Strasbourg, 3 August 2007                                                                   CCJE-GT(2007)8

WORKING PARTY OF THE

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE-GT)

Report of the 12th and 13th meetings

Rome (Italy), 28-30 March 2007

Graz (Austria), 25-27 June 2007

Secretariat memorandum

prepared by Directorate General of Human Rights and Legal Affairs

During these two meetings, in accordance with the terms of reference received from the Committee of Ministers and in the light of the discussions held at the 3rd European Conference of Judges (Rome, 26 and 27 March 2007), the CCJE-GT drew up draft Opinion No. 10 (2007) on "The Council for the Judiciary at the service of society".


I....... INTRODUCTION

1.        The Working Party of the Consultative Council of European Judges (CCJE-GT) held its 12th meeting in Rome (Italy) from 28 to 30 March 2007, and its 13th meeting in Graz (Austria) from 25 to 27 June 2007. Further to the CCJE's decision, at its 7th plenary meeting (8-10 November 2006), that a Bureau of the CCJE would be set up and Bureau members would participate in meetings of the working party, the CCJE-GT decided that both these meetings would be chaired by Ms Julia LAFFRANQUE (Estonia), Vice Chair and member of the CCJE Bureau. The lists of the participants in the two meetings are set out in Appendix I and the respective agendas in Appendix II.

2.        The CCJE-GT wholeheartedly thanks Italy's Council for the Judiciary and Ministry of Justice and Mr Raffaele SABATO, Chair of the CCJE, for their excellent organisation of the 3rd European Conference of Judges (26 and 27 March) on the theme "Which Council for Justice?" (see paragraphs 24 to 28 below), and in particular the Council for the Judiciary for offering to host the working party's 12th meeting on its premises immediately after the conference. The CCJE-GT also thanks Mr Gerhard REISSNER (Austria), a member of the CCJE Bureau, and Mr Hans WIERZICK, President of the Graz Court of Appeal, also a member of the Austrian delegation to the CCJE, for inviting it to hold its 13th meeting at the Court of Appeal in Graz prior to the conference "A model for the future: Council for the Judiciary" (see paragraphs 29 to 35 below). The working party thanks its hosts for the comfortable working conditions and their warm welcome.

3.        The Chair welcomed Lord Justice THOMAS (United Kingdom), the author of one of the two reports on Councils for the Judiciary, and Judge CUTLER (United Kingdom).[1] She informed the CCJE-GT that Ms Martine VALDES-BOULOUQUE (France), the author of the other report, was unable to attend the meetings. The CCJE-GT conveyed heartfelt thanks to the scientific experts for the quality of their work.

4.            The Working Party also extended a welcome to the Venice Commission, which, in accordance with the CCJE's terms of reference for 2007, must be consulted on draft Opinion No. 10. It welcomed in particular Ms Hanna SUCHOCKA, Vice-President of the Venice Commission, who attended the meeting in Rome, and Mr Schnutz DURR, Head of the Constitutional Justice Division of the Venice Commission's Secretariat, who attended both meetings.

5.        The European Association of Administrative Judges was also represented at the meeting in Graz by its President, Mr Heinrich ZENS (Austria), and by Ms Manja SCHLOSSAR-SCHIRETZ (Austria).

6.        The Chair announced that Mr Kevin O’Higgins (Ireland) had apologised for absence from the 12th meeting, and Mr Otto MALLMANN (Germany) for absence from the 13th meeting.

II...... INFORMATION FROM THE CHAIR OF THE CCJE AND THE SECRETARIAT

7.        The members of the CCJE-GT noted with satisfaction that at their 985th meeting (31 January 2007) the Ministers' Deputies had:

§     approved revised terms of reference for the CCJE for 2007, providing inter alia for the creation of the Bureau of the CCJE, comprising a Chair, a Vice-Chair and two other members;

§     taken note of the CCJE's Opinion No. 8 on "The role of judges in the protection of the rule of law and human rights in the context of terrorism";

§     taken note of the CCJE's Opinion No. 9 on "The role of national judges in ensuring an effective application of international and European law";

§     taken note of the report on the measures to be taken in order to make proper use in the member states of the opinions given by the CCJE.

On this occasion the Ministers' Deputies had held an exchange of views with the Chair of the CCJE, Mr R. SABATO. They had endorsed all of the documents submitted to them.

8.        The secretariat informed the working party of the recent restructuring operation within the Council of Europe secretariat, which had led to the merger of the Directorate General of Legal Affairs and the Directorate General of Human Rights in a new Directorate General of Human Rights and Legal Affairs (DG-HL), headed by Mr Philippe BOILLAT. The secretariat of the CCJE remained within the Justice Division, which was part of the Directorate of Co-operation (headed by Mr Roberto LAMPONI).

III.       DRAFT OPINION No. 10 ON COUNCILS FOR THE JUDICIARY

9.        The CCJE-GT noted that, under its terms of reference, the CCJE had been assigned the following task "adopt an opinion in 2007 for the attention of the Committee of Ministers on the structure and role of the Judicial Service Commission or another equivalent independent body as an essential element in a state governed by the rule of law for a balance between the legislature, the executive and the judiciary; in this connection, the CCJE will examine the present situation in the member states... This work will be carried out on the basis of replies by delegations to a questionnaire, a report prepared by a specialist, the results of the European Conference of Judges on this topic and a draft opinion prepared by the Working Party of the CCJE in 2007, in consultation with the Venice Commission."

