CM(2010)147 add1 21 October 20101
1098 Meeting, 17 November 2010
10 Legal questions
10.2 European Committee on Legal Co-operation (CDCJ) –
b. Draft Recommendation CM/Rec(2010)… of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities – Explanatory Memorandum
Item to be prepared by the GR-J at its meeting of 16 November 2010
1. In accordance with the objectives that governed the drafting and adoption of Recommendation No. R (94) 12 on the independence, efficiency and role of judges, and which are set out in its explanatory memorandum, it has been considered necessary to undertake a substantial revision and updating of this Recommendation, leading to the drafting of a new Recommendation.
2. When establishing the rules that should be applied by member states to promote the role of judges and improve their efficiency and independence, as well as clarify their duties and responsibilities, account has been taken of the significant changes that have occurred since 1994.
3. First of all, lessons need to be learned from the way in which the principles laid down in Recommendation No. R (94) 12 were received and implemented in member states and from the establishment in some countries of bodies aimed at safeguarding the independence of individual judges and of the judiciary as a whole (councils for the judiciary).
4. The Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”) lays down principles which integrate substantial values for the respect of human dignity and a fair society. Judges have a duty to enforce these effectively. The role of the judge has therefore been enhanced and the function of enforcing the law has become more complex.
5. Individuals’ increasing awareness of their rights together with an increase in recourse to litigation have created major increases in workloads for the administration of justice which has the potential to reduce the effectiveness of these rights. The case law of the European Court of Human Rights on the right to a fair trial within a reasonable time illustrates the challenge for the administration of justice in member states.
6. One of the most significant changes since the adoption of Recommendation No. R (94) 12 has been the reinforced emphasis on efficiency in justice systems. Information technology has also greatly expanded. It is no longer enough to judge in an independent and impartial system. It is also necessary that justice produces quality decisions within a reasonable time to meet individuals’ legitimate expectations and comply with judgments of the European Court of Human Rights. This has resulted in the Council of Europe promoting the independence of judges and quality and efficiency of justice by the creation of the Consultative Council of European Judges (CCJE) and the European Commission for the Efficiency of Justice (CEPEJ) whose work has been taken into consideration in the revision of the Recommendation.
7. In addition, judges now have to perform their functions in an increasingly global society where international judicial co-operation is essential. Efficiency of justice with international elements requires facilitating information on other legal systems and improving mutual confidence. Exchanges among judges and judicial authorities should be promoted. This should not involve altering the diversity of legal systems, constitutional positions and approaches to the separation of powers in member states. Rather it seeks to identify and expand the already existing common grounds.
8. The present Recommendation (hereinafter referred to as “the Recommendation”) contains eight chapters and is structured as follows:
- Chapter I - general aspects;
- Chapter II - external independence: judges’ independence in the context of government, parliament, media and civil society;
- Chapter III - internal independence: hierarchy, internal organisation, distribution of the cases and professional organisations;
- Chapter IV - councils for the judiciary;
- Chapter V - independence, efficiency and resources: judicial efficiency and its relationship with judicial independence;
- Chapter VI - status of the judge: selection and career, tenure and irremovability, remuneration, training and assessment;
- Chapter VII – responsibilities: civil and criminal liability, disciplinary proceedings and duties; and
- Chapter VIII – ethics of judges.
9. The Recommendation, similar to the 1994 Recommendation, does not seek harmonisation of member states’ legislation. It outlines in greater detail the measures which should be taken in order to reinforce or, in some member states, further strengthen, the role of individual judges and of the judiciary.
10. When using the word “law”, the Recommendation refers to statute law, including the Constitutions, legislative acts and enactments of lower rank than statutes, as well as case law and unwritten law.
Chapter I – General aspects
Scope of the Recommendation
11. The Recommendation applies to professional and non professional judges, including judges of Constitutional courts. Provisions on recruitment, remuneration, selection and career do not relate to non professional judges. The Recommendation gives no definition of what ‘non-professional judges’ are as this greatly varies from a system to another, and it is a matter for the internal law of member states to decide who are considered as non professional judges for the purposes of this Recommendation, whether they are lay judges, experts appointed on the basis of their specialised knowledge, etc. Some of the provisions could be also applicable to prosecutors and other professionals acting before the courts whose status is defined by the principle of independence from the Executive or the Legislative power. Nevertheless, the Recommendation relates to judges only. The Recommendation does not apply to judges in international tribunals (Recommendation, paragraphs 1 and 2).
