Strasbourg, 29 April 2010 CCJE-GT(2010)5

WORKING GROUP

OF THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE)

18th meeting, The Hague, 17-19 March 2010

Secretariat document

prepared by the Directorate General of Human Rights and Legal Affairs

I. Introduction

1. The Working Group of the Consultative Council of European Judges (CCJE-GT) held its 18th meeting in The Hague (Netherlands) from 17 to 19 March 2010. The meeting was chaired by Mr Gerhard REISSNER (Austria).

2. The agenda and list of participants appear in Appendices I and II respectively.

II. Information by the Chair of the CCJE, the Chair of the CCJE-GT and the Secretariat

3. On behalf of Working Group, the Chair expressed its gratitude to Mr Bart VAN LIEROP and Mr Reiner van ZUTPHEN for the excellent organisation of the meeting of the CCJE-GT (17-19 March 2010) and asked them to extend warm thanks to the Netherlands Council for the Judiciary (Raad voor de rechtspraak) and in particular to its President, Mr Erik VAN DEN EMSTER, to the Netherlands Judicial Association (Nederlandse Vereniging voor rechtspraak), and in particular to Mr René VERSCHUUR, former member of the CCJE, at the Supreme Court of the Netherlands, and Ms Wilhelmina THOMASSEN, Mr Marc LOTH and Ms Evelyne HARTOGS, as well as to the Mayor of The Hague, Mr Jozias VAN AARTSEN, for the warm welcome given to the CCJE delegation.

4.  Mr Orlando AFONSO, Chair of the CCJE since 31 January 2010, extended warm thanks to Ms Julia LAFFRANQUE (Estonia) for her excellent chairmanship, during which a large amount of work had been accomplished.

5. The Secretariat informed the Working Group that, at the last meeting of the CCPE Working Group, its Chair, Mr Olivier DE BAYNAST (France), had welcomed the fruitful co-operation between the CCPE and the CCJE, which had made it possible in 2009 to adopt the joint opinion entitled “Judges and prosecutors in a democratic society”.

6. The Working Group also welcomed this work and said it hoped there could be further co-operation with the CCPE. Ms Julia LAFFRANQUE said that, together with Mr Olivier DE BAYNAST, she had taken part in an exchange of views with the Ministers’ Deputies on 20 January 2010; this had given them the opportunity to realise that their work had strong support from member states.

7. Mr G. REISSNER informed the Working Group that he had attended the 14th plenary meeting of the CEPEJ (9-10 December 2010) and the meetings of the CJ-S-JUD, tasked with revising Recommendation Rec(94)12. Ms J. LAFFRANQUE had taken part, as an expert, in a CEPEJ bilateral activity to evaluate the judicial system of the United Arab Emirates (22-26 February 2010). Mr O. AFONSO had attended the celebrations to mark the 20th anniversary of the Polish Council for the Judiciary (18 February 2010). The Secretariat pointed out that members of the CCJE had also had the opportunity to present the Committee’s activities at other events in Europe: all the events of which the Secretariat had been informed were mentioned on the CCJE website along with the statements made on these occasions.

8. The Working Group congratulated the Chair of the CCJE for his recent appointment as Advisor to the Supreme Court of Portugal.

9. The members of the Working Group then took stock of the dissemination of Opinion No. 12. In some member states it had been translated (“the Former Yugoslav Republic of Macedonia”, Portugal and Germany), in some it had been disseminated (Estonia, Spain and Norway) and in some it had been sent to each judge (“the Former Yugoslav Republic of Macedonia” and Belgium).

10. At the Chair’s request, the Secretariat summarised the work carried out by the European Commission for the Efficiency of Justice (CEPEJ) concerning the “Guidelines for a better implementation of the Council of Europe's Recommendation on enforcement” (see document CEPEJ(2009)11 rev 2). The Secretariat also mentioned the current work of the CEPEJ regarding the quality of justice, the evaluation of judicial systems and the “Cristal Scales of Justice” award, which this year would for the first time cover the fields of criminal and civil justice.

