Strasbourg, 9 December 2005
European Commission for the Efficiency of Justice (CEPEJ)
Action plan for follow-up to Opinions of the Consultative Council of European Judges (CCJE)
adopted by the CEPEJ at its 6th plenary meeting (7-9 December 2005) at the request of the European Committee on Legal Co-operation (CDCJ)
1. At its 80th meeting (Strasbourg, 20 – 22 April 2005), the European Committee on Legal Co-operation (CDCJ) decided to ask the European Commission for the Efficiency of Justice (CEPEJ) to examine the opinions of the Consultative Council of European Judges (CCJE), with a view to drawing up an Action Plan for examination by the CDCJ in connection with any future work on judicial standards.
2. Following an exchange of views with the CDCJ representative, Mr Inge Lorange BACKER, and the CCJE representative, Mr Alain LACABARATS, at its 5th plenary meeting (Strasbourg, 15 – 17 June 2005), the CEPEJ instructed its Chairman to draw up an Action Plan with the help of MM. André POTOCKI (France) and Matthias HEGER (Germany). The draft has been sent to the CCJE for consultation.
3. This Action Plan was discussed and adopted by the CEPEJ at its 6th plenary meeting (Strasbourg, 7 – 9 December 2005).
4. The proposals and recommendations contained in the Action Plan are covered by Article 2 of the Statute of the CEPEJ, which gives it the task of suggesting “if appropriate, areas in which the relevant steering committees of the Council of Europe, in particular the European Committee on Legal Co-operation (CDCJ), may, if they consider it necessary, draft new international legal instruments or amendments to existing ones, for adoption by the Committee of Ministers."
5. The Action Plan takes account, in particular, of the following CCJE opinions:
§ Opinion No. 1 (2000) on standards concerning the independence of the judiciary and the irremoveability of judges.
§ Opinion No. 2 (2001) on the funding and management of courts with reference to the efficiency of the judiciary and to Article 6 of the European Convention on Human Rights,
§ Opinion No. 3 (2002) on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality,
§ Opinion No. 4 (2003) on appropriate initial and in-service training for judges at national and European levels,
§ Opinion No. 6 (2005) on fair trial within a reasonable time and judges’ role in trials, taking into account alternative means of dispute settlement.
In carrying out the task assigned to it, the CEPEJ thought it unnecessary to take account of Opinion No. 5 on the law and practice of judicial appointments to the European Court of Human Rights.
6. The CEPEJ decided to take several major ideas from these opinions, without claiming to be exhaustive. If necessary, the Action Plan can be added to later.
Preliminary remarks: towards greater co-operation between the Council of Europe bodies responsible for judicial matters
7. In promoting opinions already adopted, and in preparing future ones, the CCJE might usefully be asked to take full advantage of the expertise of other relevant Council of Europe bodies, and particularly the CDCJ. It might also benefit from increased co-operation with the CEPEJ.
8. It might also contribute in an increasingly active manner to the work of those bodies, particularly via specific opinions which they request from it.
9. The CDCJ might study prospects for co-operation with the CCJE within the Council of Europe, and its practical aspects. Specifically, it might consult the CCJE in connection with its standard-setting activity, as recommended in section 1 below.
10. Similarly, the CEPEJ might ask the CCJE to comment on the action it intends to take on the statistical findings of its assessment of European judicial systems.
Active co-operation by the CCJE in implementing the CEPEJ’s Framework Programme on judicial timeframes1 might also make it possible to verify that the measures proposed by the CEPEJ are in line with everyday judicial practice, and facilitate their adoption by judges and – consequently – effective implementation.
1. RECOMMENDATIONS IN THE STANDARD-SETTING FIELD
a. Revision of Recommendation R(94)12 on the independence, efficiency and role of judges
11. Considering CCJE Opinions Nos. 1, 2 and 3, the CEPEJ recommends that the CDCJ explore the possibility of updating Recommendation R(94)12 on the independence, efficiency and role of judges.