Judicial independence and the level at which it should be safeguarded
12. The Recommendation states that judicial independence is a fundamental right of each individual as safeguarded by Article 6 of the Convention. The independence of each individual judge thus safeguards every person’s right to have their case decided only on the law, the evidence and facts and without any improper influence (Recommendation, paragraph 3).
13. The separation of powers is a fundamental guarantee of the independence of the judiciary whatever the legal traditions of member states.
14. It is essential that judges have the authority to enable them carry to out their duties. To ensure judges have the respect due to them and the authority necessary to enable them to conduct proceedings efficiently and smoothly, all parties connected with a case (e.g. plaintiffs, defendents, witnesses, experts, etc.) including state and other public bodies and their representatives, as well as members of the media and the public should be subject to the authority of the judge, in accordance with domestic law (Recommendation, paragraph 6).
15. Where the council for the judiciary is a constitutional body, at the same level as the legislative or executive power, or when another independent authority has such a competence, a statement done by the council or by the authority is normally enough to protect the independence of an individual judge. In other cases, the independence of the judge in a specific case can be guaranteed by a legal remedy before higher courts or another authority, for example the president of the court, with the competency of protecting judicial independence from external interferences eventually coming from the other powers of the state. (Recommendation, paragraph 8).
16. A case may not be withdrawn from a judge unless there are valid reasons for doing so and such decisions are taken by the competent authorities. Such authorities might be the President of the court. The concept of “valid reasons” covers all grounds for withdrawal which do not undermine the independence of judges. Efficiency may also constitute a valid reason. For example, where a judge has a backlog of cases due to illness or other reasons, cases may be withdrawn from that judge and assigned to other judges. Similarly, it may be necessary to withdraw cases from judges who have been assigned a time-consuming case which may prevent them from dealing with other cases already assigned to them. In no event should this provision remove the entitlement of parties to withdraw a case, nor the obligation of judges to decline to act in the event of their having an actual or perceived conflict of interest (Recommendation, paragraph 9).
17. In individual cases, judges should be able to decide on their own competence as defined by law without any external influence. Judicial independence would be illusory if executive or legislative bodies were able to interfere in and determine judges’ competence in individual cases (Recommendation, paragraph 10).
Chapter II – External independence
18. Some of the principles included in this Chapter as related to external independence have, in fact, a broader scope and apply to judicial independence, in general. The reason for this is that protecting the judge from improper external influence is in the origin of the concept of judicial independence. One of the innovations of the Recommendation consists in extending independence to the internal relations within the judiciary.
19. The reference in the Recommendation to the impartiality of judges is of particular importance. In the definition of independence a link is established between independence and impartiality. Both are fundamental rights safeguarded by Article 6 of the Convention but they have different areas of application. Independence protects judicial decision making from improper influence from outside the proceedings. Impartiality guarantees that the judge has no conflicts of interest or association with the parties or with the subject of the trial that might be perceived to compromise objectivity (Recommendation, paragraph 11).
20. In an increasingly interdependent society, judicial functions cannot be efficiently performed without meaningful co-operation between the authorities and bodies which have responsibility for the administration and management of the courts, and with professionals whose tasks are related to judicial functions. Such a co-operation is for instance required between a family judge and the bodies in charge of family mediation. In order to preserve judicial independence, these relationships should be governed by law, or written protocols which set out the different duties and responsibilities. (Recommendation, paragraph 12).
21. The Recommendation calls for all necessary measures to be taken to protect and promote the independence of judges. These measures could include laws such as the “contempt of court”2 provisions that already exist in some member states (Recommendation, paragraph 13).
22. Those who seek to improperly influence or corrupt judges should be subject to criminal, civil and administrative sanctions (Recommendation, paragraph 14).
23. Judgments should be self-explanatory. This should also apply to decisions of judges having an impact on fundamental rights. Judges should not be obliged, outside of court proceedings, to explain or justify them further other than the reasoning contained in their judgments. This does not exclude obligations to provide information for statistical purposes or legislative reform. Concerning the obligation to give reasons for judgments, several exceptions exist, as mentioned in paragraph 63 infra (Recommendation, paragraph 15).
24. When the Recommendation states that decisions of judges can be revised only in appellate or re-opening procedures this includes all legal remedies available for revision in member states, such as “Nadzor” proceedings3 in the Russian Federation (Recommendation, paragraph 16).
