Strasbourg, 15 November 2013
CCJE(2013)5
Consultative Council of European Judges (CCJE)
Situation report on the judiciary and judges in the Council of Europe member States
Updated version n° 1 (2013) adopted during the 14th plenary meeting of the CCJE (Strasbourg, 13-15 November 2013)
I. Introduction
1. This report is the first update to the report which was adopted by the CCJE during its 12th plenary session (Strasbourg, 7-9 November 2011) and submitted to the Committee of Ministers of the Council of Europe for information. The CCJE decided, during its 13th plenary session (Paris, 5-6 November 2012), to update the report every two years. The present report covers the period from October 2011 to September 2013 inclusive. It was adopted by the CCJE during its 14th plenary session in Strasbourg (13-15 November 2013).
The report gives an overview of the information submitted to the CCJE concerning alleged infringements in member States of standards governing the status of judges and the exercise of their functions. When necessary, the member of the CCJE representing the country concerned was invited to comment. Such comments are included in the report, together with any further relevant statement by the CCJE.
2. In some cases, there has been co-operation and/or an exchange of views with other bodies of the Council of Europe (e.g. Venice Commission in the case of Serbia and Georgia).
3. The CCJE has considered information which falls into ten categories of alleged infringements. These are set out below. It has done so at the request of judicial bodies and judges’ associations in member States, members of the CCJE itself, the European Association of Judges (EAJ), the Association of European Administrative Judges (AEAJ) and the “Magistrats européens pour la démocratie et les libertés” (MEDEL). The latter three bodies have observer status with the CCJE.
The categories of alleged infringements are:
a. infringements of the status, independence and security of tenure for judges;
b. infringements of the standards concerning the composition and functioning of the Councils for the Judiciary;
c. cuts in the remuneration of judges,
d. lack of resources;
e. violations of the principle of res judicata of judicial decisions by other branches of the state, as well as non-enforcement of judicial decisions;
f. deficiencies in the organisation of judicial training;
g. absence of objective criteria for evaluating judicial work;
h. infringements of judges’ rights to freedom of association;
i. difficulties concerning codes of judicial ethics;
j. difficulties in relations between justice system and media.
4. The Council of Europe has established an extensive regulatory framework intended to guarantee the rule of law and access to justice for all. Numerous instruments have been adopted which set out the requirements to be met in order to achieve these fundamental objectives.
5. The CCJE underlines the importance of examining the alleged infringements in the context of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the case law of the European Court of Human Rights (the Court). In doing so, the CCJE emphasises that the right to a fair trial is secured through an independent and efficient judiciary and the proper exercise of judicial responsibilities and duties.
6. In examining the alleged infringements, the CCJE has taken into consideration the European Charter on the Statute for Judges (1998) and Recommendation Rec(2010)12 of the Committee of Ministers of the Council of Europe to member States on judges: independence, efficiency and responsibilities. The CCJE has also relied on its Opinions and the Magna Carta for Judges embodying the fundamental principles of the judicial profession (2010). Further, the CCJE has taken into account the UN Basic Principles on the Independence of the Judiciary (1985) and the Report 2012-2013 of the European Network of Councils for the Judiciary (ENJC): Distillation of ENCJ Guidelines, Recommendations and Principles.
II. Overview of the issues submitted to the CCJE
7. The EAJ adopted, during its General Assembly Meeting on 24-25 May 2013 in St. Gallen, Switzerland, two important documents: 1) a resolution on the composition of a Council for the Judiciary; 2) an appeal by the EAJ for a judiciary of quality, efficiency and independence in Europe. Both documents were sent by the EAJ to the CCJE for information and possible action.
8. As regards the composition of a Council for the Judiciary, the EAJ stressed the importance of relevant international standards and referred, among other sources, to the CCJE Opinion No. 10(2007) on the Council for the Judiciary at the service of society, and the Magna Carta of Judges. It also referred to Recommendation Rec(2010)12 of the Committee of Ministers of the Council of Europe.
9. The information provided to the CCJE by the AEAJ followed a workshop in Palermo, Italy, on 8-9 November 2012, where alleged violations in European countries of Recommendation Rec(2010)12 were reported. The CCJE confirmed the principles expressed in Recommendation Rec(2010)12 and in the opinions of the CCJE regarding remuneration and selection of judges. The allegations which the AEAJ raised in this respect are enumerated below in this report.
10. The MEDEL organised an Alert Day for the Independence of Justice in Europe in Brussels, Belgium, on 23 May 2013, and published a brochure concerning the problems of the judiciary in Europe. National judges’ associations that are members of the MEDEL reported on developments in their countries, which they assessed as dangerous for the independence of the judiciary. CCJE was asked to take note of this brochure and to support MEDEL in opposing these developments. The allegations, which MEDEL raised, are also enumerated in the following parts of this report.
