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[ccje/ccje-gt2005/docs/ccje-gt (2005) 8e]
WORKING PARTY OF THE CONSULTATIVE COUNCIL
OF EUROPEAN JUDGES
(CCJE-GT)
Report on the 8th and 9th meetings
Katowice (Poland), 27-29 April 2005 and Strasbourg, 29 June - 1 July 2005
FOREWORD
1. The CCJE-GT prepared for the attention of the CCJE:
b. the draft memorandum on adaptation of the CCJE’s working methods (see part VII below);
c. the draft specific terms of reference of the CCJE for 2006-2007 (see part X (a) and Appendix IX below);
d. the draft questionnaire for the preparation of an opinion on “The role of judges in striking a balance between protecting the public interest and human rights in the context of the fight against terrorism” (see part X below).
2. Delegations are invited to send the Secretariat the information specified in part II below by 10 November 2005.
Secretariat memorandum
prepared by
Directorate General I – Legal Affairs
CONTENTS
Page
Foreword........................................................................................................................ 1
I. Items submitted to the CCJE............................................................................. 4
III. Introduction........................................................................................................ 5
IV. Draft opinion on “Justice and society”............................................................... 6
V. 2nd European Conference of Judges: “Justice and the media”.......................... 7
VII. Follow-up to the Third Summit of Heads of State and Government............... 10
a) Decisions of the Third Summit of Council of Europe Heads of State
and Government of direct relevance to the CCJE.... …………………….10
b) Adaptation of the CCJE’s working methods in the light of the decisions
of the Third Summit of Council of Europe Heads of State and
Government ............................................................................................ ...11
VIII. Comments on the Framework Programme drawn up by the CEPEJ................ 13
IX. Hearing with the Committee of Ministers.. …………………………………..13
X. Future activities of the CCJE...... …………………………………………….15
a) Draft specific terms of reference for 2006-2007 …………………………15
b) CCJE’s activities in 2008………….......... ……………………………….17
XI. Other business ................................................................................................ 17
a) Co-operation with other Council of Europe bodies............ ……………..17
i. Group of Specialists on Judicial Standards (CJ-S-JU).................. ………17
ii. European Commission for the Efficiency of Justice (CEPEJ)........ ……..17
iii. Steering Committee on the Media and New Information Services (CDMC)….. 18
iv. Consultative Council of European Prosecutors (CCPE)... ……………….18
v. Council of Europe Development Bank........................ …………………..18
vi “Crystal Scales of Justice” European Prize................................................ 18
b) Co-operation with bodies outside the Council of Europe ............. ………19
c) Publications………………………….. …………………………………..19
XII. Dates of CCJE-GT meetings in 2006............................................................... 19
List of appendices:
APPENDIX I List of participants (8th and 9th meetings)............................ 19
APPENDIX II Agenda of the 8th meeting.................................................... 21
APPENDIX III Agenda of the 9th meeting.................................................... 27
APPENDIX IV Draft opinion on “Justice and society”.................................. 34
APPENDIX V Conclusions of the 2nd European Conference of Judges...... 45
APPENDIX VI Programme of the working session with Polish judges........ ..48
APPENDIX VII Comments by the CCJE-GT on the Framework Programme
drawn up by the CEPEJ..................................... ……………50
APPENDIX VIII Hearing of the Chair of the CCJE at the 932nd meeting of the
Ministers’ Deputies of the Council of Europe – address by
Mr Alain LACABARATS..................................................... 52
APPENDIX IX Draft specific terms of reference of the CCJE
for 2006 - 2007....................................................................... 56
I. ITEMS SUBMITTED TO THE CCJE
1. The Consultative Council of European Judges (CCJE) is invited:
b. to take note of the results of the 2nd European Conference of Judges held in Cracow on 25 and 26 April 2005 on the theme of “Justice and the media” (see part V and Appendix V below);
c. to take note of the exchange of views which the CCJE-GT held with members of the Polish National Council of the Judiciary and judges from the region of Katowice on relations between justice and society during a joint working session on 27 April 2005 (see part VI and Appendix VI below);
d. to adopt, subject to any amendment which it may wish to make, the draft memorandum on adaptation of the CCJE’s working methods in the light of the decisions of the Third Summit of Council of Europe Heads of State and Government (see part VII below);
e. to take note of the comments made by the CCJE-GT on the Framework Programme “A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe” prepared by the CEPEJ (see part VIII and Appendix VII below);
g. to approve, subject to any amendment which it may wish to make, the draft terms of reference of the CCJE for 2006-2007 as set out in Appendix IX to this report with a view to their submission to the Committee of Ministers for adoption (see also part X (a) below);
i. to approve the proposal to draw up in 2008, subject to adoption of the terms of reference by the Committee of Ministers, an opinion on relations between judges and prosecution services and to authorise the CCJE-GT to begin work on the subject in due course (see part X (b) below);
j. to take note of the decision by the European Committee on Legal Co-operation (CDCJ) to ask the CEPEJ to consider the CCJE’s opinions with a view to drawing up an action plan to be considered as part of any future CDCJ activities concerning judicial standards (see also part XI (ii) below) and, if appropriate, to adopt an opinion on that action plan;
II. INFORMATION TO BE SENT TO THE SECRETARIAT
2. Delegations are invited to send the Secretariat (by e-mail: [email protected])
the following information:
b. their comments on the draft memorandum on adaptation of the CCJE’s working methods in the light of the decisions of the Third Summit of Council of Europe Heads of State and Government (see part VII below);
c. their comments on the draft terms of reference of the CCJE for 2006-2007 as set out in Appendix IX to this report;
III. INTRODUCTION
3. The Working Party of the Consultative Council of European Judges (CCJE‑GT) held its eighth meeting at Katowice Court (Poland) from 27 to 29 April 2005 and its ninth meeting at Council of Europe headquarters in Strasbourg from 29 June to 1 July 2005, with Mr Raffaele SABATO (Italy) in the Chair.
4. The participants in the two meetings are listed in Appendix I to this report.
5. The CCJE-GT examined and adopted the agendas as set out in Appendices II and III to this report.
14. The CCJE-GT thanked the Polish authorities, in particular the National Council of the Judiciary and the Ministry of Justice, for the excellent organisation of the 2nd European Conference of Judges. It extended particular thanks to Ms Irena PIOTROWSKA, President of Katowice District Court and CCJE member for Poland, for having proposed that the conference be held in her country and for carrying out the preparations for and implementing the event.
15. The CCJE-GT was delighted that the judiciary had been represented at a high level at the conference and believed that the large number of participants – almost 140 people from all over Europe and the observer states – demonstrated the relevance of the conference theme. The low turnout of media representatives had, however, been disappointing.
16. The Working Party praised the active participation in the discussions and the high quality of the debate which had produced conclusions setting out practical proposals for future work on relations between justice and the media. The conference conclusions, the programme and the list of participants are set out in Appendix V to this report.
17. As the theme of the conference had been closely related to that of the opinion under preparation (see part IV above), the CCJE‑GT would take account of the results of the conference when it finalised the text of the opinion.
18. Given the great interest shown by representatives of the judiciary in the work of the two European Conferences of Judges already held by the Council of Europe, the CCJE‑GT underlined the need felt in judicial circles for a forum for pooling ideas, information and best practice at European level. It believed that the conferences, which were aimed at all judges regardless of their particular fields or place in the judicial hierarchy, were a unique and ideal forum for establishing closer ties between judicial systems and helping develop a shared judicial culture in the member states.
19. The CCJE-GT therefore hoped it would be able to continue organising regular European Conferences of Judges on topical issues relevant to the operation of the judiciary. It believed that the conclusions adopted at the close of the conferences should be taken into account in the CCJE’s future activities.
20. The Chair of the CCJE reported to the Committee of Ministers on the 2nd European Conference of Judges at the hearing held on 29 June 2005 (see part IX and Appendix VIII below).
VI. RELATIONS BETWEEN JUSTICE AND SOCIETY – WORKING SESSION WITH POLISH JUDGES
21. Poland’s National Council of the Judiciary (NCJ) had invited the CCJE‑GT to hold its 8th meeting in Katowice so as to foster the pooling of experience by CCJE‑GT members and judges from the courts in the Katowice region. It was against this background that it had proposed that a debate be held on relations between justice and society.
22. The Chair of the CCJE expressed sincere thanks, including on the Working Party’s behalf, to Poland’s National Council of the Judiciary and Ms Irena PIOTROWSKA for inviting it to hold its eighth meeting in Poland and for organising an exchange of views with Polish judges, as well as for the excellent organisation of both events.
23. The CCJE-GT underlined that the theme proposed by the NCJ was in line with the subject being considered by the CCJE in 2005 (see part IV above). The proposal to involve the CCJE directly in the national debate on possible improvements in relations between justice and society fitted in perfectly with part of the CCJE’s terms of reference (“providing practical assistance to enable states to comply with Council of Europe standards concerning judges”).
24. The CCJE-GT delegations met representatives of the Polish judiciary three times: they began by meeting members of the NCJ, then they held an exchange of views with representatives of the courts that came under Katowice District Court and, lastly, they visited Chorzów Court. The programme of the meeting held in Katowice is set out in Appendix VI to this report.
25. The NCJ members expressed their satisfaction at the success of the 2nd European Conference of Judges and welcomed its results. They stressed that its theme – relations between justice and the media – was very important in Poland, where a very heated national debate was taking place on the issue because of recent press reports which had been criticised for undermining individual dignity. They welcomed the interest shown in the subject of the conference by representatives of many participating countries and praised the CCJE for having initiated the event.
26. The President of the NCJ extended particular thanks to the Council of Europe for supporting the event and allocating the funding required to enable it to take place. He also thanked the Polish authorities for including the conference in the programme of their chairmanship of the Council of Europe, thereby underlining their interest in improving the level of legal culture in society.
27. During the working session with the judges from the courts that came under Katowice District Court (approximately 50 people), the Chair of the CCJE described the body and, in particular, the work on the draft opinion on relations between justice and society. At the request of the participants, the CCJE‑GT delegations reported on best practices and particular difficulties encountered in relations between courts and the media in their respective countries.
28. In the course of the discussion that followed the various presentations, the participants voiced their concerns about the accuracy of the information supplied by the press both about the quality of the judiciary and about proceedings. They stressed the need to train journalists in basic legal concepts, while acknowledging the difficulty of putting that into practice. They also underlined the need to train court spokespersons in relations with the media and the need for spokespersons to exchange information at European level. This could be done through associations of court spokespersons, the setting up of which should be encouraged in countries which did not already have them.
29. The educational role which the courts should play was mentioned several times. The development of court public relations policies, the holding of “open days”, measures to raise young people’s awareness of the operation of the judiciary and the publication of decisions on the Internet were mentioned as means of moving justice closer to society and improving general legal awareness.
30. The CCJE-GT delegations and the Polish participants both warmly praised the exchange of views, the results of which would make a real contribution to the substance of the opinion under preparation.