12. This Recommendation is at present the only text which supplements the European Convention on Human Rights and the Court’s case-law by covering the status of judges and their role in the functioning of judicial systems. This gives it a commanding position in the Council of Europe’s standard-setting system, whose vital role in promoting the rule of law in Europe was referred to by the Heads of State and Government at the Warsaw Summit (16 – 17 May 2005).
13. New ideas and practices concerning judicial services and their functioning in Europe have emerged since the Recommendation was adopted. The CDCJ might consider these developments and, if necessary, add to or strengthen the basic principles embodied in that text.
14. In particular, the CDCJ might review the Recommendation in the light of the principles laid down in the European Charter on the Status of Judges, which lacks force of law, but has nonetheless been widely disseminated in Europe. The CCJE draws on the Charter in its opinions, and regards it as particularly relevant to the formulation of European rules on the status of judges.
15. Among other things, revision of the Recommendation might focus on:
§ rules on the responsibilities of judges;
§ the possibility of giving certain ethical rules force of law at national level;
§ the roles of governments and the judiciary concerning efficiency of justice, covering, inter alia, quality control of courts in a manner consistent with their independence;
§ the division of responsibilities between judges and prosecutors, and the need for links between Council of Europe texts concerned with judicial systems and Recommendation R(2000)19 on the role of public prosecution in the criminal justice system; if appropriate, the CDCJ might work in consultation with the European Council for Crime Problems (CDPC), the Consultative Council of European Prosecutors (CCPE) and the Consultative Council of European Judges (CCJE).
16. In revising Recommendation R(94)12, the CDCJ should rely, inter alia, on the opinions of the CCJE and on the work of the CEPEJ, particularly the results of its assessment of judicial systems in Europe2 and the work currently being done on implementation of the framework programme, “A new objective for judicial systems: the processing of each case within an optimum and foreseeable time frame”3.
17. If it considered this useful, the CDCJ might base itself on specific studies which it might ask the CEPEJ to make of these points.
b. Rules on enforcement of civil and commercial judgments
18. The CDCJ might study the feasibility of formulating minimum rules on enforcement of civil and commercial judgments. Although enforcement procedures and machinery differ significantly from one judicial system to another, it might be useful, with a view to compliance with basic rule-of-law standards, to supplement Recommendation R(2003)17 by taking steps to ensure efficiency and quality of execution procedures (an integral part of Article 6 of the European Convention on Human Rights) and compliance with the ethical principles which should govern these procedures.
c. Rules on funding of judicial systems
19. The preparation and management of legal system budgets in general and court budgets in particular have a vital bearing both on independence of the judiciary and on policies designed to improve the efficiency and quality of the functioning of justice.
20. The CEPEJ accordingly recommends that the CDCJ study the possibility of adjusting the European rules on funding and management of legal system budgets taking into account that the issue of funding is closely tied up with that of independence.
21. In doing this, the CDCJ might rely, inter alia, on Opinion No. 2 of the CCJE and on the work done by the CEPEJ, particularly the results of its assessment of the functioning of judicial systems in Europe.
d. Rules on the training of judges and judicial auxiliaries
22. The setting-up of training systems for judges in states which have recently joined the Council of Europe, and the changes made by several other states in their training systems, suggest that the usefulness of framing basic rules on the training of judges should be considered.
23. Although each state must be able to organise its own training system, in the light of its own procedures for the appointment of judges, minimum common rules could be worked out at pan-European level. Specifically, these might cover:
§ the role of the state in the training of judges;
§ the organisation of in-service training for judges;
§ measures to help ensure that judicial appointments reflect the community’s overall structure, through reduction of financial and social obstacles which make this difficult.
24. In this connection, the CDCJ might base itself on Opinion No. 4 of the CCJE and on the work done by the CEPEJ, particularly the results of its assessment of the functioning of judicial systems in Europe.
