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[ccje/gt/ccje-gt (2003) 8 e]
WORKING PARTY OF THE
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE-GT)
Report of the 4th and 5th meetings
Evora, 7-8 April 2003 and Strasbourg, 8-10 July 2003
FOREWORD
1. The CCJE-GT has prepared for the CCJE:
a. the draft opinion on appropriate initial and in-service training for judges at national and European level (see part IV and Appendix IV to this report);
b. the revised draft specific terms of reference of the CCJE for 2004 and 2005 (see part V and Appendix V to this report).
2. The delegations are invited to send the information set out in part II below to the Secretariat by the end of October 2003.
Secretariat memorandum
prepared by
Directorate General I – Legal Affairs
CONTENTS
Page
Foreword........................................................................................................................ 1
I. Items submitted to the CCJE....................................................................... 4
III. Introduction...................................................................................................... 4
IV. Draft opinion on appropriate initial and in-service training for judges at national and European level.............................................................................................. 5
V. The CCJE’s future work – Draft revised specific terms of reference......... 7
VII. Co-operation with other Council of Europe bodies..................................... 9
b. Request for an opinion by the Working Party of the Project Group
c. Follow-up to the CCJE’s Opinions – Group of Specialists on
judicial standards (CJ-S-JU)........................................................... 10
VIII. Exchange of views with the Committee of Ministers ............................... 11
IX. Other business ........................................................................................... 11
a. Up-dating of the CCJE’s Opinions ............................................... 11
c. Information about available documents......................................... 11
X. Dates of CCJE-GT meetings in 2004......................................................... 12
List of Appendices:
APPENDIX I List of participants (4th and 5th meetings)............................ 13
APPENDIX II Agenda of the 4th meeting.................................................... 15
APPENDIX III Agenda of the 5th meeting.................................................... 19
APPENDIX IV Draft opinion on appropriate initial and in-service training for judges at national and European level ....................................................................... 23
APPENDIX V Draft revised specific terms of reference of the CCJE
for 2004 and 2005.................................................................. 35
APPENDIX VI Draft specific terms of reference of the Group of Specialists
on judicial standards (CJ-S-JU)............................................. 38
APPENDIX VII Hearing of the Chair of the CCJE at the 484th meeting of the Ministers’ Deputies of the Council of Europe –
Speech given by Sir Jonathan Mance..................................... 40
I. ITEMS SUBMITTED TO THE CCJE
1. The Consultative Council of European Judges (CCJE) is invited to:
a. adopt, subject to any amendments which it may wish to introduce, the draft opinion on appropriate initial and in-service training for judges at national and European level (see part IV and Appendix IV below) ;
II. INFORMATION TO BE SENT TO THE SECRETARIAT
2. The delegations are invited to send the Secretariat (by e-mail: [email protected]), if possible by the end of October 2003, and if they so wish, their written comments:
a. on the draft opinion on appropriate initial and in-service training for judges at national and European level;
b. on the draft revised specific terms of reference of the CCJE for 2004 and 2005.
c. on the report: “Judicial Independence: law and practice of appointments to the European Court of Human Rights”, published in May 2003 by INTERIGHTS.
III. INTRODUCTION
3. The Working Party of the Consultative Council of Europeans Judges (CCJE-GT) held its fourth meeting on 7 and 8 April 2003 in Evora (Portugal), with Mr Alain Lacabarats (France) in the chair, and its fifth meeting on 8-10 July 2003 at the Council of Europe headquarters in Strasbourg, with Mr Alain Lacabarats (8-9 July 2003) (France) and Sir Jonathan Mance (10 July 2003) (United Kingdom) in the chair.
4. The list of participants at the two meetings appears in Appendix I to this report.
5. The CCJE-GT examined and adopted the agendas as they appear in Appendices II and III to the present report.
IV. DRAFT OPINION ON APPROPRIATE INITIAL AND IN-SERVICE TRAINING OF JUDGES AT NATIONAL AND EUROPEAN LEVEL
6. In line with the CCJE’s decision (see: CCJE (2001) 43, part V.a.ii), the Chair of the CCJE-GT had prepared a questionnaire on the issue of appropriate initial and in-service training for judges, at both national and European level (see also part III B i of the report CCJE (2000) 3). Thirty-three delegations had submitted replies to this questionnaire. These replies had been forwarded to Ms Rosa JANSEN, the specialist responsible for drawing up a report on this topic.
7. The CCJE-GT thanked its specialist, Ms Rosa JANSEN, Deputy President of the Court of Utrecht (the Netherlands), for drawing up a report, entitled “How to prepare judges to become and be a well-qualified judge anno 2003? An opinion on appropriate initial and in-service training for judges at the national and European level” (see CCJE-GT (2003) 3), based on these replies to the questionnaire, and considered it a very good starting point for discussion.
8. The CCJE-GT delegations held a round-table discussion on the organisation of judges’ training in their countries. The information they provided confirmed the diversity of training systems for judges in the different States, as well as the wish to ensure that appropriate initial and in-service training was provided. Certain delegations reported on reforms being considered, or already underway, to training systems for judges, or attempts to introduce a centralised training system, for which the State would bear the expense.
9. The CCJE’s specialist on judges’ training presented the broad outlines of her report (see CCJE-GT (2003) 3). She emphasised a number of issues of relevance to the organisation of training at national level; in particular, she drew attention to the need to consider training content that would encourage judges to attend training sessions, training that could be provided by extra-judiciary bodies, privatisation of teaching, marking scales for judges taking parting in training, or even compulsory training sessions.
10. The CCJE-GT delegations discussed the principles that should govern the organisation of judges’ in-service training, a training that was provided to varying degrees in all member States, in contrast to initial training, which was less widespread. In particular, they agreed that the draft opinion should comment on teaching methodology and on the relationship between judges’ training and their evaluation.
11. The CCJE-GT then considered the list of questions to be examined with a view to preparing the draft opinion on appropriate initial and in-service training for judges (see doc. CCJE-GT (2003) 2). The points raised during these discussions are given below.
Initial training
12. The CCJE specialist thought that States should equip themselves with specific legislation on training for judges, but that such laws should not be overly detailed. She suggested that the CCJE express approval of compulsory initial training for all candidates for judges’ posts, and that the content of this training should be adapted to candidates’ profiles and to their professional experience (young lawyers, experienced lawyers). Some CCJE-GT delegations were in favour of including the right to training in a judges’ statute.
13. The CCJE-GT took the view that it would be appropriate to make a distinction between the authority responsible for training and the body responsible for implementing training. In effect, it was essential to ensure independence and theoretical and financial autonomy for the institution responsible for providing training. In this context, it was suggested that reference be made in the draft opinion to the relevant provisions in the European Charter on the Statute for Judges.
14. In addition, the CCJE-GT held that it was difficult to rule on a mandatory duration for training.
In-service training
15. According to the CCJE’s specialist, in-service training should never be compulsory. All judges had a moral obligation to follow in-service training. The CCJE-GT noted that this training should be attractive, so that judges would be encouraged to participate, and that the State should guarantee the necessary resources so that judges could fulfil this particular professional obligation
Evaluation of training
16. The CCJE specialist emphasised the importance of evaluating training. After discussion, the CCJE-GT decided to include a small section on this matter in the draft opinion.