III. Preparation of draft Opinion No. 13 on “The role of judges in the enforcement of judicial decisions in their relations with the other state functions and other players”

11. The CCJE-GT pointed out that, pursuant to its terms of reference approved by the Committee of Ministers at the 1075th meeting of the Ministers’ Deputies (20 January 2010), the CCJE had been tasked with adopting “an opinion, in 2010, for the attention of the Committee of Ministers on the role of judges in their relations with the other state functions and other actors in the enforcement of judicial decisions; in this connection, the CCJE will propose concrete means to improve the efficiency of enforcement procedures; this work will be carried out in consultation with the European Commission for the Efficiency of Justice (CEPEJ) and the Department for the execution of judgments of the European Court of Human Rights”.

12. Given the many activities already carried out, in particular at the Council of Europe, concerning the enforcement of judicial decisions, the Secretariat, in agreement with the Bureau, has decided not to call on an expert to prepare a preliminary draft report but has prepared a special file containing all relevant texts on this subject, which can be found on the CCJE website.

13. The CCJE-GT welcomes the large number of replies received to the questionnaire on the role of judges in the enforcement of judicial decisions and in their relationships with other state functions and/or other actors and thanked the members of the CCJE for their contribution (see the compilation of the 32 replies set out in document CCJE-GT(2010)2 rev 7).

14. The Working Group examined the draft structure prepared by the Secretariat (see document CCJE-GT(2010)3), in which it was suggested that the role of judges in the enforcement of judicial decisions in civil and administrative matters should be dealt with separately from their role in the enforcement of decisions in criminal matters. It thought that the structure might usefully be supplemented by the examination of the international aspects of enforcement. On this basis, the CCJE-GT was preparing a detailed structure (See Appendix III to this document) of which the principal aspects were:

§ an introduction recalling the terms of reference, the scope of the Opinion (civil, criminal, administrative and international matters), which should focus on the role of judges in the enforcement of court decisions and not with the enforcement procedure in general;

§ a reminder of the main reference documents, including the relevant ECHR judgments;

§ a list of general principles such as the role of enforcement in a state based on the rule of law, the necessary application of Articles 6 and 8 of the ECHR during the enforcement procedure, the need to respect fundamental rights, the importance of the parties’ rights and the fact that other state authorities should not be allowed to interfere;

§ a description of the features of the enforcement action, while respecting the diversity of enforcement systems in member states: the need for the enforcement procedure to be clear, the need to ensure that the authority of the judicial decision cannot be challenged, reasonable expenses, effectiveness of the procedure, sufficient financial and human resources, no abuse of procedure, existence of a competent judge and of an appropriate remedy;

§ precise description of judges’ role in the enforcement of judicial decisions in civil and administrative matters: description of judges’ role, simplification of the procedure, effectiveness of the procedure while complying with the principle of proportionality between the interests of the debtor and the creditor, transparency of information concerning debtors, striking a balance between privacy and the right to the enforcement of a judicial decision, relations with the officials responsible for enforcement, problems of migration and the right of asylum, specific features of administrative law, enforcement of decisions obtained by compromise, special training for judges;

§ a precise description of judges’ role in the enforcement of judicial decisions in criminal matters: the rights of prisoners and conditions of detention, intervention by the judge following an individual or ex-officio complaint, relations with the officials responsible for enforcement, special training for judges, role of the public prosecutor’s department;

§ judges’ role in enforcement at international level: cross-border enforcement, enforcement of the decisions of the ECHR, international co-operation, mutual confidence.

