation of a Code of Ethics for judges) and Slovakia (Disciplinary proceedings against judges):
12. The Bureau decided to ask, at the plenary meeting, members of the CCJE on behalf of Bulgaria, Poland and Slovakia, as regards the evolution of the situation in these states.
13. The Bureau also took note of three documents forwarded by the European Association of Judges (EAJ) brought to its attention by G. Reissner, also Vice-President of the International Union of Judges:
- A Resolution dated May 16, 2009 stated in many States a reduction of remuneration for judges (in particular Romania, Poland, Ukraine, Croatia, Iceland, Hungary, Slovenia, Bulgaria);
- A Resolution dated November 8, 2010 concerning Serbia, which recommends the Declaration of the CCJE to be duly taken into account by the Serbian authorities;
- A resolution also dated November 8, 2010 expressing concerns about the status of judges in Iceland, Italy, Portugal and Spain.