Strasbourg, 16 January 2007
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the Councils for the Judiciary: Reply submitted by the delegation of Austria
In 2007, the CCJE is called to investigate the institutional roles of Councils for the Judiciary or analogous bodies that have been or are being created – sometimes at a constitutional level – in several European countries with the tasks of protecting judicial independence, taking measures concerning courts’ administration and judges’ careers, and ensuring in general a smooth functioning of the principle of separation of powers, which is a cornerstone of modern democratic States based on the rule of law.1
The composition and functions of such bodies vary from country to country2, as do their relationships with governments (especially with the Ministry of Justice), but the concept is essentially the same.
Responding delegations, whose countries’ institutional frameworks do not include a Council for the Judiciary as such should not hesitate to reply to the questionnaire making reference to the body or the bodies performing similar functions, in the judiciary or outside of it, in order for the CCJE to obtain as far as possible the clearest description of the situation in these countries. In any case, at the end of the present document, there is a specific part for countries without Council for the judiciary.
For the purpose of this questionnaire, and at this stage of the discussion, the expression “Councils for the Judiciary or other analogous body” (in French “Conseil Supérieur de la Magistrature ou autre organe équivalent”) has been chosen. The work of the CCJE on the Opinion on this subject will be the occasion to justify this choice. In the questions below the terms “Councils for the Judiciary” or “Council” will be used: if it is not the term used in your country, please just indicate it but reply as far as possible to the questionnaire.
Part I - General context concerning the judiciary
1. Is there possible interference of the legislative power concerning judges? If yes, please specify
There is no possibility of direct influence of the legislative power on judges.
2. Is it possible for the legislative power or the Parliament to order investigations or to establish commissions :
§ in general concerning judges? If yes, please specify.
§ concerning judicial performance?
§ concerning facts already submitted to courts?
§ concerning procedural acts (eg. telephonic tapping, police custody)
Under Article 52 of the Federal Constitutional Law, Parliament can set up committees of inquiry.
The courts and all other authorities are obliged to comply with the request of these committees to
take evidence; all public departments must on demand produce their files. Until now, no such Committees have been established concerning acts of the judiciary.
3. Is there possible interference of the executive power concerning judges?
Yes. The administration of the courts is exercised under the authority of the Federal Minister of Justice by the presidents of the courts. Where the presidents act in this capacity (i.e. in the administration of courts), they are bound by the instructions of the Minister and of the presidents of superior courts. So they can be seen as a part of the executive porwer. Where the presidents sit in their capacity as judges, they are of course part of the judiciary and therefore not bound by any instructions.
In some highly sensitive areas of criminal investigation the ministry of justice has to deliver regular reports of the activities of courts in a certain period of time.
4. If yes, is it possible for the executive power to interfere:
§ in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)
§ in designation of presidents of courts? (if yes, please specify which authority from the executive power)
§ in management of courts? (if yes, please specify which authority from the executive power)
5. Is the judicial staff working under the authority of:
§ a judge?
§ the president of the court?
§ the Ministry of Justice?
The judicial staff works under the authority of the judges to whom they are attached and of the president of the court.
6. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court?
§ to distribute the work between judges?
§ to act as a disciplinary authority vis-à-vis judges?
§ to intervene in the career of judges?
§ other? If yes, please specify.
In general, the president is responsible for providing the personal and material resources which are necessary for the well functioning of the judicial process. This includes in particular training activities. Moreover, he or she has the obligation to supervise the administration of justice in his or her court. In case of delays, he or she may ask a judge for explanations and, where necessary, may initiate disciplinary proceedings. However, the president has no authority to evaluate the work of judges as to the merits.
Part II – General concerning Councils for the Judiciary
7. Is there a Council for the Judiciary in your judicial system?
8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)
9. What is the legal basis for the Council for the Judiciary:
§ the Constitution?
§ the law?
§ other? If yes, please specify.
10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)
Part III - Composition
11. What is the composition of the Council for the Judiciary:
§ Number of members?
§ Qualification of the members?
§ For the “judges” members, do they need specific qualifications or experiences?
§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions)
12. Please describe the whole procedure of appointment:
§ Who designates the members (judges or other institutions or authorities – please specify)?
§ What is the appointment system (voting, individual candidates, designation, etc.)?
13. How is appointed the President and/or Vice-President of the Council?
14. What is the term of office for a member of the Council?
15. May a member be removed from office against his/her will and, if so, under what circumstances?
Part IV - Resources
16. Where does the Council receive its financial resources?
17. Does the Council have its own staff?
18. If not, is the personnel provided by:
§ the Ministry of Justice?
§ the Supreme Court?
§ other institution? Please specify
19. What is the staff number?
20. What are the qualifications of the staff?
21. Must the staff be composed, albeit only in part, by judges?
22. What are the tasks of the staff of the Council:
§ preparing materials for the Council members?