Trainers and their training
17. The CCJE-GT felt that judges or candidates for judicial posts should be trained by other judges. In this context, it would be appropriate to ensure that trainers recruited from the judiciary were not seconded for too long a period, so that they maintained contact with judicial practice.
18. The CCJE-GT noted that contact between judges of different grades was often problematic, and that it would be important to create an environment that would facilitate the interaction of judges representing different levels of jurisdiction. The use of practicing judges in the training process could assist such interaction.
19. The CCJE-GT thought that a chapter on trainers and their training should be included in the draft opinion, and instructed its Chair to prepare proposals regarding this chapter’s subject-matter.
Training at European level
20. Some CCJE-GT delegations thought that it was necessary to set up a European school for judges, which would provide training on matters of common interest for all European judges. While not denying that this need existed, other delegations wondered whether such an undertaking would be feasible.
21. The CCJE-GT emphasised that co-operation between national training centres and the existing training networks, especially the Lisbon Network, should be stepped up.
22. The CCJE-GT also considered encouraging States to include European law in university curricula.
23. The draft opinion drafted by the CCJE-GT appears in Appendix IV to this report.
V. THE CCJE’S FUTURE WORK – DRAFT REVISED SPECIFIC TERMS OF REFERENCE
24. The CCJE-GT noted that, at its third meeting, the CCJE had instructed it to prepare draft revised specific terms of reference for 2004 and 2005 (see doc. CCJE (2002) 37, part VII). It agreed that this draft text should reaffirm the CCJE’s responsibility for implementing the framework global action plan for judges in Europe, as adopted by the Committee of Ministers at its 740th meeting, and should take account of the outcome of the European Conference of Judges (see part VI below).
25. At the close of this discussion, and bearing in mind the suggestions put forward by the CCJE at its third meeting regarding topics to be examined in 2004 and 2005 (see doc. CCJE (2002) 37, part VI), the CCJE-GT proposed that opinions be drawn up on the following topics:
i) in 2004:
A fair trial within a reasonable time and the role of judges in the trial, taking account of alternative methods of dispute resolution
26. The CCJE-GT noted that this topic followed on directly from the problem that would be discussed at the European Conference of Judges. In the context of this topic, the CCJE would give particular consideration to the following questions, which were include in the framework global action plan for judges in Europe (see doc. CCJE (2001) 24):
- case management (see point II e of the Plan);
- the judge’s role in the trial (see point III C a of the Plan).
27. The CCJE-GT noted that widespread use of alternative methods of dispute resolution could make a genuine contribution to reducing the excessive workload of the courts. Accordingly, it would also be important to tackle this question.
ii) in 2005:
Justice and society
28. The CCJE-GT noted that the courts had an essential role to play in the development of a political culture based on the principles of the rule of law. In contemporary democratic societies, where people wished to be involved in decisions that concerned them, judges were open to criticism and to attempts to influence their judgments, particularly through the information disseminated by the media.
29. The CCJE-GT considered that, in order to be able to exercise justice in complete serenity, judges must facilitate understanding of their work among the public, by demonstrating openness and sensitivity to society’s aspirations. Consequently, it was essential that judgments be accessible to a wide public, both in terms of language and with regard to the dissemination of judgments.
30. Accordingly, the CCJE-GT proposed that, in 2005, the CCJE prepare an opinion on the topic “Justice and society”, which is included in the framework global action plan for judges in Europe (see doc. CCJE (2001) 24, point V).
31. In particular, it proposed that the CCJE examine the following questions as part of this topic:
- the educational role of the courts in a democracy, relations with the public (see point V b of the Plan);
- relations with all those involved in court proceedings (see point V c of the Plan);
- accessibility, simplification and clarity of the language used by the courts in
proceedings and decisions (see point V d of the Plan).
32. The work on this topic would seek to promote the courts’ participation in the democratic debate within society, with the objectives of ensuring better knowledge of the issues involved in the justice system and the rule of law (without however undermining the courts’ apolitical nature), strengthening the justice system’s authority in society and encouraging a simplification of and increased clarity in the language used by courts, both during proceedings and in judgments.
33. The CCJE-GT emphasised that the opinion on this topic should highlight the essential co-operation between the courts and lawyers.
34. The CCJE-GT instructed the Secretariat to put the finishing touches to the draft revised specific terms of reference, and to submit it to the Party in writing for comments. This draft text, as approved by the Working Party’s delegations, appears in Appendix V to this report.
VI. EUROPEAN CONFERENCE OF JUDGES
35. The CCJE-GT took note of progress in organising the European Conference of Judges on the theme “Early settlement of disputes and the role of judges”, due to be held in Strasbourg on 24 and 25 November 2003.
36. The CCJE-GT held an exchange of views on the topics that could be discussed during this Conference. For the programme and other information about the Conference, consult www.coe.int/legalprof (then follow the links to “judges” and “conferences”).
37. Turning to organisation of the debates, the Chair of the CCJE suggested that a rapporteur could present each topic in the Conference programme in a speech of about twenty minutes, which would be followed by two short talks, each of about five minutes in length, to be given by individuals selected by the Secretariat from the participants. The time-limit on speeches would have to be strictly observed in order to leave sufficient time for debate.
38. The Secretariat informed the CCJE-GT delegations that some rapporteurs had already been identified. The Icelandic delegation was invited to submit the names of experts representing the Nordic countries who could make a useful contribution to the Conference.
39. The CCJE-GT considered that delegations from other committees or bodies working within the Council of Europe in the area of justice should be invited to the Conference. In particular, this suggestion concerned the European Committee on Legal Co-operation (CDCJ), the European Commission for the Efficiency of Justice (CEPEJ) and the Project Group on Administrative Law (CJ-DA).
VII. CO-OPERATION WITH OTHER COUNCIL OF EUROPE BODIES
a. Collaboration with the Venice Commission
40. The Chair of the CCJE informed the CCJE-GT that he had attended the plenary session of the “Democracy through Law” Commission (the Venice Commission) on 14 and 15 April 2003, where he had given a presentation on the CCJE’s work and its fields of interest.
41. The Commission had expressed a particular interest in the work concerning the independence and impartiality of judges, and primarily the constitutional aspects of this issue. During the discussion following the CCJE Chair’s presentation, the members of the Venice Commission had emphasised both the CCJE’s important role in bringing together judicial cultures in Europe, and its impact on the development of standards that would apply to the judiciary. They expressed keen interest in co-operation between the two bodies, insofar as the Venice Commission was frequently confronted in its work on constitutions with questions that fell within the CCJE’s competence.
42. This co-operation could focus on two areas of work:
- preparation of opinions concerning the judiciary;
- preparation of studies on topics of interest to both bodies, such as the supreme judicial council.