15. The CCJE-GT instructed Ms A. ARNAUDOVSKA (“the Former Yugoslav Republic of Macedonia”), Mr J.F. COBO SAENZ (Spain), Mr A. LACABARATS (France), Mr P. MAFFEI (Belgium), Mr G. REISSNER (Austria) and Mr R. SABATO (Italy) to send their contributions to this structure by the end of April, and instructed the Secretariat to prepare a compilation of these contributions, to have it translated and sent to members of the CCJE-GT so that they could work on it before their next meeting (Skopje, 2 – 4 June 2010).
IV. 5. Current situation concerning the CCJE’s other activities
16. The members of the CCJE Bureau and the Secretariat presented to the CCJE-GT the current situation concerning the CCJE’s activities apart from the drafting of the Opinion, for which either the Bureau or the Working Group on the Magna Charta (CCJE-MC) was responsible for preparing. These activities concerned the Magna Charta of European judges, practical assistance activities, follow-up of the revision of Recommendation (94) 12, comments on the Council of Europe draft guidelines on child-friendly justice and on Recommendation 1896(2010) of the Parliamentary Assembly on corruption. For information on all of these activities, please consult the report of the 7th meeting of the Bureau (document CCJE-BU(2010)3).

V. Other business

17. The Working Group welcomed a delegation of Brazilian judges who had come to The Hague especially to invite its members to take part in the 5th Conference of For-JUS (International Forum of Justice), on the fight against paedophilia, organised crime, terrorism and corruption, which was to be held in Sao Paulo (Brazil) from 13 to 15 May 2010. The Chair of the CCJE would attend the conference, just as he had attended the previous conferences, as a member of the For-JUS scientific committee. Mr Raffaele SABATO pointed out that he had attended the 4th Conference the previous year.

18. The Working Group extended warm thanks to Ms A. Arnaudovska (‘the Former Yugoslav Republic of Macedonia”) for her invitation to hold its next meeting in Ohrid, in the context of this country’s Chairmanship of the Committee of Ministers. She handed over to the CCJE-GT a preliminary draft programme of the meeting as well as of an international conference on the enforcement of judicial decisions, at which several members of the CCJE-GT would speak (Skopje, 4 June 2010).

APPENDIX I

AGENDA

1. Opening of the meeting

2. Adoption of the agenda

3. Information by the President of the CCJE, the President of the CCJE-GT and the Secretariat

4. Preparation of the draft Opinion No. 13 on “The role of judges in the enforcement of judicial decisions in their relations with the other state functions and other players”

5. Current situation concerning the CCJE’s other activities:

    a) “Magna Carta of European judges”, document encapsulating, updating and codifying the principal conclusions of the Opinions already adopted by the CCJE in order to improve the visibility of its work

b) Practical assistance activities: Italy, Romania, Serbia, Poland, Slovakia and Ukraine

    c) Follow-up of the revision of Recommendation (94) 12

d) Draft of the Council of Europe guidelines on child-friendly justice

    e) Recommendation 1896(2010) from the Parliamentary Assembly on judicial corruption

APPENDIX II

LIST OF PARTICIPANTS

Members of the CCJE-GT

CROATIA / CROATIE :

Mr Duro SESSA, Judge, Supreme Court, Trg Nikole Šubica Zrinskoga 3

10 000 ZAGREB

ESTONIA / ESTONIE :

Mrs Julia LAFFRANQUE, Judge, Supreme Court, Lossi Str. 17, 50093, TARTU

FRANCE :

M. Alain LACABARATS, Conseiller à la Cour de Cassation, Directeur du Service de Documentation et d’Etudes de la Cour de Cassation, 5 quai de l'Horloge, 75055, PARIS

GERMANY/ALLEMAGNE :

Mr Otto MALLMANN, Presiding Judge, Federal Administrative Court, Simsonplatz 1, 04107, LEIPZIG

LITHUANIA/LITUANIE :

Mr Virgilijus VALANČIUS, President of the Supreme Administrative Court of Lithuania, President of the European Association of Judges, žygimantu, 2 LT, 01101, VILNIUS

NORWAY / NORVEGE:

Mr Nils A. ENGSTAD, Judge, Halogaland Court of Appeal N-0030, TROMSØ

SLOVENIA/SLOVENIE :