31. Reports on the working session in Katowice were broadcast on local radio and television.
32. During the visit to Chorzów Court, the CCJE‑GT delegations attended a hearing in a criminal case, found out about the operating methods of the court, which had jurisdiction for both criminal and civil cases, and held discussions with the local judges about practical aspects of the work of judges.
33. The CCJE-GT believed that meetings between the CCJE and the domestic courts in the various member states should be continued and expanded. On the one hand, they enabled the CCJE to find out more about the situation on the ground, which helped it to expand its base of expertise for the preparation of opinions, while, on the other, they were a very effective means of raising domestic judges’ awareness of the Council of Europe’s judicial standards.
VIII. COMMENTS ON THE FRAMEWORK PROGRAMME DRAWN UP BY THE CEPEJ
45. In accordance with the decision by the CCJE (see doc. CCJE (2004) 36, paragraph 37), the CCJE‑GT discussed the framework programme “A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe” drawn up by the European Commission for the Efficiency of Justice (CEPEJ) with a view to adopting comments on it.
46. The CCJE-GT endorsed the framework programme’s objective of reducing the length of legal proceedings. It agreed to indicate the order of priorities in relation to the lines of action in the framework programme and made comments on the implementation of the lines of action, in the light of the recommendations set out in its opinions.
47. The comments by the CCJE‑GT on the framework programme are set out in Appendix VII to this report. The CCJE‑GT instructed the Secretariat to forward them to the CEPEJ so that they were taken into account when the framework programme was implemented.
48. The CCJE-GT noted that the CEPEJ Secretariat had forwarded the document to the members of the CEPEJ-TF-DEL (CEPEJ Task Force on Timeframes of Proceedings) for its next meeting (14-16 September 2005). It would be included in the working documents which the CEPEJ-TF-DEL would draw on when preparing a handbook of good practice setting out practical solutions for implementing the lines of action in the framework programme.
IX. HEARING WITH THE COMMITTEE OF MINISTERS
56. The CCJE Chair had welcomed the support for the CCJE and the confidence in it expressed both by the Heads of State and Government and by the Committee of Ministers and had confirmed the CCJE’s willingness to continue its activities in accordance with its remit.
58. The CCJE-GT underlined the importance of dialogue between the CCJE and the Council of Europe’s political organs in order to make sure that proper account was taken of the CCJE’s opinions both at European level and in the individual member states.
66. In this case, the CCJE might consider the following questions included in the Framework Global Action Plan for Judges in Europe:
- the institutional guarantees of judicial independence in the member states (see part I (a) of the programme),
- the importance of observing the principle of the separation of powers (see part I (b) of the programme),
- judges’ participation in decisions concerning the functioning of the judiciary and their advisory role in preparing legislative and institutional reforms intended to ensure the independence of the judiciary (see part I (c) of the programme),
- possible disparities between the fundamental principles of an independent judiciary and law provisions in the member states (see part I (d) of the programme),
- the setting up or strengthening of authorities, which are independent from the legislative or executive authorities, with responsibility for managing judges’ careers (see part I (e) of the programme).
67. The CCJE-GT believed that the work on the draft opinion on this subject should tie in with the organisation of the European Conference of Judges on the role of judicial service commissions or equivalent bodies, to be attended by representatives of those institutions as well as judges.
68. It pointed out that the President of the European Network of Councils for the Judiciary had indicated that it wished to help organise the conference on this subject (see part XI (b) below).
69. The CCJE-GT also believed that the CCJE’s draft terms of reference should make provision for co-operation with the Consultative Council of European Prosecutors (CCPE), subject to approval of the latter’s draft terms of reference by the Committee of Ministers, and with the European Commission for the Efficiency of Justice (CEPEJ) (see also part XI (a) below).
b) CCJE’s activities in 2008
71. Although the CCJE’s terms of reference were renewed every two years, the CCJE‑GT proposed that consideration should already be given to activities to be carried out in 2008 so that they could be properly prepared. It believed that in 2008 the CCJE could draw up an opinion on relations between judges and prosecution services (see point VII (a) of the Framework Global Action Programme for Judges in Europe). If the CCJE accepted the proposal, the Working Party could begin the preparatory work for the drafting of the opinion in due course.
73. The CCJE-GT delegations noted that the European Committee on Legal Co-operation (CDCJ) had agreed at its 80th plenary meeting (Strasbourg, 20-22 April 2005) not to renew the terms of reference of the Group of Specialists on Judicial Standards (CJ-S-JU), which had expired at the end of 2004. The CJ-S-JU had been set up by the Committee of Ministers in 2003 (851st meeting of the Ministers’ Deputies) to follow up the CCJE’s opinions at intergovernmental level, but it had never met. The CDCJ had also concluded that the growth in the number of bodies dealing with judicial matters at the Council of Europe ran counter to the organisation’s budgetary imperatives.
74. The CCJE-GT delegations also noted that the CDCJ had agreed at the above-mentioned meeting to ask the CEPEJ to consider the opinions of the CCJE with a view to preparing an action plan to be considered by the CDCJ with regard to possible future activities on judicial standards (see doc. CDCJ (2005) 12, part 3 (e)).
75. The CCJE Chair had agreed with the CEPEJ Chair that the CEPEJ would submit the draft action plan to the CCJE for opinion before it was forwarded to the CDCJ.
iii. Steering Committee on the Media and New Information Services (CDMC)
76. Given the subject of the opinion which the CCJE was preparing in 2005 and the conclusions of the 2nd European Conference of Judges, the CCJE‑GT believed that it would be useful to co-operate with the Steering Committee on the Media and New Information Services (CDMC). It therefore asked the CCJE to instruct the Secretariat to look into possible arrangements for such co-operation as quickly as possible (see also part IV, paragraph 12 above).
iv. Consultative Council of European Prosecutors (CCPE)
77. The CCJE-GT took note of the draft terms of reference of the CCPE making provision for co-operation between the latter and the CCJE. Subject to approval of the draft terms of reference by the Committee of Ministers, it believed that a CCPE representative should be invited to attend the CCJE’s plenary meetings.
v. Council of Europe Development Bank
78. In the light of the Action Plan adopted by the Third Summit of Heads of State and Government, the CCJE‑GT decided to establish contacts with the Council of Europe Development Bank in order to study arrangements for co-operation (see part VII (a) above).
vi. “Crystal Scales of Justice” European Prize
79. AEuropean prize for innovative practice in civil justice organisation and procedure (“Crystal Scales of Justice” Prize) would be awarded on 25 October 2005 as part of the 3rd European Day of Civil Justice, an event launched jointly by the European Commission and the Council of Europe.
80. Entries would come from courts, bar associations and other bodies of judicial professionals in European Union or Council of Europe member states.
81. A jury made up by the European Commission and the Council of Europe Secretariat would select the best entries and choose the winner and “highly commended” entries.
82. The CCJE-GT was pleased that the CCJE Chair had been asked to sit on the jury. It noted that the jury would hold a one-day meeting in Brussels at the end of September 2005 (in principle during the week from 19 to 23 September), provided that enough entries were submitted to justify holding such a meeting.
83. The CCJE-GT welcomed the suggestion made at the 2nd European Conference of Judges by Mr Luigi BERLINGUER, President of the European Network of Councils for the Judiciary, that a future conference should be devoted to the role of judicial service commissions and also welcomed the network’s offer to help implement the idea. It instructed the Secretariat to gather information on the practical arrangements in this connection.
c) Publications
84. The CCJE-GT welcomed the publication of the opinions issued by the CCJE, the information leaflet on the CCJE, the conclusions of the 2nd European Conference of Judges and the proceedings of the first conference. It believed that the publications would help raise the CCJE’s profile and facilitate access to the results of its activities in the member states. It thanked the Secretariat for preparing the publications, which it hoped would be widely distributed.
85. The CCJE-GT Chair proposed that the text from the information leaflet be included in future editions of the opinions.