§ providing them with analysis and evaluation of the courts’ practice?
§ other? Please specify.
Part V - Tasks
23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):
§ in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?
§ in area of initial and/or continuous training for judges and/or courts’ staff3?
§ in area of courts’ performance in general (assessment of quality of court performance4, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?
§ in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements5)?
§ in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?
§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?
§ in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify
24. Does the Council have investigation powers? If yes, please specify
25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe
26. What are the types of norms that the Council can issue:
§ opinions on the functioning of the judiciary?
§ instructions to the courts?
27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.
28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?
29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?
30. Does the Council handle external relationships of the courts:
§ has it a public relations department?
§ how does it ensure the transparency of its functioning and organisation?
31. Are decisions of the Council published and available to all?
Part VI – Assessment of the self-governance and the independence of the judiciary
32. To what extent is the work of the Council influenced by:
§ the executive power?
§ the legislative power?
33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?
34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?
35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?
36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?
37. Who decides which the priorities of actions of the Council are?
38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?
39. Which instruments or practices are used by the Council:
§ to guard the independence of judges?
§ to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
§ to intervene in case of attacks against its own interests6?
§ to improve the working methods of judges?
Part VII – Future trends of Councils for the Judiciary
40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.
41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.
42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?
43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
§ concerning the national actions of your Council?
§ concerning international co-operation?
44. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.
Part VIII – Countries without a Council of the Judiciary
45. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?
Yes. According to Article 87 of the Federal Constitutional Law, judges are independent in the exercise of their judicial office; they cannot be bound by any instructions (except those of appelate courts).
The workload within the judges of a court is distributed followingthe decisions of respective panels of judges (Personalsenate).
46. How and by whom are judges appointed and promoted?
According to Article 86 of the Federal Constitutional Law, judges are appointed either by the President of the Republic, who receives a proposal laid down by the Federal Government, or, with authorisation of the President of the Republic, by the Minister of Justice. All appointments are made on the basis of proposals by special panels of judges (Personalsenate) which are constituted at the higher courts. The president and one vice president of the relevant court are members of these panels ex officio; the other members (at least three) are elected by their colleagues. The proposals of these panels are not binding, but have a high factual authority (no decisions against these proposals in the last decades).
47. Does any authority (body) independent7 of the government and the administration take part in the appointment and promotion process:
§ If yes, how is this authority composed? Is a certain share of judges fixed?
§ How are the members selected?
§ what are the detailed competences of the authority with respect to the appointment and promotion of judges?
See answer to question 46.
48. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
The presidents of the courts have some competences in managing the budget; however, when doing so, they are bound by instructions of their superiors, including the Minister of Justice.
49. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?
The Austrian Association of Judges proposes to establish a Council of the judiciary.
This proposal is not supported by the government.
2 The Councils or analogous bodies can be roughly divided between a Northern and a Southern European model. In the Northern European (for example Sweden, Denmark, Norway) model the organisation of the administration of the courts dominates. In these countries, the bodies – whose relationship with the Ministries of Justice is quite close - have extensive powers also in determining the budgets and management of the courts. In Southern Europe (in countries such as Italy, France, Spain, Portugal, Greece, Belgium) the Councils – that are separated from the Ministry of Justice - mostly deal with the recruitment of the judges, and their training, evaluation, transfers, promotion and discipline. Additionally, a Russian model is also identifiable, in which the highest courts of the country are vested also with the powers of their courts’ administration. As to Central and Eastern European countries, Lithuania and Hungary approach to the Northern European model, whereas Romania, Bulgaria and Poland are closer to the Southern European model. The common law countries have specific judicial commissions that perform tasks comparable with the one of the Councils.
3 Please consider the following statements contained in the CCJE’s Opinion No. 4:
- para. 17: "In order to ensure proper separation of roles, the same authority should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judiciary or other independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.";
- para. 18: "Those responsible for training should not also be directly responsible for appointing or promoting judges. If the body (i.e. a judicial service commission) referred to in the CCJE's Opinion N° 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks.".
- para 47: “The CCJE believes that it is in the interest of the judiciary that data collection and monitoring be performed on a regular basis, and that appropriate procedures allow a ready adjustment of the organisation of courts to changes in the caseloads. In order to reconcile the realisation of this need with the guarantees of independence of the judiciary (namely, with the principle of irremovability of the judge and the prohibition of removal of cases from a judge), it seems advisable to the CCJE that the authority competent for data collection and monitoring should be the independent body (…); if another body is competent for data collection and monitoring, the states should assure that such activities remain within the public sphere in order to preserve the relevant policy interests linked with the data treatment concerning justice; the independent body should however have power to take measures necessary to adjust the court organisation to the change in caseloads.”
- para 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long-entrenched and democratically proved systems.”
- para 55: “When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that, in view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels. Bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. the Higher Council for the Judiciary or judges’ associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases. “
7 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).