10.     In this connection:

§     the secretariat had sent to CCJE delegations, whether members or observers, a questionnaire on High Councils for the Judiciary (document CCJE(2006)2REV1), approved by the CCJE at its 7th meeting, and had prepared a compilation of the replies received from thirty-nine states (document CCJE(2007)1);

§     on the basis of the replies to the questionnaire and their own experience the CCJE's specialists on this theme had submitted reports: Ms M. VALDES-BOULOUQUE (Deputy Inspector General, General Inspectorate of Judicial Services, France) on the current situation in Council of Europe member states having a High Council for the Judiciary or an equivalent body, and Lord Justice THOMAS (Royal Courts of Justice, London) on the current situation in Council of Europe member states where such a body does not exist;

§     the secretariat had organised the 3rd European Conference of Judges (see paragraphs 24 to 28 below).

11.     The Chair of the CCJE also pointed out that, apart from Recommendation R (94)12 on the independence, efficiency and role of judges, several important documents dealing with Councils for the Judiciary might be relevant to the drafting work on the opinion:

§     the report (in English) by Messrs Wim VOERMANS and Pim ALBERS entitled "Councils for the judiciary in EU countries”;

§     the annual report for 2005 on this subject published by France's Conseil Supérieur de la Magistrature;

§     the replies to a questionnaire on independence of administrative justice submitted by the European Association of Administrative Judges.

12.     Ms H. SUCHOCKA and Mr S. DURR presented to the CCJE-GT, as a contribution to its drafting work on the CCJE's Opinion No. 10, the report on judicial appointments adopted by the Venice Commission at its 70th plenary session (Venice, 16-17 March 2007) (see document CDL-AD(2008)028). This report discussed the issue of Councils for the Judiciary (referred to as "High Judicial Councils" in the document) from the standpoint of judicial appointments, which continued to raise concerns regarding the independence and political impartiality of the judiciary. The report pointed out that such a body must be afforded constitutional guarantees concerning its composition, powers and autonomy. It discussed both elective systems, entailing a risk of politicisation, and direct appointment systems, in which Councils for the Judiciary had a decisive influence. The report nonetheless pointed out that "the mere existence of a high judicial council cannot automatically exclude political considerations in the appointment process." Lastly, regarding the composition of councils, the Venice Commission's report stated "a substantial element or a majority of the members of the judicial council should be elected by the judiciary itself. In order to provide for democratic legitimacy of the judicial council, other members should be elected by parliament among persons with appropriate legal qualifications."

13.     The working party noted a first difficulty, consisting in determining a joint term to be used in the draft opinion for designating bodies guaranteeing the independence of the judiciary, since the names used varied from one state to another (for example, "High Council of the Judiciary" or "High Judicial Council"), sometimes according to the powers conferred on the body in question. To facilitate reading of the opinion, the CCJE decided to use the single term "Council for the Judiciary" ("Conseil de la Justice" in French), already adopted by the European Network of Councils for the Judiciary.

14.     On account of the diversity of the existing systems (there were councils endowed with "traditional" powers concerning the appointment of judges and evaluation of the judicial system, referred to as the "south European model", and councils with "new" management and budgetary powers, referred to as the "north European model") and the disparity of states' situations concerning the very existence of Councils for the Judiciary (some states were seeking to set up councils while others wished to reform a council that had been in existence for many years), the CCJE-GT decided that, to meet states' expectations as far as possible, the draft opinion should be confined to determining the key aspects of a council's membership and tasks without seeking to propose a single model or to set out in too great detail the principles that should govern its composition and role. The CCJE-GT nonetheless agreed to bear in mind that this was a topical issue for many of the member states, which were keen on guaranteeing the independence of the judiciary, and the opinion should therefore contain tangible, pertinent, innovative guidelines.

15.     The working party decided initially to determine the key elements to be addressed in the opinion. With that aim in mind it prepared a "Preliminary structure for Opinion No. 10" (document CCJE-GT(2007)3 – see Appendix III hereto).

16.     It noted that some key principles were endorsed by all of its members:

§     promotion in Council of Europe member states of a Council for the Judiciary responsible for safeguarding the independence of the judicial system and the judiciary, taking into account the strong trend in Europe to establish or strengthen such councils; at the same time, the CCJE-GT agreed that states without a Council for the Judiciary, in which judicial independence was guaranteed in other ways, should not systematically be singled out;

§     the need to give a historical overview before addressing the current situation of judicial systems in Europe;

§     the Council for the Judiciary should be provided for in the Constitution or, failing that, at the highest level of the hierarchy of laws;

§     the majority of its members, at least, should be judges;

§     the need to avoid corporatism;

§     the composition of a Council for the Judiciary should depend on the tasks assigned to it, which should be broad-ranging;

§     the important role of councils in reinforcing users' confidence in their system of justice;

§     another important role was guaranteeing compliance with Article 6 of the European Convention on Human Rights;

§     freedom from interference by the executive and legislative powers;

§     councils must be accountable and transparent.