43. The CCJE-GT welcomed these first contacts with the Venice Commission and was in favour of closer collaboration on topics that directly concerned the judiciary and regarding which the Commission might be asked to rule in the context of examining constitutional provisions. The Chair of the CCJE would report to the CCJE on this meeting at the Council’s next meeting in November 2003.
b. Request for an opinion from the Working Party of the Project Group on Administrative Law (CJ-DA-GT) on the draft recommendation on the judicial control of administrative action
44. The CCJE-GT noted with satisfaction that the Working Party of the Project Group on Administrative Law (CJ-DA-GT) intended to submit to the CCJE a request for an opinion on the draft recommendation on the judicial control of administrative action, being drawn up in accordance with its specific terms of reference. It noted that, given the respective meeting schedules of the CJ-DA-GT (3-5 November 2003) and of the CCJE (24-28 November 2003), it would be appropriate to set up a specialist group within the CCJE-GT to consider this draft text, and this specialist group would prepare a draft opinion for the CCJE’s consideration.
c. Follow-up to CCJE opinions – Group of Specialists on Judicial Standards (CJ-S-JU)
45. The Secretariat informed the CCJE-GT delegations that the European Committee on Legal Co-operation (CDCJ) had decided at its 78th meeting (Strasbourg, 20-23 May 2003) to propose to the Committee of Ministers that a Group of Specialists on Judicial Standards (CJ-S-JU) be set up, in order to ensure that the CCJE’s Opinions were followed-up at intergovernmental level.
46. At the CCJE-GT’s request, the Secretary of the CDCJ provided information on the composition and tasks of the CJ-S-JU, subject to the adoption of its specific terms of reference by the Committee of Ministers in September 2003 (see Appendix VI of this report for the CJ-S-JU’s draft terms of reference).
47. The CCJE-GT expressed its satisfaction and welcomed the intention to take account of the ideas contained in the CCJE’s Opinions, with a view to their forming the subject matter of international legal instruments.
48. Several members of the CCJE-GT thought that the necessary co-ordination of activities between the CJ-S-JU and the CCJE required the presence of a member of the CCJE within the Group of Specialists. Others expressed the view that this could be inconsistent with the independent nature and operation of the CCJE. The matter was left for further discussion on the basis that cooperation with the group of specialists would be important. A further possibility raised for future consideration was that a member of the CCJE might assist the group as an expert.
49. Furthermore, the delegations noted that the CCJE should be regularly informed of activities concerning the justice system conducted within the various intergovernmental committees, such as the CDCJ, the CEPEJ and the CJ-DA, in order to co-ordinate content and avoid discrepancies or contradictions.
VIII. EXCHANGE OF VIEWS WITH THE COMMITTEE OF MINISTERS
50. The Chair of the CCJE informed the CCJE-GT delegations about the exchange of views that he had held with the Ministers’ Deputies on 10 July 2003, at the latter’s 848th meeting, during which he had given a presentation on the CCJE’s contribution to implementation of the framework global action plan for judges in Europe.
51. He said that the Deputies had expressed a keen interest in the CCJE’s work, and had noted in particular the usefulness of its work in the context of reforming the European Court of Human Rights. The CCJE-GT delegations concluded from this that the CCJE should take account of and refer to the international courts on a regular basis in its work.
52. The Chair of the CCJE also informed the delegations that, following the discussion held after his presentation, the Ministers’ Deputies had confirmed their support for the CCJE.
53. The CCJE-GT welcomed the outcome of the exchange of views between the Chair of the CCJE and the Committee of Ministers.
54. The Chair of the CCJE would report on this meeting to the CCJE at its next meeting in November 2003. The Secretariat would be instructed to mention the considerable value of these exchanges of views in the CCJE meeting report, which would be sent to the Committee of Ministers. The text of the presentation to the Ministers’ Deputies is given in Appendix VII to this report.
IX. OTHER BUSINESS
a. Updating of the CCJE’s Opinions
55. The Chair of the CCJE suggested submitting to the CCJE, for consideration, the idea of updating its previous work. He instructed the Secretariat to include this item on the draft agenda of the next CCJE meeting.
b. Report by INTERIGHTS on “Judicial Independence: law and practice of appointments to the European Court of Human Rights”
56. The Chair of the CCJE suggested submitting to the CCJE the report on “Judicial Independence: law and practice of appointments to the European Court of Human Rights”, published in May 2003 by INTERIGHTS (see www.interights.org, News section). The CCJE delegations were invited to take note of this report and to submit observations.
c. Information about available documents
57. The CCJE-GT instructed the Secretariat to inform it by e-mail regarding the dates on which working or reference documents were available on the website.
X. DATES OF CCJE MEETINGS IN 2004
58. The CCJE-GT would decide on the dates for its next meetings (in early 2004 and autumn 2004) at the CCJE’s next meeting (24-28 November 2003).
APPENDIX I
LIST OF PARTICIPANTS OF THE 4th and 5th MEETINGS
LISTE DES PARTICIPANTS DES 4ème et 5ème REUNIONS
AUSTRIA / AUTRICHE
Mr Gerhard REISSNER,[1],[2] Bezirksgericht Floridsdorf, VIENNA
CZECH REPUBLIC / REPUBLIQUE TCHEQUE
Mr Robert FREMR1,2, High Court in Prague, PRAGUE
FRANCE
M. Alain LACABARATS1,2, Cour d’Appel de Paris, PARIS (Chairman of the CCJE-GT / Président du CCJE-GT)
GERMANY / ALLEMAGNE
Mr Otto MALLMANN1,2, Federal Administrative Court, BERLIN
ICELAND / ISLANDE
Ms Hjördís HÁKONARDÓTTIR, District Court of Reykjavik, 150 REYKJAVIK1,2
ITALY / ITALIE
Mr Raffaele SABATO1,2, Tribunale di Napoli, Castellammare di Stabia
LITHUANIA / LITUANIE
Mr Virgilijus VALANČIUS1,2, Supreme Administrative Court of Lithuania, VILNIUS
LUXEMBOURG
M. Jean-Claude WIWINIUS1,2, Cour Supérieure de Justice, LUXEMBOURG
PORTUGAL
Mr Orlando AFONSO1,2, Cour d’Appel d’Evora, EVORA
UNITED KINGDOM
Sir Jonathan MANCE[3],[4], Royal Courts of Justice, LONDON (Chairman of the CCJE / Président du CCJE)
OTHER PARTICIPANTS / AUTRES PARTICIPANTS
SPAIN / ESPAGNE
Mr José Francisco COBO SÁENZ1, Audiencia Provincial de Navarra, PAMPLONA
SPECIALIST / SPECIALISTE
Ms Rosa JANSEN1,2, Court of Utrecht, UTRECHT
COUNCIL OF EUROPE’S SECRETARIAT /
SECRETARIAT DU CONSEIL DE L’EUROPE
Mrs Margaret KILLERBY2, 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 Marie-Luce DAVIES1,2, Secretary / Secrétaire
INTERPRETES / INTERPRETERS
Mlle Sophie Catherine Marie ENDERLIN, M. Manuel SANTIAGO RIBEIRO, Mlle Giulia WILKINS (4th meeting / 4ème reunion)
Mme Corinne McGEORGE, Mme Martine CARALY, Mme Nadine KIEFFER (5th meeting / 5ème réunion)
APPENDIX II
AGENDA OF THE 4th MEETING (Evora, 7-8 April 2003) /
ORDRE DU JOUR DE LA 4ème REUNION (Evora, 7-8 avril 2003))
