Strasbourg, 10 January 2012
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
ASSESSMENT OF POLICY AND PROCEDURES FOR THE SELECTION OF JUDGES
Report requested by the Ministry of Justice of Azerbaijan
and prepared by
Mr Audun Hognes BERG, Head of International Secretariat, Norwegian Courts Administration, CEPEJ Bureau member
Ms Ivana GORANIĆ, Director of the Judicial Academy, Republic of Croatia,
Representative of the Lisbon Network to the CEPEJ
1. Executive summary
2. Background of the report
2.1 Relevant standards
2.2 Scope of the assessment
3. Fact-finding mission
4. Current procedures for the selection of non-judicial candidates to judicial posts in Azerbaijan: an analysis
4.1 Stages 1 to 3 – initial selection (prior to the initial training):
4.1.1 Test of legal knowledge (multiple-choice test)
4.1.2 Written examination (case-based)
4.1.3 Oral examination
4.2 Stage 4 – initial training
4.3 Stages 5 to 8 – post-training examinations and final assessment:
4.3.1 Written examination
4.3.2 Oral examination
4.3.3 Interview with the members of the Judge Selection Committee
4.3.4 Final assessment by the Judge Selection Committee
4.4 Procedures in the Judicial-Legal Council
4.5 Appointment by the President
4.6 Special procedure for appointment to judicial posts (Article 93-4 of the Law of Azerbaijan on Courts and Judges)
4.7 Promotion of judges
5. Conclusions and recommendations
1. Extracts from the relevant legal acts of Azerbaijan
2. Rules for the selection of non-judicial candidates to vacant judicial posts
3. Recommendations to the candidates for preparation
1. EXECUTIVE SUMMARY
Based on a request addressed by the authorities of Azerbaijan to the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe, an expert team from the CEPEJ reviewed the system for the selection of judges in Azerbaijan in September 2011. The experts’ assessment is based on the information collected during a fact-finding mission in the country as well as on the analysis of the existing regulations.
Several reforms of the Judiciary were undertaken in Azerbaijan during the last decade with the aim of improving the access to justice, as well as the efficiency and quality within the Judiciary.
According to the Constitution of the Republic of Azerbaijan judges are appointed by the Parliament (judges of the Constitutional Court, the Supreme Court and the Courts of Appeal) and the President (all other judges, including those newly selected).
The main bodies involved in the selection of judges in Azerbaijan are the Judicial-Legal Council (JLC – an independent body governing the judiciary, composed mainly of judges) and the Judge Selection Committee (JSC) formed by the JLC. The current procedure for the selection of non-judge candidates to judicial posts includes the following stages:
1. Test of legal knowledge (multiple-choice test).
2. Written examination (case-based).
3. Oral examination.
4. Initial training.
5. Written examination based on the training.
6. Oral examination based on the training.
7. Interview with the members of the Judge Selection Committee & final assessment.
8. Conversation with the Judicial Legal Council & proposal for nomination.
The selection system described in this report does not apply to the promotion of judges, which is also within the power of the JLC.
Having assessed the existing selection system with the European standards pertaining to the selection of judges, the experts found that the selection system is based on objective criteria and is fairly transparent. Hence, the European standards are to a large extent met. Furthermore, the composition of the JLC and the JSC and the appointment of their members also to a large extent meet the relevant international and European criteria.
However, the experts found that the level of transparency in the final stages of the selection procedure and assignment of the candidates to specific judicial posts performed by the JLC should be increased by establishing and publishing criteria for the assessment.
The experts also suggested introducing a system whereby each vacancy would be announced enabling the candidates to apply for each specific position.
2. BACKGROUND OF THE REPORT
This report has been elaborated as a result of a targeted cooperation activity of the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe, according to the request put forward by the authorities of Azerbaijan and following a decision to accommodate this request taken by the CEPEJ at its 16th plenary meeting (Strasbourg, 9-10 December 2010). At this meeting the CEPEJ agreed to cooperate with Azerbaijan inter alia on the process for selecting judges.1 The following expert team was established subsequently by the CEPEJ's Bureau in order to give a follow-up to the request of the Azerbaijani authorities:
§ Mr Audun Hognes BERG, the Norwegian Courts Administration, CEPEJ Bureau member;
§ Ms Ivana GORANIĆ, Director of the Judicial Academy of Croatia, Member of the Lisbon Network.
This report is therefore based on the information collected during the fact-finding mission of the experts in Baku as well as on analysis of the legislative acts pertaining to the selection of judges provided by the Ministry of Justice of Azerbaijan in advance.
* * *
Since Azerbaijan joined the Council of Europe on 25 January 2001, the country’s authorities have undertaken a number of reforms aimed at fulfilling its obligations pertaining to the membership of the Organisation. One of the directions of these reforms dealt with ensuring access to justice and improving its quality and efficiency. The reform of the procedures for the selection of judges was part of this effort, and it was based on the relevant European and international standards (see below). Opinions of prominent international experts were sought while designing the new selection procedure.
On February 25, 2005, a Judicial-Legal Council (JLC) was established by amending the Act on Court and Judges and by adopting the Act on Judicial-Legal Council. Pursuant to article 93-1 the JLC is vested with powers for arranging the selection of candidates for judicial posts. Pursuant to article 93-2 the JLC established a Judicial Selection Committee (JSC), tasked to carry out the selection of candidates.
The Act on Courts and Judges and the Act on Judicial-Legal Council constitute the regulatory framework for the judges’ selection system together with the Charter on Judicial Selection Committee and Rules of Selection of Non-Judge Candidates to vacant Judicial Post, both adopted by the JLC.
In their assessment the experts relied on a broad spectrum of international standards related to the process of selection and appointment of judges as a guarantee of the independence of the judiciary.
For example, on the UN Basic Principles on the Independence of the Judiciary (adopted in 1985) that indicate, in particular, in paragraph 10 that “[p]ersons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.”
The European Charter on the Statute for Judges (1998), although it does not have any formal status2, nevertheless contains an important message with respect to the process of recruitment of judges. It indicates, in particular, that the choice of candidates should be based “on their ability to assess freely and impartially the legal matters which will be referred to them” (paragraph 2.1). The Charter further on pinpoints the need of organising an “appropriate training at the expense of the State, the preparation of the chosen candidates for the effective exercise of judicial duties” (paragraph 2.1).
Opinion No. 1 (2001) of the Consultative Council of European Judges (CCJE) on standards concerning the independence of the judiciary and the irremovability of judges invokes the need for adopting objective criteria for the selection of judges with the aim of excluding any political influence on their nomination, as well as “the risk of favouritism, conservatism and cronyism” (paragraph 24). Moreover, in this Opinion the CCJE recommends introducing, publishing and giving effect to objective criteria so as to ensure that the selection is based on merit, and in particular on qualifications, integrity, ability and efficiency of the candidates (paragraph 25).
Opinion No. 4 (2003) of the CCJE on appropriate initial and in-service training for judges at national and European levels draws a direct link between an appropriate training of judges and the trust citizens place in the judicial system. According to the CCJE a detailed, in-depth and diversified training is “essential for the objective, impartial and competent performance of the judicial functions, and to protect judges from inappropriate influences”. Such training should go beyond the technical field of law to embrace “courtroom and personal skills enabling judges to manage cases and deal with all persons involved appropriately and sensitively” (paragraphs 3 and 5). The Opinion recommends training judges before they take up their duties (whether those recruited early in their professional career or from among experienced lawyers) (paragraph 23), and points that “the authority supervising the quality of the training programme should be independent of the Executive and the Legislature, and that at least half of its members should be judges” (paragraph 13). Moreover, in paragraph 28 the Opinion enlists a number of specific recommendations regarding the initial training of judges.
Finally, in its Opinion No. 10 (2007) on the Council of the Judiciary at the service of society the CCJE recommends that such Council ensures the selection, appointment and training of judges, along with other important functions (such as promotion, disciplinary measures, management of the judicial budget etc.) (paragraph 42). In order to avoid potential conflicts between these functions the consultative body recommends separating these functions between various branches of the Council for the Judiciary (paragraph 43). In particular, the Council should cooperate with the training institution during the initial as well as in-service training, ensure its quality and guarantee that judges are selected, among other, based on the results of their training (paragraph 67).
Recommendation of the Committee of Ministers to member states of the Council of Europe on judges: independence, efficiency and responsibilities (Rec(2010)12) also invokes that “[t]he authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers”, at least a half of it consisting of judges chosen by their peers (paragraph 46). Furthermore, the Recommendation provides that where the law empowers the head of state, the government or the legislative power to take decisions concerning the selection of judges, “an independent authority drawn in substantial part from the judiciary <…> should be authorised to make recommendations which the appointing authority follows in practice”. The document further on recommends that judges be provided with theoretical and practical in-service training entirely funded by the state (paragraph 47).
The Magna Charta of Judges (Fundamental Principles) (2010)3 also invokes the importance of objective criteria for the selection of judges and of their appropriate training as means of achieving judicial independence (paragraphs 5 and 8).