25. Revision of decisions outside that legal framework, by the executive and legislative powers or the administration should not be permissible. This does not remove the power of the Legislative to change existing or enact new laws which judges must then apply. The administration, executive or legislative powers should not invalidate, in individual cases, decisions of judges. This would not exclude the special cases of amnesty, pardon, and clemency or similar situations such as rewarding compensation without admitting liability. Such exceptions are known in every democracy and their justification is contained in humanitarian principles of superior value (Recommendation, paragraph 17).
26. Public reporting of trials and judicial decisions is essential to create and maintain public confidence. Article 6.1 of the Convention prescribes that “judgment shall be pronounced publicly” and it is also in the public interest that decisions be made available to the public by various means. Judicial activity is the subject of legitimate public and media interest. Information regarding the functioning of the administration of justice should be widely disseminated. However, in situations where the privacy and rights of individuals are protected by law (in camera cases), judges should protect such privacy and rights and preserve in all circumstances the professional confidentiality entrusted to them. Judges should exercise restraint in their relations with the media. This restraint cannot be precisely quantified and depends on the individual circumstances. Personal appearances by judges in the media, to justify their decisions is strongly discouraged (Recommendation, paragraph 19).
27. It is essential that information provided on judicial decisions be accurate in order to maintain public confidence in the administration of justice. This is the reason why the Recommendation, having regard to Opinion No. 3 of the CCJE, encourages the establishment of spokespersons and communication offices to facilitate the dissemination of accurate and timely information from the courts and about the courts system (Recommendation, paragraph 19).
28. Independence should not isolate judges from society and therefore the authorities in charge of the judiciary should enable to keep in touch with the social and cultural environment that has to be taken into account when deciding on cases (Recommendation, paragraph 20).
29. Judges should be aware that their membership of certain non professional organisations may infringe their independence or impartiality. Each member state should determine which activities are incompatible with judges’ independence and impartiality. For instance, incompatible activities have been identified, such as an electoral mandate, the profession of lawyer, bailiff, notary, ecclesiastic or military functions, plurality of judicial functions, etc. Having regard to the necessity of avoiding actual or perceived conflicts of interest, member states may consider making information about additional activities publicly available, for instance in the form of registers of interests. Furthermore, in order to ensure that judges have the time to perform their primary function, that is to adjudicate, the plurality of mandates in various commissions should be restricted and cases in which the law prescribes for judges to sit on a commission, council, etc, should be limited (Recommendation, paragraph 21).
Chapter III – Internal independence
30. Judicial independence is not just freedom from improper external influence, but also improper influence from within the judicial system either by other judges or judicial authorities. Each individual judge is subject only to the law. Therefore, judicial hierarchical interferences in the exercise of judicial functions cannot be permitted. Instructions from presidents of courts should never interfere in the decision making in individual cases by judges (Recommendation, paragraph 22).
31. Internal independence prevents superior courts addressing to lower courts instructions on the way they should decide individual cases, other than through their case law and judgments when deciding on legal remedies against decisions of lower courts. This should be without prejudice to superior courts’ ability to develop the law in member states where their legal systems permit. This is not intended to interfere with the functions of appellate courts to ensure legal consistency as well as the clarification of existing judicial practices. Moreover, a court may be bound by decisions taken by other courts, such as the referral decision, res iudicata or decisions on preliminary questions. The legal remedies mentioned in the Recommendation include appeals as well as other legal remedies to higher courts against decisions of judges (“Nadzor” proceedings in the Russian Federation) (Recommendation, paragraph 23).
32. There are various systems for the distribution of cases on the basis of objective pre-established criteria. These include, inter alia, the drawing of lots, distribution in accordance with alphabetical order of the names of judges or by assigning cases to divisions of courts in an order specified in advance (so-called “automatic distribution”) or the sharing out of cases among judges by decision of court Presidents. What is important is that the actual distribution is not subject to external or internal influence and designed to benefit any of the parties. Appropriate rules for substituting judges could be provided for within the framework of rules governing the distribution of cases. Caseload and overburdening are valid reasons for the distribution or removal of cases provided such decisions are taken on the basis of objective criteria (Recommendation, paragraph 24).