XII. DATES OF CCJE-GT MEETINGS IN 2006
86. The CCJE-GT would set the dates for its meetings in 2006 at the CCJE’s plenary meeting (23 – 25 November 2005).
APPENDIX I
LIST OF PARTICIPANTS OF THE 8th and 9th MEETINGS
LISTE DES PARTICIPANTS DES 8e et 9e REUNIONS
AUSTRIA / AUTRICHE
Mr Gerhard REISSNER,[1],[2] Bezirksgericht Floridsdorf, VIENNA
CYPRUS / CHYPRE
Mr Stelios NATHANAEL,1,2 District Court, NICOSIA
CZECH REPUBLIC / REPUBLIQUE TCHEQUE
Mr Robert FREMR1,2, Supreme Court, PRAGUE
FRANCE
M. Alain LACABARATS1,2, Cour de Cassation, PARIS, (Chairman of the CCJE / Président du CCJE)
ITALY / ITALIE
Mr Raffaele SABATO1,2, Tribunal de NAPLES, (Chairman of the CCJE-GT / Président du CCJE-GT)
LITHUANIA / LITUANIE
Mr Virgilijus VANLANČIUS,1,2, Supreme Administrative Court, VILNIUS
LUXEMBOURG
M. Jean-Claude WIWINIUS, Cour d'Appel, Cour Supérieure de Justice, LUXEMBOURG
NETHERLANDS / PAY-BAS (apologised / excusé)
NORWAY / NORVEGE
Mr Nils Absjorn ENGSTAD, Halogaland Court of Appeal, TROMSØ
POLAND / POLOGNE
Mrs Irena PIOTROWSKA,1, Circuit Court, KATOWICE
PORTUGAL
M. Orlando AFONSO,1,2, Cour d’Appel d’EVORA
“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” / “L’EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE”
Mrs Aneta ARNAUDOVSKA,1,2, Basic Court I, SKOPJE
UNITED KINGDOM / ROYAUME-UNI
Sir Jonathan MANCE,1,2, Royal Courts of Justice, LONDON
SPECIALIST / SPECIALISTE
M. Eric COTTIER,1,2, Juge, Tribunal Cantonal du Canton de Vaud, Suisse
COUNCIL OF EUROPE’S SECRETARIAT /
SECRETARIAT DU CONSEIL DE L’EUROPE
Mr Alexey KOJEMIAKOV2,, Head of the Department of Private Law, Directorate General I – Legal Affairs / Chef du Service du droit privé, Direction Générale I – Affaires Juridiques, Mme Danuta WIŚNIEWSKA-CAZALS1,2, Administrative Officer, Secretary of the CCJE, / Administratrice, Secrétaire du CCJE, Mme Emily WALKER1,2, Secretary / Secrétaire
INTERPRETERS / INTERPRETES
Mme Marianne de SUSBIELLE, Mme Catherine GAY
(8th meeting / 8ème reunion)
Mr Christopher TYCZKA, M. Jean SLAVIK, Mme Pascale MICHLIN
(9th meeting / 9e réunion)
APPENDIX II
AGENDA OF THE 8th MEETING (Katowice, 27-29 April 2005)
ORDRE DU JOUR DE LA 8e REUNION (Katowice, 27-29 avril 2005)
1. Opening of the meeting / Ouverture de la réunion
2. Adoption of the agenda / Adoption de l’ordre du jour
3. Information by the Secretariat / Informations par le Secrétariat
4. Preparation on the basis of the conclusions of the 2nd European Conference of Judges, the report prepared by specialist and the answers to the questionnaire - of an explanatory document on « Justice and society », in order to prepare a draft opinion on this topic / Elaboration, sur la base des conclusions de la 2e Conférence européenne des juges, du rapport préparé par le spécialiste et des réponses au questionnaire, d’un document explicatif sur le thème : « Justice et société », en vue de l’élaboration d’un projet d’avis sur ce même thème
Working documents / Documents de travail
Report prepared by Mr Eric COTTIER, Judge, Court of Canton, Vaud Canton (Switzerland) / Rapport établi par M. Eric COTTIER, Juge, Tribunal cantonal du Canton de Vaud (Suisse)
CCJE-GT (2005) 3
Explanatory note and questionnaire on “Justice and society” / Note explicative et questionnaire sur le thème : “Justice et société”
CCJE (2004) 33
Conclusions of the Conference / Conclusions de la Conférence
Answers to the questionnaire provided by national delegations / Réponses au questionnaire fournies par les délégations nationales :
Romania/Roumanie
CCJE (2005) 1
English only/anglais seulement
Belgium/Belgique
CCJE (2005)2
French only/français seulement
Lithuania/Lituanie
CCJE (2005)3
English only/anglais seulement
France
CCJE (2005)4
French only/français seulement
Moldova
CCJE (2005)5
French only/français seulement
Czech Republic/République Tchèque
CCJE (2005)6
English only/anglais seulement
Cyprus/Chypre
CCJE (2005)7
English only/anglais seulement
« the Former Yugoslav Republic of Macedonia »/
« l’ex République yougoslave de Macédoine »
CCJE (2005)8
English only/anglais seulement
Italy/Italie
CCJE (2005)9
English only/anglais seulement
Switzerland/Suisse
CCJE (2005)10
French only/français seulement
Croatia/Croatie
CCJE (2005)11
English only/anglais seulement
Estonia/Estonie
CCJE (2005)12
English only/anglais seulement
Ukraine
CCJE (2005)13
English only/anglais seulement
Albania/Albanie
CCJE (2005)14
English only/anglais seulement
Germany/Allemange
CCJE (2005)15
English only/anglais seulement
Japan/Japon
CCJE (2005)16
English only/anglais seulement
Luxembourg
CCJE (2005)17
French only/français seulement
Sweden/Suède
CCJE (2005)18
English only/anglais seulement
Malta/Malte
CCJE (2005)19
English only/anglais seulement
Russian Federation/Fédération de Russie
CCJE (2005)20
Russian only/Russe seulement
Slovenia/Slovénie
CCJE (2005)21
English only/anglais seulement
Slovak Republic/République Slovaque
CCJE (2005)22
English only/anglais seulement
Portugal
CCJE (2005)23
French only/français seulement
Andorra/Andorre
CCJE (2005)24
French only/français seulement
Hungary/Hongrie
CCJE (2005)25
French only/français seulement
Spain/Espagne
CCJE (2005)26
French only/français seulement
Bulgaria/Bulgarie
CCJE (2005)27
English only/anglais seulement
United Kingdom/Royaume-Uni
CCJE (2005)28
English only/anglais seulement
Background document / Document de référence
Report of the 5th meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 22-24 November 2004) / Rapport de la 5e réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 22-24 novembre 2004
CCJE (2004) 36
Recommendation Rec (2003) 13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings and its explanatory memorandum / Recommandation Rec (2003) 13 du Comité des Ministres aux Etats membres sur la diffusion d’informations par les médias en relation avec les procédures pénales et son exposé des motifs
CCJE-GT (2004) 9
Declaration of the Committee of Ministers on the provision of information through the media in relation to criminal proceedings / Déclaration du Comité des Ministres sur la diffusion d’informations par les médias en relation avec les procédures pénales
CCJE-GT (2004) 9
Texts adopted by the Committee of Ministers of the Council of Europe and Declarations adopted by the Ministerial European Conferences in relation with Recommendation Rec (2003) 13 / Textes adoptés par le Comité des Ministres du Conseil de l’Europe et Déclarations adoptées par les Conférences ministérielles européennes apparentés à la Recommandation Rec (2003) 13
CCJE-GT (2004) 7
Recommendation Rec (2002) 2 of the Committee of Ministers to member states on access to official documents and its explanatory memorandum / Recommandation Rec (2002) 2 du Comité des Ministres aux Etats membres sur l’accès aux documents publics et son exposé des motifs
CCJE-GT (2004) 10
5. Election of the drafting group to prepare a preliminary draft opinion on « Justice and society » / Election du groupe de rédaction chargé d’élaborer un avant-projet d’avis sur le thème : « Justice et société »
6. Working session with the judges from Katowice district on relations between justice and society1 / Session de travail avec les juges de la région de Katowice sur les relations entre la justice et la société[3]
Information note / Note d’information
Framework Programme of the meeting in Katowice, 27-29 April 2005 / Programme-cadre du séjour à Katowice, les 27-29 avril 2005
CCJE-GT (2005) 2
7. Consideration of the follow-up to the 2nd European Conference of Judges /Examen du suivi de la 2e Conférence européenne des juges
Working document / Document de travail
Conclusions of the Conference / Conclusions de la Conférence
8. Preparation and adoption of the opinion on the Framework Programme of the CEPEJ “A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe” / « Elaboration et adoption de l’avis sur le Programme-Cadre de la CEPEJ “Un nouvel objectif pour les systèmes judiciaires: le traitement de chaque affaire dans un délai optimal et prévisible »”
Working document / Document de travail
Request for opinion on Framework Programme « A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe » / Demande d’avis sur le Programme-Cadre « Un nouvel objectif pour les systèmes judiciaires: le traitement de chaque affaire dans un délai optimal et prévisible »
CCJE (2005) 1
9. Exchange of views on questions to be considered by the CCJE as from 2006 in order to prepare preliminary draft terms of reference / Echange de vues sur les questions devant être examinées par le CCJE à partir de 2006 en vue de l’élaboration d’un avant-projet de mandat
Working document / Document de travail
Framework global action plan for judges in Europe / Programme cadre d’action global pour les juges en Europe
CCJE (2001) 24
Background documents / Documents de référence
Opinions adopted by the CCJE in 2001-2004 / Avis adoptés par le CCJE en 2001-2004
CCJE OP N° 1 (2001)
CCJE OP N° 2 (2001)
CCJE OP N° 3 (2002)
CCJE OP N° 4 (2003)
CCJE OP N° 5 (2003)
CCJE OP N° 6 (2004)
10. Any other business / Divers
APPENDIX III
AGENDA OF THE 9th MEETING (Strasbourg, 29 June -1 July 2005)
ORDRE DU JOUR DE LA 9e REUNION (Strasbourg, 29 juin - 1 juillet 2005))
1. Opening of the meeting / Ouverture de la réunion
2. Adoption of the agenda / Adoption de l’ordre du jour
3. Information by the Secretariat / Informations par le Secrétariat
4. Preparation - on the basis of the conclusions of the 2nd European Conference of Judges, the report prepared by specialist, the answers to the questionnaire and the working document on « Justice and society » prepared by the drafting group - of a draft opinion on this topic / Elaboration, sur la base des conclusions de la 2e Conférence européenne des juges, du rapport préparé par le spécialiste, des réponses au questionnaire et d’un document de travail préparé par le groupe de rédaction sur le thème : « Justice et société », d’un projet d’avis sur ce même thème
Working documents / Documents de travail
Preliminary draft opinion on « Justice and society » prepared by the drafting group / L’avant-projet d’avis sur “Justice et société” préparé par le groupe de rédaction
CCJE-GT (2005) 5
Report prepared by Mr Eric COTTIER, Judge, Court of Canton, Vaud Canton (Switzerland) / Rapport établi par M. Eric COTTIER, Juge, Tribunal cantonal du Canton de Vaud (Suisse)
CCJE-GT (2005) 3
Explanatory note and questionnaire on “Justice and society” / Note explicative et questionnaire sur le thème : “Justice et société”
CCJE (2004) 33
Conclusions of the 2nd European Conference of Judges / Conclusions de la 2ème Conférence européenne des Juges
CCJE-CONF (2005) concl
Answers to the questionnaire provided by national delegations / Réponses au questionnaire fournies par les délégations nationales :
Romania/Roumanie
CCJE (2005) 1
English only/anglais seulement
Belgium/Belgique
CCJE (2005)2
French only/français seulement
Lithuania/Lituanie
CCJE (2005)3
English only/anglais seulement
France
CCJE (2005)4
French only/français seulement
Moldova
CCJE (2005)5
French only/français seulement
Czech Republic/République Tchèque
CCJE (2005)6
English only/anglais seulement
Cyprus/Chypre
CCJE (2005)7
English only/anglais seulement
« the Former Yugoslav Republic of Macedonia »/
« l’ex République yougoslave de Macédoine »
CCJE (2005)8
English only/anglais seulement
Italy/Italie
CCJE (2005)9
English only/anglais seulement
Switzerland/Suisse
CCJE (2005)10
French only/français seulement
Croatia/Croatie
CCJE (2005)11
English only/anglais seulement
Estonia/Estonie
CCJE (2005)12
English only/anglais seulement
Ukraine
CCJE (2005)13
English only/anglais seulement
Albania/Albanie
CCJE (2005)14
English only/anglais seulement
Germany/Allemange
CCJE (2005)15
English only/anglais seulement
Japan/Japon
CCJE (2005)16
English only/anglais seulement
Luxembourg
CCJE (2005)17
French only/français seulement
Sweden/Suède
CCJE (2005)18
English only/anglais seulement
Malta/Malte
CCJE (2005)19
English only/anglais seulement
Russian Federation/Fédération de Russie
CCJE (2005)20
Russian only/Russe seulement
Slovenia/Slovénie
CCJE (2005)21
English only/anglais seulement
Slovak Republic/République Slovaque
CCJE (2005)22
English only/anglais seulement
Portugal
CCJE (2005)23
French only/français seulement
Andorra/Andorre
CCJE (2005)24
French only/français seulement
Hungary/Hongrie
CCJE (2005)25
French only/français seulement
Spain/Espagne
CCJE (2005)26
French only/français seulement
Bulgaria/Bulgarie
CCJE (2005)27
English only/anglais seulement
United Kingdom/Royaume-Uni
CCJE (2005)28
English only/anglais seulement
Norway/Norvège
CCJE (2005)32
English only/anglais seulement
Background documents / Documents de référence