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. Exchange of views, on the basis of draft report prepared by a specialist, and on the basis of the list of questions to be considered, prepared by the Secretariat, on appropriate initial and in-service training for judges at the national and European levels in order to prepare a draft opinion on this topic / Echange de vues, sur la base d’un projet de rapport établi par un spécialiste et sur la base d’une liste des questions à examiner établie par le Secrétariat, sur la formation intiale et continue appropriée des juges en vue de l’élaboration du projet d’avis sur ce thème
Working document / Document de travail
Draft report prepared by Mrs Rosa JANSEN, Specialist, Judge at the Court of Utrecht (The Netherlands) / Projet de rapport établi par Mme Rosa JANSEN, spécialiste, Juge au tribunal d’Utrecht (Pays-Bas)
CCJE-GT (2003) 3
List of questions to be considered prepared by the Secretariat /Liste des questions à examiner établie par le Secrétariat
CCJE-GT (2003) 2
5. Any other business / Divers
Background documents / Documents de référence
Report of the 1st meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 8-10 November 2000) / Rapport de la première réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 8-10 novembre 2000)
CCJE (2000) 3
Report of the 2nd meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 21-23 November 2001) / Rapport de la deuxième réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 21-23 novembre 2001)
CCJE (2001) 43
Report of the 3rd meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 13-15 November 2003) / Rapport de la troisième réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 13-15 novembre 2002)
CCJE (2002) 37
Framework global action plan for judges in Europe /
Programme cadre d’action global pour les juges en Europe
CCJE (2001) 24
Questionnaire on the training of judges/ Questionnaire relatif à la formation des juges
CCJE (2001) 34
Answers to the questionnaire submitted by national delegations/ Réponses au questionnaire soumises par les délégations nationales :
Andorra/Andorre
CCJE (2003) 17
French only/français seulement
Austria/Autriche
CCJE (2003) 22
English only/anglais seulement
Azerbaijan/Azerbaïdjan
CCJE (2003) 4
English only/anglais seulement
Belgium/Belgique
CCJE (2003) 5
French only/français seulement
Bulgaria/Bulgarie
CCJE (2003) 23
French only/français seulement
Croatia/Croatie
CCJE (2003) 21
English only/anglais seulement
Cyprus/Chypre
CCJE (2003) 18
English only/anglais seulement
Denmark/Danemark
CCJE (2003) 26
English only/anglais seulement
Estonia/Estonie
CCJE (2003) 1
English only/anglais seulement
Finland/Finlande
CCJE (2003) 20
English only/anglais seulement
CCJE (2003) 6
French only/français seulement
Germany/Allemagne
CCJE (2003) 31
English only/anglais seulement
Iceland/Islande
CCJE (2003) 19
English only/anglais seulement
Ireland/Irlande
CCJE (2003) 7
English only/anglais seulement
Italy/Italie
CCJE (2003) 8
English only/anglais seulement
Japan/Japon
CCJE (2003) 33
English only/anglais seulement
Liechtenstein
CCJE (2003) 9
English only/anglais seulement
Lithuania/Lituanie
CCJE (2003) 10
English only/anglais seulement
Luxembourg
CCJE (2003) 11 and Appendix/et Annexe
French only/français seulement
Malta/Malte
CCJE (2003) 27
English only/anglais seulement
Moldova
CCJE (2003) 3
French only/français seulement
Netherlands/Pays-Bas
CCJE (2003) 25
English only/anglais seulement
Norway/Norvège
CCJE (2003) 12
English only/anglais seulement
Portugal
CCJE (2003) 16
French only/français seulement
Romania/Roumanie
CCJE (2003) 29
English only/anglais seulement
Slovak Republic/République Slovaque
CCJE (2003) 32
English only/anglais seulement
Slovenia/Slovénie
CCJE (2003) 30
English only/anglais seulement
Spain/Espagne
CCJE (2002) 28
French only/français seulement
Sweden/Suède
CCJE (2003) 13
English only/anglais seulement
Switzerland/Switzerland
CCJE (2003) 14
French only/français seulement
Turkey/Turquie
CCJE (2003) 15
English only/anglais seulement
Ukraine
CCJE (2003) 24
English only/anglais seulement
United Kingdom/Royaume-Uni
CCJE (2003) 34
English only/anglais seulement
APPENDIX III
AGENDA OF THE 5th MEETING (Strasbourg, 8-10 juillet 2003) /
ORDRE DU JOUR DE LA 5ème REUNION (Strasbourg, 8-10 July 2003))
1. Opening of the meeting / Ouverture de la reunion
2. Adoption of the agenda / Adoption de l’ordre du jour
3. Information by the Secretariat / Informations par le Secrétariat
4. Preparation of the draft opinion on the basis of proposals for the content of the draft opinion on initial and in-service training at European and national level, prepared by the Chair of the CCJE-GT / Elaboration d’un projet d’avis sur la base des propositions pour le contenu du projet d’avis sur la formation initiale et continue des juges, aux niveaux national et européen, préparées par le Président du CCJE-GT
Working documents / Documents de travail
Report of the 4th meeting of the Working Party of the Consultative Council of European Judges (CCJE-GT) (Evora, 7-8 April 2003) / Rapport de la 4ème réunion du Groupe de travail du Conseil Consultatif de Juges Européens (CCJE-GT) (Evora, 7-8 avril 2003)
CCJE-GT (2003) 4
Proposals for the content of a draft opinion on initial and in-service training for judges at national and European level / Propositions pour le contenu du projet d’avis sur la formation initiale et continue des juges, aux niveaux national et européen
CCJE-GT (2003) 4, Appendix IV
Comments by national delegations / Commentaires des délégations nationales :
• Luxembourg CCJE-GT(2003) 6
• United Kingdom / Royaume-Uni CCJE-GT (2003) 7
Report prepared by Mrs Rosa JANSEN, Specialist, Vice-President of the Court of Utrecht (The Netherlands) / Rapport établi par Mme Rosa JANSEN, spécialiste, Vice-Présidente du Tribunal d’Utrecht (Pays-Bas)
CCJE-GT (2003) 3
List of questions to be considered prepared by the Secretariat /Liste des questions à examiner établie par le Secrétariat
CCJE-GT (2003) 2
CCJE-GT (2003) 4, Appendix III
5. Exchange of views on questions to be considered by the CCJE as for 2004 / Echange de vues sur les questions devant être examinées par le CCJE à partir de 2004
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
6. Any other business / Divers
Background documents / Documents de référence
Report of the 1st meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 8-10 November 2000) / Rapport de la première réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 8-10 novembre 2000)
CCJE (2000) 3
Report of the 3rd meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 13-15 November 2003) / Rapport de la troisième réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 13-15 novembre 2002)
CCJE (2002) 37
Report of the Colloquy on « The Recruitment and trainig of judges in Europe » (Evora, 9-10 April 2003) / Rapport du Colloque sur “Le recrutement et la formation des juges en Europe” (Evora, 9-10 avril 2003)
CCJE-GT (2003) 5
Questionnaire on the training of judges / Questionnaire relatif à la formation des juges
CCJE (2001) 34
Answers to the questionnaire submitted by national delegations / Réponses au questionnaire soumises par les délégations nationales :
Andorra/Andorre
CCJE (2003) 17
French only/français seulement
Austria/Autriche
CCJE (2003) 22
English only/anglais seulement
Azerbaijan/Azerbaïdjan
CCJE (2003) 4
English only/anglais seulement
Belgium/Belgique
CCJE (2003) 5
French only/français seulement
Bulgaria/Bulgarie
CCJE (2003) 23
French only/français seulement
Croatia/Croatie
CCJE (2003) 21
English only/anglais seulement
Cyprus/Chypre
CCJE (2003) 18
English only/anglais seulement
Denmark/Danemark
CCJE (2003) 26
English only/anglais seulement
Estonia/Estonie