In addition, most of the documents referred to expressly rule out the possibility of excluding a candidate for a judicial post for the reason of their race, colour, sex, ethnic or social origin, philosophical and political opinions or religious convictions, property, birth or status (with the exception of the nationality requirement).
This report focuses on the process and procedures for the selection of new (or “non-judge”) candidates for judicial posts as laid down by the relevant legislation of the Republic of Azerbaijan, up to and including the stage of their nomination. The assessment made by the experts is based on the analysis of the relevant legislative material, observations made during a written test (see below for more details) and interviews with the different stakeholders in Azerbaijan.
The issues of the promotion of judges in Azerbaijan are outside the scope of this report, and were not reviewed by the experts in much detail. However, since the experts felt that the selection procedure as such is closely linked with other stages of the judicial career, and with the probation period and promotion in particular. Therefore the report contains brief references to these stages and recommendations regarding them as appropriate. Making further recommendations regarding the system of promotion of judges and nominations to higher judicial offices would require a thorough study of the issue. The experts encourage the authorities to undertake such studies in the light of the relevant international standards.
It has to be stated clearly that the experts’ visit to Azerbaijan was not aimed to monitor or certify the correct application of procedures for the selection of non-judicial candidates to judicial posts in this country, but to collect information and to interview the relevant stakeholders in order to assess in general the overall policy for the selection of judges.
This assessment and opinions of the experts are based on, and limited by, the information that was made available to them.
While attending the written test organised for the candidates, the experts pursued the aim of observing the practical implementation of the procedures foreseen by the law, and not that of assessing the legitimacy and correctness of the procedure.
3. FACT-FINDING MISSION
In order to collect detailed information about the implementation of the different stages of the selection procedure, as well as to exchange views on the current practices and their impact on the status of judges in the country, the CEPEJ expert team, accompanied by a Secretariat member, carried out a fact-finding mission in Azerbaijan from 18 to 20 September 2011.
In line with the programme proposed by the host country and the Secretariat, the experts met the following interlocutors in Baku on 19 and 20 September:
§ Members of the Judicial-Legal Council of Azerbaijan,
§ Members of the Judge Selection Committee of Azerbaijan,
§ Head of the Secretariat of the Supreme Court of Azerbaijan,
§ Member of the Board of the Lawyers’ Association of Azerbaijan,
§ Minister of Justice of Azerbaijan (who chairs the Judicial-Legal Council),
§ Representatives of the Rule of Law and Human Rights Unit of the OSCE Mission in Baku,
§ Head of the Council of Europe Office in Azerbaijan.
On 18 September 2011 the experts had an opportunity to witness a written test organised for the candidates for judicial posts as the first step of the selection procedure.
Interpretation during the abovementioned meetings and visits was provided courtesy of the Ministry of Justice of Azerbaijan.
4. CURRENT PROCEDURES FOR THE SELECTION OF NON-JUDICIAL CANDIDATES TO JUDICIAL POSTS IN AZERBAIJAN: AN ANALYSIS
The diagram on the next page illustrates the order in which the different steps of the procedure take place. The first part of the selection procedure consists of three eliminatory steps: a) a multiple choice test, b) a written examination and c) an oral examination.
The selection of judges starts by announcing the initiation of the selection procedures. In order to participate in the procedures the candidates must have obtained at least 5 years of working experience as jurists.4
The Rules for the Selection of Non-Judicial Candidates to Vacant Judicial Posts (approved by the Judicial-Legal Council as per its decision dated March 11, 2005)5 provide that “[t]he Judge Selection Committee shall constantly publish in the media and internet information on commencement dates and deadlines of submission of applications by candidates to the vacant judicial posts…”. According to the clarifications received by the experts this provision means that during the several months that pass between the date a new selection cycle is announced and the deadline for submission of applications, the JSC publishes several time the information related to this particular cycle. The purpose of such repeated publication is to attract widest possible interest and to encourage eligible candidates to apply.
New selection cycles are launched at irregular intervals depending on the changing needs of the judiciary and vacancy forecasts and planning done by the JLC. Except for the information published on the official website of the JLC6, the number of vacancies to be filled is not published, nor is the information on the specific courts or geographic locations where the vacancies are expected to arise. However, it would be useful to publish such information widely.
The only activity observed by the experts was the first stage of the procedure – a multiple-choice test. The test is very sophisticated in its implementation, and is regulated in a very detailed manner. Many observers from the local NGOs and international community attended the test. The test was technically very well done and performed.
The test questions being in the Azeri language, the experts were not in the position to assess their nature and the level of knowledge expected from the candidates. It seems, however, from the information provided by the counterparts as well as from the list of topics recommended by the JSC to the candidates for preparation7, that the test covers almost every aspect of the law and legislation in force in Azerbaijan at relevant time.
The procedure8 is built in such a way that it is very difficult to know the questions and answers in advance, which seems to put all the candidates (applicants) in the equal position, the number of possibilities and the performance assured us that the multiple-choice test is objective. Each candidate who obtains 60 or more points out of 100 shall be admitted to the second stage – the written examination.
The procedure regarding the written examination is also formally correct and objective, ensuring transparency for all the candidates during the examination. This examination consists of two essay themes: one from criminal law and from civil law; it lasts four hours during which the candidates are requested to elaborate and relate the content of relevant legislation and its implementation. The Rules
indicate9 that the candidates’ work “shall undergo “double check” by the members of the Judge Selection Committee and invited specialists”. It was explained to the experts during the meeting with the members of JSC that if there is a significant difference between the marks given by the two correctors (up to 100 points for each of the two themes), a third expert will be consulted. At the same time it is not clear whether the correctors appointed by the JSC are required to justify the mark given.
It is also unclear how significant should this difference be for a third expert to be invited to give an opinion. Members of the JSC explained that this third expert is selected and appointed from a list of scholars proposed by universities.
It is rather unusual for two experts to have very different opinions on the candidates’ papers based on a practical case – such opinions should be very well elaborated and strong arguments should be given before asking a third opinion. The CEPEJ experts were informed that until now such a case has not arisen, and therefore there is no experience in the implementing this rule. However, rules on the third opinion should be regulated in detail in a law or by-law and published.
This part of the initial selection procedures seems to be potentially the most subjective. It follows from the Rules10 that during this examination each candidate is asked five questions aimed at verifying their legal knowledge, ability to give logical reasoning and their general outlook. Each question carries a maximum of 20 points, and each candidate having obtained a total of 60 points or more will have passed the examination. It is unclear what reasoning is provided to justify marks below the pass level.
It was indicated to the experts that, also in accordance with the Rules, international organisations, local NGOs, foreign embassies etc. can send their representatives to observe the examination and listen to the exchange between the candidates and the panel.
However, since the first two examinations are designed to verify the candidates’ legal knowledge (who have already obtained a law degree), then it would be advisable to conduct the oral examination as a structured interview with ten questions (the same for all the candidates), the answers being assessed on a scale from 1 to 10 (i.e. motivation, way of thinking, the ability to argue, rhetoric ability, personality etc.). Otherwise this oral examination can include a number of situations (e.g.10) whereby the 11 members of the panel would put the candidates in similar conditions (concerning the dealings with difficult parties, motivation, the role of judge, independence etc.) and assess their reaction and ability to give arguments for their opinion by a certain number of points (1-10 for each situation/question). The oral examination could possibly also be a mixture of both approaches; however, it is important that the questions/situations are the same for all candidates.
The candidates who have passed successfully the first three stages (a test and two examinations) enter the training phase that includes a theoretical and a practical part (court internship). According to the Rules the training institution reports on the results of each candidate to the JSC. However, this is not an assessment per se, but rather a non-binding opinion that the JSC may or may not take into account (as it was explained to the experts, the Rules being silent on this specific point).11 Assessment of the knowledge and skills obtained through training is performed during post-training examinations (see p. 4.3 below).
The initial training currently lasts one year. It is unclear where do the candidates stay (however, the JSC covers their expenses from a budget allocated to that purpose) and where do they have practice during the training. During the mission in Baku the experts did not have the opportunity to look at the curricula for the training of candidate-judges.
It would be advisable also to provide for the training of trainers and mentors, to elaborate a programme for developing “soft” skills and to design a system of the evaluation that would be taken into account during the final examination.
Based on the information received before and during the mission in Azerbaijan the experts could see at least two possible directions that the training could take (taking into account its duration):
a) If the lack of legal knowledge is identified as a problem (this would depend on the curricula of undergraduate studies at law faculties, but also the profile of the candidates), then the majority of workshops and lectures should focus on the development of legal knowledge, implementation of legal norms, drafting court decisions etc.
b) If the candidates already demonstrate the solid legal knowledge required from a judge, the focus should be on the development of the candidates’ “soft” skills.