Ms. Nina BETETTO, Supreme Court of the Republic of Slovenia, Tavčarjeva 9, SI-1000 Ljubljana

SPAIN/ ESPAGNE:

M. José Francisco COBO SÀENZ, Magistrato, Presidente de la Secc. 2a, Provincial de Navarra, c/ Ran Roque s/n, 31071 PAMPLONA

“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” / “L’EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE”:

Mrs Aneta ARNAUDOVSKA, Juge, Director of the Academy for training of judges and prosecutors, bul. Jane Sandanski 12 SKOPJE

***

Members of the CCJE-BU /

AUSTRIA / AUTRICHE : (Vice-President of the CCJE /Vice-Président du CCJE)

Mr Gerhard REISSNER, President, District Court of Floridsdorf, Vice-President of the Austrian Judges Association, Gerichtsgasse 6, 1210 WIEN

BELGIUM / BELGIQUE :

M. Paul MAFFEI, Conseiller à la Cour de Cassation, Place Poelaert 1, 1000 BRUXELLES

ITALY / ITALIE:

M. Raffaele SABATO, Juge à la Cour de Naples, Viale Europa, 130, 80053, CASTELLAMMARE DI STABIA – NAPLES

PORTUGAL : (President of the CCJE/ Président du CCJE)

M. Orlando AFONSO, Juge Conseiller à la Cour d’Appel d’Evora, rue Général Humberto Delgado 43, 2e ét.e., Cova da Piedade, 2800-423, ALMADA

***

SECRETARIAT DU CONSEIL DE L’EUROPE

Direction Général des Droits de l’Homme et des Affaires Juridiques

E-mail : ccje@coe.int

Fax : +33 (0) 88 41 37 43

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

Mme Christel SCHURRER, Co-Secretary of the CCJE, Co-Secrétaire du CCJE

Mme Emily WALKER, Assistant / Assistante,

***

    APPENDIX III

Opinion No. 13 of CCJE

STRUCTURE OF OPINION No 13 AS DECIDED BY THE CCJE-GT

I) Introduction (Secretariat, G. Reissner)

A) Terms of reference, etc.

B) Scope

1. The Opinion will deal with:

    · civil matters

    · administrative matters ?

    · criminal matters

    · international matters/decisions of the ECHR

2. The Opinion should focus on the role of the judge in the enforcement of court decisions and not deal with the enforcement procedure in general.

C) Reference documents

· Convention on Human Rights (Article 6) and jurisprudence of the Court of Human Rights (Findley vs UK, Van de Hurk vs NL). The legislator should not deal with enforcement (Cuberden vs France) (Also Hornsby vs Greece, Burdov vs Russia n°2, Akashev vs Russia)

· Rec(2003)16 of the Committee of Ministers to Member States on the implementation of administrative and judicial decisions in the field of administrative law

· Rec(2003)17 of the Committee of Ministers to Member States on enforcement

· Report of the ECHR on enforcement ?

· Report "European judicial system," Chap.13

· Enforcement of Judgments in Europe, studies of the CEPEJ No. 8

· CEPEJ Guidelines for better implementation of existing Recommendations of the Council of Europe on enforcement

· Some other documents on criminal matters, prison rules, torture and data protection

· Case law of the Court ?

II) General principles (R. Sabato for judges and legislation, G. Reissner for the rest)

3. The enforcement of court decisions is an essential element of running a State based on the rule of law.

4. Article 6 of ECHR includes enforcement procedure:

- the procedure is not finished with the judgement but needs an effective enforcement

- elements of a fair trial have to be applied also in the stage of the enforcement procedure

5. Importance of rights to the parties: the procedure must be implemented in espect of fundamental rights and freedoms (Article 8 ECHR)

6. Clarity is necessary :

- of the legislation according to the means provided, the procedure to be applied the possibilities to postpone etc.