CCJE (2003) 1
English only/anglais seulement
Finland/Finlande
CCJE (2003) 20
English only/anglais seulement
France
CCJE (2003) 6
French only/français seulement
Germany/Allemagne
CCJE (2003) 31
English only/anglais seulement
Iceland/Islande
CCJE (2003) 19
English only/anglais seulement
Ireland/Irlande
CCJE (2003) 7
English only/anglais seulement
Italy/Italie
CCJE (2003) 8
English only/anglais seulement
Japan/Japon
CCJE (2003) 33
English only/anglais seulement
Liechtenstein
CCJE (2003) 9
English only/anglais seulement
Lithuania/Lituanie
CCJE (2003) 10
English only/anglais seulement
Luxembourg
CCJE (2003) 11 and Appendix/et Annexe
French only/français seulement
Malta/Malte
CCJE (2003) 27
English only/anglais seulement
Moldova
CCJE (2003) 3
French only/français seulement
Netherlands/Pays-Bas
CCJE (2003) 25
English only/anglais seulement
Norway/Norvège
CCJE (2003) 12
English only/anglais seulement
Portugal
CCJE (2003) 16
French only/français seulement
Romania/Roumanie
CCJE (2003) 29
English only/anglais seulement
Slovak Republic/République Slovaque
CCJE (2003) 32
English only/anglais seulement
Slovenia/Slovénie
CCJE (2003) 30
English only/anglais seulement
Spain/Espagne
CCJE (2002) 28
French only/français seulement
Sweden/Suède
CCJE (2003) 13
English only/anglais seulement
Switzerland/Switzerland
CCJE (2003) 14
French only/français seulement
Turkey/Turquie
CCJE (2003) 15
English only/anglais seulement
Ukraine
CCJE (2003) 24
English only/anglais seulement
United Kingdom/Royaume-Uni
CCJE (2003) 34
English only/anglais seulement
APPENDIX IV
DRAFT OPINION ON INITIAL AND IN-SERVICE TRAINING
FOR JUDGES AT NATIONAL AND EUROPEAN LEVEL[5]
Introduction
1. At a time when we are witnessing an increasing attention being paid to the role and significance of the judiciary, which is looked as the ultimate guarantor of the democratic functioning of institutions at national, European and international level, the question of the training of prospective judges before they take up their posts and of in-service training is taking on particular importance (see Opinion of the CCJE N° 1 (2001), paragraphs 10-13 and Opinion N° 3 (2002), paragraphs 25 and 50.ix).
Observations by the delegation of Italy:
Do we not need an “at” after “looked” in § 1?
2. The independence of the judiciary confers rights on judges of all levels and jurisdictions, but also imposes duties. The latter include the duty to perform their work professionally and diligently, which implies that they should have great professional ability, acquired, maintained and enhanced by the training which they have a duty, as well as a right, to undergo.
Observations by the delegation of Italy:
In § 2, I would substitute "their" with "judicial", since the possessive is not referred to the subject of the sentence.
3. It is essential that judges, selected after having done full legal studies, receive detailed, in-depth, diversified training so that they are able to perform their duties satisfactorily.
4. Such training is also a guarantee of their independence and impartiality, in accordance with the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms.
5. Lastly, training is a prerequisite if the judiciary is to be respected and worthy of respect. The trust citizens place in the judicial system will be all the stronger if there are judges who, by virtue of the extent and diversity of their knowledge both of the technical field of law and of matters essential to life in society, have the intellectual and moral ability required for the objective, impartial performance of their duties.
6. There are great differences among European countries with respect to the initial and in-service training of judges which only in part reflect differences in the judicial systems. Some countries offer lengthy formal training in specialised establishments, followed by intensive further training. Others provide a sort of apprenticeship under the supervision of an experienced judge, who imparts knowledge and professional advice on the basis of concrete examples, showing what approach to take and avoiding any kind of didacticism. Between these two possibilities, there is a whole range of countries where training is to varying degrees organised and compulsory.
Observations by the delegation of Luxembourg:
Is the clause “which only in part reflect differences in the judicial systems” necessary? To my way of thinking, the qualification “only in part” deprives it of any meaning. I suggest deleting it.
Observations by the delegation of Italy:
Concerning § 6, I would adopt a different approach from Mr. Wiwinius', as I would like very much to keep the sentence "There are great differences among European countries with respect to the initial and in-service training of judges which only in part reflect differences in the judicial systems".
In my view, this phrasing represents the "memory" of our discussions on the fact that differences in training schemes are somewhat "erratic", and they may not be traced back to different legal traditions (not only civil and common law, but also other types of grupings). In my opinion, not keeping this statement would in some way neglect one of the main results of our investigations, based on questionnaires, etc.
7. Regardless of the diversity of national institutional systems and the problems arising in certain countries, training should be seen as an essential right and duty in view of the need not only to improve the skills of those in the judicial public service but the very functioning of that service.
8. Once it is accepted that the training of judges is the most direct means of improving their ability to carry out their duties impartially, competently and effectively and of protecting them from inappropriate external influences, training should enable them not only to broaden the basic legal skills needed for their job but also make judges more responsible by increasing their understanding of their role in society.
Observations by the delegation of Italy:
I think that training is also useful to protect from internal influences, so I would drop the word "external" in § 8.
Observations by the delegation of the United Kingdom:
This paragraph does not read logically, at least in the English. I suggest that it be broken down into two sentences, deleting the first five words and starting the first sentence with “The training of judges is the most direct means …”, and ending it with the words “inappropriate external influences”. The second sentence can then begin “Training should enable them ….”
9. The importance of the training of judges is recognised in international instruments such as the UN Basic Principles on the Independence of the Judiciary, adopted in 1985, and Council of Europe recommendations adopted in 1994 (Recommendation N° R (94) 12on the independence, efficiency and role of judges) and 1998 (European Charter on the Statute for Judges).
I. The right to training and the legal level at which this right should be guaranteed
10. Constitutional principles should guarantee the independence and impartiality on which the legitimacy of judges depends.
11. In many countries the training of judges is governed by special regulations. The essential point is to include the need for training in the rules governing the status of judges; legal regulations should not detail the precise content of training, but entrust this task to a special body responsible for drawing up the curriculum, providing the training and supervising its provision.