Report of the 8th meeting of the Working Party of the Consultative Council of European Judges (CCJE-GT) (Katowice, 27-29 April 2005) / Rapport de la 8e réunion du Groupe de travail du Conseil Consultatif de Juges Européens (CCJE-GT) (Katowice, 27-29 avril 2005)
CCJE-GT (2005) 4
Report of the 5th meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 22-24 November 2004) / Rapport de la 5e réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 22-24 novembre 2004)
CCJE (2004) 36
Recommendation Rec (2003) 13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings and its explanatory memorandum / Recommandation Rec (2003) 13 du Comité des Ministres aux Etats membres sur la diffusion d’informations par les médias en relation avec les procédures pénales et son exposé des motifs
CCJE-GT (2004) 9
Declaration of the Committee of Ministers on the provision of information through the media in relation to criminal proceedings / Déclaration du Comité des Ministres sur la diffusion d’informations par les médias en relation avec les procédures pénales
CCJE-GT (2004) 9
Texts adopted by the Committee of Ministers of the Council of Europe and Declarations adopted by the Ministerial European Conferences in relation with Recommendation Rec (2003) 13 / Textes adoptés par le Comité des Ministres du Conseil de l’Europe et Déclarations adoptées par les Conférences ministérielles européennes apparentés à la Recommandation Rec (2003) 13
CCJE-GT (2004) 7
Recommendation Rec (2002) 2 of the Committee of Ministers to member states on access to official documents and its explanatory memorandum / Recommandation Rec (2002) 2 du Comité des Ministres aux Etats membres sur l’accès aux documents publics et son exposé des motifs
CCJE-GT (2004) 10
Texts adopted by the European Ministerial Conference on Mass Media Policy (Kyiv, Ukraine, 10-11 March 2005) / Textes adoptés par la Conférence ministérielle européenne sur la politique des communications de masse (Kyiv, Ukraine, 10-11 mars 2005
CCJE-GT (2005) 6
Conclusions of the meeting of the Presidents of the Association of Judges on “Justice and society” (Vilnius, 13-14 December 1999) / Conclusions de la réunion des Présidents des Associations de Juges sur “La justice et la société” (Vilnius, 13-14 décembre 1999)
ADACS/DAJ/Concl/Vilnius
Conclusions of the fifth meeting of the Presidents of European Supreme Courts on “The Supreme Court: publicity, visibility and transparency” (Ljubljana, 6-8 October 1999 / Conclusions de la cinquième réunion des Présidents des cours suprêmes européennes sur “La cour suprême: publicité, visibilité et transparence” (Ljubljana, 6-8 octobre 1999)
Ljubljana (99) Concl
5. Consideration of the follow up to the Third Summit of the Heads of State and government (Warsaw, 16 – 17 May 2005) / Examen du suivi du Troisième Sommet des Chefs d'Etat et de gouvernement (Varsovie, 16-17 mai 2005)
► Impact and perspectives - possible adaptation of the activities and working methods of the CCJE / Impact et perspectives - adaptation possible des activités et méthodes de travail du CCJE
Background documents / Documents de référence
Warsaw Declaration / Déclaration de Varsovie
CM (2005) 79 final
Action Plan of the Third Summit of the Council of Europe / Plan d'Action du Troisième Sommet du Conseil de l'Europe
CM (2005) 80 final
6. Consideration of the follow-up to the 2nd European Conference of Judges /Examen du suivi de la 2e Conférence européenne des juges
Working document / Document de travail
Conclusions of the Conference / Conclusions de la Conférence
CCJE-CONF (2005) concl
7. Exchange of views on questions to be considered by the CCJE as from 2006 in order to prepare preliminary draft terms of reference / Echange de vues sur les questions devant être examinées par le CCJE à partir de 2006 en vue de l’élaboration d’un avant-projet de mandat
Working document / Document de travail
Framework global action plan for judges in Europe / Programme cadre d’action global pour les juges en Europe
CCJE (2001) 24
Background documents / Documents de référence
Opinions adopted by the CCJE in 2001-2004 / Avis adoptés par le CCJE en 2001-2004
CCJE OP N° 1 (2001)
CCJE OP N° 2 (2001)
CCJE OP N° 3 (2002)
CCJE OP N° 4 (2003)
CCJE OP N° 5 (2003)
CCJE OP N° 6 (2004)
10. Any other business / Divers
APPENDIX IV
DRAFT OPINION ON “JUSTICE AND SOCIETY”
prepared by the CCJE-GT
INTRODUCTION
1. For 2005 the Consultative Council of European Judges (CCJE) was given the task[4] of adopting an opinion on "Justice and Society" for the attention of the Committee of Ministers of the Council of Europe.
2. In this regard, the CCJE considered the following points which appear in the Framework Global Action Plan for Judges in Europe:
q relations with the public, the educational role of the courts in a democracy (see Part V b of the Action Plan),
q relations with all those involved in court proceedings (see Part V c of the Action Plan);
q accessibility, simplification and clarity of the language used by the court in proceedings and decisions (see Part V d of the Action Plan).
3. The preparatory work was carried out on the basis of:
- consideration of the acquis of the Council of Europe (see Appendix I), as well as of the results of the 5th meeting of the Presidents of European Supreme Courts on “The Supreme Court: publicity, visibility and transparency” (Ljubljana, 6-8 October 1999), the Conference of the Presidents of the Associations of Judges on “Justice and society” (Vilnius, 13-14 December 1999) and the European Ministerial Conference on Mass Media Policy (Kyiv, Ukraine, 10-11 March 2005);
- replies by delegations to a questionnaire (with an explanatory note) prepared by the Vice Chair of the CCJE and submitted to the CCJE plenary meeting which took place in Strasbourg on 22-24 November 2004;
- a report prepared by the specialist of the CCJE on this topic, Mr Eric COTTIER (Switzerland);
- the contributions of participants in the 2nd European Conference of Judges on the theme of "Justice and the Media", organised by the Council of Europe on the initiative of the CCJE in co-operation with the Polish National Council of the Judiciary and with the support of the Polish Ministry of Justice (Cracow, Poland, 25-26 April 2005)[5];
- a draft opinion prepared by the Working Party of the CCJE (CCJE-GT) in 2005.
4. In preparing this Opinion, the CCJE also considered the “Warsaw Declaration”, issued by the Third Summit of Heads of State and government of the Council of Europe, held in Warsaw on 16-17 May 2005, whereby the Summit reaffirmed the commitment “to strengthening the rule of law throughout the continent, building on the standard setting potential of the Council of Europe”. In this framework, the Heads of State and government stressed “the role of an independent and efficient judiciary in the member States”.
5. This Opinion concerns (A) the relations of the courts with the public, with special reference to the educativerole of the courts in a democracy, (B) the relations of the courts with those involved in court proceedings, (C) the relations of the courts with the media, and (D) accessibility, simplification and clarity of the language used by the courts in proceedings and decisions.
A. THE RELATIONS OF THE COURTS WITH THE PUBLIC WITH SPECIAL REFERENCE TO THE EDUCATIVE ROLE OF THE COURTS IN A DEMOCRACY
6. Judicial activity plays a dualrole in democratic societies. On one hand, it aims at resolving disputes concerning parties, on the other it plays an "educative role", providing citizens with relevant information and assurance as to the law and its application in practice[6].
7. Courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; the public at large have respect for and confidence in the courts' capacity to fulfil that function.[7] However, the understanding of the role of the judiciary in democracies - especially, the understanding that the judge's duty is to apply the law in a fair and even-handed manner, with no regard to contingent social or political pressures – varies considerably in different countries and socio-economic settings in Europe. The levels of confidence in the courts' activity are consequently not uniform[8]. Adequate information about the functions of the judiciary and its mission, in full independence from other state powers, can therefore effectively contribute toward an increased understanding of the courts as the cornerstone of democratic constitutional systems, as well as of the limits of their activity.
8. Most citizens' experience of their court system is limited to any participation they might have had as litigants, witnesses, or jurors. The role of the media is essential in broadcasting information to the public on the role and the activities of the courts (see section C below); but, aside from communication through the media, the CCJE's discussions have highlighted the importance of creating direct relations between the courts and the public at large. Integrating justice into society requires the judicial system to open up and learn to make itself known. The idea is not to turn the courts into a media circus but to contribute to the transparency of the judicial process. Admittedly, full transparency is impossible, particularly on account of the need to protect the effectiveness of investigations and the interests of the persons involved, but an understanding of how the judicial system works is undoubtedly of educational value and should help to boost public confidence in the functioning of the courts.
9. The first way to make judicial institutions more accessible is to introduce general measures to inform the public about rules governing courts’ activities.
10. In this connection, the CCJE would refer to its recommendations in Opinion No. 6 (2004) regarding the educative work of courts and the need to organise visits for schoolchildren or any other group with an interest in judicial activities. This does not alter the fact that it is also the states’ important duty to provide everyone, while at school or university, with civic instruction in which a significant amount of attention is given to the justice system.
11. This form of communication is more effective if those who work in the system are directly involved. School and university education programmes (even outside law faculties) may include a description of the judicial system (often through classroom appearances of judges), visits to courts, and active teaching of judicial procedures (role playing, attending hearings, etc.)[9]. Judges can thus co-operate with schools, universities, and other educational agencies, making the judge's specific insight available in teaching programmes and public debate.
12. The CCJE already stated in general terms that courts themselves should participate in disseminating information (by way of printed citizen's guides, Internet facilities, information offices, etc.) concerning access to justice; the CCJE also already recommended the developing of educational programmes aiming at providing specific information (e.g., nature of proceedings available; average length of proceedings in the various courts; court costs; alternative means of settling disputes offered to parties; landmark decisions delivered by the courts) (see paragraphs 12-15 of the CCJE's Opinion No. 6 (2004)).
13. Courts should take part in general framework programmes arranged by other state institutions (Ministries of Justice and Education, Universities, etc.). But, in the CCJE’s opinion, courts should also take their own initiatives in this respect.
14. Whereas relations with individual justice users have traditionally been dealt with by the courts, albeit in an unstructured way, courts have been reluctant in the past to have direct relations with the members of the general public who are not involved in proceedings. Publicity of hearings in the sense enshrined in Art. 6 of the ECHR has been traditionally viewed as the only contact between courts and the general public, making the mass media the sole interlocutors for courts. Such an attitude is rapidly changing. An active role of courts in making information available to the public is today considered not only to conform with a more modern conception of the duties of impartiality and discretion, but also to provide agenuine guarantee of judicial independence. The CCJE considers that member states should encourage the judiciaries to take such an active role along these lines, by widening and improving the scope of their “educative role" as described in paragraphs 9-12 above. This is no longer limited to delivering decisions as courts would act as “communicators” and “facilitators”. The CCJE considers that, if courts so far have accepted to participate in educational programmes to which they might have been invited, it is now necessary that courts also become promoters of such programmes.