In both cases the most important would be to establish a network among the trainers of the Training Centre and the mentors at courts in order to follow the development of the candidates. The opinions and marks given or formulated by the trainers and mentors should be taken into account as credit towards the final examination. The training programme should also provide room for adjustment to the profile of the candidates.
After receiving the Programme of training on 12 October and examining it, the experts could see that it targets first and foremost the legal knowledge of the candidates, and – bearing this in mind – it is well structured. It is still unclear what exactly the system for the evaluation of candidates during the training looks like, and whether there is a system for the evaluation of trainers, which would be useful.
Although the described steps of the procedure for the selection of judges meet all relevant international standards, it is useful to point out some possibilities for its improvement.
For the sake of transparency the vacancies should be published (at least) once a year (for the posts expected to become vacant at the end of one selection cycle) making it clear where the posts will be (at which courts). At the end of the selection cycle the successful candidates should be given an opportunity to apply for specific posts of their choice.
Depending on the level of knowledge the candidates have demonstrated during the first two written examinations the training programme should be adapted, with the emphasis being made either on the legal knowledge and on practising implementation of laws or on the development of “soft” skills.
The oral examination (pre-training) should be conducted in the form of a structured interview with the aim of revealing the personality of each candidate. Besides, the questions/situations should be the same for all the candidates, and marks should be given by the every member of the JSC present (who should also be required to justify their opinion).
There should be a network of the trainers and mentors educated in the Training centre, so that all the candidates could benefit from a coherent approach during the training.
With the completion of the training stage, the candidates are then taken through a new set of written and oral examinations, which also are eliminatory, as well as a final interview with the JSC. The average of the marks obtained during the final two-step examinations and the interview forms the basis for a ranking set up by the JSC. The JSC then submits the list to the JLC together with a review of each candidate.
As expressed in the relevant regulations and emphasized by the representatives of the JSC and the JLC in the meetings, the post-training examinations aim at revealing the abilities of the candidates to work as judges – as opposed to the initial examinations, where the aim is to measure the overall legal knowledge of the candidates. Thus, the post-training examinations are closely linked to the content of the curricula, both the theoretical and the practical part.
The post-training examinations consist of a written and an oral examination and an interview with each candidate.
Pursuant to Article 14.5 of the Law on the Judicial-Legal Council, complaints against decisions from the Judge Selection Committee may be made to the JLC.12
The candidates are given a case with questions attached. The answers are evaluated in the same manner as in stage 2 prior to the training.
The candidates’ work is assessed on a scale from 0 to 100 points. Each candidate that obtains at least 60 points passes the test, and may participate in the oral examination.
During the oral examination the candidates’ knowledge and skills are also assessed with a maximum of 100 points, with 60 points and above representing the pass mark. Similarly to the written examination, the oral examination aims at measuring the candidates’ ability to fulfil the role of a judge inter alia due to the skills acquired during the training phase.
According to Article 4.8 of the Rules for the Selection of Non-Judicial Candidates to Vacant Judicial Posts, the JSC interviews the candidates that have successfully passed the previous stages. The aim is again to reveal the candidates’ ability to work as judges.
These interviews are individual and last between 30 minutes and 1 hour. 10 questions are asked. Each JSC member may ask only one question. The JSC is entitled to discuss the answers of the candidate. The candidate may be given up to 10 points for each reply, the total maximum mark being fixed at 100. Candidates having obtained 60 points or more have passed the interview successfully.
The marks from the written and oral examination and the interview are added, and an average mark is calculated. The average mark constitutes the evaluation mark of each candidate. The JSC then sets up a list ranking the candidates based on the average marks.
The JSC also draws up opinions on the aptitude of candidates selected for judicial posts at the relevant courts (of general or specialised jurisdiction) based on the results of the training stage and the interview13. The level of specialisation is indicated in the opinion of the JSC.14
The JSC then submits the list of candidates to the JLC together with its opinions.
The relevant law and by-law (i.e. the Rules for the Selection of Non-Judicial Candidates to Vacant Judicial Posts) regulates the selection process in a detailed manner. The law and the by-law are also available for the candidates and the public on the website of the JLC. On the day of the first test the candidates are also given a folder containing information related to the selection process.
The examinations and tests seem thus to be “based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity” as expressed in CM/Rec(2010)12, paragraph 4415.
It is crucial in the recruitment of judges to attract and find those candidates that have the ethical abilities for being a judge. The experts have taken note that with few exceptions no candidates are eliminated during and after the training stage. Thus, in reality the selection and elimination of judge candidates seems to be based on the overall knowledge of law as demonstrated in the initial test and examinations, rather than based on the ability to work as a judge which is supposed to be screened during and after the training.
Does the selection system put too much emphasis on the general knowledge of law, the result being that candidates with highly ethical standards are lost in the process? The experts acknowledge the need for judges to have an in-depth knowledge of the law. However, bearing in mind that the judicial ethics constitute a relatively small part of the overall curricula of the training programme, as provided to experts after the mission, the experts encourage the JLC and the JSC to verify whether the ability to adjudicate and ethical standards of the candidates are sufficiently covered in the selection system.
Finally, the experts point out that specialisation does not play any significant role during the training stage, implying that it is the professional background of the candidates prior to the training that will be crucial for where they are likely to be appointed at the end.
Pursuant to Article 15 in Law of the Judicial-Legal Council the JLC shall determine whether the work of the JSC has been carried out in accordance with the legislation and the Charter of the Judge Selection Committee. The JLC also reviews the proposals from the JSC, refers candidates to specialisation fields based on the opinions of the JSC and a conversation16 with the candidates. Finally, the JLC proposes to the President to appoint selected candidates to specific vacant judicial posts. For this purpose the JLC holds conversations with each candidate before matching them to specific judicial posts. At present the candidates cannot apply for specific judicial posts – this decision is entirely within the discretion of the JLC.
The proposal for appointment shall include the proposed (specific) judicial post for each candidate17.
The composition of the Judicial-Legal Council seems to be in accordance with the relevant European standards18. Reference is made to both the share of members from the courts and the authority that appoints them.
Taking into account the fact that appointment of judges still is within the powers of the Heads of State/Governments according to the Constitutions of several member states of the Council of Europe, the Committee of Ministers stated in paragraph 47 of its Recommendation that “an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice”.
The Committee of Ministers then made references to transparency in paragraph 48:
“The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.”
Azerbaijan is one of the member states where appointment is still within the power of the Head of State, i.e. the President. It is thus important to establish guarantees to ensure that the selection is based on objective criteria mentioned inter alia in paragraph 44, and that the procedures are transparent. The fact that the Minister of Justice is a member of the JLC and is eligible for the office of the Chair indicates that transparency should be maintained at a high level.
Such standards ensure a selection based on well-founded criteria (qualifications, integrity, ability etc.) and are likely to attract applications from the jurists that are desired for judgeship in the courts.
As stated earlier, the selection process prior to the submission of candidates to the JLC can be characterised as based on objective criteria, and the procedures are fairly transparent.
However, the experts find it somewhat unclear what forms the actual basis of the final proposal by the JLC to appoint a candidate, i.e. what criteria are used when assigning a newly selected judge to a specific judicial post. Has the JLC adopted or established a policy related to gender balance, age, specialisation, professional background? Will candidates from the ranks of prosecutors have an advantage working with criminal cases, or do quarantine policies exist? To what extent will candidates originating from a certain region or city be disqualified for judicial posts in that region? What is the significance of the ranking of the candidates established by the JSC, when the JLC assigns the candidates to different courts?
These questions could serve as examples of issues that could be part of a publicly available policy document of the JLC. The experts therefore encourage the JLC to adopt and to publish objective criteria for the assessment made by the JLC related to the selection of candidates to the actual vacancies in specific courts.
The experts also take the opportunity to propose to the JLC to explore the possibility of introducing a scheme with announcement of vacancies and competition related to these vacancies. Applications directly related to specific judicial posts will promote transparency in the assessment of the applicants to these positions. Such procedures will furthermore make the candidates accountable for their own future career as judges by making the marks obtained in examinations, as well as their qualifications, decisive for the chances of being appointed to the court of preference for that candidate.
The experts are aware of the need for a selection system that enables recruitment of judges to all judicial posts in Azerbaijan, also in remote parts of the country. These challenges should be solved by strengthening the overall attractiveness of judicial posts among jurists.
Pursuant to Article 16.0 in the Law on Judicial-Legal Council, the proposal formulated by the JLC is submitted directly to the President.
Both the members of the JSC and the JLC expressed during the meetings that in practice the selection is done by the JLC. It is only a matter of formality, due to the Constitution, that appointments are done by the President. It normally takes the President no more than 2 days to sign the appointment papers, and often it is done the same day.
Pursuant to Article 96 of the Law on Courts and Judges, new judges shall be appointed for a period of five years, during which they have to participate in training at least once every year; they are then evaluated at the end of this period. If no professional shortcomings are revealed during the evaluation, the mandate is extended until the age of retirement.