17.     It also identified the points on which there was no consensus either because of divergences between judicial systems or traditions (here, the CCJE could merely note the differences without taking sides) or because these points were being debated and involved differences of opinion (in which case the CCJE should adopt a standpoint and give the states precise guidelines). This mainly concerned the following:

§     composition of the Council for the Judiciary (solely members of the judiciary or a mix of judges and non-judges); it was noted that only two member states had councils exclusively made up of judges;

§     in the event of mixed membership, the proportion of judges and non-judges and, possibly, the profile of non-judge members;

§     the authority(ies) competent for appointing members of the Council for the Judiciary;

§     attributions of the Council for the Judiciary;

§     links between the attributions of the Council for the Judiciary and administration and management of the courts;

§     method of functioning of the council so as to guarantee effective judicial independence;

§     the council's competence in matters of discipline and ethics.

18.     At the 12th meeting it was decided that, based on the preliminary structure, the members of the working party would share the drafting work on the various parts of the preliminary draft opinion as follows and would submit their contributions in time for the 13th meeting:

§     O. Afonso: general considerations/composition/appointment of members/functioning

§     J. Laffranque: general competences

§     A. Lacabarats: selection, appointment and promotion / professional evaluation / discipline and ethics / provision of opinions / responsibilities / transparency

§     A. Arnaudovska: training

§     R. Verschuur: budget of the justice system / administration of the courts

§     R. Sabato: protection of the image of justice / other activities /composition/appointment of members.

The working party also instructed the secretariat to co-ordinate the different contributions and to prepare the introduction and general background.

19.     At its 13th meeting the CCJE-GT examined the draft document drawn up on the basis of its members' contributions (document CCJE-GT(2007)4). Following a discussion the draft opinion was amended and entitled "The Council for the Judiciary at the service of society". It sets out the following principles:


General:

§     it is important to set up a specific body, such as a Council for the Judiciary, entrusted with the protection of the independence of the judiciary, as an essential element of the State governed by the rule of law and the separation of powers;

§     the role of the Council for the Judiciary should be to safeguard the independence of both the judicial system and individual judges, while guaranteeing at the same time the efficiency and the quality of justice, in accordance with Article 6 of the ECHR, so as to reinforce public confidence in the justice system;

§     the Council for the Judiciary should be placed at the highest level of the hierarchy of laws to safeguard it against the risk of seeing its autonomy restricted in favour of the legislative and executive powers.

Membership:

§     to avoid corporatism and reflect different viewpoints within society the Council for the Judiciary should have a mixed membership, comprising 75% of judges elected by their peers, although certain tasks may be entrusted to an all-judge panel. The Council for the Judiciary may also be composed solely of judges elected by their peers, in which case all levels of jurisdiction should be represented; the judges elected should be representative of the courts on all levels;

§     members (whether judges or non-judges) should be appointed on the basis of their competence, experience, understanding of judicial affairs and culture of autonomy; active politicians or members of parliament or the executive should be excluded;

§     members who are judges should be elected without any interference from political authorities or the judicial hierarchy;

§     non-judge members, whether or not experienced in judicial matters, should be appointed by non-political authorities in such a way as to ensure that the overall composition of the Council for the Judiciary reflects the diversity of society.

Functioning:

§     members should work for the council full-time but their term of office should be limited in duration, so as to preserve some contact with court practice (account must nonetheless be taken of the specific constraints of small countries) while guaranteeing them the same rights, guarantees and obligations as are statutorily conferred on judges;

§     the Council for the Judiciary should have its own budget and adequate financial resources to guarantee its optimum, autonomous functioning;

§     decisions handed down by the Council for the Judiciary should be reasoned and have binding force, albeit subject to the possibility of a judicial appeal;

§     as a prerequisite for public confidence in the justice system, the Council for the Judiciary must function in a totally transparent manner and be accountable for its activities, in particular through the publication of a periodic activity report, which may also suggest improvements in the justice system's functioning.

Powers:

§     the Council for the Judiciary should have a broad range of tasks enabling it to protect and promote judicial independence and the efficiency of justice while avoiding conflicts of interest in carrying out these different tasks;

§     selection, appointment and promotion of judges should preferably be a task for the Council for the Judiciary, which it performs in full independence of the legislative and executive powers and with total transparency, particularly regarding selection criteria;

§     the Council for the Judiciary should be actively involved in assessment of the quality of the justice system and in the implementation of techniques to ensure the efficiency of judges' work, but without taking over the role of the authority competent for the individual assessment of judges;

§     the Council for the Judiciary may hear appeals against first-instance decisions in disciplinary proceedings; it could be entrusted with the drafting of a collection of ethical principles provided it has no competence in disciplinary matters;

§     the Council for the Judiciary may be given responsibility for organising and supervising judicial training, even if the design and implementation of training schemes is entrusted to a training centre, with which it should co-operate to guarantee the quality of judges' initial and further training;

§     the Council for the Judiciary could be given wide-ranging powers regarding the negotiation and administration of the justice budget and competence for matters of court administration and management with a view to improving the quality of justice;

§     the Council for the Judiciary may also be the appropriate agency to play a broader role in the protection and the promotion of the image of justice;

§     an opinion from the Council for the Judiciary should be mandatory before parliament debates any draft legislation that may have implications for judges' independence or guarantees of citizens' access to justice;

§     co-operation between Councils for the Judiciary should be encouraged at the European and international levels.