25. It might wish to involve the experts of the “European information exchange network between persons and bodies in charge of the training of judges and public prosecutors” (Lisbon Network) in its work, or ask the Network to take on certain preparatory studies or tasks.
26. The CDCJ might also give further thought to the usefulness of formulating training rules for other judicial professions, and particularly lawyers (taking account of Recommendation R(2000)21 on the freedom of exercise of the profession of lawyer, and of the results of the CEPEJ’s assessment of the functioning of European judicial systems) and court registrars.
e. Rules on the collection and processing of judicial statistics
27. The CEPEJ’s current work on assessment of the functioning of judicial systems shows that it might be useful to provide Council of Europe member states with a common body of judicial statistics and also rules on compilation of such statistics.
28. Opinion No. 6 of the CCJE calls on member states to agree on compiling statistics which can be used in devising tools – particularly comparative tools – to promote the reform of public justice policy.
29. The CEPEJ has also instructed its Working Party on the Evaluation of Judicial Systems (CEPEJ-GT-EVAL) to prepare a list of the data needed for evaluation purposes, and recommendations on compiling statistics in a way which will allow member states to supply them.
30. The CEPEJ might formulate guidelines in this area, and the CDCJ might then consider the usefulness of giving them regulatory force.
2. MONITORING IMPLEMENTATION OF COUNCIL OF EUROPE INSTRUMENTS IN THE JUDICIAL FIELD
31. If the member states are to act on the CECJ’s opinions, then their implementation of the Committee of Ministers recommendations, on which those opinions are based, must be effectively monitored4.
32. Under paragraph B.iii of its terms of reference, the CDCJ is required to monitor “the functioning and implementation of the international instruments coming within its field of competence”. It might wish to take monitoring of the implementation of instruments which it has produced a stage further, examining their real impact in the member states and drawing conclusions for its standard-setting activity (updating or revising existing instruments, preparing new ones).
33. In discharging this monitoring function, the CDCJ might, inter alia, base itself on the work of the CEPEJ. Under Article 1 of its Statute, one of the CEPEJ’s aims is “to enable a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice”. In this context, and as part of its medium-term programme of activities5, it will be conducting a number of studies to measure the impact of Council of Europe instruments concerning in particular:
§ alternative means of settling disputes,
§ execution of judicial decisions,
§ legal aid.
The CCJE has also made specific recommendations on these issues in its Opinion No. 6.
34. The conclusions of these studies might be sent to the CDCJ, leaving it to decide what action to take on them in connection with its monitoring of judicial instruments.
3. PROMOTING THE CCJE’S OPINIONS
35. In general, the CEPEJ recommends that a communication policy be developed to make the CCJE’s opinions better known to public decision-makers in member states and to the European judicial community.
36. That policy should:
§ publicise and disseminate the CCJE’s opinions with the help of:
- members of the CCJE, who could play a special part in bringing them to the attention of their countries’ public, judicial and university authorities, and delegates to other Council of Europe bodies (steering committees, Parliamentary Assembly, etc.),
- other relevant Council of Europe bodies (CDCJ, CDPC, CDDH, CEPEJ, CCPE, Venice Commission, Lisbon Network, etc.),
§ bring its work to the attention of the supreme national authorities, e.g. the European Ministers of Justice at their conference sessions,
§ make the CCJE’s opinions more accessible to policy-makers, lawyers and the public (translation into various Council of Europe languages, publication, easier access via the CCJE’s website).
Summary of measures proposed by the CEPEJ to the CDCJ
1. Standard-setting activity
a. up-date Recommendation R(94)12 on the independence, efficiency and role of judges
b. define minimum rules on enforcement of civil and commercial judgments
c. adjust the European rules on funding and management of justice budgets
d. formulate rules on the training of judges
e. study the possibility of drafting rules on the training of lawyers, court registrars
f. on the basis of the CEPEJ’s work, prepare guidelines on judicial statistics
2. Monitoring the functioning and implementation of the Council of Europe’s instruments in the judicial field
3. Helping to promote the opinions of the CCJE