33. Recommendation No. R (94) 12 establishes a right of association for judges confined to protecting their independence and promoting the interests of the profession. In some member states judges have created professional organisations which do not necessarily confine themselves to safeguarding judges’ independence and protecting their professional interests, but also seek to uphold other principles of the justice system in the interest of individuals. The Recommendation, drawing lessons from this diversification of forms of joint action by judges, contains a recommendation on the right to form “professional organisations”, stating, as did the European Charter on the status for judges, that judges may freely join such organisations. Such organisations, according to the United Nations’ principles, may operate at national or international level, have authority to take part in discussions with the competent institutions on matters related to their purpose and participate in the training of judges (Recommendation, paragraph 25).
Chapter IV - Councils for the judiciary
34. In a number of states, variously named independent authorities and non-executive bodies whom the CCJE refers to as “councils for the judiciary”, have been established. Chapter IV only applies where councils for the judiciary have been established. Their objective is to protect and safeguard the independence of the judiciary. They are involved to a greater or lesser extent in, inter alia, the selection, career, professional training of judges, disciplinary matters and court management. In the light of the various experiences observed, the changes noted since the early 1990s and the latest developments on this subject (see in particular Opinion No. 10 of the CCJE), it was considered necessary to recommend guidelines for the organisation, composition and functioning of such councils (Recommendation, paragraph 26).
35. It should be added that some legal systems traditionally adhere to the alternative which consists of securing the independence of each individual judge in the decision making process while entrusting executive bodies with certain administrational matters. Both approaches to judicial independence being equally acceptable, no part of the Recommendation should be read as preferring one of these traditional models over the other.
36. While councils for the judiciary have proved to be helpful in preserving judicial independence their mere existence does not, in itself, guarantee it. Therefore it is necessary to regulate their composition, appointment of members, respect for pluralism, e.g. to reach a gender balance, transparency and reasoning of their decisions and to ensure that they are free from political or corporate influences. As regards the composition and the requirement to have no less than “half of judges elected by their peers”, it should be underlined that in member states where prosecutors have a similar status to the one of judges, they may be members of the council for the judiciary (Recommendation, paragraphs 27 and 28).
Chapter V – Independence, efficiency and resources
37. Independence should not be an obstacle or impediment to efficiency. Both are complementary. However it is necessary to balance independence and efficiency. The search for enhanced efficiency should never compromise independence. Independence protects the judge as a member of a power of the state. Efficiency concerns the judge’s role in the justice system from which people expect clarity, speed, cost-effective organisation, courtesy and sensitivity - especially towards victims - and efficiency in the protection of their rights and determination of their obligations (Recommendation, paragraph 30).
38. The Recommendation includes a definition of judicial efficiency which is delivering quality decisions within a reasonable time (Article 6 of the Convention). Judges should be receptive to decisions and policies adopted by authorities responsible for the administration and management of the courts, to improve efficiency provided they do not interfere with or compromise in any way judicial independence. Where the execution of a judicial decision falls within the jurisdiction of a judge (e.g. sanction for contempt of court) the requirements of Article 6 of the Convention apply (Recommendation, paragraph 31).
39. Efficiency relates to both qualitative and quantitative aspects. It involves both individual judges and authorities responsible for the organisation and the functioning of the judicial system.
40. In their work, judges should be aware of their contribution to efficiency and should, for example use every procedural means of case management provided for by law, as well as demonstrate personal organisation (punctuality and availability during court sitting hours, adequate preparation, notice of planned absence and prompt report on unavoidable absences, etc.).
41. A balance should be achieved between the entitlement of judges to adequate working conditions and their responsibility to use efficiently the resources provided to them. In principle, prevailing economic conditions should not restrict judges’ choice of a certain line of action or decision. Judges should be informed about the costs of the different options to enable them assess such options. Therefore judges should be informed about the costs of their procedural decisions in cases where these decisions involve important resources implications, such as genetic testing, auditing, legal aid or others (Recommendation, paragraph 34).
42. The needs should be assessed and evaluated on the basis of objective criteria. Judges will work more efficiently and deliver their judgments more promptly when provided with adequate back-up staff chosen on the basis of objective criteria and equipment. Some national systems and some constitutional courts assist judges with decision-making by providing them with highly qualified support staff for legal/research assistance. The Recommendation calls for the further development of such resources (Recommendation, paragraph 35).
43. To ease the burden on judges and enable them to concentrate on hearing and determining cases, non-judicial tasks, such as the maintenance of land or commercial registries, acting as a notary public or collecting judicial fees, could be assigned to other suitably qualified persons, in conformity with Recommendation No. R (86) 12 concerning measures to prevent and reduce excessive workload in courts (Recommendation, paragraph 36).
