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CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE FOR 2007 CCJE OPINION
CONCERNING THE COUNCILS FOR THE JUDICIARY
Reply submitted by
the delegation of the Slovak Republic
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the Councils for the Judiciary: Reply submitted by the delegation of the Slovak Republic
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 direct interference of the legislative power concerning 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. No
§ concerning judicial performance? No
§ concerning facts already submitted to courts? No
§ concerning procedural acts (eg. telephonic tapping, police custody) No
3. Is there possible interference of the executive power concerning judges? Yes
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) The President of the Slovak republic and the Minister of Justice
§ in designation of presidents of courts? (if yes, please specify which authority from the executive power) The Minister of Justice appoints and recalls presidents of the district courts and the regional courts.
§ in management of courts? (if yes, please specify which authority from the executive power)
The Ministry of Justice
5. Is the judicial staff working under the authority of:
§ a judge?
§ the president of the court? Yes, the judicial staff is working under the authority of the president of the court.
§ the Ministry of Justice?
6. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court?
The president of the court is obliged to see to the observance of obligations provided for to judges by legal regulation, and in case of a justified suspicion of their violation he is obliged to take measures necessary for the ascertainment of facts, the elimination of identified weaknesses and the application (drawing) of the disciplinary or criminal liability. The presidents of courts ensure the management of courts in the area of dispensation of justice, particularly by the supervision of the observance of the dignity and continuity of legal proceedings and principles of judicial ethics; the utilisation of results of the internal review and handling of complaints. The president of the court supervises the observance of the principles of judicial ethics, principles of the dignity and the continuity of legal proceedings, and for this purpose he sees to the proper working of the court departments; he monitors and evaluates the regularity of works of judges and chambers on the field of organisation and effectiveness of the work of chambers and departments, the effectiveness of the utilisation of allocated resources and the effectiveness of the utilisation of the days of trial; he executes reviews of court files and their handling; he monitors the observance of the judicial ethics and the conduct of court officials and employees who perform tasks in the administration of justice; he takes part in some trials; he monitors the decision-making activity of judges from the view of continuity of legal proceedings.
§ to distribute the work between judges?
The president of the court prepares the working schedule so as to ensure the dispensation of justice. The president of the court presents the draft working schedule for the following calendar year to the council of judges for discussion, together with comments and objections of judges. The president of the court shall issue the working schedule, with indication of comments and objections raised by the council of judges, immediately upon its discussion in the council of judges.
§ to act as a disciplinary authority vis-à-vis judges?
No. The function of the President of the Court is incompatible with the function of a judge of a Disciplinary Court, however the President of a Regional Court can make a motion for a commencement of disciplinary proceedings against the judge of the District Court in his circuit and the President of a Court against the judge of an appropriate court.
§ to intervene in the career of judges?
§ other? If yes, please specify.
The President of a Court ensures the management and administration of the court under relevant legal regulation and he acts in the name of the court.
Part II – General concerning Councils for the Judiciary
7. Is there a Council for the Judiciary in your judicial system? Yes
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?) The exact title of the Council of the Judiciary is The Judiciary Council of the Slovak Republic.
9. What is the legal basis for the Council for the Judiciary:
§ the Constitution? Yes
§ the law? Yes, the legal basis for the Judiciary Council of the Slovak Republic is the Act No. 185/2002 Coll. on the Judiciary Council of the Slovak Republic and on amendments of certain Acts.
§ 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?)
The Judiciary Council of the Slovak republic has been enacted by amendment to the Slovak Constitution of 2001 and it has been created in July 2002 under the Act on the Judiciary Council No. 185/2002 Coll. of April 16, 2002. The Judiciary Council of the Slovak republic is an independent constitutional body endowed with powers relating, in particular, to judicial appointments and promotion (the Judiciary Council has the right to submit to the President of the Slovak Republic names of candidates proposed to be appointed judges and names of judges to be removed). The reasons for setting up the Judiciary Council of the Slovak republic were to create the independent body which should cover all important issues of judges function from the beginning to the end of their terms of office.
Part III - Composition
11. What is the composition of the Council for the Judiciary:
§ Number of members? The Judiciary Council consists of 18 members.
§ Qualification of the members? Eight of the members must be judges, remaining members must have university education in law and at least 15 years of professional practice.
§ For the “judges” members, do they need specific qualifications or experiences? No
§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions) Except 8 members who are the judges, remaining 9 members must have university education in law and at least 15 years of professional practice.
12. Please describe the whole procedure of appointment:
§ Who designates the members (judges or other institutions or authorities – please specify)?
The president of the Judicial Council of the Slovak Republic is the president of the Supreme Court of the Slovak Republic. Its other members are eight judges elected and recalled by the judges of the Slovak Republic, three members elected and recalled by the National Council of the Slovak Republic, three members appointed and recalled by the president of the Slovak Republic, three members appointed and recalled by the Government of the Slovak Republic.
§ What is the appointment system (voting, individual candidates, designation, etc.)?