15. The CCJE considered direct initiatives of the courts with the public, not passing through journalistic mediation and/or actions for which other institutions are responsible. The following measures were considered and recommended:
- creation of offices in courts in charge of public relations;
- distribution of printed materials, opening of Internet sites under the responsibility of courts;
- organisation by courts of a calendar of educational fora and/or regular meetings open to citizens, public interest organisations, policy makers, students, etc. ("outreach programmes").
16. A specific discussion was devoted by the CCJE to the "outreach programmes". The CCJE notes with interest that in some countries courts have been known to organise, often with the support of other social actors, educational initiatives that bring teachers, students, parents, lawyers, community leaders and the media into the courts to interact with judges and the justice system. Such programmes usually incorporate the use of professionals with prepared resources and provide a network for teachers’ professional development.
17. Some actions are tailored for individuals who, because of their socio-economical and cultural conditions, are not completely aware of their rights and obligations, so that they do not exert their rights or, worse still, find themselves involved in legal proceedings due to not carrying out their obligations. The image of justice in the neediest social groups is therefore dealt with through programmes that are closely linked to "access to justice" actions, that include, but are not limited to, legal aid (public information services, free legal counsel, direct access to the judge for petty claims, etc. - see section A of the CCJE's Opinion No. 6 (2004)).
18. The CCJE recommends a general support from the European judiciaries and the states, at the national and international levels, for judicial "outreach programmes" as described above, that should become a common practice. The CCJE considers that such programmes go beyond the scope of general information to the public. They aim at shaping a correct perception of the judge's role in society. In this context, the CCJE considers that – while it is for the Ministries of Justice and Education to provide for general information on the functioning of justice and to define school and university teaching syllabi - courts themselves, in conformity with the principle of judicial independence, should be recognised as a proper agency to establish "outreach programmes" and to hold regular initiatives consisting in conducting surveys, holding focus groups, employing lawyers and academics for public fora, etc. In fact, such programmes have the goal of improving the image of justice in society and, more generally, to strengthen judicial independence.
19. In the CCJE's opinion, in order to develop the above programmes judges should be given the opportunity to receive specific training as to relations with the public. Courts should also have the possibility to employ staff specifically in charge of liaising with educational agencies (P.R. offices, as mentioned above, could also be given this task).
20. It seems advisable to the CCJE that a co-ordination role of the several local initiatives, as well as a role of promoter of nation-wide "outreach programmes", could be given to the independent body mentioned in paragraphs 37 and 45 of its Opinion No. 1 (2001). The independent body may also, by incorporating the use of professionals with prepared resources, satisfy more sophisticated information needs issuing from policy makers, academics, public interest groups.
21. The CCJE has already advised that appropriate funding, not subject to political fluctuations, should be provided for judicial activities and that judicial bodies should be involved in decisions concerning budget allocations by legislatures, e.g. through a co-ordination role of the above mentioned independent body (see Opinion No. 2 (2001), paragraphs 5, 10 and 11). The CCJE recommends that adequate funding should also be provided for activities aiming at the promotion of the image of justice in society by the court system itself, according to the principles stated in its Opinion No. 2 (2001). Expenses related to "outreach programmes" should be covered by a special budget item, so that they are not charged to the operating budget of courts.
22. The CCJE's discussions showed that, in order to effectively shape a correct perception of justice in society,similar principles, as developed for judges, should apply for public prosecutors, who should also be given the task to realise "outreach programmes". Since, according to the acquis of the Council of Europe, all states regardless of the precise status of public prosecutors should take appropriate measures to ensure that they are able to perform their professional duties and responsibilities without unjustified interference,[10] it seems important to the CCJE that the public prosecutors should independently promote public awareness as to their activities, as well as provide guidance as to direct access of citizens to prosecutors' offices in relation to violations of the law on which they might wish to request action.
B. THE RELATIONS OF THE COURTS WITH PARTICIPANTS IN COURT PROCEEDINGS
23. The image that the public has of the justice system is influenced by the media, but is also very much shaped by the impressions gleaned by citizens who participate in trials as parties, jurors or witnesses.
24. Such impressions will be negative if the justice system, through its actors (judges, public prosecutors, court officials), appears biased or inefficient in any way. Negative perceptions of this kind will easily spread.
25. The CCJE has dealt in previous Opinions (especially Opinions No 1 (2001), No 3 (2002) and No 6 (2004)) with the need for judges to maintain (in fact and in appearance) strict impartiality and for courts to achieve a just resolution of disputes within a reasonable time. The present Opinion is concerned with the avoidance or convection of ignorance and misapprehensions about the justice system and its operation.
26. The CCJE considers that, in order to foster better understanding of the role of the judiciary, an effort is required to ensure in so far as possible that the ideas that the public has about the justice system are accurate and reflect the efforts made by judges and court officials to gain their respect and trust concerning courts’ ability to perform their function.
27. To improve their relations with the public, a number of justice systems or individual courts have set up programmes which help to shape: (a) the ethical training of judges, court staff, lawyers, etc; (b) court facilities; (c) judicial proceedings. The CCJE supports every step taken along these lines.
a) ethical training of judges, court staff, lawyers, etc
28. Some training programmes intended to ensure that courts are seen, under all aspects of their behaviour, to be treating all parties in the same way, i.e. impartially and without any undue regard to race, sex, religion, ethnic origin or social status. Judges and court staff are trained to recognise situations in which individuals may feel that a biased approach is, or seems to be, being taken, and to deal with such situations in a way that enhances confidence in and respect for the courts. Lawyers are also given special ethical training to prevent them from contributing, whether intentionally or not, through their verbal or non verbal behaviour, to mistrust of the justice system.
b) court facilities
29. Some programmes rightly tackle the causes of potential mistrust vis-à-vis the courts that lie in their internal organisation. For instance, moving the public prosecutor’s chair away from and at a different level to the bench will reinforce the impression of equality of arms which a court is supposed to convey. Likewise, the removal from court premises of any visual allusion to a specific religion or political authority may help to dispel fears of unwarranted bias or a lack of independence of judges. Allowing the accused to appear freely in court even if he or she has been detained pending trial – save in cases where public safety is at risk – and replacing enclosures in courtrooms with other security measures can help to give a clearer impression that the presumption of innocence which defendants enjoy is effectively guaranteed by the courts. A mention should also be made of the benefits, in terms of improving courts’ image of accountability, of setting up court reception services to provide the users of judicial services with information about the conduct of proceedings or the progress made in a particular case, to help users with formalities and, if the layout of the buildings so requires, to accompany them to the office or the courtroom they are looking for.
c) judicial proceedings
30. Some measures are intended do away with those parts of the proceedings and traditional forms of words [11] which may cause offence (religious oaths, forms of address, etc.). Others are intended to introduce procedures which ensure for example that, before appearing in court, parties, jurors or witnesses are received, on their own or in group, by court staff who describe to them, either orally or using audiovisual material produced in collaboration with social scientists, what their court experience is expected to be like. The aim of these presentations is to dispel any misconceptions about what actually happens in courts.
C. THE RELATION OF THE COURTS WITH THE MEDIA
31. The media have access – according to modalities and with limitations of established by national laws (see, e.g. Recommendation No Rec (2003) 13 on the provision of information through the media in relation to criminal proceedings) – to judicial information and hearings. Media professionals are entirely free to decide what stories should be brought to the public’s attention and how they are to be treated. There should be no attempt to prevent the media from criticising the organisation or the functioning of the justice system. The justice system should accept the role of the media which, as an outside observer, can highlight shortcomings and make a constructive contribution to improving courts’ methods and the quality of the services they offer to users.
32. However, the courts:
i) can establish closer links with the public, either through the intermediary of the media or directly, with a view to providing information about the nature and the difficulties of judicial work;
ii) should be able to communicate directly with the media to rectify errors in reports on certain cases or to provide clarification so as to ensure that the public is provided with objective information;
iii) should improve contacts between themselves and journalists so that mutual understanding of, and regard for, their respective roles grows. The CCJE considers that the Council of Europe could usefully establish or promote such contacts at European level, so as to bring about greater consistency in European attitudes.
33. The CCJE would refer, in this connection, to the conclusions of the 2nd European Conference of Judges (see paragraph 3 above) in which the Council of Europe was asked both to facilitate the holding of regular meetings between representatives of the judiciary and the media, and to consider drafting a European declaration on relations between justice and the media complementing Recommendation Rec (2003) 13 on the provision of information through the media in relation to criminal proceedings.
34. In individual states, these contacts between the judiciary and the media could take the form of study visits or informationsessions for journalists, run in courts, and for judges and court staff, in press offices. At all events, there is a clear need to foster exchanges on the rules and practices applied by each profession, and to highlight and explain the problems they face.
35. Schools of journalism should be encouraged to set up courses on judicial institutions and procedures.
36. The CCJE considers that each profession (judges and journalists) should, under the authority of an independent body of its own, draw up a code of practice on its relations with representatives of the other profession and on the reporting of court cases. The judiciary would define the conditions in which judges may make statements to the media concerning court cases, while journalists would provide guidelines on reporting of current cases the dissemination of names (or pictures) or anonymity of persons involved in the case (parties, victims, witnesses, public prosecutor, investigating judge, trial judge, etc.), as well as reporting on judgments in cases which attracted major public interest. In conformity with its Opinion No 3 (2002), paragraph 40, the CCJE recommends that national judiciaries take steps along these lines.
37. The CCJE also thinks it desirable for an independent body tobe assigned the task, where problems have been caused by the media account of a court case, or difficulties have been encountered by journalist in the accomplishment of his/her information task, of examining any complaints made as well as making general recommendations intended to prevent the recurrence of any of the abuses observed.
38. It is also necessary to encourage the setting up of reception and information services in courts, not only, as mentioned above, to welcome the public and assist users of judicial services, but also to help the media to get to understand the workings of the justice system better.
39. These services could pursue the following aims:
- to provide clarification or rectification with regard to current cases reported in the media (see also paragraph 32, ii above);
- to provide information or explanations about court decisions;
- to liaise with the media in relation to hearings in cases of particular public interest. The court reception services or spokesperson[12] could alert the media to the issues involved and the legal difficulties raised in the case in question, organise the logistics of the hearings and decide on any precautions to be taken, particularly with a view to protecting the people taking part as parties, jurors or witnesses.
40. The question of whether TV cameras should be allowed into courtrooms for other than purely procedural purposes has been the subject of wide-ranging discussions, both at the 2nd Conference of European Judges (see paragraph 3 above) and at meetings of the CCJE. Some members of the CCJE have expressed serious reservations about this new form of public exposure of the work of the courts.
41. The public nature of court hearings is one of the fundamental procedural guarantees that citizens can insist upon in democratic societies. While international law and national legislation allow exceptions to the principle that judicial proceedings should be conducted in public, it is important that these exceptions, which are perfectly legitimate where they exist to protect minors, morals or public order, or to safeguard people’s privacy from possible serious violations, should be interpreted narrowly.