44. Judicial systems and court administrations should be continuously modernised. Modern technologies such as electronic case management systems and other information and communication technologies should be available. Modern technologies are important to support judges in their work but should never substitute judges’ decision-making. It is essential that all office automation and data processing be available to judges, who themselves have an important role in promoting the use of new and modern technologies. Safeguards aiming at the protection of personal data (processing, storage or profiling) should be respected when using such technologies (Recommendation, paragraph 37).
45. To assist budgetary authorities make informed assessments of courts’ needs, the Recommendation states that councils for the judiciary or other independent authorities with responsibility for the administration of courts can be consulted and involved in the preparation of courts’ budgets. In some countries this includes not only the state itself but also decentralised authorities where they are competent in these matters (Recommendation, paragraph 40).
46. The administration of courts should help improve efficiency and preserve the independence and impartiality of judges. Independence covers judicial decision making and the conduct of court hearings. It does not prevent the adoption of common working methods necessary for the performance of judicial duties in an efficient manner. Protocols, guides or bench books aimed at this goal should be validated by judges of the court or of the judicial sector they are addressed to, or by their representatives, so as to guarantee the efficiency of working rules and their respect for judicial independence. Management accountability systems should only relate to managerial activities and never to adjudicating activities (Recommendation, paragraph 41).
47. The implementation of assessment mechanisms for judges similar to those for the performance of courts should improve the efficiency and the quality of justice. Where they exist, such mechanisms must comply with the statutory safeguards set out in paragraph 58 of the Recommendation and cannot compel judges to report on the merits of cases they are dealing with (Recommendation, paragraph 42).
48. The importance of international judicial co-operation in the modern-day global society is explicitly acknowledged. The work of judges should be facilitated by providing appropriate support to enable cases involving foreign or international elements be dealt with efficiently, including providing information on foreign legal systems, international and supra-national law, and the necessary information technologies tools (Recommendation, paragraph 43).
Chapter VI – Status of the judge
Selection and career
49. The independence of judges should be preserved not just when they are appointed but throughout their careers. Career includes promotion and appointment to new positions. Decisions to promote a judge to another position could in practice be a disguised sanction for an “inconvenient judge”. Such a decision would not be compatible with the Recommendation. To address such situations, some member states, such as Italy, have adopted a system of separation of judicial careers and judicial functions, the hierarchical level, which only determines the level of remuneration, being separate from the function exercised. In the majority of states, judges’ careers are based on merit. In such cases, this should be assessed using objective criteria, as previously specified. Those objective criteria should be pre-established by law or by the competent authorities, noting that basic criteria should in all cases be prescribed by law. The competent authority will in some member states be the council for the judiciary (Recommendation, paragraph 44).
50. It is essential that the independence of judges should be guaranteed when they are selected and throughout their professional career, and that there should be no discrimination. All decisions concerning professional careers of judges should be based on objective criteria, free from considerations outside their professional competence. The reference to possible grounds of discrimination is not intended to be exhaustive. Where justified, positive action criteria could be introduced for the selection and promotion of judges provided that they have been previously established by law. Disability should not prohibit appointment to judicial positions, provided such disability does not affect the capacity to perform judicial duties (Recommendation, paragraph 45).
51. The Recommendation confers an essential role on independent authorities established to decide on the selection and career of judges. At least half of their members should be judges chosen by their peers (Recommendation, paragraph 46).
52. In some member states the appointing authority is not obliged to accept recommendations made. Nevertheless it is desirable that recommendations be followed in practice. Concerning the composition of the independent and competent authority, it is recommended that a substantial part of the members be drawn from the judiciary, which implies that member states are free for the remaining seats to include, for instance, representatives of other legal professions as well as the general public (Recommendation, paragraph 47).
53. The “widest possible representation” aims at ensuring gender balance, geographical balance as well as a balance in hierarchical levels (Recommendation, paragraph 48).
Tenure and Irremovability
54. Security of tenure means judges cannot, except for disciplinary reasons, be removed from office, until mandatory retirement age unless they have requested early retirement. It also requires, in systems where judges must undergo a probation period before being confirmed in their posts, that the decision on this renewal or confirmation be taken by an independent authority. Irremovability implies that judges cannot receive new appointments or be moved to another post without their consent. Grounds for terms of office should be prescribed by internal law, whether this concerns disciplinary sanctions, loss of nationality, etc. (Recommendation, paragraphs 49 and 50).