A. Infringements of the status, independence and security of tenure for judges
11. The independence of judges requires the absence of interference by other state powers, in particular the executive power, in the judicial sphere. Therefore, it is not acceptable that the executive power is able to intervene in a direct and predominant manner in the functioning of competent institutions as regards particularly the selection of judges, their promotion or their transfer, the imposition of disciplinary measures on judges or the dismissal of judges. This may happen, for example, when the powers to deal with those matters are transferred from the Council for the Judiciary to the Ministry of Justice (see section B). Sometimes, legislation directly endangers the status, independence or security of tenure for judges.
12. The security of tenure for judges and their appointment until the statutory age of retirement is a corollary of independence (CCJE Opinion No. 1(2001) on standards concerning the independence of the judiciary and the irremovability of judges, paras 52 and 57). This implies that a judge’s tenure cannot be terminated other than for health reasons or as a result of disciplinary proceedings. However, “the existence of exceptions to irremovability, particularly those deriving from disciplinary sanctions, leads immediately to consideration of the body and method by which, and the basis upon which, judges may be disciplined”.(CCJE Opinion No. 1(2001), para 59)
13. A Swiss Association of Judges (Schweizer Vereinigung der Richterinnen und Richter) claimed in a letter of 10 October 2011 that the Swiss system of election and re-election of judges contradicted European standards, as for instance expressed in Recommendation Rec(2010)12. Judges were elected by Parliament for a certain time in office. They had to apply for re-election, and usually they were re-elected. It was said however, that recently, the pressure on judges increased because some members of Parliament threatened judges with non-re-election on account of what were considered to be politically undesirable judgments. The Judicial Commission of the Federal Assembly on 3 May 2011 adopted “Principles of action of the Judicial Commission regarding the procedure to be followed for revocation and non-re-election” which would appear to improve the situation. However, this text did not apply to most of the Swiss judges, whose re-election came under the cantonal authorities.
14. The AEAJ reported in January 2013 that in Latvia the parliament had refused to re-appoint a judge of a higher instance who had been proposed by the Judicial Qualification Board and the Minister of Justice. This action would appear to conflict with Article 47 of Recommendation Rec(2010)12, according to which the relevant appointing authority should in practice adopt such a proposal.
15. Before the current reporting period, at the end of 2009, in Serbia, 837 judges who had gained permanent tenure lost their job because they were forced by law to re-apply for their position in the judiciary and because they had not been appointed by the High Judicial Council. In November 2008 and in November 2010, CCJE issued two declarations, in which it pointed out that the termination of judicial office in this manner is in conflict with international and European standards. Further, the previous ability to seek a review and a remedy in the Constitutional Court was transferred to the High Judicial Council which would review individual cases. The review procedure showed serious shortcomings. Less than 20% succeeded in obtaining a remedy. In June 2012, CCJE issued a third declaration, reiterating its previous opinion, and urged amendments to the law and, at the least, a right to a fair trial under the review procedure. In July 2012, the Serbian Constitutional Court annulled all decisions of the High Judicial Council and ordered the High Judicial Council to re-install around 600 judges.
On 23 October 2012, a Judges’ Association of Serbia (Drustvo Sudija Srbije) requested the opinion of CCJE on the legal liability of members of a Council for the Judiciary and also raised other questions. Consideration of this request is still pending.
16. The CCJE member from Hungary reported in December 2012 that, as a result of a regulation lowering the retirement age of judges from 70 to 62 years, 236 judges lost their position on 30 June 2012. This regulation was declared unconstitutional by the Hungarian Constitutional Court in a judgment of 16 July 2012 and was denounced by several international bodies, including the Venice Commission. 164 dismissed judges brought an action before the Hungarian Labour Courts for reinstatement to their offices. In addition, several of the dismissed judges filed a complaint against Hungary at the European Court of Human Rights, claiming compensation. These cases are still pending. The Court of Justice of the European Union delivered, on 6 November 2012, its judgment in an infringement case against Hungary and declared that, by adopting a national scheme requiring compulsory retirement of judges when they reach the age of 62, Hungary had failed to fulfil its obligations under European Union law.
On 16 October 2013, the Hungarian member of the CCJE reported that in 2013, the Hungarian Parliament, in order to solve the problem, had amended the regulation on the retirement age for judges. According to this new regulation, as of 1st January 2023, the retirement age for judges will be 65 years. Until the above-mentioned date, special regulations will be in force, whereby the retirement age will be linked to the birth date of the judges starting with a retirement age of 70 years for all judges born before 1945 and reducing in steps to 65,5 years for judges born in 1956. Judges who were forced to retire are to be offered three possibilities: 1) to return to the court, where they worked before, 2) to retire and obtain compensation of one year’s salary or 3) to receive 80% of the salary for a period of three years but only work part-time when additional capacity is needed.
17. According to European standards, the transfer of judges to other courts should be undertaken with the consent of the judge and should be based on objective criteria.