20.     At the end of its 13th meeting the working party adopted the draft opinion and asked the secretariat to prepare a final version, containing drafting amendments in particular, and a summary of the recommendations and conclusions, which members could comment on by email. It also considered that additional work should be done to abridge the current version, which was deemed too long.

21.     It was agreed that the final version of the draft opinion (document CCJE(2007)5) would be sent, before the end of July, to all members of the CCJE, who would be asked to submit their comments in writing to the secretariat by no later than 19 October 2007.

22.     In accordance with the CCJE's terms of reference the draft opinion would simultaneously be officially submitted to the Venice Commission for comments. Moreover, in order to pursue the excellent co-operation established with the European Network of Councils for the Judiciary (ENCJ) for the organisation of the third conference of judges, the CCJE-GT agreed that the network would also be consulted concerning the draft opinion.

23.     The document, incorporating all the comments, would be submitted to the CCJE for adoption at its 8th plenary meeting ( (Strasbourg, 21 to 23 November 2007).

IV.        3RD EUROPEAN CONFerence of judges and CONFERENCE HELD BY THE ASSOCiATION OF AUSTRIAN JUDGES

A.                   3RD EUROPEAN CONFERENCE OF JUDGES

24.     The 3rd European Conference of Judges had taken place at the CCJE's initiative in co-operation with the European Network of Councils for the Judiciary (ENCJ) and with the backing of the High Council for the Judiciary and Ministry of Justice of Italy. The conference had been held in Rome, on the premises of the High Council for the Judiciary, on 26 and 27 March 2007 on the theme "Which council for justice?"

25.     The aim of this conference was to hold an in-depth debate on the existence, structure and role of Councils for the Judiciary, to obtain detailed information on the diverse situations in the member states and to clarify the main issues of current concern, with a view to the preparatory work on Opinion No. 10.

26.     The conference, which brought together some 200 participants from over forty member states, was opened by Mr Clemente MASTELLA, the Italian Minister for Justice, Nicola MANCINO, Vice-President of Italy's High Council for the Judiciary, and Maud de BOER-BUQUICCHIO, Deputy Secretary General of the Council of Europe. Ms Julia LAFFRANQUE (Estonia), Chair of the CCJE-GT, summed up the issues and the proceedings.

27.     The following matters had been raised at the conference:

§     All member states were pursuing the same aim - preserving and enhancing judges' independence; rather than attempting to establish a single model for Councils for the Judiciary it was more helpful to identify common principles compatible with mutual recognition of the different systems in existence;

§     What place should be assigned to the Council for the Judiciary since it was neither a judicial body, an administrative body or a hierarchical authority?

§     How could supervision of management of the courts be reconciled with judicial independence?

§     How could the requirement of no governmental or parliamentary interference with the Council for the Judiciary's functioning be reconciled with the council's obligation to maintain relations with and/or report to the executive and legislative powers?

§     What criteria should govern the composition of Councils for the Judiciary, bearing in mind in particular the general trend in favour of a fair balance between judges and non-judges?

§     Is protecting the image of judges and of justice a competence of the Council for the Judiciary? Although the principle of judicial independence must not mean that judges are above criticism, it is appropriate to have a body capable of reacting to attacks against judges.

§     Transparency of disciplinary proceedings against judges - advantages and drawbacks.

§     What should be the tasks of a Council for the Judiciary? Although it is of scant importance that these tasks vary from one state to another, there is nonetheless a case for asserting the strategic role played by the Council for the Judiciary at state level. To that end, councils should also be endowed with sufficient resources to enable them to work autonomously and with full independence. Their members' status should likewise be reinforced.

28.     During the discussions many of the participants in the conference said they hoped the CCJE would adopt an opinion which addressed all the above issues in an effective manner and proposed tangible, relevant solutions for the member states.

B.        CONFERENCE HELD BY THE ASSOCIATION OF AUSTRIAN JUDGES

29.     On Wednesday 27 June 2007 the CCJE-GT was invited to participate in the symposium on the theme "A model for the future: Council for the Judiciary" held by the Association of Austrian Judges at the Graz Court of Appeal.

30.     The aim was to discuss the advisability of setting up a Council for the Judiciary in Austria, while benefiting from the CCJE working party's input.

31.     The meeting was opened by Ms Barbara HELIGE, Chair of the Association of Austrian Judges, and Messrs Heinz WIETRZYK, President of the Graz Court of Appeal, and Gerhard REISSNER, Vice-Chair of the Association of Austrian Judges (both members of the Austrian delegation to the CCJE). Some fifty judges and representatives of the competent Austrian governmental and parliamentary bodies participated in the conference.