55. The principle of independence implies that the terms of office be respected whether a judge is appointed on a permanent or temporary position, with no other exceptions than those prescribed by law (Recommendation, paragraph 52).
56. Judges’ remuneration is an important element to address when dealing with independence and impartiality. For this reason general principles on judges’ remuneration should be established by the law while more specific rules can be set at other levels. This does not exclude collective agreements recognised by law (Recommendation, paragraph 53).
57. An adequate level of remuneration is a key element in the fight against corruption of judges and aims at shielding them from any such attempts. The rules which prevent measures expressly seeking to reduce the level of judges’ remuneration do not exclude that specific legal provisions apply in case of long term illness or medical incapacity. Where the Recommendation refers to ‘maternity or paternity leave’ it concerns the legal leave offered, according to national legislations, to mothers and fathers on the occasion of the birth or adoption of a child and does not concern the longer parental leave that exists in some member states to enable parents to look after their child, with sometimes part of a remuneration being paid by family allowances schemes. Public policies aiming at the general reduction of civil servants’ remuneration are not in contradiction with the requirement not to reduce specifically judges’ remuneration (Recommendation, paragraph 54).
58. Initial training, as a precondition to the exercise of judicial functions, and in-service training for all judges, comprising both theoretical and practical teaching, should be fully funded by the state. In some member states in-service training is compulsory. In others it is an ethical obligation. Initial and in-service training should include European law, with particular reference to its practical application in day-to-day work, the Convention and the case law of the European Court of Human Rights, as well as the practice of foreign languages as required. Training on economic, social and cultural issues is meant to take into consideration the general need for social awareness and understanding of different subjects reflecting the complexity of life in society. Initial and in-service training should allow for study visits to European jurisdictions and other authorities and courts. In-service training assessment should not be used as a form of integrated assessment of the judge. When referring to the intensity and duration of the training in the light of previous experiences, the idea is not to have an individualised training system but rather to reflect the variety of systems, noting that in some member states, candidates may sometimes have a long professional experience as non-judges before being trained to become judges, and that in this precise case, their initial training will be different from the one provided to post-university candidates with no professional experience. This recommendation has been developed having regard to Opinion No. 4 of the CCJE (Recommendation, paragraph 56).
59. The assessment of the judge’s activity is the appraisal of his/her professional performance following modalities which may vary between judicial systems (hierarchical authority, panels of judges, council for the judiciary, etc.). Arrangements for such assessment must be consistent with the constitutional and other legal provisions of member states. As the assessment may determine judges’ promotion in their careers, it must be implemented having full regard to the guarantees contained in the Recommendation so as to preserve individual independence. Whatever assessment mechanism exists, appeals should be made possible where the assessment may impact on the career path. Nevertheless, where the assessment is purely a managerial tool entailing no financial threat or disciplinary effect, a right to appeal is not necessarily justified (Recommendation, paragraph 58).
Chapter VII – Duties and responsibilities
60. Duties dealt with in this Chapter refer to the exercise of judicial functions while other duties should be understood as being covered by the Chapter related to the ethics of judges.
61. Judges’ duty is to protect, in all cases, the rights and freedoms of individuals equally, while respecting their dignity. This has taken on special significance following the introduction, in some states, of legislation or practices necessary in order to deal with exceptional situations (in particular terrorism), potentially leading to less protection for rights and freedoms. It is essential, in such circumstances, that judges’ responsibility and vigilance remain undiminished (Recommendation, paragraphs 59 and 60).
62. The efficient management of cases not only involves individual judges, but also presidents of courts or other competent authorities, having a key role in that respect, with full respect for the independence of every individual judge. The compliance with the “reasonable time” requirement of Article 6 of the Convention and the desirable uniformity in the interpretation and application of the law are of particular importance. In order to reach common grounds in the interpretation of the law, the president of a court may, for instance, organise meetings with a view to enable judges to exchange opinions on a particular legal subject. Presidents should encourage the sharing and dissemination of “good practices” among judges of their jurisdiction and set priorities and objectives to be achieved in the management of cases, having regard to the necessity to contain, reduce and eliminate backlogs. Judges should be seen as taking an active stand against delaying tactics. They should seek to contain legal costs for parties to a reasonable level by the speedy and transparent management of cases (Recommendation, paragraph 62).
