Strasbourg, 18 January 2012
Consultative Council of European Judges (CCJE)
Situation report on the judiciary and judges in the different member states
This report is a follow-up to the complaints submitted to the CCJE concerning some infringements of standards governing the status of judges, as identified in member states.
The present report was adopted by the CCJE during its 12th plenary meeting (7-9 November 2011).
It has been submitted to the Committee of Ministers for information on 18 January 2012 (1131th meeting) and will be reviewed regularly by the CCJE.
I. The factual information submitted to the CCJE
1. Judges’ associations from different countries, as well as the European Association of Judges (EAJ) and the “Magistrats européens pour la démocratie et la liberté” (MEDEL) have requested the CCJE to express views on alleged infringements of independence of the judiciary and judges in the following countries: Armenia, Bulgaria, France, Italy, Poland, Portugal, Romania, Serbia, Slovakia, Spain, Switzerland, Turkey, Ukraine.
2. The information submitted to the CCJE specifically concerns:
- infringements of the status, independence and security of tenure for judges;
- infringements of the standards concerning the composition and functioning of Councils for the Judiciary;
- cuts in the remuneration of judges, as well as budgetary cuts;
- violations of the principle of res judicata of judicial decisions by other branches of the state, as well as non-enforcement of judicial decisions;
- deficiencies in the organisation of judicial training;
- absence of objective criteria for evaluating judicial work;
- infringements of judges’ rights to freedom of association;
- difficulties concerning codes of judicial ethics.
3. The CCJE emphasises that judicial cooperation between states can only exist when there is confidence in individual and institutional independence of judges in requesting states. The fundamental principles which identify characteristics of such independence are a vital aspect of the Rule of Law. Those principles are laid down in the European Convention on Human Rights (ECHR), Recommendations of the Committee of Ministers to member states, Opinions of the CCJE and other important instruments, such as the European Charter on the Statue for Judges.
4. The CCJE draws the attention of the Committee of Ministers to these issues as well as to the replies given to them, in particular in the Opinions of the CCJE, which demonstrate the importance of the Council of Europe’s work for improving adherence to the rule of law throughout Europe.
II. European principles and standards concerning judges
5. The CCJE is aware that, with the exception of the Conventions, other documents are not legally binding on the member states of the Council of Europe. Nevertheless their implementation in the various member states is highly recommended. These instruments provide an important foundation for the rule of law and democracy in Europe.
6. The judiciary represents one of the pillars of the rule of law and democracy. In view of its importance for all citizens, justice cannot be subjected, in whatever country, to constant changes, in particular where these are the result of undue pressure and are aimed at subjecting judicial institutions to the executive, rather than the result of a concern for improving the efficiency and quality of justice.
7. Independence of courts and, consequently, independence of individual judges stems from Article 6 of the ECHR; it does not represent an abstract legal notion, and should be enshrined not only in legislation but also applied in practice.
III. Applying principles to the submitted facts
A. Infringements of the status, independence and security of tenure for judges
8. A corollary of independence is security of tenure for judges and their appointment until the statutory age of retirement. This implies that a judge’s tenure cannot be terminated other than for health reasons or as a result of disciplinary proceedings – CCJE Opinion No. 1.
9. The election of judges, although it is not a widespread practice in Europe, must, in the states that have opted for this method of appointment, be resorted to with caution and without jeopardising the principle of independence.
10. Using the mechanism of re-election to remove a judge from office is against these principles.
B. Infringements of the standards concerning the composition and functioning of Councils for the Judiciary
11. The composition of Councils for the Judiciary is defined in several documents of the Council of Europe.
12. Recommendation Rec(2010)12 on judges: independence, efficiency and responsibilities states that not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.
13. Opinion No. 10 of the CCJE and the Magna Carta indicate that the Councils for the Judiciary shall be composed of a substantial majority of judges elected by their peers. That Opinion also provides that judges should be elected following methods guaranteeing the widest representation of the judiciary at all levels. This text goes also further in stating that members should not be active politicians, members of parliament, the executive or the administration.
14. It appears from the complaints received by the CCJE that most states are far from having translated principles contained in Opinion No. 10 or in Recommendation Rec(2010)12 into practice. In addition, some states where the composition of the Councils formerly was in accordance with the proposals of the Council of Europe, have made backward steps and chosen a composition where judges represent a minority, making them dependent on a political logic or on the will of the legislative or executive powers. This trend jeopardises the independence and the appearance of independence of the judiciary, and is likely to undermine the trust that society must have in justice.