12. The CCJE therefore recommends that, in each country, the legislation on the status of judges should provide for the training of judges as a right and duty deriving from the constitutional principles guaranteeing their independence and impartiality.
II. The authority responsible for training
13. The European Charter states that any authority responsible for supervising the quality of the training programme should be independent of the Executive and the Legislature and that at least half its members should be judges. It also recommends that the training of judges should not be limited to technical legal training, but should also cover social and cultural issues.
14. This highlights the key importance of choosing the authority responsible for training and the content of training.
Observations by the delegation of the United Kingdom:
Para. 14 says very little, and I would suggest that we amplify it as follows:
“This highlights the key importance attaching to the independence and composition of the authority responsible for training and its content. This is a corollary of the general principle of judicial independence.”
15. Regardless of the arrangements made for training, it is a matter of public interest, which means the independence of the authority responsible for drawing up syllabuses and deciding how such initial training should be organised must be preserved.
Observations by the delegation of Luxembourg:
End of para. 15: I would delete the word “initial”, as has been done in the following paragraph, as this section refers to training in general.
Observations by the delegation of the United Kingdom:
I would then delete para. 15, which is anyway confused and obscure in the English version.
16. It appeared to the members of the CCJE that the judiciary should itself be responsible for organising and supervising training. Accordingly, and in keeping with the recommendations of the European Charter on the Statute for Judges, the CCJE advocates that these responsibilities should, in each country, be entrusted, not to the Ministry of Justice or any other authority answerable to the Legislature or the Executive, but to a body responsible for ensuring the independence of judges (Judicial Service Commission or an equivalent body).
Observations by the delegation of Luxembourg:
Nothing “appeared” to the members of the CCJE-GT. I suggest beginning the first sentence as follows: “The judiciary must itself be responsible…”.
Observations by the delegation of the United Kingdom:
The statement in para. 16 that “the judiciary should be responsible for organising and supervising training” is not on its face entirely consistent with the reference in para. 13 to the European Charter, which says that the independent authority, on which the judiciary may only half the members, should be responsible. I assume that we are endorsing the European Charter - para. 16 goes on effectively to do so. I would therefore suggest that para. 16 1st-2nd line should read “the judiciary should have substantial responsibility for ….”.
17. In order to ensure that the attributions of each body are clear, however, the same body should not be directly responsible for both training and disciplining judges. The CCJE therefore recommends that, under the authority of the judicial service commission, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation.
18. The body responsible for training of judges should also not be responsible for appointing or promoting them. If the same body (i.e. a judicial service commission) is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks (see paragraphs 43 and 44 below).
Observations by the delegation of Luxembourg:
I suggest adding to the second sentence “If, however, the same body…”.
Observations by the delegation of Italy:
Concerning § 18, I would like to keep, and possibly enhance, the "pragmatic" approach which was coherent with the text as it stands. The insertion of a "néanmoins", suggested by Mr. Wiwinius, makes things even more problematic.
My reflections are as follows.
The principle we want to affirm is that participation in training should not benefit (or jeopardise) a judge's career, with those limited exceptions that we have tried to list. If this is the principle, I do not see a real reason for us to affirm that, whereas we are satisfied by a solution in which - e.g. - a Judicial Studies Centre (or "école") takes care of training and a Judicial Service Commission (or C.S.M.) is responsible for appointment and promotion, we should look with suspicion to another solution in which C.S.M. is responsible for both functions. In fact, in § 17 we have recommended that training in principle should take place under the responsibility of C.S.M. or similar bodies, through a specific institution (or branch). In our opinion n. 1 on Independence, § 73 n. 3, § 37, and § 45 - on the other side - we clearly said that the independent body with substantial judicial representation should take decisions on appointment and promotions. If we do not want to incur into a really relevant contradiction, we cannot therefore state that ... we need two independent bodies! In my opinion (and I think it was a widely shared approach) the same independent body can do both, provided that a "firewall" exists to prevent that information concerning training is used in evaluation (with those exceptions we know).
In view of the above, I would suggest - as I said - to stress even more that there are no problems in a "unified competence" model, provided that the firewall exists. A solution, based on the same wording as in § 18 (where the adverb "directly" is crucial) can be as follows (in English):
"18. The body responsible for training of judges should also not be directly responsible for appointing or promoting them. If the same body (i.e. a judicial service commission) is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks (see paragraphs 43 and 44 below)."
A clearer wording could be as follows:
"18. The body responsible for training of judges should also not be directlyresponsible for appointing or promoting them. If the [*same* - deleted] body (i.e. a judicial service commission) referred to in the CCJE's Opinion n. 1, paragraphs 73 (3), 37, and 45, is competent for training and appointment or promotion, a clear separation should be provided between its branches responsible for these tasks (see paragraphs 43 and 44 below)."
19. In order to shield the establishment from inappropriate outside influence, the CCJE recommends that the managerial staff and instructors of the establishment should be appointed by the independent body mentioned above. It is important that the training is carried out by judges and by experts of each discipline represented. When judges are in charge of training activities, it is important that these judges preserve contact with court practice.
III. Initial training
20. Providing judges with appropriate, effective initial training is the responsibility of States, which have a duty to guarantee the independence and impartiality of the judiciary by giving it the intellectual and material means to perform its task.
Observations by the delegation of the United Kingdom:
The first line is open to misinterpretation – and apparent inconsistency with the earlier suggestion that an independent judicial commission should have responsibility. We do not want to give “governments” responsibility for training. I therefore suggest that we delete the opening words (“Providing ….responsibility of governments, which have”) and replace them with the words “The state has”.
a. Should training be compulsory?
21. While it is obvious that judges who are recruited from among students leaving university need to be trained, the question of the need for it arises where judges are selected from among the best lawyers, who are experienced and renowned (Common Law countries).
Observations by the delegation of the United Kingdom:
2nd line: replace “the question of the need for it arises” with “the question arises whether it is necessary”.
22. In fact, both groups should receive initial training: the performance of judicial duties is a new profession for both, and involves a particular approach in many areas, notably with respect to the professional ethics of judges, procedure, and relations with the auxiliaries of the judicial system, people standing trial and parties to civil disputes.
23. On the other hand, it is important to take the specific features of recruitment methods into account so as to diversify and adapt the details of training: experienced lawyers need to be trained only in what is required for their new profession.
Observations by the delegation of the United Kingdom:
2nd line: replace “so as to diversify and adapt the details of training” with “so as to target and adapt the training programmes appropriately”.
24. The CCJE therefore recommends that initial training should be compulsory for those wishing to become judges and that programmes should be appropriate to candidates’ professional experience.
b. The initial training programme
25. There is no doubt that the initial training syllabus and the intensiveness of the training will differ greatly according to the chosen method of recruiting judges. In addition, the opening up of borders means that future judges need to be aware that they are European judges and be more aware of European issues. Training should not, moreover, consist only of instruction in the legal techniques involved in the handling of cases by judges, but should also take into consideration the need for social awareness and an extensive understanding of different subjects reflecting the complexity of life in society.