63. Giving clear reasons in understandable language for their judgments is an obligation of judges. This is to ensure law is visibly applied and to enable the parties to decide whether or not to appeal and to prepare appeals. Reasons may be omitted for certain decisions4, in particular decisions involving the management of the case (e.g. adjourning the hearing), minor procedural issues or essentially non-contentious issues (judgments by default or by consent), decisions by an appeal court affirming a first instance decision after hearing similar arguments on the same grounds and some decisions concerning leave to appeal or to bring a claim, in countries where such leave is required (Recommendation, paragraph 63).
64. Judges have a duty to update and develop their proficiency. They can do so by training in the judicial school or similar competent body and also by personal efforts in achieving the knowledge and skills required to continually provide a quality justice (Recommendation, paragraph 65).
Liability and disciplinary proceedings
65. When not exercising judicial functions, judges are liable under civil and criminal law in the same way as any other citizen. In the exercise of their judicial functions, judges should only be liable under civil law and disciplinary procedures in cases of malice and gross negligence (Recommendation, paragraph 66).
66. The Recommendation provides that the personal civil liability of judges may be incurred only as a result of actions brought before a court by the state after having had to award compensation to persons who sustained damages as a result of an action or inaction by judges in situations prescribed by law only. In certain cases, if an official breaches his duties in a judgment in a legal matter, redress is only possible, if the breach of duty consists in a criminal offence. Member states may decide to protect themselves through the subscription of insurance schemes covering gross negligence. In certain member states, the judicial code stipulates that judges’ responsibility can be engaged in case of denial of justice or, in the broad sense, when they commit a fraud at any stage of the proceeding. Such responsibility has to be prescribed by law and judges can be convicted to award compensation. The case can also be assigned to other judges (Recommendation, paragraph 67).
67. When exercising judicial functions, judges should be held criminally liable only if the failing committed was clearly intentional. Various disciplinary sanctions5 exist depending on the constitutional provisions and traditions of each state, as well as on the gravity of the misconduct (Recommendation, paragraphs 68 and 69).
Chapter VIII – Ethics of judges
68. Since Recommendation No. R (94) 12, codes of judicial ethics have been adopted in some member states. This has also been dealt with at a European and international level (see in particular Opinion No. 3 of the CCJE). These texts highlight independence and impartiality as standards of judicial ethics but also refer to clear reasoning of the judgments, institutional responsibility, diligence, active listening, integrity, courtesy to the parties and transparency, all of them narrowly related to the principles that have informed this new Recommendation.
69. Public confidence in the administration of justice is one of the essential components of a democracy. This involves not only respect for independence, impartiality, efficiency and quality but also relies on the quality of the individual behaviour of judges. Respect by judges of ethical requirements is a duty which comes with their powers.
70. An adequate legal framework and appropriate institutions for the preservation of judicial independence are not enough to ensure that judicial decisions are free from improper influences if judges do not personally administer justice in an independent manner. Judicial independence is also a judicial virtue, a standard of judicial ethics. This is the reason why the Recommendation ends with an appeal to the ethics of judges, understood as a set of duties guiding their ethical approach even in the cases where breaches to such duties are not sanctionable by the law. The effective participation of judges in the elaboration of such codes is to be promoted (Recommendation, paragraph 72).
71. Ethical principles should be laid down in codes of judicial ethics. In some states, such “codes” include judges’ disciplinary regime but ethics standards should not be confounded with the disciplinary regime. Ethics standards aim at achieving in an optimum manner the best professional practices while disciplinary regimes are essentially meant to sanction failures in the accomplishment of duties (Recommendation, paragraph 73).
72. Judges seeking advice on ethics should be able to consult bodies established for such purpose. Such special bodies should be distinct and well differentiated from organs enforcing disciplinary sanctions (Recommendation, paragraph 74).
1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.
2 The concept of contempt of court (either civil – breach of a court order - or criminal, i.e. contempt in the face of court) is one derived from the common law. It is part of the machinery that enables the courts to ensure that there is no undue interference with the judicial process and to ensure that court orders are obeyed.
3 Nadzor proceedings are re-opening proceedings, aimed at enabling the revision of judicial decisions having authority of res iudicata.
4 See in this respect Opinion No. 11 (2008) of the CCJE on the quality of judicial decisions, footnote 11, paragraph 34.
5 Disciplinary sanctions may include, for instance: reprimand or censure; withdrawal of cases from the judge; moving the judge to other judicial tasks within the court; economic sanctions such as a reduction in salary for a temporary period; suspension or removal.