- of the jurisdiction who are the competent enforcement authorites which meansare possible

- of the decisions which should be enforced

7. The enforcement procedure shall not offer the possiblity to challenge the authority of the judicial decision: neither by a repetition of the procedure within the judiciary nor by an external enforcement agent (problem of interference of the aother powers of state)

8. There is no need for a new court procedure by parties in order to engage the enforcement procedure. The enforcement has to be the evident follow-up of the decision.

9. The enforcement fees should not be an obstacle

10. In any cases, the other powers can interfere in the enforcement process of a decision taken by the judicial power.

11. There exists a great number of different enforcement systems in the member states. One can group them into three classes: public- priviat – mixed. Nevertheless in all systems some fundamental requirements of to be guaranteed.

12. Efficiency of the enforcement procedure of all kinds/sufficient support of force authorities (police, etc.)

13. Necessary funds have to be provided to have sufficient means for enforcement

14. The enforcement procedure shall take into account the fundamental rights of the person

15. Prevention of abuse of the procedure?

16. There has to be the possibility of a remedy or an appeal or ….. to a judge if the enforcement is not initiated or is delayed by the competent bodies

17. There should always be a judge to solve problems and to give orders to State authorities and other relevant bodies to enforce decisions ; at the final stage, it is up to the judge to use all possible ways to ensure enforcement.

      III) The role of judges in the enforcement in in civil and administrative matters (A Lacabarats and JF. Cobo Saenz for civil, R. Sabato for administrative)

18. Description of the role of the judge according to the system (civil or common law)

19. Need to simplify the enforcement for users/the judge has to solve difficulties when rights and obligations of parties are not respected during the enforcement procedure

20. Efficiency of the procedure means that the judge has, first of all, to enable the creditor to enforce the judicial decision – But principle of proportionality as concerns interests of the creditor and the debtor

21. The enforcement procedure does not constitute a new procedure as such. But need to remedies if nothing happens or if it goes too slow during the enforcement procedure. Then, new judicial procedure.

22. Transparency of information concerning assets: does it belong to the claimant to undertake all researchs concerning assets of the debtor? Can the judge play a role in this field ? Balance with data protection

23. Public authorities shall not be allowed to declare secret some information necessary for the enforcement of a judicial decision/Access to data/Creation of data basis with strict regulation of use under the authority of the court? (cf CEPEJ guidelines)

24. The role of the judge in balancing the right of privacy and the right of executing the decision

25. Relationship with the enforcement agents

26. Migration and asylum problems

27. Fixation of terms for administration by the judge. In case of non respect, the sanction can be a fine

28. Exceptions in administrative law: immediate enforcement (non paiement of salaries of civil servants, infringment of individual rights, etc.)

29. Differences for enforcement of decisions reached by compromise?

30. Specific training and skills of the judge: bank field/transparency and publicity concerning assets/simplification of procedures. Common training judges/enforcement agents

IV) The role of judges in the enforcement in criminal matters (P. Maffei and A. Arnaudovska)

31. Respect the rights of detainees (including living conditions of prisoners, mail/corrspondance control):

- Control of detention conditions by the judge when there is a violation of human rights//General supervision of detention conditions by the administration (Recommandation of CPT or Commissioner on this field?)

32. In many States, enforcement of judicial decisions are under the responsibility of Public Prosecution. What about decisions which are not enforced for various reasons (criminal policy, costs, small sentences)?

33. Intervention of the judge after claim of individuals or ex-officio ?

34. Relationship with the enforcement agents

35. Specific training and skills of the judge: psychiatric elements

V) The role of judges in the enforcement on the international level (A Lacabarats and JF. Cobo Saenz for civil and P. Maffei for criminal matters)

a. Crossborder enforcement

b. Enforcement of the decisions of the European Court of Human Rights

36. See Interlaeken Declaration

c. International co-operation

37. No reference to specific documents

38. Mutual trust

39. States could examine the possibility to give, for each State, exclusive jurisdiction for the enforcement of international cases

VI) Conclusions



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