32.     They heard addresses concerning the experiences of Spain (Mr Ruben Jimenez Fernandez, Executive Director of the Foundation Justice in the World), Slovenia (Mr Marko Brus, Judge at the Supreme Court of Slovenia) and Italy (Mr Marco PIVETTI, former member of Italy's High Council for the Judiciary and Deputy Prosecutor General at the Supreme Court of Italy).

 

33.     The proceedings continued with contributions from Messrs Ludwig ADAMOVICH, former President of the Austrian Constitutional Court, Schnutz DURR, Head of the Constitutional Justice Division at the secretariat of the Venice Commission, and Raffaele SABATO, Chair of the CCJE.

34.     A number of participants stressed the need for Austria to set up a council to guarantee the independence of the judiciary and manage the judicial system's functioning. Other participants, while acknowledging the benefits of such councils, pointed out that the Austrian judicial system worked well and that the independence of its judges was guaranteed; they therefore argued in favour of the status quo or of giving further consideration to this question before upsetting the current equilibrium.

35.     The conference also provided an opportunity to give a more general presentation of the CCJE, its role within the Council of Europe and its activities.

V.            OTHER BUSINESS

A.           CommentaRY ON THE BANGALORE PRINCIPLES

36.     Mr R. SABATO informed the working party that Lord MANCE had participated in the meeting of the UN Pilot Committee on the Bangalore Principles (Vienna, Austria, 1-2 March 2007), following which a new version of the Commentary on the Bangalore Principles had been prepared, which was available to members of the working party. It was agreed to resume the discussion on the CCJE's co-operation in this process on the basis of Lord Mance's report on the meetings he would be attending.

B.           ThEme FOR THE 2008 OPINION

37.     The Chair of the CCJE informed the working party that the Bureau had decided to propose deferring the theme of relations between judges and public prosecutors, mentioned at the 7th plenary meeting of the CCJE, until after 2008, so as to allow the newly established CCPE to play a full part in the preparation of an opinion.

38.     For 2008 the Bureau would propose that the CCJE adopt the theme of "quality of judicial decisions". This would make it possible to work on a subject currently being debated in Europe and of primary concern for judges. The work would not be concerned with review of the substance of judicial decisions, which would be inappropriate. However, the theme offered the advantage of permitting the discussion of aspects of the environment in which judges formed their decisions (quality of legislation, judges' training, assistance for judges) and establishing principles relevant to the quality of a decision (drafting, reasoning, etc.). The work could be linked to the more general activity on the quality of justice being carried on within the CEPEJ, under the auspices of a specific working group. The Bureau would submit a background paper on this subject to the plenary meeting.

39.     The Bureau had instructed the secretariat to propose draft terms of reference along these lines for discussion by the CCJE at its 8th plenary meeting.


APPENDIX I

LIST OF PARTICIPANTS OF THE 12th meeting

Members of the CCJE-GT

ARMENIA:

M. Stepan MIKAELYAN, Juge du Tribunal de Première Instance de Malatia-Sebastia, YEREVAN

CYPRUS:

Mr Stelios NATHANAEL, Judge, President of the Nicosia District Court, NICOSIA

GERMANY:

Mr Otto MALLMANN, Judge, Federal Administrative Court, LEIPZIG

IRELAND:

Mr Kevin O'HIGGINS, Judge of the High Court, DUBLIN  (excusé)

LUXEMBOURG :

M. Jean-Claude WIWINIUS, Premier Conseiller à la Cour d’Appel , LUXEMBOURG

THE NETHERLANDS :

Mr René VERSCHUUR, Justice at the Court of Appeal of Leeuwarden, LEEUWARDEN

NORway:

Mr Nils A. ENGSTAD, Judge, Halogaland Court of Appeal, TROMSØ

PORTUGAL :

M. Orlando AFONSO, Juge Conseiller à la Cour d’Appel d’Evora, ALMADA

“The former Yugoslav Republic of Macedonia”:

Mrs Aneta ARNAUDOVSKA, Director, Academy for Training of Judges and Prosecutors, SKOPJE

Members of the CCJE-BU

AUSTRIA :

Mr Gerhard REISSNER, President, District Court of Floridsdorf, Vice-President of the Austrian Judges Association, VIENNA

ESTONIA :

Ms Julia LAFFRANQUE, Judge, Supreme Court, TARTU (Vice-President of the CCJE/ Vice-Présidente du CCJE)

FRANCE :

M. Alain LACABARATS, Conseiller à la Cour de Cassation, Directeur du Service de Documentation et d’Etudes de la Cour de Cassation, PARIS

ITALY :

M. Raffaele SABATO, Juge à la Cour d’Appel, NAPLES (President of the CCJE / Président du CCJE)

Venice Commission

Ms Hanna SUCHOCKA, Ambassador of Poland to the Holy See, Vice-President of the European Commission for the Democracy through Law

M. Schnutz DURR, Chef de Service de la justice Constitutionnelle, Secrétariat de la Commission de Venise, Direction Générale des Affaires Juridiques, Conseil de l'Europe

Experts

His Honour Judge CUTLER, Resident Judge at Salisbury Combined Court, SALISBURY, UNITED KINGDOM

Lord Justice THOMAS, Royal Courts of Justice, LONDON, UNITED KINGDOM (excusé)