18. In June 2013, an Association of Administrative Judges’ of Serbia, forwarded by MEDEL, informed the CCJE about new legal proposals, which again may have an effect on the tenure of judges. There was a draft law to reform the court structure by reducing the number of courts. Judges who were appointed to the courts, which were to be abolished, would not be transferred to the court which would have the jurisdiction of their former court but would be transferred without their consent to a court somewhere else. An Association of Administrative Judges’ of Serbia claimed that this would be another attack against the irremovability of judges.
19. Before the reporting period, a Turkish Association of Judges and Prosecutors (YARSAV) claimed that in Turkey the principle of permanent tenure of judges did not exist, because judges were transferred regularly to different regions of the country. No criteria were considered, e.g. the family situation was not taken into account. Some of these transfers occurred arbitrarily.
On 3 January 2013, the Ministry of Justice of Turkey stated in response that the High Council of Judges and Prosecutors (HCJP), which was in charge of the transfer of judges, had been reorganised in order to provide for independence and impartiality of the judiciary. The transfer of judges was regulated by the legislation in an objective manner, and furthermore, the newly reorganised HCJP planned amendments to the regulations on the appointment and transfer.
In June 2013, YARSAV forwarded through MEDEL its continued concerns and stated that in “high profile cases” – without enumerating these cases - judges and prosecutors were replaced. It also claimed that there was an increasing pressure on the judiciary by the Prime Minister and the leading political party.
20. A Belgian Judges Association (une Association syndicale des Magistrats (ASM)), in June 2013, through MEDEL, warned of the infringement of the independence of judges by the enlarged possibilities of the transfer of judges to other courts as envisaged in a draft regulation prepared by the Minister of Justice.
21. An Armenian Association of Judges informed the CCJE, before the reporting period, that after an amendment of the Law on Public Service, the disciplinary control of judges was to be exercised by a Commission of Ethics of High Officials, which was a part of the executive power. It also claimed that there was a proposal to transfer the department for the justice system, which was responsible for the administration of judges, into the jurisdiction of the executive power.
In December 2012, the Armenian member of the CCJE informed the CCJE that the jurisdiction of this commission as far as judges were concerned would be limited to the control of the annual declaration of the assets of judges. As regards the department for the justice system, the Armenian member of the CCJE stated that this would remain within the judiciary, and it would not be integrated into the executive power.
B. Infringements of the standards concerning the composition and functioning of the Councils for the Judiciary.
22. The independence of the judiciary can also be infringed by weakening the body which is charged with defending judicial independence, which, in many cases, is the Council for the Judiciary. There are different means of weakening this body: by changing the composition of the Council, by reducing its powers or by reducing the financial or other means at the disposal of the Council.
23. Councils for the Judiciary are bodies whose purpose is to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system (Recommendation Rec(2010)12, para 26). The CCJE in its Opinions No. 1(2001) (para 45) and No. 10(2007) on the Council for the Judiciary at the service of society, and the Venice Commission (Report on the Independence of the Judicial System, Part I: the Independence of Judges (para 32), adopted by the Venice Commission at its 82nd Plenary Session (Venice, 12-13 March 2010)) recommend the establishment of such Councils. Recommendation Rec(2010)12 deals with this issue in paras 26 to 29.
24. In June 2013, a Czech Association of Judges (Soudconcska Ceske Republiky) claimed, through the MEDEL, that the Czech Republic was in conflict with the principles put forward in the CCJE Opinion No. 10, Magna Carta of Judges and Recommendation Rec(2010)12, because there was no such self-governing body as the Council for the Judiciary in the Czech Republic. The Association stated that the Czech Minister of Justice retained the majority of powers for the appointment of judges and the management of courts.
25. The above-mentioned legal documents also deal with the composition of these Councils. Recommendation Rec(2010)12 states that not less than half of the members of such councils should be judges chosen by their peers from all levels of the judiciary and also with respect for pluralism inside the judiciary. Opinion No. 10 of the CCJE and the Magna Carta of Judges indicate that the Councils for the Judiciary should be composed of a substantial majority of judges elected by their peers. This Opinion also provides that judges should be elected through a methodology guaranteeing the widest representation of the judiciary at all levels. This text goes further in stating that the members of Councils for the Judiciary should not be active politicians or members of parliament, the executive or the administration.
26. The importance of such a composition of a Council for the Judiciary was expressed in a resolution of the EAJ, which was forwarded to the CCJE on 9 July 2013.
27. In several member States, the composition of the Council for the Judiciary does not fulfil these criteria. Some states, where the composition of the Councils previously was in accordance with the standards expressed by the above-mentioned bodies of the Council of Europe, have made retrograde steps by introducing changes which have resulted in judges being in a minority.