42. The principle of public proceedings implies that citizens and media professionals should be allowed access to the courtrooms in which trials take place, but the latest audiovisual reporting equipment gives the events related such a broad impact that they entirely transform the notion of public hearings. This may have advantages in terms of raising public awareness of how judicial proceedings are conducted and improving the image of the justice system, but there is also a risk that the presence of TV cameras in court may disturb the proceedings and alter the behaviour of those involved in the trial (judges, prosecutors, lawyers, parties, witnesses, etc.).
43. Where television recording of judicial hearings occurs, fixed cameras should be used and it should be possible for the presiding judge both to decide on filming conditions and to interrupt filming broadcasting at any time. These and any other necessary measures should protect the rights of the persons involved and ensure that the hearing is properly conducted.
44. The consent of the persons involved should also be required, at least for certain types of trial concerning people’s private affairs.
45. In view of the particularly strong impact of television broadcasts and the risk of a tendency towards unhealthy curiosity, the CCJE encourages themedia to develop their professional codes of conduct aimed at ensuringbalanced coverage of the proceedings they are filming, so that their account is objective.
46. There might be an urgent case for filming hearings for educational purposes or to preserve a record on film of a hearing of particular historical importance. The CCJE emphasises such filming, while insisting nonetheless on the need to protect the persons involved in the trial, particularly by ensuring that filming methods do not disrupt the proper conduct of the hearing.
47. While the media plays a crucial role in securing the public’s right to information, and acts, in the words of the European Court of Human Rights, as “democracy’s watchdog”, the media can sometimes intrude on people’s privacy, damaging their reputation or undermining the presumption of their innocence, acts for which individuals can legitimately seek redress in court. The quest for sensational stories and commercial competition between the media carry a risk of excess and error. In criminal cases, defendants are sometimes publicly described or assumed by the media as guilty of offences before the court has established their guilt. In the event of a subsequent acquittal, the media reports may already have caused irremediable harm to their reputation, and this will not be erased by the judgment.
48. Courts need therefore to accomplish their duty, according to the case-law of the European Court of Human Rights, to strike a balance between conflicting values of protection of human dignity, privacy, reputation and the presumption of innocence on the one hand, and freedom of information on the other.
49. As stated in the conclusions of the 2nd European Conference of Judges (see paragraph 3 above), criminal-law responses to violations of personality rights (such as reputation, dignity or privacy) should be limited to quite exceptional cases[13]. However, the courts do have a duty to ensure that civil damages are awarded, taking account not just of the damage incurred by the victim, but also the seriousness of the infringements suffered and the scale of the publication concerned, as such damages should also deter the perpetrator from continuing.
50. The courts should be entitled, in exceptional cases that are strictly defined in order to avoid any accusation of censorship, to take urgent measures to put an immediate stop to the most serious infringements of people’s personality rights (such as reputation, dignity or privacy), through the confiscation of publications or through broadcasting bans.
51. When a judge or a court is challenged or attacked by the media (or by political or other social actors by way of the media) for reasons connected with the administration of justice, the CCJE considers that in the view of the duty of judicial self-restraint, the judge involved should refrain from reactions through the same channels, unless this is necessary to rectify wrong information in the public interest. The CCJE shares the view expressed by the 2nd European Conference of Judges (see paragraph 3 above), according to which it would be desirable that the national judiciaries should establish persons or a body (e.g. the Higher Council for the Judiciary) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases.
D. ACCESSIBILITY, SIMPLIFICATION AND CLARITY OF THE LANGUAGE USED BY THE COURTS IN PROCEEDINGS AND DECISIONS
52. The language used by the courts in their procedures and decisions is not only a powerful tool available to them to fulfil their educational role (see paragraph 6 above), but it is obviously, and more directly, the "law in practice" for the specific litigants of the case. Accessibility, simplification and clarity of the language of courts are therefore necessary[14].
53. The CCJE notes that in some European countries, judges believe that very short judgments reinforce the authority of the judgment; in some other countries, judges feel obliged, or are obliged by the law or practice, to explain extensively in writing all aspects of their decisions.
54. Without having the aim to deal in depth with a subject which is heavily influenced by national legal styles, the CCJE considers that a simple and clear judicial language is beneficial as it makes the rule of law accessible and foreseeable by the citizens, if necessary with the assistance of a legal expert, as the case-law of the European Court of Human Rights suggests.
55. The CCJE considers that judicial language should always be concise and plain, avoiding - if unnecessary - Latin or other wordings that are difficult to understand for the general public[15]. Legal concepts and rules of law may well stated by citing legislation or judicial precedents.
56. Clarity and concision, however, should not be an absolute goal, as it is also necessary for judges to preserve in their decisions precision and completeness of reasoning. In the CCJE's opinion, legislation or judicial practice concerning reasoning of judgments should provide that some form of reasoning always exists, and that sufficient discretion is left to the judge in choosing whether to give, where permissible,an oral judgement (to be transcribed from a recording upon request or in case of need) and/or a short written reasoned judgment (e.g. in the shape of the "attendu" style decision adopted in some countries) or an extensive written reasoned judgment, in all those cases in which reference to established precedents is not possible and/or the factual reasoning so requires. Simplified forms of reasoning should apply to orders, writs, decrees and other decisions that have a procedural value and do not concern the substantive rights of the parties.
57. An important aspect of accessibility of law, as enshrined in judicial decisions, is represented by their ready availability to the general public[16]. In view of this goal, the CCJE recommends that at least all Supreme Court and other landmark court decisions, if not all decisions, be accessible through Internet sites at no expense, as well as in print upon reimbursement of the cost of reproduction only; appropriate measures should be taken, in disseminating court decisions, to protect privacy of interested persons, especially parties and witnesses.
APPENDIX V
“JUSTICE AND THE MEDIA”
2nd EUROPEAN CONFERENCE OF JUDGES
organised by the Council of Europe at the initiative of the
Consultative Council of European Judges (CCJE)
in collaboration with the National Council of Judiciary of Poland
and with the support of the Ministry of Justice of Poland,
within the Polish Presidency of the Council of Europe
CRACOW 25-26 APRIL 2005
Conclusions
The 2nd European Conference of Judges, on “Justice and the media”, was held in Cracow (Poland) on 25 and 26 April 2005 as part of the Polish Chairmanship of the Committee of Ministers of the Council of Europe. It was organised by the Council of Europe in connection with the implementation of the framework global action plan for judges in Europe, at the instigation of the Consultative Council of European Judges (CCJE), in cooperation with the Polish National Council of Judges and with the support of the Polish Ministry of Justice.
Bearing in mind the relevant provisions of the European Convention on Human Rights, the case law of the European Court of Human Rights and the Council of Europe texts and instruments on freedom of expression and freedom of information on the one hand, and on the right to a fair and public hearing by an independent and impartial tribunal in order to protect human dignity, privacy, reputation and the presumption of innocence on the other, the conference participants - judges and others professionally concerned with the topic, including representatives of the media and international organisations, parliamentarians and experts in this field - agreed as follows:
Integrating justice into society requires the judicial system to open up and learn to make itself known. The idea is not to turn the courts into a media circus but to contribute to the transparency of the judicial process. Admittedly, full transparency is impossible, particularly on account of the need to protect the effectiveness of investigations and the interests of the persons involved, but an understanding of how the judicial system works is undoubtedly of educational value and should help to boost public confidence in the functioning of the courts.
The media are fundamentally free to choose the topics to be brought to the public’s attention and the type of coverage to give them.
The judiciary must accept public criticism from the press, which, as an outside observer, can highlight judicial malfunctions and contribute in a constructive manner to improving court practices.
With this in mind, a number of suggestions were made:
1) Progress can be made towards a more transparent and accessible system of justice
(a) by educational activity by courts and/or press offices directed at the public and educational institutions (see CCJE’s Opinion No. 6 (2004));
(b) by facilitating access to courts and the understanding of courts’ proceedings by appropriate written guides, personnel and press services;
(c) by opening up access to court proceedings including, in appropriately selected and controlled cases, by video and/or televisual recording;
(d) by wide dissemination of judgments and especially by resumés prepared by judges and/or court officials.
2) Value should be attached to better contacts between courts and journalists to give better mutual understanding of and respect for each other’s respective roles; and it could be beneficial if the Council of Europe would organise or promote further such contacts at a European level, to develop more consistent attitudes across Europe.
3) Although the general principles established by the European Court of Human Rights are accepted across Europe, there is a considerable diversity of attitudes towards their concrete application; and the Council of Europe could usefully promote further studies in the specific areas of the relationships between articles 8 and 10 of the European Convention on Human Rights with a view to achieving greater consistency of result.
4) There is a great diversity of attitudes in national laws and responses with regard to both challenges to or attacks on judicial independence or integrity and infringement of individual rights of privacy; penal responses in either area should, if available, be confined to the most exceptional cases; and national judiciaries should establish persons or a body (eg the Higher Council of Judiciary) able and ready to respond to such challenges or attacks in appropriate cases (with disciplinary proceedings being available in accordance with the CCJE’s previous Opinion No. 3 (2002) to satisfy legitimate concerns regarding judicial conduct).
At the close of the proceedings the participants asked the Council of Europe to take steps at a European level to improve mutual awareness and understanding between the judicial system and the media, especially by:
- facilitating the holding of regular meetings between representatives of the judiciary and the media,
- considering the drafting of a European declaration on relations between justice and the media (complementing Recommendation Rec (2003) 13 on the provision of information though the media in relation to criminal proceedings and the Committee of Ministers Declaration on the provision of information through the media in relation to criminal proceedings).
The participants invited the CCJE to take account of the results of the conference in drawing up the opinion on “Justice and Society” to be adopted in November 2005.
They expressed their gratitude to the Polish authorities and to all those who had contributed to the success of the conference, and asked the Council of Europe to continue to hold European conferences at regular intervals in order to assist judges in the performance of their tasks and strengthen and implement the principles of the rule of law in the Council of Europe member States.