Observations by the delegation of Italy:
Concerning paragraph 25, the "social awareness" question formed the object of some discussion, to make clear that we did not only intend the mere possession of notions in the field of social sciences. I think Mr. Lacabarats proposed the French wording. I would think that "social awareness" sounds OK in English (but we need a confirmation by a native speaker); I would easily translate the expression into Italian and would like to keep it.
Observations by the delegation of Luxembourg:
“the need for social awareness” sounds very good, but, in my opinion, does not mean very much. Would wording similar to that of the second sentence of para. 13 not be sufficient?
26. In view of the diversity of the systems for training judges in Europe, the CCJE recommends:
i. that all candidates for judicial posts should have or acquire, before they take up their duties, extensive knowledge of substantive national and international law and of procedure;
ii. that training programmes more specific to the exercise of the profession of judge should be decided on by the establishment responsible for training, the instructors and judges themselves;
iii. that these theoretical and practical programmes should not be limited to techniques in the legal and judicial fields but should also include training in ethics and an introduction to other fields, such as the social sciences, management of cases and administration of courts, foreign languages and information technology;
iv. that the training should be pluralist in view to guarantee and strengthen the open-mindedness of the judge;
v. that, depending upon the existence and length of previous professional experience, training should be of significant length in order to avoid its being purely a matter of form.
27. In countries that train young lawyers to serve as judges, the CCJE considers evaluation of the results of training to be necessary in order to exclude from the judiciary those candidates who have shown themselves unsuited to such duties. In contrast, in countries that choose judges from the ranks of experienced lawyers, objective evaluation methods are applied before appointment, with training occurring only after candidates have been selected, so that in that countries evaluation during training is not appropriate.
Observations by the delegation of Luxembourg:
End of para. 27: In the French version, I would say “opportune” rather than “appropriée”.
28. It is nevertheless important that candidates should be provided with legal safeguards against any arbitrary assessment of their work.
Observations by the delegation of Luxembourg:
The text should specify what kind of candidates is meant, as two types of system are mentioned in the previous paragraph.
Observations by the delegation of the United Kingdom:
For clarity, add at the beginning “When evaluation does take place” and delete the word “nevertheless”.
29. In addition, in countries that appoint judges provisionally, dismissal at the end of the training period should be subject to respect for the guarantees applicable to judges upon termination of their service.
Observations by the delegation of Luxembourg:
Paras. 27-29: These paragraphs clearly have nothing to do with the title “training programme”. They are more closely related to section V (Assessment of training), being concerned with the evaluation of candidates at the end of their training. I would not keep them in this section.
30. The CCJE has also noted with interest, and recommends, the practice of providing for a period of training common to the various legal and judicial professions (for instance, lawyers and prosecutors in countries where they perform duties separate from those of judges). This practice is likely to foster better mutual knowledge and understanding of the resources of the different professions and the difficulties and constraints they face.
31. The CCJE has also noted that many countries make access to judicial posts conditional upon prior professional experience. While it does not seem possible to impose such a model everywhere, and while the adoption of a system combining various types of recruitment may also have the advantage of diversifying judges’ backgrounds, it is in any event important that the period of initial training should include, in the case of candidates who have come straight from university, substantial training periods in a professional environment (lawyers’ practices, companies, etc).
Observations by the delegation of Luxembourg:
Paras. 30 and 31: One can just about make a case for including these paragraphs in this section.
IV. In-service training
32. Quite apart from the basic knowledge they need to acquire before they take up their posts, judges are “condemned to perpetual study and learning” (see report of R. Jansen “How to prepare judges to become well-qualified judges in 2003”, doc. CCJE-GT (2003) 3).
33. Such training is made indispensable not only by changes in the law, technology and the knowledge required to perform judicial duties but also by the possibility in many countries that judges will acquire new responsibilities when they take up new posts: how, for example, can one become president of a court, with all the administrative tasks the post involves, when one has acquired only knowledge of the law during one’s studies and previous career?
34. While it is essential to organise in-service training, since society has the right to benefit from a well trained judge, it is also necessary to disseminate a culture of training in the judiciary.
35. The members of the CCJE considered it unrealistic to make in-service training compulsory in every case. The fear is that it would then become bureaucratic and simply a matter of form. The suggested training must be attractive enough to incite judges to take part in it, as participation on a voluntary basis is the best guarantee for the effectiveness of the training. This should also be facilitated by ensuring that every judge is conscious that there is a moral and ethical duty to maintain and update his or her knowledge.
Observations by the delegation of Luxembourg:
See above the comment on paragraph 16. I would say “It is unrealistic to make…”.
36. The CCJE therefore considers:
i. that the in-service training should not be compulsory and should be based on the voluntary participation of judges;
ii. that there should be a compulsory in-service training only in exceptional cases, for example when a judge takes up a new post of particular functions, or in the event of fundamental changes in legislation;
iii. that training programmes should be drawn up by the authority responsible for initial and in-service training and by judges themselves;
iv. that those programmes, implemented by the same authority, should focus on legal or other issues concerning the duties performed by judges and correspond to their needs (see paragraph 26 above);
v. that the courts themselves should encourage their members to attend in-service training courses;
vi. that the authority and programmes should take place and encourage an environment, in which members of different branches and levels of the judiciary may meet and exchange their experience and achieve common insights;
vii. that, if training is a duty for judges, member states also have a duty to make available to judges the financial resources, time and other means necessary for in-service training.
Observations by the delegation of the United Kingdom:
ADD NEW PARA. 36 (renumbering subsequent paras.): I think that (i) we could perhaps mirror in the context of continuous training the idea of training with other professions mentioned in para. 30; and that (ii) we can and should in any event encourage continuous training to apply to all levels of the judiciary and, whenever feasible, to involve the presence of different levels of the judiciary at the same sessions with the opportunity of exchange of views between them. This is a healthy approach, which assists to break-down hierarchical tendencies, to keep all levels of the judiciary informed of each other’s problems and concerns, and to promote a cohesive judiciary. I would therefore suggest a new paragraph along these lines:
“The CCJE also encourages in the context of continuous training collaboration in relation to matters of common interest (e.g. new legislation) with other legal professional bodies responsible for continuous training. It further stresses the desirability of arranging continuous judicial training in a way which embraces all levels of the judiciary. Whenever feasible, the different levels should all be represented at the same sessions, giving the opportunity for exchange of views between them. This assists to break-down hierarchical tendencies, keeps all levels of the judiciary informed of each other’s problems and concerns, and promotes a more cohesive and consistent approach throughout the judiciary.”
V. Assessment of training
37. In order continuously to improve the quality of judicial training, the organs responsible for training should conduct frequent assessments of programmes and methods. An important role in this process should be played by opinions expressed by all participants to training initiatives, which may be encouraged through appropriate means (answers to questionnaires, interviews).
38. While there is no doubt that performance of trainers should be monitored, the evaluation of the performance of participants in judicial training initiatives may be more easily disputed.
39. The CCJE notes that training of judges may be truly fruitful if their free interaction is not influenced by career considerations; on the other hand, it is necessary that trainees’ performance be assessed in those systems in which judges are recruited among inexperienced university graduates and initial training is part of the recruitment process.