28. Two French Judges’ Associations (Union Syndicale des magistrats (USM) and Syndicat de la Magistrature (SM)), informed the CCJE, in October 2011, about a change in the composition of the Conseil supérieur de la magistrature (CSM), which eliminated the majority of judges and put the judges elected by their peers into a minority. Even with regard to decisions on disciplinary procedure against judges, half of the members would be persons elected by the other two powers of state.
In June 2013, the SM (whose opinion was forwarded by MEDEL) reiterated this risk, which followed from the fact that members of the CSM were elected by the political power, which may, in consequence, lead to political influence on the judiciary.
29. In May 2013, the Council of Europe was asked by the Presidents of the Courts of Appeal of Spain to comment on a proposed amendment to the legal provisions concerning the method of election of the 12 members of the Council for the Judiciary and the reduced membership of the Council. In the judges’ opinion, such a reform might jeopardize judicial independence because it would significantly limit the power and competence of the High Council of the Judiciary as regards regulating relevant matters such as judges’ appointment, measuring workloads and the organisation and functioning of courts.
The Secretary General of the Council of Europe asked the CCJE to examine this request and to respond to it. This response of the CCJE is being prepared.
In June 2013, two Spanish Judges’ Associations (Jueces para la Democracia (JPD) and Unión Progresista de Fiscales (UPF)), in a memorandum forwarded through MEDEL, repeated these concerns and also noted that by an amendment of the law, the political influence on the Council for the Judiciary would be increased.
30. A Turkish Association of Judges and Prosecutors (YARSAV) claimed that there was a strong influence of the executive power on the HCJP. It noted that the HCJP was chaired by the Minister of Justice and that the Undersecretary of the Ministry of Justice was also a member.
In a letter dated 3 January 2013, the Ministry of Justice replied that the majority of the members of HCJP were selected by judges and prosecutors together with members of the Court of Cassation and Council of State, as well as from among lawyers and university professors. It stated that the secretariat of the HCPJ was independent. It had also been strengthened and provided with an increased budget. As regards investigations relating to judges, they used to be carried out by the Minister of Justice. However, under the new system, these powers would be mainly transferred to the HCJP.
In June 2013, YARSAV, via MEDEL, repeated its concerns and maintained that not only would the ex officio members be influenced by the executive power, but also those members elected by the judges and prosecutors, because those members had been nominated as candidates for election in a list provided by the Minister of Justice. Furthermore, there was a draft of an amendment of the law which proposed that some members would be selected by the President of the State, who would exercise executive power following a proposed amendment to the Constitution.
31. In November 2011, the Hungarian member of the CCJE reported that after a referendum and an amendment of the Constitution, a new institution had been created which was headed by one person, who was a judge elected by the Parliament. Most of the areas of jurisdiction of the Council of the Judiciary, which had previously been in charge of decisions regarding the careers of judges, as well as budgetary and managerial issues, were transferred from the former Council to the new institution. After criticism, there had been some amendments to this law. However, the areas of jurisdiction of the new Council for the Judiciary were still less broad than those of the old Council before the reform.
32. The French USM, in a letter of 28 October 2011, reported a weakening of the powers of the Council for the Judiciary (CSM), by virtue of the elimination of the ability of the plenary of the CSM to comment spontaneously and react on developments and events which concern the judiciary.
33. In Ireland, discussions regarding the statutory formation of a Judicial Council are ongoing. The extent of judicial representation in such Council is as yet unclear.
C. Cuts in the remuneration of judges
34. The independence of judges also requires economic independence which should be 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 and from the risk of corruption. 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. The same proposal appears in CCJE’s Opinion No. 1 and in the European Charter on the Statute for Judges.
35. Even in times of economic crisis, the legislative and executive powers of various member states should understand that a serious reduction of judges’ salaries is a potential threat to judges’ independence and to the proper administration of justice, and may jeopardise (objectively and subjectively) judges’ work. Such measures, if necessary, should always be limited in time (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 ECHR, para 12).
36. Several countries facing economic crisis have opted for a cut in the salaries of public officials, including judges. Regardless of the rationale behind such measures, judicial remuneration cannot be reduced by a greater proportion than that of other public officials. Otherwise this would violate the principle of equality established as a general principle of law and it would contradict para 54 of Recommendation Rec(2010)12.
37. Reductions in the salaries of judges have been reported regarding Cyprus, Czech Republic, Germany, Greece, Ireland, Italy, Latvia, Portugal, Slovakia, Slovenia and Spain.
38. The Czech member of the CCJE informed the CCJE on 14 August 2012 that in the Czech Republic, the salaries of public officials, including judges, were to be cut. However, the attempts to cut the judges’ salaries were declared unconstitutional by the Constitutional Court and the relevant Acts of the Parliament were repealed.