It cannot be deducted from the wording of Article 96 which authority extends the mandate. According to the information obtained during the meetings, the mandate is extended by the JLC.
All judicial systems are faced with the task of striking a proper balance between the independence and the accountability of judges. The significance or added value of the probation period as opposed to the examinations and tests during the selection is that it allows to review the actual performance of the candidates as judges. In the context of independence vs. accountability, the probation scheme promotes quality and in that sense accountability, but at the same time decreases the level of independence.
Within the member states of the Council of Europe, a majority of the countries has reported that a probation period does not apply to their selection system19. Of the 16 countries that have reported that a probation period applies, the duration of the probation varies from 6 months to 5 years.
The experts assume that the protection of tenure for judges in Azerbaijan increases when the probation period is completed, implying that the conditions for dismissal during the first 5 years are less strict than when the appointment is renewed until retirement. The significance of the probation period could accordingly be described as the difference in level of protection of tenure, in combination with a higher level of scrutiny of the judges’ performance.
Underlining the crucial importance of promoting independence of both judges and the judiciary, and bearing in mind the very comprehensive tests and examinations that judge candidates in Azerbaijan have to pass before and after the initial training, the experts find it appropriate to raise the question whether the five year probation is adequately justified or needed.
Hence, the experts would like to suggest undertaking a study aimed at exploring whether the probation period is adequately justified as such, and whether the duration of 5 years is adequate. The experts are aware of the fact that all judges that were appointed according to the new selection procedure so far still have to complete their 5-year probation period. A future evaluation of the new selection system may include the question of the necessity of probation period.
4.6 Special procedure for appointment to judicial posts (Article 93-4 of the Law of Azerbaijan on Courts and Judges)
Pursuant to Article 93-4 of the Law of Azerbaijan on Courts and Judges,20 the JLC may propose to the President to appoint prominent legal practitioners for judgeships in high Judicial posts.
It was expressed during the meetings that this procedure has been used only on two occasions so far. One of the persons was nominated to the Supreme Court, the other to a Court of Appeal.
The rationale behind Article 93-4 is clearly to attract prominent legal practitioners to higher judicial posts without following the ordinary selection system, but perhaps more importantly, waiving the requirement for at least five years experience as a judge in first-instance court (c.f. Article 94 third paragraph of the Law of the Azerbaijan on Courts and Judges).
The duration of the training may constitute an obstacle especially for lawyers that are running their own law firm and who are seeking judicial posts in certain areas of the country. In line with these considerations and the rationale behind Article 93-4, the experts suggest that the JSC should be vested with the power to exempt candidates from the training and post-training examinations, however, on the basis of objective criteria such as professional experience (both international and domestic) that testifies to a certain level of moral and ethical standard.
During the meetings the experts were informed that promotion is within the powers of the JLC, and that it is based on the evaluation of judges, the level of their specialisation etc. Vacancies are not announced, nor do judges apply for vacancies otherwise.
Pursuant to Article 109(9) of the Constitution, the President proposes to the Milli Majlis21 judges to be appointed to the Constitutional Court, the Supreme Court and the Court of Appeal.
Furthermore, according to Article 94 of the Law on Courts and Judges, it is within the power of the President to appoint the chairpersons, deputy chairpersons and Board chairpersons by way of the procedures described in paragraph 32 of article 109 in the Constitution.
This implies that the discretional power of the JLC in promotion matters is restricted to ordinary judges of first instance courts (including district courts, grave crimes courts, administrative and economic courts). However, the JLC seems to be vested with the power to initiate promotion to higher courts, even though the appointment is done by the Milli Majlis or the President.
As with the nomination of new judges, the experts find it unclear what are the criteria for promotion to higher courts as well as promotion to courts of same instance or to the Grave Crimes Court. Accordingly, even though the core scope of the mission was to review the selection of non-judge candidates, the experts would like to recommend that the JLC take the necessary steps for adoption and publication of promotion criteria, along with criteria for the assessment of knowledge and skills of judicial candidates during selection (see Recommendation No. 1 below) as these are interlinked.
5. CONCLUSIONS AND RECOMMENDATIONS
Systems for the selection of candidates to judicial posts must generally take into account a set of general and principal considerations that are applicable in most democratic societies based on the principle of the rule of law.
Selection of judges should be based on the principles of the Rule of Law. The selection of judges should be subject to a certain level of democratic control. One of the key elements is transparency of the selection procedures for the public at large. The selection system should promote independence of the judiciary by preventing external influence both directly and indirectly. The system should enable the selection of candidates that upholds a high level of their professional quality and personal aptitude. Finally, the selection should stimulate both public trust and trust among potential candidates.
It is the view of the experts that the new system of selection of judges in Azerbaijan to a fairly large extent meets several of these principles. Although the formal appointment of new judges is done by the President, both the Judicial-Legal Council and the Selection Committee are vested with substantial influence on the selection. The composition of both bodies and the way their members are appointed seem to meet the international standards mentioned in the report. Furthermore, the very thorough system of examination promotes the selection of candidates with both legal knowledge and personal aptitude for judgeship.
The experts also point out that especially the procedures of the Judge Selection Committee are basically transparent.
In general, the model developed by the Azerbaijani authorities for the selection of new judges can be regarded an interesting example of best practice that reflects the particular features and the course of development towards ensuring the independence and quality of the judiciary in a new democracy.
Notwithstanding the impressive work carried out in order to improve the selection system of judges, the experts would like to conclude their report by putting forward some recommendations for further improvement of the selection of judges as a contribution to the continuous efforts of the authorities of Azerbaijan. The recommendations will hopefully be suited for strengthening the independence, transparency and at the end trust among the public and potential candidates.
Recommendation No. 1:
Adopting and publishing assessment criteria used in for the selection and promotion of judges.
As expressed earlier in this report it is the opinion of the experts that the assessment of the candidates made by the Judicial-Legal Council does not ensure the same level of transparency as the process prior to the submission of the list of candidates by the Judge Selection Committee.
Accordingly, the experts advise the Judicial-Legal Council to adopt criteria both for the assessment of the candidates as well as for the promotion of already appointed judges. These criteria could be adopted in a Charter and should be published. This will promote transparency and invoke trust both among the public and among the candidates and potential candidates. The importance of this step is underlined by the CCJE22: the fact that such criteria is known and open to public scrutiny will oblige the bodies responsible for the selection and promotion of judges to apply them more rigorously in practice and assess their effect.
Recommendation No. 2:
Producing detailed regulations for certain aspects of the selection procedure (for instance, the rules of the third opinion in the second written examination; final nomination by the President of the State etc.) by means of by-laws and make these regulations available to the public.
Recommendation No. 3:
Introducing a detailed scheme for announcement of judicial posts and procedures for application.
Announcement of a new selection cycle published should indicate the number of vacancies to be filled as well the specific courts or geographic locations where successful candidates can be appointed. The purpose is multi-fold: to increase the transparency of the nominations as such, thus increasing the independence of the judges, and to improve the public trust in the judicial system.
Recommendation No. 4:
Abolishing or shortening the 5-year probation period.
The 5-year probation period complements the selection of new judges by allowing evaluation of their actual work as judges. Notwithstanding this fact but underlining the fundamental importance of independence, the experts suggest that the system of 5-year probation period could be evaluated with the objectives of assessing whether the probation scheme may be abolished or substantially reduced
Recommendation No. 5:
Producing training curricula and programmes for training the trainers and mentors accompanying the candidates during their internship in courts.
APPENDIX 1: Extracts from the relevant legal acts of Azerbaijan
CONSTITUTION OF THE REPUBLIC OF AZERBAIJAN
Article 109. Competence of the President of the Republic of Azerbaijan
The President of the Republic of Azerbaijan:
9) submits proposals to Milli Majlis of the Republic of Azerbaijan about appointment of judges to the Constitutional Court of the Republic of Azerbaijan, the Supreme Court of the Republic of Azerbaijan and the Economic Court of the Republic of Azerbaijan; appoints judges to other courts of the Republic of Azerbaijan; by consent of Milli Majlis of the Republic of Azerbaijan appoints and dismisses the General Prosecutor of the Republic of Azerbaijan;
Article 126. Requirements to candidates for judicial posts
I. Judges shall be citizens of the Republic of Azerbaijan not younger than 30, having voting rights, higher juridical education and at least 5-year working experience in the sphere of law.
II. Judges may not occupy any other posts, irrespective of the procedure – elections or appointment, may not be involved in business, commercial and other remunerated activity except scientific, pedagogical and creative activity, may not be involved in political activity and join political parties, may not get remuneration other than their wages and money for scientific, pedagogical and creative activity.
LAW OF THE REPUBLIC OF AZERBAIJAN ON COURTS AND JUDGES
Section II. Judges
Chapter XV. Status of judges
Article 93. Requirements to candidates applying to the judicial post
Subject to Article 126 part I of the Constitution of the Republic of Azerbaijan, a citizen of the Republic of Azerbaijan at the age of 30 and older, entitled to vote in elections, having obtained a university degree in law and work experience in a legal profession during at least 5 years may be a judge.