APPENDIX VI
Framework Programme of the meeting in Katowice
Katowice, 27-29 April 2005
Wednesday, 27 April 2005
9.30 Arrival in Katowice
8th meeting of the CCJE-GT
venue: Court of Katowice
ul. Warszawska 45
13.00 Lunch (restaurant the Marchołt, rue Warszawska)
14.30 Meeting with the Presidency of the Regional Court of Katowice with the participation of the President of the National Council of Justice of Poland and the President of the City of Katowice
venue: Regional Court of Katowice
ul. Andrzeja 16/18
15.30 8th meeting of the CCJE-GT - continued
18.00 Registration at the hotel
Hotel Senator
ul. 1-go Maja 3
40-224 Katowice
http://www.senator.katowice.pl/
19.00 Dinner hosted by Mr Piotr Uszok, President of the City of Katowice
Thursday, 28 April 2005
10.00 Working session with the Polish judges (approximately 50 people) on the relations between justice and society
venue: Court of Katowice
ul. Warszawska 45
12.30 Lunch (restaurant the Marchołt or hotel’s restaurant – as preferred)
13.45 Visit to the courtrooms of the Regional Court of Katowice (high security courtroom), rue Koszarowa and of the Court of Chorzów
16.00 8th meeting of the CCJE-GT - continued
venue: Court of Katowice
ul. Warszawska 45
19.00 Dinner
Friday, 29 April 2005
9.00 8th meeting of the CCJE-GT - continued
venue: Court Katowice
ul. Warszawska 45
13.00 Closure of the 8th meeting of the CCJE-GT
APPENDIX VII
COMMENTS No. 2 (2005)
OF THE WORKING PARTY
OF THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE-GT)
ON
THE FRAMEWORK PROGRAMME
« A NEW OBJECTIVE FOR JUDICIAL SYSTEMS :
THE PROCESSING OF EACH CASE WITHIN AN OPTIMUM
AND FORESEEABLE TIMEFRAME »
The Working Party of the Consultative Council of European Judges (CCJE-GT), during its meeting held in Katowice (Poland) on 27-29 April 2005, took note of the Framework Programme “a new objective for Judicial systems: the processing of each case within an optimum and foreseeable timeframe” adopted by the European Commission for the Efficiency of Justice (CEPEJ).
The CCJE-GT noticed that the Framework Programme restates, among its “Lines of Action”, some of the measures suggested in instruments of the Council of Europe, and shared the goal pursued by the programme to reduce the length of judicial proceedings.
The CCJE-GT believed that specific attention should be given to lines of actions concerning resources of judicial institutions, improvement of statistical tools and development of information and communication strategies, indication of priorities in case management, definition of rules establishing an optimal duration for each type of case and monitoring their implementation, as well as improvement of the quality of procedures.
The CCJE-GT submitted the following observations:
- The CCJE noted in its Opinion No. 1 (2001) that efficiency of the judiciary should be one of the important elements that authorities in charge for recruitment and careers should consider when selecting candidates for judicial positions.
On the other hand, it is important that evaluation of personal ability of individual judges be kept distinguished from assessment of the judicial system in its globality; and that quality of justice should not become a mere synonym for productivity (Opinion No. 6 (2004), paragraphs 34 and 42), as such productivity may jeopardise a correct accomplishment of the judges’ role (Opinion No. 1 (2001), paragraph 69).
In view of the above the CCJE-GT recalled the necessity to involve the independent body[17] in charge of protecting judicial independence and managing the judiciary in the activities of selection and collection of qualitative data concerning justice. The independent body[18] should also play a central role in working out procedures of data collection, as well as in evaluating results and disseminating them towards interested persons and authorities. This will reconcile the necessity of an evaluation and the necessity of protecting judicial independence (Opinion No. 6 (2004), paragraph 43).
- The CCJE-GT also noted in its Opinion No. 3 (2002) that a diligent and speedy accomplishment of their tasks is a deontological obligation of judges (paragraph 26).
It is therefore necessary that judicial training programmes include specific exposure to case and court management, it being clear that training is also a deontological obligation for judges (Opinion No. 4 (2003), paragraph 28).
However, diligence implies that resources are adequate to the objectives to be achieved.
The CCJE-GT already recalled that funding of courts is closely connected with judicial independence, as it shapes the conditions under which courts exercise their mission (Opinion No. 2 (2001), paragraph 2), and that both access to justice and the right to a fair trial do not occur whenever a case is not heard in a reasonable time because of the lack of resources in the courts (Opinion No. 2 (2001), paragraph 3).
It is therefore necessary that States allocate adequate resources to the courts, through a procedure that should be respectful of judicial independence and should involve judicial authorities in the evaluation of financial needs and in the submission of budget requests to the national legislatures (Opinion No. 2 (2004), paragraphs 5, 10, 11 and 14).
On this subject the CCJE-GT recalled the CCJE’s suggestion to confer upon an authority representing all the courts, and separate from the executive branch, the task of budget requests to the national legislatures.
- The CCJE-GT noticed that pilot programmes, to be carried out in some courts in order to develop statistical tools and monitoring proceedings, and to experiment with solutions are to involve costs.
The use of such a tool, however, should not generate the idea that a court that takes longer on average than another to deal with a case is less efficient, as administration of justice differs greatly from purely administrative tasks, where measurements through indicators may be effective (see CCJE’s Opinion No. 6 (2004), paragraph 41).
- The CCJE-GT recommended that measures aimed at reducing the workload of courts as well as at assisting the handling of cases coming to court, as indicated in the CCJE’s Opinion No. 6 (2004), section C, should be considered as the most effective tools to achieve efficiency.
APPENDIX VIII
HEARING OF THE PRESIDENT OF THE CCJE
AT THE 932nd MEETING OF THE MINISTERS' DEPUTIES
OF THE COUNCIL OF EUROPE
(Strasbourg, 29 June 2005)
SPEECH
delivered by
Alain LACABARATS
Mr Chairman, Your Excellencies, ladies and gentlemen,
I would like to thank the Committee of Ministers for giving me a renewed opportunity to present the work of the Consultative Council of European Judges, which is a unique international body in that the Council of Europe is the only international organisation to have set up a body to represent the judiciary, thus explicitly highlighting the vital importance of the judge’s role in the law-based State.
The CCJE appreciates the enormous responsibilities which this bestows on it, and since its inception in 2000 it has been endeavouring to make an active contribution to implementing the Framework Global Action Plan for Judges in Europe by formulating opinions for you on the basic issues arising from the organisation and functioning of judicial systems.
We have so far submitted six opinions, which share the common feature of demonstrating the European judiciary’s determination to guarantee the effectiveness of the citizens’ right of access to justice and the settlement of disputes within a reasonable period, following fair proceedings before independent and impartial courts.
Our latest opinion, which concerned fair proceedings within a reasonable time and the role of judges in proceedings, took account of alternative modes of dispute settlement and was submitted at your 924th meeting on 20 April this year. This opinion was an extremely clear illustration of the judges’ desire to act efficiently in the exclusive interests of the citizen.
The CCJE has stressed the vital need to
- develop schemes to inform the general public about the functioning of judicial systems, the major decisions handed down and the general timescales for dealing with cases;
- devise simplified, standardised formats for the documents required when commencing and conducting proceedings;
- keep litigants informed of the costs and foreseeable duration of proceedings before commencing them;
- guarantee the availability of effective financial aid systems to provide all individuals with access to justice and the assistance of competent law officers.
Above and beyond the need to assess the quality of judicial systems and to tailor judicial resources to changing workloads, the CCJE has also, on the matter of proceedings, pointed out that:
- the simplified methods adopted for dealing with specified types of criminal cases are very useful, but should not be allowed to take away from the role of the judge or deprive citizens of the safeguards surrounding judicial action;
- civil proceedings should strive after efficiency and attempt to prevent delaying tactics by the parties, whereby the judges’ main concern must be to ensure that the parties are informed of decisions within a reasonable time, thus facilitating proper enforcement of the measures ordered;
- even though they cannot be used to replace the judge, whose involvement and judgments are vital in most types of proceedings, alternative modes of dispute settlement, which include mediation, might sometimes serve to secure a friendly settlement between the parties, which is preferable to a judicial solution.
This year, in accordance with its terms of reference, the CCJE is working on the theme of “justice and society”, addressing such important issues as the right to a public hearing and relations between justice and the media.
This working session began with a European Conference of Judges in Cracow on 25 and 26 April 2005, as part of the Polish chairmanship’s programme, and I would like to voice my sincere gratitude to the Polish authorities and the Committee of Ministers for permitting the CCJE to bring some 130 participants from 35 member States, Canada, Japan and the Holy See together in their country for this meeting.
The Conference had two objectives:
- helping to reinforce the principles of the rule of law, improve protection of human rights and the citizen’s knowledge of the legal system by ascertaining how to strike a balance in relations between justice and the media with a view to improving public information on judicial proceedings and the work of the courts;
- pinpointing items to be taken into account by the CCJE in 2005 in its opinion on the theme of “justice and society”, in accordance with its specific terms of reference.
Both these objectives were achieved, as was proved by the wealth of suggestions that emerged for making judicial systems more accessible and transparent.
The measures suggested included:
- developing or reinforcing public reception structures and educational action in courts;
- opening up the courtrooms to television coverage subject to conditions designed to protect the private life of the persons concerned and the proper conduct of proceedings;
- appointing officials responsible for relations with the press, with a view to disseminating the relevant information to the general public;
- developing potential activities for the Council of Europe designed to improve contacts between the courts and journalists in order to enhance their understanding of their respective roles (organising regular meetings between judges and journalists, promoting specific studies of the relationship between Articles 8 and 10 of the European Convention on Human Rights, and drawing up a European Declaration on relations between justice and the media).
The Conference was followed by a meeting of the CCJE Working Group in Katowice from 27 to 29 April 2005, which was immediately able to take account of the outcome of the Conference in the preliminary draft opinion which it prepared. Thanks to the Polish authorities, to whom we must also express our heartfelt gratitude in this regard, the CCJE Working Group was also able to attend a highly constructive meeting with judges from Katowice on the subjects discussed at the Conference.
The CCJE would like to establish contacts with the Steering Committee on the Media and New Information Services (CDMC) in order to discuss the results of the Cracow Conference.
I am pleased to note that the Heads of State and Government meeting in Warsaw last May decided “to make proper use of the opinions given by the Consultative Council of Judges of Europe (CCJE) in order to help member States to deliver justice fairly and rapidly and to develop alternative means for the settlement of disputes”.
The CCJE also welcomes the Council of Europe Development Bank’s closer involvement in activities to consolidate democracy, promote the rule of law and respect for human rights, particularly in the field of training for the judiciary, administrative officers and other players in public life, and to guarantee the organisation, functioning and infrastructures of public administrative and judicial services.
The CCJE considers it vital for its opinions to be effectively implemented in order to ensure that the judicial systems come up to citizens’ expectations and comply with the requirements of Article 6 of the European Convention on Human Rights.
Implementation of the CCJE’s opinions presupposes proper knowledge of them in the member States.
Accordingly, the texts drawn up by the Council of Europe must be translated into the various national languages and be more readily accessible on the CCJE website, which should be made more visible.
The judges who have the privilege of belonging to the CCJE can of course inform their colleagues at the national level of the results of the work carried out each year. For your information, the European Law Observatory of the French Court of Cassation will shortly be circulating around the French legal service an overview of all the Council of Europe’s work in the judicial field, including summaries of the Council’s various texts on criminal and civil proceedings and a summary of the CEPEJ’s studies and the CCJE’s opinions.
It is equally vital for the CCJE to be able to present its opinions to the national authorities, notably by means of bilateral encounters to discuss the practical arrangements for their application or conferences, which, as the two conferences in 2003 and 2005 have shown, are unique forums for exchanging experiences and ideas on the problems facing the modern judiciary.