Mme Martine VALDES-BOULOUQUE, Magistrat, Inspecteur général adjoint à l’Inspection Générale des Services judiciaires, Ministère de la Justice, PARIS, FRANCE (excusée)

Secretariat of the CCJE

Direction GénéralE des droits de l'homme et des Affaires Juridiques

(dg-hl)E-mail : [email protected]

M. Stéphane LEYENBERGER, Secrétaire du CCJE

Mme Muriel DECOT, Co-Secrétaire du CCJE

Mme Emily WALKER, Assistante

Interpreters

M. Serge CAVANNA

Mme Maria FITZGIBBON-ALARI

***

LIST OF PARTICIPANTS OF THE 13rd meeting

Members of the CCJE-GT

ARMENIA :

M. Stepan MIKAELYAN, Juge au Tribunal de Première Instance de Malatia-Sebastia, YEREVAN

CYPRUS:

Mr Stelios NATHANAEL, Judge, President of the Nicosia District Court, NICOSIA

GERMANY:

Mr Otto MALLMANN, Judge, Federal Administrative Court, LEIPZIG (excusé)

IRELAND:

Mr Kevin O'HIGGINS, Judge of the High Court, DUBLIN

LUXEMBOURG :

M. Jean-Claude WIWINIUS, Premier Conseiller à la Cour d’Appel , LUXEMBOURG

THE NETHERLANDS :

Mr René VERSCHUUR, Justice at the Court of Appeal of Leeuwarden, LEEUWARDEN

NORWAY:

Mr Nils A. ENGSTAD, Judge, Halogaland Court of Appeal, TROMSØ

PORTUGAL :

M. Orlando AFONSO, Juge Conseiller à la Cour d’Appel d’Evora, ALMADA

“The former Yugoslav Republic of Macedonia”:

Mrs Aneta ARNAUDOVSKA, Director, Academy for Training of Judges and Prosecutors, SKOPJE

Members of the CCJE-BU

AUSTRIA:

Mr Gerhard REISSNER, President, District Court of Floridsdorf, Vice-President of the Austrian Judges Association, VIENNA

ESTONIA :

Ms Julia LAFFRANQUE, Judge, Supreme Court, Lossi Str. 17, 50093, TARTU –Vice-President of the CCJE / Vice-Présidente du CCJE)

FRANCE:

M. Alain LACABARATS, Conseiller à la Cour de Cassation, Directeur du Service de Documentation et d’Etudes de la Cour de Cassation, PARIS

ITALY :

M. Raffaele SABATO, Juge à la Cour d’Appel, NAPLES (President of the CCJE / Président du CCJE)

Venice Commission

Mr Schnutz DURR, Chef de Service de la justice Constitutionnelle, Secrétariat de la Commission de Venise, Direction Générale des Droits de l'Homme et des Affaires Juridiques, Conseil de l'Europe

Experts

Lord Justice THOMAS, Royal Courts of Justice, LONDON, UNITED KINGDOM

His Honour Judge CUTLER, Resident Judge at Salisbury Combined Court, SALISBURY, UNITED KINGDOM

Mme Martine VALDES-BOULOUQUE, Magistrat, Inspecteur Général adjoint à l’Inspection Générale des Services judiciaires, Ministère de la Justice, PARIS, FRANCE (excusée)

Observers with the CCJE

ASSOCIATION EUROPEENNE DES JUGES ADMINISTRATIFS

Mr Heinrich ZENS, AUSTRIA, President of the European Association of Administrative Judges / Président de l'Association européenne des juges administratifs

Ms. Manja SCHLOSSAR-SCHIRETZ, Member of the Independent Adminstrative Tribunal of Styria, AUSTRIA

Secretariat du CCJE

Direction GénéralE des droits de l'homme et des Affaires Juridiques

(dg-hl)E-mail : [email protected]

M. Stéphane LEYENBERGER, Secretary of the CCJE, Secrétaire du CCJE

Mme Muriel DECOT, Co-Secretary of the CCJE, Co-Secrétaire du CCJE

Mme Emily WALKER, Assistant / Assistante


APPENDIX II

Agenda of the 12th meeting

1.    Ouverture de la réunion

2.    Désignation du/de la Président(e) du Groupe de travail

3.    Adoption de l’ordre du jour

4.    Informations par le Président du CCJE et le Secrétariat

5.    Examen de l’ordre du jour de la 1ère réunion du Bureau du CCJE

6.    Préparation du projet d’Avis n°10 sur l’existence, la structure et le rôle des conseils supérieurs de la magistrature

7.    Méthodologie pour l’analyse du Rapport de la CEPEJ concernant le statut des juges

8.    Divers

***

Agenda of the 13rd meeting

1. Opening of the meeting

 

2. Adoption of the agenda

3. Information by the President of the CCJE and the Secretariat

4. Preparation of the draft Opinion No.10 on the existence, structure and role of the High Councils of the Judiciary

5. Administrative Justice

6. Commentary on the Bangalore Principles of Judicial Conduct

7. Any other business

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Graz (Austria) 27 June 2007, 9:30 – 16:30

On the occasion of the 100th anniversary of the Association of Austrian Judges, the CCJE-GT is invited to attend the Conference organised on the theme “Model for the Futur: Council for the Judiciary.”