39. An Association of Judges of Slovenia reported in a letter of 8 October 2011 that the Slovenian Constitutional Court had declared as unconstitutional a legal provision reducing the remuneration of judges. Nevertheless, the Slovenian Parliament did not follow this decision. It adopted new laws providing for an extension of the reduction in judges’ salaries by 4% until the end of 2012, thereby exacerbating the constitutional inequality among officials of the three state powers. The representatives of the judiciary drew the attention of the representatives of the other two state powers to the fact that judges were ready to share salary reductions for reasons of economy, to the same extent as MPs and ministers, once the unconstitutionality of reducing judges’ remuneration had been recognised. Following arduous negotiations, the Slovenian judges obtained recognition of the Constitutional Court decisions and the unconstitutionality of the reduction in judicial remuneration vis-à-vis the remunerations of officials of the other two state powers as from 1 June 2012. Since 1 June 2012, the remuneration of the officials of all three state powers (including judges) has been reduced by 8% for reasons of economy and this will remain in force until economic growth reaches and exceeds the rate of 2,5 % GDP.
40. The CCJE member from Cyprus reported in November 2011 (as amended by written communication of December 2012) that new legislation, adopted in 2011, provided for increased deductions from the salaries of all civil servants and officials. Judges were originally excluded from the term “officials” because the Constitution declared that “the remuneration and other conditions of service of any such judge shall not be altered to his disadvantage after his appointment.” However, subsequently, following legislative amendments with effect from 1 January 2012, judges were deleted from this exclusion. Attempts were made through the Government and the House of Representatives to have the laws amended once again in order to be in line with the principle of judicial independence but these attempts failed, despite a proposal by judges that they would be willing to contribute towards the economic crisis on a voluntary basis and on an equal or analogous footing with other officials.
On 17 July 2013, the CCJE member from Cyprus informed the CCJE that the Supreme Court of Cyprus on 14 June 2013 had declared the respective legal provisions “null and void and of no effect whatsoever” (Case 397/2012).
41. The Greek member of the CCJE reported to the CCJE in November 2011 and again in a written communication on 10 December 2012, and further through the AEAJ and a Greek Association of Judges (Eteria Elinon Dikastikon Litourgon Gia ti Demokratia ke tis Eleftheries) in June 2013 (via MEDEL) that, faced with the economic crisis, the judges had suffered a significant cut in their salaries - about 40-45%. It was obvious that their independence had to be protected. For this reason, there had been many protests as well as abstention from duties by the judges and even a strike.
42. Prior to the present reporting period, the Italian member of the CCJE had reported that in Italy, the remuneration of judges had been reduced and the income of judges had been frozen. In October 2012, he informed the CCJE that the Italian Constitutional Court, by a judgment of 11 October 2012, n. 223, had declared unconstitutional certain provisions of the law of 30 July 2010, n. 122, which, in order to limit public expenditure, had blocked contractual increases of wages for State employees and had reduced by 5% wages exceeding € 90,000 and had reduced by 10% all such salaries above € 150,000. In addition, that law had stopped some automatic increases in the remuneration of judges. The Constitutional Court had held that the previous law provided for automatic adjustment of the mechanisms of remuneration of judges "in implementation of the constitutional principle of the independence of the judiciary, which must be safeguarded even from an economic point of view", and that this had the effect that judges were not “subject to periodic need of applying to other powers". The Court had previously held that judicial independence was also to be achieved through the "provision of guarantees ... concerning, among other things, in addition to career advancement, also economic aspects" (judgment no. 1, 1978). The Constitutional Court held that it followed that rules making these automatic adjustments had to be quashed, together with a special (and therefore discriminatory) rule dealing only with the compensation of judges.
43. Two Associations of Judges and Prosecutors of Portugal (Associacao Sindical dos Juizes Portugueses (AsJP) and Sindicato dos Magistrados do Ministerio Publico (SMMP)), in June 2013, also reported via MEDEL on cuts in the remuneration of judges, which were in addition to the cuts already imposed on all public officials.
44. The AEAJ also informed the CCJE about the particular problems as regards the remuneration of judges in Sweden, where part of the income of a judge depends on his/her performance. This clearly raises issues in respect of para 55 of Recommendation Rec(2010)12.
45. The German Judges’ Associations (Neue Richtervereinigung (NRV) and Bundesfachausschuss Richter und Staatsanwälte in der Vereinigten Dienstleistungsgewerkschaft (VERDI)), in June 2013, claimed, via MEDEL, that in Germany problems with the remuneration of judges had occurred, due to the economic crisis.
D. Lack of resources
46. Article 30 of Recommendation Rec(2010)12 states that the efficiency of judges and of judicial systems is a necessary condition for the protection of every person’s rights, compliance with the requirements of Article 6 of the ECHR, legal certainty and public confidence in the rule of law. According to Article 33 of the same Recommendation, each state should allocate adequate resources, facilities and equipment to the courts to enable them to function in accordance with the standards laid down in Article 6 of the ECHR and to enable judges to work efficiently. In its Opinion No. 2(2001), the CCJE has already underlined the requirement that sufficient resources be allocated to the courts to enable them to function in accordance with the standards laid down in Article 6 of the Convention.