Persons with dual citizenship; obligations to other states; belonging to clergy; recognized totally or partially incapable to work by court; unable to exercise judicial authorities due to a physical or mental handicap as confirmed by medical conclusions; having conviction record; dismissed from a judicial post for actions incompatible with the status of the judge may not be a judge.
Article 93-1. Judicial-Legal Council
The Judicial-Legal Council is an institution that carries out self-governing functions of the judiciary and, which, within the limit of its competence, carries out the organisation of the court system, arranges the selection of candidates for judicial posts, ensures its operation, transfers judges to another judicial post, promotes judges, calls judges to disciplinary liability, evaluates the work of judges as well as resolves other issues related to courts and judges in the Republic of Azerbaijan.
Organisation, legal foundations of the work and authority of the Judicial-Legal Council are laid down by this Law and the Law of the Republic of Azerbaijan on the Judicial-Legal Council.
Article 93-2. Judge Selection Committee
The Judicial-Legal Council establishes a Judge Selection Committee in order to carry out selection of candidates for judicial posts.
The present Law, the Law of the Republic of Azerbaijan on the Judicial-Legal Council and the Charter of the Judge Selection Committee approved by the Judicial-Legal Council shall regulate the activity of the Judge Selection Committee.
Article 93-3. Selection of the nominees for judicial posts
The applicants for the post of judge are submitted to a written examination and to an oral examination. The Judge Selection Committee arranges these examinations in order to select candidates.
The results of these examinations are evaluated by the Judge Selection Committee. The Judge Selection Committee may engage an ad hoc commission for the implementation of this function.
The applicants who have succeeded in these examinations are automatically admitted to a long-term training. This training is organized by the Training Centre. The working places and salaries of the applicants admitted to a long-term training shall be maintained. Financial support to the applicants who do not work is provided by the Judicial-Legal Council. The amount of such financial support is established by the Judicial-Legal Council and paid from the resources allocated to the Council from the state budget.
At the end of the training each trainee shall be evaluated. The results of this evaluation are based on the opinion of the Training Centre and a concluding interview with the members of the Judge Selection Committee. The evaluation is based on the mark system.
The applicants shall be ranked according to their merit, based on the mark obtained.
The results of this evaluation are submitted to the Judicial-Legal Council. The Judicial-Legal Council proposes to the relevant executive body of the Republic of Azerbaijan to appoint the candidates according to the number of vacant judicial posts.
The applicants who complete the training successfully but fail to receive appointment may be appointed to administrative positions in the justice bodies or admitted to the service in the prosecutor’s office and in case a vacancy arises, be subsequently appointed to a judicial post.
Article 93-4. Special procedure for appointment to judicial posts
Without reverting to the procedures provided for in Article 93-3 of this Law, a person who meets the requirements provided by Article 126 part 1 of the Constitution of the Republic of Azerbaijan, is prominent in the legal area, has 20 years experience as a law practitioner and has high moral qualities may be appointed to a high judicial post upon proposal of the Judicial-Legal Council in accordance with the procedures provided by the legislation.
Article 94. Appointment of judges, court chairmen, deputy chairmen and chairmen of court boards
Subject to Article 109 part IX of the Constitution of the Republic of Azerbaijan, the President of the Republic of Azerbaijan appoints judges of the Republic of Azerbaijan.
Subject to Article 109 part IX and Article 95 part X of the Constitution of the Republic of Azerbaijan, Milli Majlis of the Republic of Azerbaijan appoints the judges of the Supreme Court, the NAR* Supreme Court and the courts of appeal, upon consultation with the President of the Republic of Azerbaijan.
As a rule, posts of high court judge shall be filled by persons who have at least five years work experience as a judge of a first instance court.
Chairman of the NAR National Assembly participates in selection of candidates to judicial posts in the NAR.
Chairmen of the courts of the Republic of Azerbaijan, deputy Chairmen and Board Chairmen shall be elected from among the judges of the appropriate courts and be appointed for five years term and, as a rule, may not be appointed to the same position twice. The Chairmen of the Supreme Court, appellate courts, the NAR Supreme Court and the Grave Crimes Courts shall be appointed according to the procedure provided for in Article 109 paragraph 32 of the Constitution of the Republic of Azerbaijan. Chairmen of other courts of the Republic of Azerbaijan, deputy Chairmen of the courts of the Republic of Azerbaijan, as well as Board Chairmen shall be appointed, subject to the proposal of the Judicial-Legal Council, according to Article 109 paragraph 32 of the Constitution of the Republic of Azerbaijan.
LAW OF THE REPUBLIC OF AZERBAIJAN ON THE JUDICIAL-LEGAL COUNCIL
Chapter III. Foundation of the Activity of the Judicial-Legal Council
Article 11. Functions of the Judicial-Legal Council
11.0. The Judicial-Legal Council carries out the following functions:
11.0.1. submits proposals on the structure of the courts to the relevant executive body* of the Republic of Azerbaijan (location, territorial jurisdiction and number of judges);
11.0.2. arranges selection of candidates to the judicial posts;
11.0.6. supplies wages to the candidates for the vacant judicial posts sent to the preliminary training courses;
11.0.13. considers the applications and complaints, also against the decisions of the Judge Selection Committee;
Article 12. Powers of the Judicial-Legal Council
12.0. Judicial-Legal Council shall be vested with the following powers in order to carry out its functions:
12.0.1. determine the order of conducting written and oral examinations for selecting candidates to the judicial posts, evaluate the candidates according to the result of the long-term training and conduct the final interview [with them];
12.0.3. approve the Charter of the Judge Selection Committee and form the Judge Selection Committee;
12.0.17. converse with the candidates nominated by the Judge Selection Committee;
12.0.21. arrange long-term training for candidates for vacant judicial posts in training institutions;
Article 14. Judge Selection Committee
14.1. Judicial-Legal Council shall form the Judge Selection Committee vested with the selection of candidates for vacant judicial posts and composed of 11 members, including judges, Council staff, representatives of the relevant executive body* of the Republic of Azerbaijan and the Prosecutor’s Office, as well as defence lawyers and academicians [as follows]:
14.1.1. two judges of the Supreme Court of the Republic of Azerbaijan;
14.1.2. three judges of the Court of Appeal;
14.1.3. [one] judge of the Economic Court of the Republic of Azerbaijan;
14.1.3. [one] NAR Supreme Court judge;
14.1.4. [one] member of staff of the Judicial-Legal Council;
14.1.5. [one] representative of the relevant executive body of the Republic of Azerbaijan;
14.1.6. [one] representative of the Prosecutor’s Office of the Republic of Azerbaijan;
14.1.7. [one] member of the Bar of the Republic of the Republic of Azerbaijan;
14.1.8. [one] law academician.
14.2. Members of the Judicial-Legal Council can not be simultaneously members of the Judge Selection Committee.
14.3. The Judge Selection Committee receives applications of the candidates for vacant judicial posts, organises written tests and an oral examination, in a transparent manner, in order to examine their aptitude and suitability for judicial posts, engages judicial candidates in long-term training, determines their professional aptitude by means of an interview.
14.5. A complaint against the decision of the Judge Selection Committee may be made to the Judicial-Legal Council. The complaint shall be considered within 10 days to the effect of leaving the decision of the Committee effective, abolishing or amending it.
Article 15. Determination of the venue of service for the nominee for a judicial post
15.1. The Judge Selection Committee shall submit its proposals to the Judicial-Legal Council regarding every candidate who has successfully passed the preliminary training course and the final interview. The proposals shall include the following:
15.1.1. first name, patronymic name and family name [of the candidate];
15.1.2. a brief CV and characterising information;
15.1.3. results of the preliminary training and the final interview;
15.1.4. its opinion about professional aptitude, including specialisation.
15.2. The Judicial-Legal Council shall consider the proposal of the Judge Selection Committee regarding the nominee for the judicial post, determine whether there have been any violations of the [relevant] legislation and of the Charter of the Judge Selection Committee in the course of selection of the nominee to a judicial post, and shall propose to appoint the candidates who have gained minimum or higher marks as established by it, to a vacant judicial post.
Article 16. Motion for appointment of the nominee to a judicial post
16.0. The Judicial-Legal Council shall make motions for appointment of the candidates to vacant judicial posts to the relevant executive body* of the Republic of Azerbaijan. The following information shall be included in the motion for appointment of the nominee to a vacant judicial post:
16.0.1. first name, patronymic name and family name [of the candidate];
16.0.2. a brief CV and characterizing information;
16.0.3. results of the preliminary training and the final interview;
16.0.4. information about the professional aptitude, including specialisation;
16.0.5. proposed judicial post.
Article 18. Appeals against decisions of the Judicial-Legal Council
18.1. Appeals against decisions of the Judicial-Legal Council on the judges or judicial candidates, including the ones reflecting the results of disciplinary proceedings <…> shall be lodged with the Plenary Board of the Supreme Court within twenty days from the day when these decisions were served upon the judge or candidate for a vacant judicial post, and shall concern only legal matter of proper application of legislation.