Nominations as a candidate in the Judiciary Council may be submitted by the Council of Judges, by a professional interest organization of judges, or by a minimum of ten judges. The election of members of the Judiciary Council is performed on the basis of universal, equal and direct suffrage by secret ballot. All judges performing the office of a judge as of the election date have the right to vote in elections of members.
13. How is appointed the President and/or Vice-President of the Council? The president of the Judiciary Council of the Slovak Republic is the president of the Supreme Court of the Slovak Republic. Vice-President of the Judiciary Council is elected from among members of the Judiciary Council by the Judiciary Council. The proposal for the election of the Vice – President can file by any member of the Judiciary Council.
14. What is the term of office for a member of the Council?
The term of office of members of the Judicial Council of the Slovak Republic is five years. The same person may be elected or appointed a member of the Judicial Council of the Slovak Republic no more than in two consequent terms of office.
15. May a member be removed from office against his/her will and, if so, under what circumstances?
A Judiciary Council Member’s mandate shall cease on
a) elapsing of the term of office of the member of the Judiciary Council,
b) recall from the Judiciary Council,
c) the death of the member of the Judiciary Council,
d) cessation of the office of judge, provided that he or she was elected a member of the Judiciary Council by other judges,
e) cessation of the office of president of the Supreme Court of the Slovak Republic,
f) if the member of the Judiciary Council can no longer be regarded as a person of integrity. Person of integrity shall not be understood as a person who has been lawfully sentenced for an intentional criminal act as well as sentence for an intentional criminal act has been annulated.
Part IV - Resources
16. Where does the Council receive its financial resources?
The Judiciary Council operates with financial means by connecting on the budget of the Supreme Court of the Slovak Republic. The Supreme Court has separate chapter of the national budget.
17. Does the Council have its own staff? Yes, the Council has own staff that compose a Office of the Judiciary Council.
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? The Office of the Judiciary Council has 7 members including the Head of the Office of Judiciary Council.
20. What are the qualifications of the staff? Five of them have university education and two have secondary education.
21. Must the staff be composed, albeit only in part, by judges? No
22. What are the tasks of the staff of the Council:
§ preparing materials for the Council members? Yes
§ providing them with analysis and evaluation of the courts’ practice?
§ other? Please specify. The tasks connected with organisational, personnel, administrative and technical securing of activities of the Judiciary Council are carried out by the Office of the Judiciary Council. The details of the tasks of the Office of the Judiciary Council are specified by the organisational order of the Office of the Judiciary Council which is issued by the Head of the Office of the Judiciary Council.
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)?
The competence of the Judiciary Council of the Slovak Republic includes the right to submit to the President of the Slovak Republic names of candidates proposed to be appointed judges and names of judges to be removed, decide on assignment and transfer of judges, submit to the President of the Slovak Republic proposals to appoint the president of the Supreme Court of the Slovak Republic and the vice - president of the Supreme Court of the Slovak Republic and for their recall, submit to the Government of the Slovak Republic proposals of candidates for judges who should represent the Slovak Republic in international judicial bodies, elect and remove members of disciplinary senates and elect and remove chairmen of disciplinary senates, to elect the vice-president of the Judiciary Council, approve principles for selection procedures for the filling of vacant positions for judges, the functional advancement of judges on courts of higher degree, and appointment to higher judicial functions, approve principles for the evaluation of judges, approve principles for selection procedures for the position of president of a district court, president of a regional court, vice-president of a district court and vice-president of a regional court, elect the members of the Council of the Judicial Academy. The Judiciary Council has also powers related to the assignment and transfer of judges to individual courts and decides on temporary suspension from the performance of the post of judge, if it concerns the President or vice – president of the Supreme Courts or judges of the Supreme Court.
§ in area of initial and/or continuous training for judges and/or courts’ staff3?
The Judiciary Council has a right to determine the subject matter to be included in judges’ education. The Judiciary Council defines the substantive content of judicial training in agreement with the Minister of Justice.
§ 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)?
The tasks of the Judiciary Council in the area of courts´ performance in general include the coordination the activities of Councils of Judges established pursuant to special regulation, an expression an opinion on proposals of generally binding legal regulations setting out the organization of the judiciary, proceedings before courts and the status of judges, an expression an opinion on proposals of conceptual documents concerning the judiciary presented for discussion by the National Council and by the Government.
§ 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)?
The Judiciary Council approves principles for the evaluation of judges, approves principles of judicial ethics, approves principles governing work in a domestic environment.
§ 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)?
The Judiciary Council elects and removes members of disciplinary senates and elect and remove chairmen of disciplinary senates and has a responsibility to initiate disciplinary proceedings against any judge.
§ 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)?
The Judiciary Council has a right to discuss reports on the drawing of budgetary funds of courts and to comment on a draft budget of the Slovak Republic courts in the process of drafting of the state budget.
§ 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
The Judicial Council approves statutes of the Judiciary Council and rules of procedure of the Judiciary Council and approves the organizational order of the Office of the Judiciary Council of the Slovak Republic.
24. Does the Council have investigation powers? If yes, please specify
The Judiciary Council can initiate disciplinary proceedings against any judge. In relation of this responsibility the Judiciary Council has the right to investigate and obtain documents and information which are important for disciplinary proceeding against the judge.