47. The lack of adequate resources allocated to the courts and the judiciary is a point that has been raised in many reports by many member states: Belgium (raised by ASM in June 2013 especially regarding legal aid and prison facilities), France (raised by SM in June 2013), Ireland, Spain (claimed by JPD and UPF in June 2013), Portugal (raised by ASJP and SMMP in June 2013). MEDEL also referred to the economic crisis in Italy, which has influenced the availability of resources for the justice system.
E. Violations of the principle of res judicata of judicial decisions on the part of the other branches of the state and the non-enforcement of judicial decisions
48. The independence of courts requires compliance with the decisions rendered. Such compliance should 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 (see CCJE Opinion No13(2010) on the role of judges in the enforcement of judicial decisions, esp. paras 11 and 31 and Recommendation Rec(2010)12, paras 16 and 17).
49. Individual court decisions should not be modified by an administrative authority or other state authority; any such modification constitutes an interference with justice and an infringement of judges’ independence and the rule of law.
50. The President of the Supreme Court of Georgia, in February 2013, forwarded a draft of a law on “Establishing a Temporary State Commission on Studying Miscarriages of Justice” and requested the opinion of the CCJE. The objective of this commission, which was to be composed of 15 “recognised specialists of law” elected by the Parliament, was that it would be entrusted with studying miscarriages of justice and it would support their elimination. “Interested persons” would be able to claim that in the period from 2005 to September 2012 there had been a miscarriage of justice in a particular criminal, civil or administrative procedure. The commission was to be given the power to initiate a review of the case by the court, which could revise the judgment taking into account any newly revealed circumstances.
On 21 May 2013, the CCJE issued an opinion in which it concluded that this draft might well infringe on the principles of legal finality and the independence of the judiciary.
51. In July 2013, the member of the CCJE in respect of Cyprus informed the CCJE of the decision of the Supreme Court, which declared the reduction in the remuneration of judges unconstitutional. He also reported that immediately after this decision, a draft bill was presented in the Parliament to change the constitutional provisions forbidding a reduction in the salaries of judges. So far the CCJE has not been informed of whether this proposed legislation, which would be contrary to the Supreme Court´s decision, has been adopted by the Cypriot parliament.
F. Deficiencies in the organisation of judicial training
52. The CCJE recalls that, according to para 56 of Recommendation Rec(2010)12, judges should be provided with theoretical and practical initial and in-service training, entirely funded by the state. Para 57 of the same Recommendation states that an independent authority should ensure, in full compliance with educational autonomy, that initial and in-service training programs meet the requirements of openness, competence and impartiality inherent in judicial office. In its Opinion No. 4 (2003) on appropriate initial and in-service training for judges at national and European levels, the CCJE has developed more detailed standards on the training of judges. According to para 16 of this Opinion, the training responsibilities should be entrusted not to the Ministry of Justice or any other authority answerable to the Legislature or the Executive, but to the judiciary itself or an independent body. According to para 8 of the Magna Carta of the CCJE, initial and in-service training is a right and a duty for judges.
53. A Polish Judges Association (IUSTITIA), in June 2013, reported, via MEDEL, that in Poland, the training of judges was fully dependent on the Ministry of Justice, which appointed the Director of the National School of Judiciary and Public Prosecutors, supervised the School, and also influenced the manner and mode of training activities.
54. The Greek Eteria Elinon Dikastikon Litourgon Gia ti Demokratia ke tis Eleftheries, in June 2013, regretted, via MEDEL, the absence of necessary training facilities for judges in Greece.
55. The Czech member of CCJE mentioned, in August 2012, that there were defects in the training (training criteria) of judges in the Czech Republic.
G. Absence of objective criteria for evaluating judicial work
56. In its Opinion No. 11(2008) on the quality of judicial decisions (paras 57 to 75), the CCJE developed standards for the evaluation of judges and of the justice system. The evaluation of judges’ performance must not threaten their independence. As with the appointment and promotion of judges, their evaluation should rely on objective and pre-determined criteria and be based solely on their professional competence. Any methodology for evaluation of the quality of judicial decisions should not interfere with the independence of the judiciary either as a whole or on an individual basis. The evaluation of the quality of judicial decisions must be done above all on the basis of the fundamental principles of the ECHR. It cannot be done only in the light of considerations of an economic or managerial nature. The use of economic methods must be considered carefully. The role of the judiciary is above all to apply and give effect to the law and cannot properly be analysed in terms of economic efficiency.
57. In June 2013, a Polish Judges Association (IUSTITIA) warned in a statement forwarded to the CCJE by MEDEL that there could be a problem in Poland because of the amended Law on the Organisation of Courts, which came into force on 1 January 2012. This law did not stipulate for any particular criteria to be applied during the process of the assessment of judges or with regard to their promotion. Such criteria were to be determined by the Minister of Justice.