18.2. The Plenary Board of the Supreme Court shall consider appeals against decisions of the Council within three months, issue a decision to the effect of upholding, annulling or amending these, and shall present its decision to the President of the Judicial-legal Council.
18.3. Decisions of the Plenary Board of the Supreme Court on appeals against decisions of the Judicial-Legal Council shall be final in their effect.
APPENDIX 2: Rules for the selection of non-judicial candidates to vacant judicial posts
by Decision of the Judicial-Legal Council
of March 11, 2005
FOR THE SELECTION OF NON-JUDICIAL CANDIDATES TO VACANT JUDICIAL POSTS
1. General provisions
1.1 The present Rules were elaborated according to Article 126 of the Constitution of the Republic of Azerbaijan, Courts and Judges Act and Judicial-Legal Council Act of the Republic of Azerbaijan.
1.2 The present Rules establish a procedure for the selection of non-judicial candidates (hereinafter – candidates) to vacant judicial posts according to the requirements of Article 126 paragraph 1 of the Constitution of the Republic of Azerbaijan and Article 93 paragraph 2 of the Courts and Judges Act.
2. Selection of candidates to vacant judicial posts
2.1 The Judge Selection Committee shall select candidates to vacant judicial posts.
2.2 Candidates to vacant judicial posts shall be selected in a transparent manner by means of written and oral examinations, initial long-term training course (basic training for judges) and a final interview in order to determine the level of knowledge, professional skills, general world outlook and suitability for judicial posts.
2.3 The Judge Selection Committee shall assess results of the examinations. The Committee shall be entitled to assign ad-hoc commissions from among its members. Ad-hoc commission members shall enjoy all the rights and duties of the Judge Selection Committee members during examination.
2.4 Shall the Judge Selection Committee Member have close kinship ties or personal relationship with the candidate or shall there arise circumstances giving grounds to his/her partial attitude, s/he will not participate at examinations and interview with the candidate concerned. In these circumstances, the candidate shall object to any Committee member one day before examination at the latest. Judge Selection Committee shall consider objections at its sessions.
2.5 Those candidates who successfully passed written and oral examinations shall move on directly to the long-term training stage. The training shall be arranged at the Legal Training Centre of the Ministry of Justice.
2.6 Every candidate shall be assessed at the end of the training stage. Candidates shall be assessed according to the results of training and the final interview with the members of the Judge Selection Committee.
2.7 Candidates shall be assessed by means of marks (points) system. The Judge Selection Committee shall draw up a list of candidates according to the marks they obtained.
2.8 Results of the evaluation and opinions on specialization of the candidates shall be submitted to the Judicial-Legal Council. The Judicial-Legal Council shall consider the proposals of the Judge Selection Committee as regards the candidates selected to the judicial posts, monitor the implementation of the legislation and the present Rules in the course of selection and interview the candidates.
2.9 Judicial-Legal Council shall assign candidates to different fields of specialization according to the interview results and opinions of the Judge Selection Committee, and propose to the President of the Republic of Azerbaijan to appoint the candidates who have obtained at least the minimum (or a higher) mark to vacant judicial posts.
3. Written and oral examination
3.1 The Judge Selection Committee shall constantly publish in the media and the internet information on commencement dates and deadlines for submission of applications by candidates to vacant judicial posts, list of documents to be submitted by the candidates, annotation of examination questions (information on the fields covered by the examination questions), list of legislation used in the elaborations of questions, as well as other relevant information related to the selection of candidates to vacant judicial posts.
3.2 Lawyers wishing to participate in the written and oral examination and fulfilling the requirements provided for in Article 126 paragraph I of the Constitution of the Republic of Azerbaijan and Article 93 paragraph 2 of the Courts and Judges Act of the Republic of Azerbaijan shall submit the following documents to the Judge Selection Committee:
3.2.1 application to the Judge Selection Committee;
3.2.2 identity card and its copy;
3.2.3 personal history form of the candidate;
3.2.4 curriculum vitae;
3.2.5 certificate of higher education (diploma) and its copy;
3.2.6 certified copy of the record of service (by notary or department of personnel);
3.2.7 medical certificate confirming due physical and mental capacity;
3.2.8 four photographs sized 4x6 cm.
3.3 Upon verification of the copies for conformity with the originals, the identity card and the certificate of higher education (diploma) shall be returned [to the candidate].
3.4 Documents received after the deadline, with the exception of documents sent by post, shall not be accepted.
3.5 Staff of the Judicial-Legal Council shall receive application documents.
3.6 Staff of the Judicial-Legal Council reviews completeness and correctness of the documents, as well as their conformity with the legislative requirements, and keeps a record in the applications receipt journal.
3.7 Documents that are not complete and fail to meet the requirements of the present Rules shall not be accepted, and the applicant shall be informed of the revealed shortcomings. Shall shortcomings be revealed subsequently [after the documents had been accepted], the documents will be returned with a substantiated response. Rectified documents may be submitted again within the term provided for the submission of applications.
3.8 Shall the application documents conform to the Rules, the candidate will be included in the general list and provided with a slip confirming their receipt and [a copy of] the Memo of the Judicial Candidate. The Memo shall contain information on written and oral examinations, training and final interview procedural issues, as well as other relevant information related to the selection of candidates to vacant judicial posts.
3.9 A personal identification code shall be issued to every registered candidate. This identification code shall have the numerical form and shall secure the confidentiality of the application documents.
3.10 An Examination Pass shall be provided to each candidate two days prior to the written examination. The Pass shall bear a photograph of the candidate, as well as the personal identification code, the address of the examination venue, time and date of the examination, chamber, row and seat number.
3.11 Only the personal identification code shall be used at the examination. The Examination Pass shall not bear the indication of family name, given name or other information identifying the applicant. A candidate having breached this rule shall be barred from the examination.
3.12 Candidates shall be obliged to produce the Examination Pass and the identity card at the examination. Shall the candidate fail to produce any of the specified documents, s/he will be barred from examination. Shall a person loose or make corrections to his/her Examination Pass, s/he will be barred from the examination and will not be issued a new one.
3.13 The written examination shall be conducted by the Judge Selection Committee at the date established beforehand.
3.14 The Judge Selection Committee shall appoint the Examination Chief and supervisors in order to conduct written examination. There shall be at least two supervisors per chamber.
3.15 Shall the candidate breach the written examination rules, i.e. submit forged documents, cheat at the examination, bring means of communication to the examination, send someone else instead of himself, or act in breach of the rules of examination, the Examination Chief and supervisors will draw up a report and the candidate will be barred from the examination. If such violation will be [discovered] after the examination, the candidate’s examination shall be annulled by the Judge Election Committee.
3.16 The Judge Selection Committee shall approve a list of inadmissible actions and objects which may not be brought to the written examination, and include this information into the Memo of the Judicial Candidate.
3.17 With a view to ensuring transparency of the examination, the Judge Selection Committee invites international, governmental and non-governmental organizations, as well as media representatives to observe examinations. Organizations and media invited or applied for observing the examinations shall submit to the Judge Selection Committee a list of its representatives at least 7 days prior to the examination. The proposed representatives shall be accredited to the Committee.
3.18 Interference with the course of examination, distraction of candidates and abandonment of the examination venue by the observers shall not be permitted. Shall the observers commit such actions, the candidates may report them to the Examination Chief.
3.19 Written examination shall be arranged in stages by means of electronic calculating machine (computer) processing multiple-choice question paper and selecting the essay themes under procedures provided by paragraphs 3.37 and 3.38 of the present Rules.
3.20 Questions for the first stage of the written examination shall be prepared by the Judge Selection Committee with due respect to the principle of confidentiality. The Committee shall be entitled to involve specialists from legal and other fields in the process of formulation of questions. The number of questions in the compilation shall exceed the number of questions used at the examination at least ten-fold.
3.21 The question paper for the written examination conducted by means of electronic calculating machine (computer) shall be composed of one hundred questions. The examination shall last four hours.
3.22 The formulation of questions for the first stage of written examination shall be completed at least three days prior to the examination. The Judge Selection Committee shall review and approve the compilation of questions in private session and store it in a sealed envelope at the appropriate storage.
3.23 Judge Selection Committee shall prepare a confidential list of correct answers to the questions for the first stage of the written examination. Members of the Judge Selection Committee shall sign the list and store it in the separate sealed envelope in the special storage of the Committee.
3.24 The candidates shall report to the examination building (the address shall be indicated in the Examination Pass), produce the Examination Pass and identity card to the security officer at the entrance, enter the building and take his/her place as indicated in the Examination Pass. Only one candidate shall be seated at each desk.
3.25 The written examination shall be conducted in one chamber. If [this is] not possible, the examination process shall be broadcast live to other chambers in the random view profile in order to ensure transparency.