Programme:                                        Presentation of the CCJE

Discussion between the Austrian Judges and the members of the CCJE-GT


APPENDIX III

PRELIMINARY STRUCTURE FOR OPINION N° 10

The title needs to reflect our main message, main concern, which is:

A Council to guarantee judicial independence not as a privilege of judges but for the service of court users

FOREWORD

§     Importance of the question – 3rd Conference of European Judges

§     Terms of reference (mandate) of CCJE

I.          GENERAL CONTEXT / BACKGROUND

I.1        Acquis of the Council of Europe

 

§     Recommendation (94)12

§     The European Charter on Statute of Judges

§     Previous opinions of the CCJE Opinions number 1,2,3,4, 6, 7 (we are not going to revise them, we are going into more details)

I. 2       Report of the Venice Commission

I. 3       Historical overview / analysis of the current situation

§     Creation and development of the Councils

§     Necessity for the Councils

§     Reference to the reports analysing the current situation in the Member States based on    answers to the questionnaire[2]

I. 4       Recognition of a trend in Europe to create Councils

I. 5       However, no single model of Council in Europe

§     Aim of the Opinion: give guidelines, standards for the Councils.

§     Neither the full competences, nor the ideal composition

§     But a need for CCJE to point out core elements

II.         GENERAL CONSIDERATIONS / MAIN PRINCIPLES

§     Council: Why, how and what?

§     How to take into account the interests of the court users and judges? Reconciling both             expectations.

§     Councils can have different names; the principles below are applicable to all bodies          entrusted with the guarantee of the independence of judges

II. 1      General role / general missions / legal position of the Council

CCJE recommends that a Council be provided for at constitutional or the highest legislative level of national systems, as the best way to ensure the following values/principles:

§     Separation of powers

§     Judicial independence as a requirement of the Rule of Law (reconciliate independence and democracy)

§     Internal independence (Council as warrant of the non discrimination, pluralism and open-mindedness within the judiciary) and autonomy

§     Guarantee the principle of access to law and court (justiciabilité)

§     Efficiency and quality of justice to serve courts' users to restore their confidence (full implementation of article 6 ECHR – due process of law – reasonable judicial timeframes) 

§     Impartiality

§     Reconciling independence and responsibility

These principles enable to guarantee the respect of human rights and fundamental freedoms. The Council must be concerned by all legislative changes which would challenge the role of judges as a guarantor of human rights.

Therefore, in each country, in full respect of the national legal traditions and specificities, Councils are at the crossroads between the several powers of the State in order to organise and guarantee the self-governance (or autonomous governance) of the judiciary for the sake of the community.

III.        COMPETENCES / ATTRIBUTIONS / AREAS OF ACTIVITIES / TASKS OF THE       COUNCIL

III.1      General consideration

§     Councils should have wide range of tasks, interrelated in order to better protect and promote independence and efficiency, namely: 

            -           selection and appointment of judges

            -           promotion of judges

            -           evaluation of judges

            -           disciplinary matters and complaint procedures

            -           administration of justice / facilitation of court management

            -           control and management of a separate budget

            -           training of judges

            -           image of judges and transparency

            -           professional ethics

            -           power to give opinions

            -           responsibility towards the public: transparency, accountability, reporting, etc.

§     There might be conflicts between different functions; appropriate safeguard to be provided (training and disciplinary matters / training and evaluation)

§     Tasks are closely linked to their constitutional roles

§     Tasks to be provided for by the law or other means to fulfil its tasks

§     Composition should derive from the tasks

§     Traditional functions and new functions

§     Practical problems with pressure: pressure of the legislator; corporative      pressure; other pressure 

§     Relations between different bodies and prosecutors

§     Financing of the Council in order to enable it to function properly

 

III. 2     Core tasks of the Council as the guarantor of an independent and efficient judiciary

Not an exhaustive enumeration of tasks (depends on national specificities) but need to point out core elements.

However the Council must not become an omnipotent body. 

III. 2. 1 Selection / appointment and promotion of judges

§     Politisation of appointment of judges

§     Opinion number 4 CCJE

§     Decisive or only consultative role?

-       decisive role, other authorities may formally approve 

§     Procedural review; judicial review

§     Transparency

§     Juries, law professors should act under authority of CSM

§     Link between promotion and evaluation

III. 2. 2 Professional evaluation of judges

§     Level of involvement of the Councils when such an evaluation exists (the hierarchy of the            court should not be transferred to the Councils / role of court presidents)

§     Personal evaluation of judges (linked to career – see Opinion N° 1) – there are some        states without promotion or evaluation of judges

§     Who can evaluate (judges or technicians)? sub-commission for the evaluation composed             only of judges?