58. A Judges´ Association of Serbia (JAS), in June 2013, warned, via MEDEL, that a draft law or bye-law regarding the assessment of judges proposed to follow what they referred to as the “cult of statistics” without considering efficiency by reference to quality as defined in Recommendation Rec(2010)12, para 31.
H. Infringements on the freedom of association of judges
59. Professional associations that judges are able to join freely can contribute to the protection of the rights that are guaranteed to judges by their status. In particular, rights need to be and can be protected vis-à-vis authorities involved in making decisions concerning judges (Article 1.7 of the European Charter on the Statute for Judges). It follows from this text and from Recommendation Rec(2010)12, para 25, the UN Basic Principles of the Independence of the Judiciary, para 9 and the CCJE Opinion No. 3(2002), para 34, that judges should be free to join the professional associations of their choice. Membership of such associations should not jeopardise their career.
The Turkish YARSAV, before the current reporting period, claimed it was the intention of the Turkish government to initiate a law establishing a Union of Prosecutors and Judges and to provide for the dissolution of any other associations which had the same objectives. However, the Ministry of Justice of Turkey reported on 3 January 2013 that the judges’ involvement in unions or associations had nothing to do with their appointment, and that judges were free to join any such unions or associations.
I. Difficulties concerning codes of judicial ethics
60. The CCJE has underlined on several occasions the importance of the responsibility of judges which follows from their independence. According to the CCJE Opinion No. 3(2002), the principles of ethical conduct should be drawn up by the judges themselves and must be totally separate from the judges’ disciplinary system.
61. A conflict with these provisions was reported regarding Bulgaria, where the Code of Ethics was drafted and adopted by the Council for Justice, which is also the disciplinary authority for judges.
J. Media and justice
62. The influence of the media, in particular on public opinion, is so great that its role has to be viewed in perspective, in particular with regard to the principle of the independence of justice and judges. The CCJE is therefore vigilant with regard to situations in which the media could be used by other powers (whether these be the state or private institutions or persons) to exercise pressure or influence on judges. A powerful or sustained criticism exercised by the media against a particular judicial decision may constitute such a pressure. In particular, it is not acceptable that the media should be used by other state or private powers, in particular the political powers, directly to attack individual judges’ decisions.
CCJE Opinion No. 7(2005), paras 22 to 55, deals with the sensitive relationship between judges and the media. Recommendation Rec(2010)12, para 18, requests that the executive and legislative powers should not comment on judges´ decisions in a way which could undermine the independence of, or public confidence in the judiciary.
63. Before the current reporting period, claims were brought to the attention of the CCJE about undue attacks by the media against judges in several countries: Italy, Poland, Slovakia. Most noticeable amongst those were serious campaigns of the media and politicians against the judiciary in Italy.
In October 2012, the Italian member of the CCJE reported that the level of verbal attacks against judges coming from prominent public figures, and/or from the media, had returned to “normal”. Whereas public declarations from public figures were almost always within the limits of acceptable criticism, legislation was underway better to frame the liability of the media. The role of the High Council for the Judiciary in issuing declaratory statements protecting judicial independence had been preserved.
III. Conclusions
· It is clear from the reports and requests that have been received by the CCJE during the reporting period (October 2011 – September 2013) that there have been continuing concerns about the proper implementation of relevant standards of the Council of Europe in certain member states.
· The CCJE repeats the statement made in its Opinion 1(2001), para 6: “what is critical is not the perfection of principles and, still less, the harmonisation of institutions; it is the putting into full effect of principles already developed”.
· The CCJE expresses concern that there appear to have been trends which have the potential to jeopardise both the independence and also the appearance of independence of the judiciary, with the consequence that the trust that society will have in the machinery of justice is likely to be undermined.
· The CCJE draws the attention of the Committee of Ministers to these issues, as well as to the information provided by the CCJE delegations and other parties concerned. It also draws attention to the comments of the CCJE made in the context of its Opinions and other relevant standards. These issues and the comments on them which the CCJE feels obliged to make only serve to emphasise once again the importance of the Council of Europe’s work for improving adherence to the rule of law throughout Europe.
· In accordance with its mandate, the CCJE will continue to examine alleged infringements concerning the status of judges and the exercise of their functions. It invites the competent authorities of the member states to take note of this report and to comply with the relevant standards of the Council of Europe.
· The CCJE invites its members, the relevant national authorities, judicial bodies, associations of judges, and the organisations with observer status to the CCJE, to submit further information and comments on the issues listed in this report, and entrusts its Bureau with preparing regular updates of this report, which will be shared with the relevant bodies of the Council of Europe.
