Strasbourg, 12 February 2007
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary : Reply submitted by the delegation of Malta
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.
Indirectly it is possible, because a Judge or Magistrate is appointed by the Government, and we do no have career judges or magistrates. The salary of a Judge or Magistrate is from Government special funds. The staff of the Judge or Magistrate is provided by the administration.
2. Is it possible for the legislative power, the Parliament or the executive power/the government to order investigations or to establish commissions :
§ in general concerning judges? If yes, please specify. Through the Commission for the Administration of Justice.
§ concerning judicial performance? – through the Chief Justice
§ concerning facts already submitted to courts?
§ concerning procedural acts (eg. telephonic tapping, police custody) - telephone tapping is possible with the consent of the proper authorities.
3. Is there possible interference of the executive power concerning judges? Only as indicated above.
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) –as stated Government appoints Judges.
§ in designation of presidents of courts? (if yes, please specify which authority from the executive power) The Chief Justice (President of the Court) is appointed by Government.
§ in management of courts? (if yes, please specify which authority from the executive power) – Administration of the Courts is in the hands of the Ministry of Justice.
5. Is the judicial staff working under the authority of:
§ a judge?
§ the president of the court?
§ the Ministry of Justice? - It is the Ministry of Justice, through its Director of Court, who provides Judges with their staff. The staff works under the authority of the Judge, however, it is the administration which decides what staff the Judge will have and when. Judges are provided with judicial teams.
6. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court? Yes
§ to distribute the work between judges? Yes
§ to act as a disciplinary authority vis-à-vis judges? Discipline is exercised through the Commission for the administration for Justice.
§ to intervene in the career of judges? President distributes work to Judges so that this can influence their career in the way they perform.
§ other? If yes, please specify.
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?) Commission for the Administration of Justice.
9. What is the legal basis for the Council for the Judiciary: The Constitution.
§ the Constitution? Yes
§ the law? Yes – for subsidiary legislation and rules of court.
§ 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 Commission was constituted in 1994 and the reason was for safeguarding the independence of the Judiciary and at the same time introduce a measure of accountability for Judges, Magistrates, Lawyers and Legal Procurators.
Part III - Composition
11. What is the composition of the Council for the Judiciary:
§ Number of members? ten
§ Qualification of the members? See below
§ For the “judges” members, do they need specific qualifications or experiences? Two members are elected by the Judges of the Superior Court from among themselves.
§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions) The President of the Republic is the Chairman of the Commission; the Chief Justice is Deputy Chairman; the Attorney General is an ex officio member; two Judges and two Magistrates; a member (not a Judge) appointed by the Prime Minister and another member (not a Judge) appointed by the Leader of the Opposition; and the President of the Chamber of Advocates.
12. Please describe the whole procedure of appointment:
§ Who designates the members (judges or other institutions or authorities – please specify)? Judges and Magistrates are elected from among themselves.
§ What is the appointment system (voting, individual candidates, designation, etc.)?Voting according to specific rules of court.
13. How is appointed the President and/or Vice-President of the Council? Ex offcio
14. What is the term of office for a member of the Council? Four years
15. May a member be removed from office against his/her will and, if so, under what circumstances? A member may be removed by the President acting in accordance with the advice of the body or the holder of the office appointing such member, but he may be removed only for inability to discharge his functions of his office (whether arising from infirmity of mind or body or any other cause) or for misbehaviour.
Part IV - Resources
16. Where does the Council receive its financial resources? From fines that it can impose.
17. Does the Council have its own staff? Yes, which is provided by the administration.
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? About five.
20. What are the qualifications of the staff? Civil servants
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?No
§ 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):
The functions of the Commission for the Administration of Justice are:
(a) to supervise the workings of all the superior and inferior courts and to make such recommendations to the Minister responsible for justice as to the remedies, which appear to it, conductive to a more efficient functioning of such courts;
(b) to advise the Minister responsible for justice on any matter relating to the organization of the administration of justice;
(c) when so requested by the Prime Minister, to advise on any appointment to be made in terms of articles 96, 98 or 100 of this Constitution;
(d) to draw up a code or codes of ethics regulating the conduct of members of the judiciary;
(e) on the advice of the Committee for Advocates and Legal Procurators to draw up a code or codes of ethics regulating the professional conduct of members of those professions:
Provided that where such advice is not given within such time as the Commission may establish, the Commission may draw up such code or codes without the necessity of such advice;
(f) to draw the attention of any judge or magistrate on any matter, in any court in which he sits, which may not be conducive to an efficient and proper functioning of
such court, and to draw the attention of any judge or magistrate to any conduct which could affect the trust conferred by their appointment or to any failure on his part to abide by an code or codes of ethics relating to him;
(g) to exercise, in accordance with any law, discipline over advocates and legal procurators practising their profession; and
(h) such other function as may be assigned to it by law.
§ 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)? Not within the competence of the Commission
§ in area of initial and/or continuous training for judges and/or courts’ staff3? No. There is an ad hoc Judicial Studies Board.
§ 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)? Not within Commission’s competence.
§ 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)? Partly within the remit of the Chief Justice.
§ 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 Constitution (Article 97) provides for a special procedure when there is a motion for impeachment of a Judge or Magistrate.
§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, No 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)? No
§ 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 – Commission makes recommendation to the Government on problems in the Court system.
24. Does the Council have investigation powers? If yes, please specify Yes. It can either investigate in its own right or else it can request the Committee for Advocates and Legal Procurators to investigate, inquire into and decide upon any misconduct of any advocate or legal procurator in the exercise of the profession or upon the inability of any advocate or legal procurator to exercise his profession because of infirmity of mind. There is a right of appeal to the Commission from a decision of the Committee for Advocates and Legal Procurators.
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. Reports or complaints can be sent to the Commission by any individual..
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. Constitution and ordinary law.
28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific? Both general 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? Yes
30. Does the Council handle external relationships of the courts:
§ has it a public relations department? No. Just the Secretary of the Commission.
§ how does it ensure the transparency of its functioning and organisation? An annual report is compiled and passed on to Parliament.
31. Are decisions of the Council published and available to all? They are available to any person who ask for them.
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? Not directly, but as indicated above.
§ the legislative power?
33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect? Yes
34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice? The responsibility of each entity is circumscribed by the Constitution.
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? Each power is defined by legislation. However , as has been stated, some functions intertwine, for example, the Chief Justice is President of the Court, and Deputy President of the Commission.
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? See above answers.
37. Who decides which the priorities of actions of the Council are?
The Commission itself.
38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?
When a Judge is investigated he is informed and can attend the investigative process assisted by a lawyer. The Decision of the Council is passed on to Parliament if there is a prima facie case and then Parliament will deal with the matter. In case there is not case against the Judge the matter stops there.
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?
It can make recommendations or in extreme cases go public.
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. Commission needs to be given effective force in the exercise of its powers.
41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe. Recommendations are made by the Commission but follow up or response from the Administration is hard to come by.
42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations? Yes with the Association 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?
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.
I think several matters listed above might be of interest to other members.
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?
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).