§     Which links with the evaluation of courts and the evaluation of the judicial system? (see    point III.2.7 below)

§     Links with inspection systems / Ministry of Justice

§     Statistics / criteria / methodology for evaluating

§     Problem of incompatibility between the functions of evaluation and promotion

§     Links with complaints procedures

III. 2. 3 Discipline of judges

§     See Opinion N° 3 / Rec594)12 / Bangalore principles

§     Complaints from court users

§     Distinction between the body entrusted with rules of ethics and the body competent for     discipline

§     The administrative decision taken by the Council can be followed by a a judicial review to             a court

§     Which disciplinary collegium: composed only by judges? If yes, elected by their peers?    Need to include safeguards vis-à-vis politics and judges' associations

III. 2. 4 Ethics of judges

§     Is the task of ensuring judge's integrity a task of the Council?

§     Principles of ethics to be elaborated by a different body than the Council (see Opinion      N°3)

§     Judges must be fully involved the elaboration of rules of ethics

§     Ensuring the transparency of disciplinary decisions contributes to the ethics of judges

§     Ethics is not automatically linked to discipline

III. 2. 5 Training of judges

§     See Opinion N° 4 and the report of the the Lisbon Network on its implementation

§     What are the competences of Council?

§     Relations between Council and judicial schools (often under the authority of the Ministry   of Justice)

III. 2. 6 Budget of judiciary

§     See Opinions N° 2 and 6

§     Nordic "model"

§     The more the Council will have budgetary powers, the less the executive power will          interfere in the judiciary – however the Ministry of Justice is better placed to negotiate             vis-à-vis other powers

§     Should the Council extend its financial competences, this would strengthen its       responsibility. The counter-part is that its has more duties: control, complaints for the   users

§     Relations between a possible financial administrator within the court and the Council –      where appropriate

III. 2. 7 Court administration and management (human and material resources, statistics,             performance / quality evaluation, dysfunctions, etc)

§     Is the Council the guarantor of the functioning of the service of justice?

§     Which role of the Council vis-à-vis the quality of justice? does this include the quality of    judicial decisions?

§     The Council must be able to address the question of quality when dealing with discipline  

§     Quality of the public service of justice for the sake of society

§     Capacity to address the complaints from court users

§     Statistics

§     Relations with the inspection services

III. 2. 8 Protection of the image of justice

§     See Opinion N° 7

III. 2. 9 Provision of opinions to other powers of state

§     Council must be able to give opinion to the executive and legilsative powers as regards     justice (expl: new code of criminal procedure)

§     Are the opinions mandatory in some cases (statutory issues for judges; ogranic laws on    justice)?

§     Capacity to resist from pressure

III. 3     Other activities

§     Cooperation / relationships between Councils and the independent bodies for administrative justice / prosecutors / lawyers / judges’associations (Councils of justice)

§     European and international cooperation between councils (CCJE networks)

IV.        COMPOSITION AND FUNCTIONING OF THE COUNCIL

IV.1      Composition

§     European Charter of Judges article 1.3 /  Recommendation (94) 12 Principle I c - independent of the government and administration / Opinion nr 1  art 37 + 45 + 53

§     Composition might depend of the tasks fulfilled

§     No members from legislative and executive powers – out of the play of parliamentary majorities

§     Different solutions can be chosen (choice to be made by the CCJE) :

o   single composition for all tasks (judge members / non judges members)/possibility to be assisted by experts for specific tasks (expl: budget)

o   either commissions competent for specific tasks (expl: only judges for discipline)

§     Judges/Non judges: which proportion? Checks and balances/representation of the            society

§     Judge members: Charter: "at least half of judges"

§     Qualifications of non judges (adequate legal qualification? Other qualification?)

§     Do not reject in the Opinion the situation of Council composed exclusively of judges, even if the general tendancy is a judge/non judge composition

§     Advantages and disadvantages of the mixity

§     Proportion male/female

IV. 2     Appointment of members

§     Methods and competences for appointment of judges and non judges/Renewal

§     Non judges: election by Parliament?

§     Possibility to have judges appointed + judges elected

§     Election of judges: problems of competition and electoral promises. Judges who do not belong to associations. Risk of creation of “judicial parties’

§     No need to be too specific in this field/Advantages and disadvantages of each system

§     appointment of non judges members;

§     Appointment tasks: commissions answerable to high council

IV. 3     Functioning of the Council/Internal status

o        Council shall work independently, collective and individual wishes without external links

o        Representativity of the diversity of opinions of judges/judicial pluralism

o        Incompatibility

o        Remuneration

o        Gender

o        Part time or full time service

o        Staff

o        Rules concerning decisions to be taken and legal value of the decisions taken

§     Decentralisation of council activities – local councils

V.         RESPONSIBILITIES / ACCOUNTABILITY / DUTIES (OBLIGATIONS) OF THE          COUNCILS

§     Responsibility of the Council members for their wrongful doings

§     Transparency (appointment)

§     Communcation policy (see Opinion 7)

§     Reasoning of decisions

§     Reporting – to whom?

§     Need to avoid corporatism and to appear as not corporatist

 

§     In countries where the Council is responsible for the budget: finances must be audited



[1] Since other commitments prevented Lord Justice THOMAS from attending the meeting in Rome he was represented by Judge CUTLER at that first meeting. The latter was also invited to participate in the meeting in Graz.

[2]  Report by Ms Valdes-Boulouque (France) and Lord Justice Thomas (United Kingdom) on the situation in 40 member states from the answers to the CCJE's questionnaire.