Obviously, the CCJE is relying on the Committee of Ministers’ support in drawing the various capitals’ attention to its opinions. Political will is vital if proper account is to be taken of our opinions in national legislations and practices.
The CCJE is currently discussing the questions to be addressed in its future opinions in the light of the Action Plan adopted at the Third Summit. It is considering dealing with the role of Judicial Service Commissions and other equivalent bodies, which are essential factors in guaranteeing balance among the legislature, the executive and the judiciary in law-based States. We feel that the Council of Europe might usefully conduct more in-depth discussions and projects on the place of Judicial Service Commissions in the organisation of the judiciary, their membership, the mode of appointment of their members and their powers and responsibilities.
In several of its opinions the CCJE has stressed the need to promote the action of independent bodies responsible for managing the judiciary, and welcomes the fact that Judicial Service Commissions in the European Union member States have set up a network whose members have on several occasions expressed a desire to co-operate with the CCJE. The CCJE is wholeheartedly in favour of such co-operation, particularly in terms of its discussions on safeguarding the independence of the judiciary.
Before concluding I would like to stress that the CCJE warmly welcomes the undertaking by the Heads of State and Government in the Warsaw Declaration to continue to build a “Europe without dividing lines”, and I feel that such a Europe will, by definition, guarantee equal and effective judicial protection for all.
This is why the CCJE greatly appreciates the stress laid in the Warsaw Declaration on “the role of an independent and efficient judiciary in the member States”. The terms of reference which you have entrusted to the CCJE are, in my view, wholly consonant with the Declaration.
APPENDIX IX
DRAFT SPECIFIC TERMS OF REFERENCE
OF THE CCJE FOR 2006 AND 2007
Specific Terms of Reference[19]
1. Name of committee: CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
2. Type of committee: Consultative body
3. Source of terms of reference: Committee of Ministers
4. Terms of reference:
Pursuant to:
- the main recommendation No. 23 in the Wise Persons’ report concerning the reinforcement of direct co-operation with national judicial institutions,
- the conclusions and the follow-up action agreed by the Committee of Ministers in 2000 on the respect of commitments of member states concerning the functioning of the judicial system,
- Resolution No. 1 on measures to reinforce the independence and impartiality of judges in Europe adopted by the European Ministers of Justice at the end of their 22nd Conference in 2000, in particular concerning a global action plan to strengthen the role of judges and the setting up within the Council of Europe of a consultative group composed of judges to assist in the implementation of the priorities identified in this plan and to advise the Steering Committees on whether and how to update the Council of Europe’s legal instruments,
- the framework global action plan for judges in Europe adopted by the Committee of Ministers in 2000,
- the Action Plan adopted at the Third Summit of Heads of State and Government (Warsaw, 16-17 May 2005), in particular the decision to make proper use of the opinions given by the Consultative Council of European Judges (CCJE) in order to help member states to deliver justice fairly and rapidly and to develop alternative means for the settlement of disputes,
- the Warsaw Declaration which stresses the role of an independent and efficient judiciary in member states with a view to strengthening the rule of law throughout the continent,
the CCJE has the task of contributing in 2006 and 2007, to the implementation of the Third Summit Action Plan and of the framework global action plan for judges in Europe, in particular by:
a. adopting an opinion in 2006 for the attention of the Committee of Ministers on the role of the judge and the balance between protection of the public and human rights, in the context of the fight against terrorism;
In this connection, the CCJE will consider the following points which appear in the framework global action plan for judges in Europe:
- the application by national judges of the European Convention on Human Rights and the case law of the European Court of Human Rights, European community law and other international legal instruments (see Part IV (b) of the Action plan),
- dialogue between national and European judicial institutions (see Part IV (c) of the Action plan),
- the availability of information and documentation on all relevant international texts (see Part IV (b) of the Action plan);
This work will be carried out on the basis of replies by delegations to a questionnaire, a report prepared by a specialist and a draft opinion prepared by the Working Party of the CCJE in 2006;
b. adopting an opinion in 2007 for the attention of the Committee of Ministers on the structure and role of the Judicial Service Commission or equivalent body as an essential element in a state governed by the rule of law for a balance between the legislature, the executive and the judiciary;
In this connection, the CCJE will examine the present situation in the member states and consider in particular the following points which appear in the framework global action plan for judges in Europe:
- the respect for the guarantees of judicial independence in the member states at the constitutional, legislative and institutional levels (see Part I (a), (b), (c) and (d) of the Action plan),
- the setting up or strengthening of authorities, which are independent from the legislative or executive authorities, with responsibility for managing judges' careers (see Part I (e) of the Action plan);
This work will be carried out on the basis of replies by delegations to a questionnaire, a report prepared by a specialist, the results of the European Conference of Judges on this topic and a draft opinion prepared by the Working Party of the CCJE in 2007, in consultation with the Venice Commission;
c. preparing, for the attention of the Committee of Ministers, a report containing detailed proposals on the measures to be taken in order to make proper use in member states of the opinions given by the CCJE. This work will be carried out by the Working Party and finalised by the CCJE in 2006;
d. providing practical assistance to enable states to comply with Council of Europe standards concerning judges (e.g. Best Practice Survey);
e. preparing texts or opinions at the request of the Committee of Ministers or other bodies of the Council of Europe;
f. encouraging partnerships in the judicial field involving courts, judges and judges’ associations.
5. Membership of the committee:
a. All member states may be represented on the CCJE. Members should be chosen in contact, where such authorities exist, with the national authorities responsible for ensuring the independence and impartiality of judges and with the national administration responsible for managing the judiciary, from among serving judges having a thorough knowledge of questions relating to the functioning of the judicial system combined with utmost personal integrity.
The Council of Europe will cover travel and subsistence expenses for one representative per state.
b. The Consultative Council of European Prosecutors (CCPE) and the European Commission for the efficiency of justice (CEPEJ) may send a representative to meetings of the CCJE without the right to vote or defrayal of expenses.
c. The European Commission and the General Secretariat of the Council of the European Union may take part in the work of the CCJE without the right to vote or defrayal of expenses.
d. The following observer states with the Council of Europe may send a representative to meetings of the CCJE without the right to vote or defrayal of expenses:
Canada
Holy See
Japan
Mexico
United States of America
e. The following observers with the CCJE may attend the meetings of the CCJE, without the right to vote or defrayal of expenses:
- the European Association of Judges (EAJ),
- the association “Magistrats européens pour la démocratie et les libertés” (MEDEL),
- the Association of European Administrative Judges.
6. Structures and working methods:
The CCJE is an advisory body of the Committee of Ministers which prepares opinions for that Committee on general questions concerning the independence, impartiality and competence of judges. To this end, the Consultative Council works in co-operation, in particular, with the European Committee on Legal Co-operation (CDCJ), the European Committee on Crime Problems (CDPC) and also, depending on the subjects dealt with, other committees or bodies.
To discharge its terms of reference, the Consultative Council may set up working parties and organise hearings. It may also make use of scientific specialists.
The CCJE may appoint a representative to accept invitations to attend meetings of those bodies of the Council of Europe whose terms of reference include activities concerning justice. Furthermore, the CCJE will take appropriate measures to develop co-operation with these bodies, in particular by determining working methods which will enable it, in due time, to make the necessary contributions requested in the framework of these bodies’ work.
7. Duration:
These terms of reference will expire on 31 December 2007.
[1] Was present at the 8th meeting of the CCJE-GT (Katowice, 27-29 April 2005 /
Etait présent à la 8e réunion du CCJE-GT (Katowice, 27-29 avril 2005.
[2] Was present at the 9th meeting of the CCJE-GT (Strasbourg, 29 June -1 July 2005 /
Etait présent à la 9e réunion du CCJE-GT (Strasbourg, 29 juin -1 juillet 2005.
[3] Thursday, 28 April 2005, 10.00 am – 12.30 pm / Jeudi, 28 avril 2005, 10h00 - 12h30
[4] See specific terms of reference of the CCJE for 2004-2005, adopted by the Committee of Ministers at the 876th meeting of the Ministers’ Deputies (17 March 2004, item 10.1)
[5] The Conference participants – i.e. judges and other people with a professional interest in the subject, including representatives of the media and international organisations, parliamentarians and experts on the subject under discussion – focused, on the one hand, on the relevant provisions of the European Convention on Human Rights (ECHR), the case-law of the European Court of Human Rights, and Council of Europe texts and other instruments on the right to public information, which the press effectively safeguards, and, on the other, on the requirements of the right to a fair public hearing by an independent and impartial tribunal with a view to protecting human dignity, privacy, the reputation of others and the presumption of innocence, the ultimate aim being to find ways of striking a balance between conflicting rights and freedoms.
[6]See Conclusions of the Fifth Meeting of the Presidents of European Supreme Courts, Ljubljana, 6-8 October 1999, paragraph 2.
[7]See, e.g., European Court of Human Rights, case Sunday Times vs. United Kingdom, judgment of 26 April 1979, Series A, No. 30 where the notions mentioned in the text are said to be included in the phrase "authority of the judiciary" contained in art. 10 of the ECHR.
[8]See Conclusions of the Meeting of the Presidents of the Associations of Judges on "Justice and Society", Vilnius, 13-14 December 1999, paragraph 1.
[9]See Conclusions of the Meeting of the Presidents of the Associations of Judges on "Justice and Society", Vilnius, 13-14 December 1999, paragraph 1.
[10] See, on this subject, Recommendation Rec (2000) 19 of the Committee of Ministers of the Council of Europe on the Role of Public Prosecution in the Criminal Justice System.
[11]See Conclusions of the Meeting of the Presidents of the Associations of Judges on "Justice and Society", Vilnius, 13-14 December 1999, paragraph 4.
[12]See Conclusions of the Fifth Meeting of the Presidents of European Supreme Courts, Ljubljana, 6-8 October 1999, paragraph 4, where it is also made clear that a spokesperson should not give a personal opinion on a decision already delivered or a case still pending.
[13]See paragraph 28 of the Action Plan adopted by the Ministerial Conference on Mass Media Policy, Kyiv, 10-11 March 2005, whereby the necessity of a review of the situation in member States regarding legislation on defamation was affirmed.
[14]See Conclusions of the Fifth Meeting of the Presidents of European Supreme Courts, Ljubljana, 6-8 October 1999, paragraph 1.
[15] See Conclusions of the Meeting of the Presidents of the Associations of Judges on "Justice and Society", Vilnius, 13-14 December 1999, paragraph 1.
[16]See Conclusions of the Fifth Meeting of the Presidents of European Supreme Courts, Ljubljana, 6-8 October 1999, paragraph 1.
[17] As specified in the European Charter on the Statute for Judges and the CCJE’s Opinion No. 1 (2001).
[18] See note 1 above.
[19] Any changes made to the previous terms of reference appear in bold.