3.26 Questions for the first stage of the written examination shall be selected from the compilation of questions openly just before the commencement of examination. To this end, the envelope containing the compilation of questions shall be unsealed in the presence of observers and loaded into the electronic calculating machine (computer). The electronic calculating machine shall select one hundred questions from the general list according to the programmed software. The selected questions shall be multiplied [the required number of copies shall be produced] on the spot. If [this is] not possible, the original sample shall be copied at the appropriate printing facility in a short period of time in front of the candidates according to their number. The copies shall be handed over to the Examination Chief for further distribution among the candidates. Shall the selection of questions and copying be performed in one of the chambers, these procedures will be broadcast live to the other examination chambers.
3.27 When are selected distribution of to the candidates, the Examination Chief, together with a supervisor and an observer, shall unseal the envelope with answer sheets, distribute the answer sheets and explain the rules for filling them in. Then the question papers are distributed.
3.28 The examination shall be timed as of the moment of distribution of question papers.
3.29 An encircled letter marking the correct answer on the answer sheet shall be filled in with ball-point black or dark blue pen. A spoilt answer sheet shall not be replaced. In case if several encircled answers under one question are filled in, that answer shall not be valid and shall not be taken into account for the final result. Wrong answers to the questions shall not affect the [validity of] correct answers. The candidate filling in the answer sheet shall sign it.
3.30 The candidate shall submit his/her answer sheet to the examination supervisor at the end of the examination and leave the chamber.
3.31 Completion of the examination shall be attested by a protocol at the end of the examination. Supervisors and two candidates shall sign the protocol. The protocol and answer sheets shall be placed in an envelope, sealed and submitted to the Examination Chief. The Examination Chief shall submit the sealed envelope to the President of the Judge Selection Committee.
3.32 The Judge Selection Committee shall check the answer sheets.
3.33 Checking of the multiple-choice-based answer sheets of the written examination and calculation of points shall be conducted by using electronic calculating machines (computers) operating in autonomous mode and with the involvement of relevant specialists. To this end, sealed [envelope with the] answer sheets and the list of correct answers to the examination questions shall be provided to the specialists.
3.34 Each correct answer shall be worth 1 point (100 possible points in total). Wrong and blank answers shall be worth 0 points.
3.35 Upon completion of the checking of answer sheets, the results of the examination along with the answer sheets shall be submitted to the Judge Selection Committee.
3.36 Candidates who have obtained sixty or more points at the first stage of the written examination shall be admitted to the second stage of the written examination. The list of the candidates admitted to the second stage of the written examination shall be published in [the printed] media and [on the] internet.
3.37 The Judicial-Legal Council shall hold its session in order to fix the quantity of essay themes to be submitted by the Judge Selection Committee, and thereby launch the second stage of the written examination. There shall be an even number of essay themes covering criminal, criminal procedural, civil and civil procedural legislation in equal shares. After the session of the Judicial-Legal Council one of its members shall immediately announce its decision to the session of the Judge-Selection Committee to take place in the vicinity of the examination chamber. (Session of the Committee shall take place in the vicinity of the chamber where the essay themes be selected, in case if there are more than one examination chamber) Afterwards in the same session the Judge Selection Committee members shall prepare, within two hours, the essay themes in quantity fixed by the Judicial-Legal Council. These essay themes shall be approved by an unanimous decision of the Judge Selection Committee.
3.38 The members of the Judge Selection Committee shall take the approved essay themes to the examination chamber and shall not contact with outsiders. At this point, the essay themes shall be differentiated into criminal law and civil law fields. One of the candidates shall pick one essay theme from each field at random. The selected essay themes shall be announced and the candidates will be given four hours to work [on these]. Shall the examination be conducted in several chambers, the process of selection and announcement of essay themes shall be broadcast live to the other examination chambers. In the essay the candidates shall demonstrate their ability to relate the content of the appropriate legislation as closely as possible and to explain it, as well as to explain the concept of the legislation in question. The ways of approaching the essay theme and issues which will be taken into account during the assessment of essays are explained in the Memo of the Judicial Candidate. Written examination works [the essays drafted by the candidates at the written examination] shall undergo a "double check" by the members of the Judge Selection Committee and invited specialists. Final result shall be arrived at by aggregating the results of both stages of the examination.
3.39 Each essay theme at the second stage of the written examination shall be marked on a scale from zero to one hundred points. Each candidate having obtained sixty or more points for each essay theme shall be considered to have passed this stage of the written examination.
3.40 Results of the written examination shall be published in the printed media and posted on the Internet.
3.41 Each candidate shall be entitled to receive a feed-back report upon request.
3.42 The Judicial-Legal Council shall make arrangements for storing the answer sheets, essays and other related documentation during five years from the date of the examination.
3.43 Discontented candidates shall be entitled to appeal to the Judge Selection Committee for resolution of the conflict within five days after the announcement of result. The appeal shall be reviewed in the presence of appellant. This provision is without prejudice to the candidate's general right of appeal.
3.44 If the answer sheet was assessed correctly, a substantiated response shall be given to the appellant. If the points were miscalculated, re-calculation shall be performed.
3.45 The Judicial-Legal Council shall consider appeals against the decisions of the Judge Selection Committee. The Judicial-Legal Council shall consider the appeals in the order provided for in the Judicial-Legal Council Act.
3.46 Staff of the Judicial-Legal Council shall inform the candidates about the oral examination five days in advance. Candidates shall be informed about the venue, date and time of the examination.
3.47 Questions in the legal area, as well as those revealing candidates' abilities for logical reasoning, their general outlook and level of knowledge shall be posed to the candidates in the course of the oral examination.
3.48 The oral examination shall be conducted through overt individual conversation with the candidate, which shall last up to thirty minutes as a rule. Each candidate shall be asked five questions during the oral examination.
3.49 Members of the Judge Selection Committee shall be entitled to discuss the answers given by the candidate.
3.50 The Committee members shall record the questions asked to candidate and his/her answers in the points chart, assess them and report to the President of the Judge Selection Committee.
3.51 The candidates’ answers shall be marked on a scale from zero to twenty points for each question, allowing each candidate to obtain [a total of] one hundred points maximum. Each candidate having obtained sixty or more points shall be considered to have passed the oral examination.
3.52 Each person coming to observe the oral examination shall produce his/her identity card. Candidates that have already taken their examination shall be entitled to participate as observers of the oral examination. No interference with the examination shall be tolerated.
4. Training stage and final interview
4.1 Those candidates who have passed successfully written and oral examinations shall enrol in the initial long-term training course at the Legal Training Centre of the Ministry of Justice. The Judge Selection Committee shall fix the duration of the training course.
4.2 A list of the candidates who have passed successfully the examinations and enrolled in the initial long-term training course shall be published in [printed] media and posted on the Internet.
4.3 The Judge Selection Committee and the Legal Training Centre of the Ministry of Justice shall draw up the curriculum of the training course. The Judicial-Legal Council shall endorse the curriculum and the Judge Selection Committee shall approve it.
4.4 The Legal Training Centre shall report to the Judge Selection Committee the results of the training stage (degree of success, participation, conduct).
4.5 At the end of the training each candidate shall take written and oral examinations. These examinations shall reveal the abilities of candidates to analyse legislation, issue written comments on certain legislative provisions or draft court decisions in a case.
4.6 The Judge Selection Committee, together with the training institution, shall conduct examinations at the end of the training. The Committee shall be entitled to involve legal specialists in this activity. A final interview with the candidates who have passed examinations upon the completion of training shall be conducted by the Judge Selection Committee. It shall be held in order to determine whether the candidates possess the qualities which are necessary in the activity of a judge.
4.7 [The candidates’ performance in] each examination at the end of training shall be assessed on a scale from zero to one hundred points. Each candidate who obtained sixty or more points at each examination shall be considered to have passed successfully the training stage.
4.8 The Judge Selection Committee shall conduct the final Interview with those candidates who successfully passed examinations after the end of training. The final Interview shall be conducted in order to reveal the acquiring of judge qualities [by the candidates].
4.9 The final interview shall be conducted individually and last up to one hour. Each candidate shall be asked ten questions. Each member of the Judge Selection Committee shall be entitled to ask only one question.
4.10 Members of the Judge Selection Committee shall be entitled to discuss answers of the candidates.
4.11 The Committee members shall record the questions posed to candidate and assess his/her answers in the points chart. The results of the final interview shall be reported to the President of the Judge Selection Committee.
4.12 Answers of the candidates shall be marked on a scale from zero to ten points for each question, allowing each candidate to obtain a maximum of one hundred points. Each candidate who obtained a total of sixty or more points shall be considered to have passed the final interview.
4.13 The Judge Selection Committee shall perform the [overall] assessment of candidates who successfully passed the final interview.
4.14 Aggregate points obtained at the examinations taken after the end of the training and the final interview shall constitute the evaluation mark of the candidate.