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
The Councils of Judges provide the Judiciary Council cooperation in the performance of its jurisdiction and submit the documents and information on the request of the Judiciary Council.
26. What are the types of norms that the Council can issue:
§ opinions on the functioning of the judiciary? Yes
§ recommendations? Yes
§ instructions to the courts? No
§ decisions? Yes
27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.
Yes, the functions and responsibilities are describes in the Constitution of the Slovak republic and in the act No. 185/2002 Coll. on the Judiciary Council of the Slovak Republic and on amendments of certain Acts.
28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?
The tasks of the Judiciary Council are 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?
The Judiciary Council has responsibility for setting out the principles of ethical conduct of judges.
30. Does the Council handle external relationships of the courts:
§ has it a public relations department? No
§ how does it ensure the transparency of its functioning and organisation?
The Office of the Judiciary Council performs the tasks connected with organisational, personnel, administrative and technical securing of activities of the Judiciary Council.
31. Are decisions of the Council published and available to all?
Yes, the President of the Judiciary Council ensures publishing the information about the activities of the Judicial Council on the web site that inform about meeting of the Judiciary Council and about the admitted decisions of the Judiciary Council. The Judiciary Council has issued its annual report for the year 2005. It composes all decisions of the disciplinary senates.
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?
There is no direct influence by the executive power and the legislative power. There is some influence in relation to the composition of the Judiciary Council - three members of the Judiciary Council are appointed and recalled by the president of the Slovak Republic, three members are appointed and recalled by the Government of the Slovak Republic and three members are elected and recalled by the National Council of the Slovak Republic.
33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect? Yes, the Judiciary Council of the Slovak republic is an independent constitutional body.
34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?
In case the Minister of Justice temporarily suspends a judge from office (e.g. in case of disciplinary proceedings), the Judiciary Council may overturn his decision within 30 days. Despite the Judiciary Council has powers related to the assignment and transfer of judges to individual courts, the determination of the total number of judges in Slovakia continues to be in the hands of the Minister 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?
The president of the Judiciary Council of the Slovak Republic is the president of the Supreme Court of the Slovak Republic. The Judiciary Council elects and removes members of disciplinary senates.
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?
The Judiciary Council assigns judges of the courts of lower degree to the post of the judge of the Supreme Court and judges of the district courts to the post of the judges of the regional courts after successful selection proceeding.
37. Who decides which the priorities of actions of the Council are? The Judiciary Council
38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?
Not directly, but in the event if the basic rights and freedoms have been infringed, everyone has a right to file a complaint on the Constitutional Court of the Slovak Republic.
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?
The Judiciary Council expresses an opinion on proposals of generally binding legal regulations setting out the organization of the judiciary, proceedings before courts and the status of judges, also can ask to supersede contrarious status, the Judiciary Council can make an inducement for filing a complaint on the Constitutional Court. The Judiciary Council can apply the Constitutional board of the National Council to invite the Minister of Justice to make some arrangement for the improvement of the status of the judiciary. The Judiciary Council also approves principles for the evaluation of judges which can be the basis for the selection of judges for the courts of higher degree.
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.
There are the problems concerning the power of the Judiciary Council, particularly a question of the widen of the power of the Judiciary Council as well as the composition of the Judiciary Council in order to reach the state under the law that the more than half of the members of the Judiciary Council would have been judges.
41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.
The reforms concerning the Judiciary Council are not the subject of the discussion within the legislative process but those reforms are considered inside the Judiciary Council.
42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?
The Councils of Judges provide the Judiciary Council cooperation in the performance of its jurisdiction and submit the documents and information on the request of the Judiciary Council. Nominations as a candidate in the Judiciary Council may be submitted by a professional interest organization of judges.
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?
Our country offers the information about the structure and the activities of the Judiciary Council of Slovak republic and the system of judiciary in Slovak republic. The Judiciary Council participates on the activities of the working groups of the ENCJ.
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?
46. How and by whom are judges appointed and promoted?
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?
48. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
49. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?
1 Restructuring of the organisation of courts and introduction of modern management techniques, as well as the balance that needs to be guaranteed as for independence of judges, have been discussed by the CCJE in some of its previous Opinions (See references of these Opinions below in footnotes – For the list and the exact titles of the CCJE’s Opinions, please consult the website: www.coe.int/ccje).
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.".
4 Please consider the following statements contained in the CCJE’s Opinion No. 6: - para 34: “The CCJE strongly emphasises, first of all, that the evaluation of "quality" of the justice system, i.e. of the performance of the court system as a whole or of each individual court or local group of courts, should not be confused with the evaluation of the professional ability of every single judge. Professional evaluation of judges, especially when aiming at decisions influencing their status or career, is a task that has other purposes and should be performed on the basis of objective criteria with all guarantees for judicial independence”.
- 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.”
5 Please consider the following statements contained in the CCJE’s Opinion No. 1:
- 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.”
- and para 34 of CCJE’s Opinion No. 6 (see footnote 4 above). 6 Please consider the following statements contained in the CCJE’s Opinion No. 7:
- 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).