Appendix 1
Reply from the CCJE member representing Cyprus, 2 December 2013
Subject: Situation report about the status and situation of judges in the member States
Dear Chairman, members of the Bureau and colleagues,
Dear Secretariat,
Following the situation report on the judiciary and judges in the Council of Europe members, circulated during the plenary meeting last November, I would like to inform you by way of an update report, in accordance with the last paragraph of the Conclusions, that following the Supreme Court judgment of 14.6.2013, a private member’s Bill was introduced in the House of Representatives soon after to amend the constitutional provision entrenching the independence of the judiciary by securing that the remuneration of judges shall not be altered to their disadvantage after appointment.
To this the Supreme Court reacted promptly by written and oral communication to the President of the Republic as head of the executive and the House itself reiterating the essence of the independence of the judiciary and that judges were all along ready to voluntarily contribute to the economic crisis by accepting a reduction to their salaries without any need to amend the Constitution. They also accepted that they would not insist in recovering that part of their salary that was cut off as a result of the legislation that was subsequently declared null and void. There was finally a consensus and all judges at all levels accepted a voluntary cut of 20%. The constitutional crisis was therefore averted and the principle of independence prevailed. All the above were finalized by end of September.
Best regards,
Stelios Nathanael,
Cyprus.
Appendix 2
Comments by Georgia
Paragraph 50 of the CCJE report is outdated and contains discrepancies. The circumstances around the draft law have changed:
• at no stage the Temporary State Commission held the power to initiate a review of the case by the court under the draft law on miscarriage of justice. Further, the mandate of the Commission in the final draft was limited to criminal cases;
• the Commission can provide the court only with a recommendation that the judgement delivered by the court might contain signs of possible miscarriage of justice. The court has the final say– it can take the recommendation as newly revealed circumstances and initiate a review;
• the draft law was submitted to the Government of Georgia in October 2013. No action has been taken on the draft by the Government since then;
• finally, the Venice Commission considered it possible to create an institution of this kind;
• the final draft has taken on board most of the advice of the Commission.
Appendix 3
Reply from the High Council of Judges and Prosecutors of Turkey to the MEDEL report,
3 December 2013
Subject: Situation report about the status and situation of judges in the member States
Dear President,
Dear Secretary General,
Thank you very much for giving us the opportunity of presenting our arguments against the report of representative of MEDEL about Situation on the judiciary and judges in the Council of Europe member States.
After the observation report – which was allegedly prepared by Christoph Strecker, a member of the Plenary of MEDEL and Vito Monetti, former president of Association after their visit to Turkish Republic on June 3-9, 2012 – appeared on media, the aforementioned report was downloaded from the YARSAV website and examined. As a result of the examination, serious doubts were raised concerning whether such a report was prepared by the experts authorized by MEDEL not only due to the style and but also because it contained subjective information contrary to the facts. Because of that we have responded to all topics in this report and sent the response to the Organisation. You can see the full version of the response attached. However, I am sorry to say that our response and concrete data haven’t been taken into consideration and that the report was published in its first version. The most important and sorrowful in this situation is that, this report was taken to consideration by CCJE and we are worry not to be able to correct this subjective and incorrect information.
Reporters of MEDEL have prepared this report by interviewing only a small group of opponents who do not represent the majority of the Turkish Judiciary. This kind of complaints are totally subjective and baseless.
Within that period representatives of Council and Association have discussed the report by correspondence and exchanges of letters. A representative of MEDEL (Vito Monetti) met with Mr Engin Durnagol (Deputy Secretary General of HCJP) in Istanbul and this report was discussed thoroughly. In the meantime, representatives of MEDEL indicated that this report was reflecting the personal opinion of reporters and officially was not the judgment of MEDEL and will not be used officially in any platform. Unfortunately we are now realizing it is the basis of the CCJE report.
We are fully ensured that the representatives of CCJE will take our response into consideration and will revise the Situation Report on the Judiciary and Judges in the Council of Europe member states.
First of all: in the report, the appointment of judges and prosecutors is claimed to be arbitrary. Yet, the appointment of judges and prosecutors is carried out according to the Regulations on Appointment and Transference based on the 2802 Law on judges and Prosecutors and according to the resolutions concerning decrees made by the First Chamber of HCJP.
The High Council is aware of the inability of the current regulation of transfer but as it is know he should implement the laws and regulations which are in force. Besides, this topic is an aim under the objective “To strengthen the security of tenure of judges and prosecutors” of the Strategic Plan of HCJP for 2012- 2016. As provided by the strategic plan, the HCJP has started to run a project to amend this regulation.
Secondly: in the report, it is claimed that the government has a great influence on the judiciary.
This assertion is completely depending on rumors and subjective opinions. As it is clearly known High Council has 22 members and Minister of Justice and his undersecretary has only two votes in the General Assembly. So it is clear that their power is one of ten percent in all members of Council.
Summing up we would like to kindly indicate that Turkish High Council never accept the Report of MEDEL and kindly anticipate from CCJE will take consideration the data and concrete information.