4.15 The Judge Selection Committee shall place [candidates] on a list according to the mark obtained.
5. Classification of candidates and submission of proposals on their appointment to judicial posts
5.1 The Judge Selection Committee shall draw up an opinion (comments) on the aptitude of candidates to [fill] judicial posts at the relevant courts (of general and special jurisdiction) based on the results of the training stage and final interview.
5.2 The Judge Selection Committee shall submit its proposals on the candidates selected for judicial posts to the Judicial-Legal Council.
5.3 The proposal on a candidate shall contain the following information:
5.3.1 name, patronymic and surname;
5.3.2 curriculum vitae and reference;
5.3.3 results of the initial training and the final interview;
5.3.4 information on the aptitude for the judicial post, including opinion (comments) on specialisation.
5.4 The Judicial-Legal Council shall consider the proposals of the Judge Selection Committee on the candidates selected for judicial posts. The Judicial-Legal Council shall review the selection of the candidates as to its compliance with the requirements of the legislation and the present Rules as well as conduct a conversation with these candidates.
5.5 The Judicial-Legal Council shall refer the candidates to specialisation fields according to the results of the conversation and the opinion (comments) of the Judge Selection Committee. The Judicial-Legal Council shall propose to the President of the Republic of Azerbaijan to appoint the candidates to vacant judicial posts.
5.6 The motion for appointment to vacant judicial posts shall contain the following information about each candidate:
5.6.1 name, patronymic and surname;
5.6.2 curriculum vitae and reference;
5.6.3 results of the initial training and the final interview;
5.6.4 information on the aptitude for the judicial post, including opinion (comments) on specialisation.
5.6.5 post proposed to be filled.
5.7 The Judicial-Legal Council may propose to recruit the candidates who completed the training course and successfully passed the final interview but were not proposed [for judicial posts] due to the lack of vacancies, to administrative posts in the justice bodies and [employee positions] in prosecutor's office in the respective institutions. Appointment of these candidates to the emerging judicial vacancies shall be performed according to paragraphs 5.4-5.6 of the present Rules.
APPENDIX 3: Recommendations to the candidates for preparation
Questions from different fields of law will be used in test examination for candidates to vacant judicial posts.
To achieve success you should be keenly aware of Constitution of Azerbaijan Republic, codes of civil, civil procedural, criminal, criminal procedural, administrative procedural, labour, family, execution of punishment, administrative offence, Courts and Judges Act, Act on Judicial-Legal Council, Act on Constitutional Court, Advocates and Advocacy Act, Act on Prosecution.
Beside these you should pay attention to the issues mentioned below:
The Constitution of the Nakhichivan Autonomous Republic: Composition, activity and competence of Ali Majlis (Local Parliament), the status of deputies and issues on constitutional supervision, legislation systems;
Constitutional Act on the Ombudsman of Azerbaijan Republic: issues on ombudsman’s appointment and early termination of powers;
Law on Legal Acts: concept of legal act, types, force, structure, issue, commentary and application of the law by analogy;
The Election Code: realization of voting rights, organisation of system and activity of election commissions, proposing a candidacy, organisation of election process, compliant issues on violation of election right, enforcement of acts which are adopted by referendum;
Taxes Code: tax system, taxing authorities, duty of revenue inspection and proving of errors in fiscal calculation, fiscal degrees, liability on breaching of tax legislation;
Customs Code: customs payment, customs territory and regime, diplomatic representations and their officials, as well as issues on customs concessions of foreign citizens;
Housing Code: range of relationships which are regulated by the code, subjects of these relationships and their duties, objects of housing law, rights and duties of owner of dwelling space and other dwellers, social rent of dwelling space, lease and utilisation of special-purposed dwelling, issues on legal status of housing cooperatives and common society of house owners;
Act on Administrative Proceeding: issues on jurisdiction and powers of administrative bodies, timeframe of administrative proceeding, liquidation of illegal administrative act, powers of complaint instances and imposing of sanctions;
Serving in Justice Bodies Act: taking over a service and dismiss from it, probation and evaluation periods, rating and vocational issues of servants;
State Forensic Enquiry Act: grounds of carrying out examination, duties of experts and types inquiry, as well as issues on carrying out forensic medical examination;
Non-State (private) Guarding Activity Act: types of guarding services;
Act on Extradition: grounds of cancelling extradition of prisoner on demand of applicant state’s inquiry;
Police Act: issues on duties of policeman on using arms and taking over a service;
Act on Operational-Investigation Activity: grounds of holding operational-investigation activity and finalize of it, acceptance of acquired materials in criminal prosecution as evidences, judicial and prosecutor’s supervision on operational-investigation activity;
Act on Notary: period of validity of the certificate on notary occupation, private notary activity, notary activities held by other bodies, the characteristics of notary acknowledgement of will and certification;
Act on Execution of Judgments: determining of parties in execution on court order, application of compulsory execution, attachment and selling of property,
Act on Bailiffs: duties of court supervisor and legal executives, taking over a service, organisational and methodical guidance of the these activities, supervision on execution of judgments;
Act on Social Adaptation of Persons Free of Punishment in Penal Jurisdiction: measures and periods of social adaptation;
Act on Status of Municipalities: grounds of defining municipalities’ number, holding the citizens meetings on issues of local significance;
Act on State Protection of Judges and Law-Enforcement Bodies’ Servicemen: range of servicemen;
Act on Compensation of Persons Suffered from Illegal Acts of Investigation, Prosecution officials and Judges: issues of application of the Act;
Act on Combating Corruption: limits regard to presents that of officials get during discharge of their duties, the circle of corruption infringements and conditions that create corruption act;
Act on Fighting against Terrorism: right to go law by application on making accountable refers to terrorist activity;
Act on State Emergency: realization of justice in territory where state emergency is declared;
Act on State Service: organisation of the Administration Council of State Service, classification and professional degree of administrative and auxiliary public offices;
Act on State Dues: issues on getting fees within applying by application to courts and getting courts acts;
Act on Political Parties: establishment and liquidation of political parties;
Act on Mass Media: right to demand correction, apologizing and refutation of incorrect information by person about him;
Act on International Arbitration: composition and judgments of the court;
Act on International Private Law: property law and application of law for different types of agreements;
Act on Ratification of Criminal Law Convention on Corruption: reservations and declarations of Azerbaijan Republic regard to the Convention;
European Convention for the Protection of Human Rights and Fundamental Freedoms: rights, appointment of judges for the European Court, reservations of Azerbaijan Republic according to 5th and 6th articles of the Convention.
In drafting of the test examples, decisions of Plenum of the Supreme Court were used about “Court practice on theft offence, brigandage and banditry” from 03.05.2005, “Application of law in considering assignments on selection of pre-trial arrest regard to accused person” from 03.11.2009, “Court practice about application of law on leaving leave appeals without considering” from 31.03.2011.
1 See Abridged report of the 16th plenary meeting of the CEPEJ (CEPEJ(2010)13), p. 3.
2 Adopted unanimously at the 2nd multilateral meeting in Strasbourg on 8-10 July 1998 with the participation of representatives of the European Association of Judges (EAJ) and the European Association of Judges for Democracy and Freedom (MEDEL) among other.
3 A document adopted by the CCJE on the occasion of its 10th anniversary (Strasbourg, 17-19 November 2010) with the purpose of summarising and codifying the main conclusions of the first twelve Opinions of the CCJE.
4 See also the relevant provisions of the Constitution of the Republic of Azerbaijan in Appendix 1 to this Report.
5 See Appendix 2 of this Report.
6 Official website of the Judicial-Legal Council (www.jlc.gov.az).
7 See Appendix 3 of this Report.
8 See Rules for the Selection of Non-Judicial Candidates to Vacant Judicial Posts, 3.10-3.36.
9 Ibidem, 3.38.
10 Ibidem, 3.48-3.52.
11 Ibidem, 4.1-4.4.
12 See Appendix 1 to this Report.
13 Article 5.1 of the Rules of Selection of Non-Judicial candidates to vacant judicial posts.
14 Based on the information the delegation received during the mission, the Committee does not connect the candidates to specific vacancies. This is done by the JLC in their proposal for appointment to the President.
15 Committee of Ministers Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities, which replaced Recommendation (94) 12.
16 Article 4.5 of the Rules of Selection of Non-Judicial candidates to vacant judicial posts.
17 Article 16.0 of the Law on Judicial-Legal Council.
18 In addition to the standards mentioned in chapter 2.1 above, see also the Kyiv Recommendations on Judicial Independence in Eastern Europe, Caucasus and Central Asia, adopted 23-25 June 2010, Vienna Commission.
19 See Evaluation report of European Judicial Systems, CEPEJ 2010 Edition, Q 110.
20 See Appendix 1 to this Report.
21 Milli Majlis (National Assembly) – Parliament of the Republic of Azerbaijan
22 See in particular CCJE Opinion No. 1 (2001), paragraph 25.
* NAR – Nakhichivan Autonomous Republic
* Source: official website of the Judicial-Legal Council (www.jlc.gov.az)