C. Cuts in the remuneration of judges and budgetary cuts
15. The independence of judges also implies economic independence laid down by law. Recommendation Rec(2010)12 states that judges’ remuneration should be commensurate with their profession and responsibilities, and be sufficient to shield them from inducements aimed at influencing their decisions. The payment of a retirement pension, which should be in a reasonable relationship to their level of remuneration when working, should also be guaranteed. Specific legal provisions should be introduced as a safeguard against a reduction in remuneration aimed specifically at judges.
16. The same proposal appears in CCJE’s Opinion No. 1 and in the European Charter on the Statute for judges.
17. Several countries facing economic crisis have opted for a cut in the salaries of public officers, including judges. Regardless of the rationale behind such measures, judicial remuneration cannot be reduced in a greater proportion than that of public officers, on pain of violating the principle of equality established as a general principle of law.
18. In any case, even at times of economic crisis, the legislative and executive powers of various member states should keep in mind that a serious reduction of judges’ salaries is a threat to judges’ independence and to the proper administration of justice, and may jeopardise objectively and subjectively the judges’ work. Such measures should always be limited in time.
D. Violations of the principle of res judicata of judicial decisions on the part of the other branches of power and non-enforcement of judicial decisions
19. Independence of courts requires compliance with the decisions handed down. Such compliance must be respected by all public and private bodies and by all other branches of the state. Judges' decisions cannot be modified, except by appeal to a higher court.
20. Individual court decisions shall not be modified by an administrative authority or other state authority; otherwise there is a risk of interference with justice and infringement of judges’ independence.
E. Deficiencies in the organisation of judicial training
21. The CCJE recalls that its Opinion No. 4 states that initial and in-service training of judges should be the responsibility of the judiciary (independent body), including the selection of trainers and preparation of the training programme; training cannot depend exclusively on the executive.
22. In addition to practical skills, training must also provide interpersonal skills. It should not only convey legal knowledge and the skills required to act as a judge, but should first of all contribute to the development of the ethos of independence.
F. Absence of objective criteria for evaluating judicial work
23. Evaluation of the judges’ performance must not threaten their independence.
24. As with the appointment and promotion of judges, their evaluation must rely on objective and pre-determined criteria and be based solely on their professional competence.
G. Infringements of the freedom of association of judges
25. Professional associations that judges can join freely contribute to the protection of the rights that are guaranteed to them by their status, in particular before the authorities involved in making decisions concerning them (Article 1.7 of the European Charter on the Statute for Judges).
26. It follows from this text and CCJE Opinion No. 3 that judges must be free to join professional associations of their choice. Membership of such associations should not jeopardise their career as well as the fulfilment of their tasks.
H. Difficulties concerning codes of judicial ethics
27. The CCJE underlined on several occasions the importance of liability of judges which follows from their independence.
28. According to Opinion No. 3, the principles of ethical conduct should be drawn up by the judges themselves and be totally separate from the judges’ disciplinary system.
► Judiciary is one of the pillars of the rule of law and democracy. It represents a value in itself and is at the service of all citizens.
► As judges exercise an office that is part of the sovereignty of the state, they should be protected from any undue influence which could challenge their independence and, as a consequence, the equality of citizens before the law.
► Recognising the importance of the rule of law and of democracy, the Council of Europe has always supported the independence of judges in its many aspects: statutory, institutional and economic.
► The Council of Europe has created a framework intended to guarantee the Rule of Law and access to justice for all. Numerous instruments have been adopted that set out in detail the requirements to be met in order to achieve these aims. Opinions of the CCJE form part of this framework.
► On the basis of the complaints received the CCJE considers that certain principles contained in these instruments are not fully applied. Certain member states have never implemented these principles, or have taken backward steps reducing their scope.
► In accordance with its mandate, the CCJE will continue examining complaints concerning the status of judges. It invites the competent authorities of the member states to take note of the points developed in this report and to comply with the relevant standards of the Council of Europe.
► The CCJE invites its members from all the states concerned and the relevant national authorities to submit comments on the complaints listed, and entrusts its Bureau with preparing regular updates of this Report.