40. In view of the above, the CCJE recommends:
i. that training programmes and methods should be subject to frequent assessments by the organs responsible for judicial training;
ii. that, in principle, participation of judges training initiatives should not be subject to qualitative assessment; their participation in itself, objectively considered, may however be taken into account for professional evaluation of judges;
iii. that quality of performance of trainees should nonetheless be evaluated, if such evaluation is made necessary by the fact that, in some systems, initial training is a phase of the recruitment process.
VI. The European training of judges
41. Whatever the nature of their duties, no judge can ignore European law, be it the European Convention on Human Rights or other Council of Europe Conventions, or if appropriate, the Treaty of the European Union and the legislation deriving from it, because they are required to apply it directly to the cases that come before them.
42. In order to promote this essential facet of judges’ duties, the CCJE considers that member states, after strengthening the study of European law in universities, should also promote its inclusion in the initial and in-service training programmes proposed to judges.
Observations by the delegation of Luxembourg:
I would end this paragraph as follows: “…should also promote its inclusion in the initial and in-service training proposed to judges, with particular reference to its practical applications in day-to-day work.”
43. It also recommends reinforcing the European network for the exchange of information between persons and entities in charge of the training of judges (Lisbon Network), which would provide the promotion of training on matters of common interest and comparative law and that this training should cater for instructors as well as the judges themselves. It is obvious that the functioning of this Network can be effective only if every member state supports it, notably by establishing an entity responsible for the training of judges, as set out in section II above, and if there is paneuropean co-operation in this field.
Observations by the delegation of Luxembourg:
3rd line: I would say “provides” rather than “would provide”, as I assume there is no doubt on this subject.
2nd sentence: This strikes me as being so obvious as to be superfluous. In any case, reinforcement is already recommended in the first sentence of this paragraph.
Observations by the delegation of Italy:
I would prefer to keep the second sentence of paragraph 43, although I am aware it is somewhat obvious, as Mr. Wiwinius noticed. However, some specific elements are not already contained in the first sentence (the need of more support by States, the need that States establish Training institutions).
44. Furthermore, the CCJE considers that the co-operation within other initiatives aiming at bringing together the judicial training institutions in Europe, in particular within the European Judicial Training Network, would effectively contribute to the harmonisation of the programmes and the methods of training of judges on the whole continent.
Observations by the delegation of the United Kingdom:
5th line: I suggest that this reads “the greater coordination and harmonisation ….”.
General remarks by the delegation of Italy:
1. I share all of Mr. Wiwinius' very useful comments, with the only (limited) exceptions as hereunder. I will not comment on the style of the draft (as a matter of fact, I think that, in the CoE practice, it is possible for a WG to prepare a draft using expressions "fore-telling" the views of the plenary; but if we do not want to do that, no problem...).
2. I wonder if we should include a more detailed statement or recommendation concerning training supporting change of judicial functions (from civil to criminal, or vice versa, but also to labor, social court, etc.; the French is - I think - "reconversion"); we just mentioned the possibility that it be mandatory. Maybe we can do that in November.
The training of trainers (part to be inserted after Chapter V of the present Opinion)
One of the keys to the success of in-service training sessions is the standard of the further training courses offered, and this standard depends on not only the relevance to judges of the topics proposed but also the personality of the trainers.
These trainers should be chosen from among the best in their profession and carefully selected by the body responsible for training, taking into account their knowledge of the subjects being taught and their teaching skills.
Training should be given by either practising professionals or a body of specialist trainers (for example, judges on detached training duties). In the latter case, however, the detachment should be for a relatively brief period (for instance, three years) so that the trainers do not lose touch with developments in the profession, brought about in particular by changes in legislation.
Training methods should be determined and reviewed by the training authority, and there should be regular meetings for trainers to enable them to share their experiences and improve their approach.
In addition, trainers should be assessed, not only during the consideration of applications for the post of trainer, but also after every training session, drawing on the comments made by the course participants.
Observations by the delegation of Luxembourg:
Training of trainers: I feel that some of the points made duplicate the section “authority responsible for training”. Would it not be preferable to incorporate them into that section?
The last paragraph duplicates the end of paragraph 37 and the beginning of paragraph 38.
APPENDIX V
DRAFT REVISED SPECIFIC TERMS
OF REFERENCE OF THE CCJE FOR 2004 ET 2005
LEGAL CO-OPERATION
Specific Terms of Reference
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:
- 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 CCJE has the task of contributing in 2004 and 2005 to the implementation of the framework global action plan for judges in Europe, in particular by:
a. adopting an opinion in 2004 for the attention of the Committee of Ministers on fair trial within a reasonable time and judges’ role in trials, taking account of alternative dispute resolution methods;
In this connection, the CCJE will consider the following points which appear in the framework global action plan for judges in Europe:
- case management (see Part II e of the action plan),
- judges’ role in trials (see Part III C a of the action plan),
- the use of alternative dispute resolution methods;
This work will be carried out on the basis of replies by delegations to a questionnaire, the results of the European Conference of Judges (Strasbourg, 24-25 November 2003), a report prepared by a specialist and a draft opinion prepared by the Secretariat and revised by the Working Party of the CCJE in 2004;
b. adopting an opinion in 2005 for the attention of the Committee of Ministers on justice and society;
In this connection, the CCJE will consider the following points which appear in the framework global action plan for judges in Europe:
- the educational role of the courts in a democracy, relations with the public (see Part V b of the action plan),
- relations with all those involved in court proceedings (see Part V c of the action plan),
- accessibility, simplification and clarity of the language used by the courts in proceedings and decisions (see Part V d 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 Secretariat and revised by the Working Party of the CCJE in 2005,
c. preparing, for the attention of the Committee of Ministers, a report containing detailed proposals on the revision of the CCJE’s previous opinions. If necessary, this report will include relevant draft texts for updating the opinions. This work will be carried out by a working party in 2004 and in 2005 and will be finalised by the CCJE;
d. ensuring proper implementation of the CCJE’s opinions with a view to assisting States to comply with Council of Europe standards concerning judges (eg 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 European Commission and the General Secretariat of the Council of the European Union may take part in the work of the CCJE, but without the right to vote or to reimbursement of expenses.
c. The following Council of Europe observers may send a representative to meetings of the CCJE but without the right to vote or to reimbursement of expenses:
- Holy See,
- United States of America,
- Canada,
- Japan,
- Mexico.
d. 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,
- the association “Magistrats européens pour la démocratie et les libertés” (MEDEL).
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) and its Group of Specialists on Judicial Standards (CJ‑S‑JU), 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.
7. Duration:
These terms of reference expire on 31 December 2005.
DRAFT SPECIFIC TERMS OF REFERENCE OF THE
GROUP OF SPECIALISTS ON JUDICIAL STANDARDS (CJ-S-JU)
1. Name of Committee:
GROUP OF SPECIALISTS ON JUDICIAL STANDARDS (CJ-S-JU)
2. Type committee:
Group of specialists
3. Source of terms of reference:
European Committee on legal co-operation (CDCJ)
4. Terms of reference:
Under the authority of the European Committee on legal co-operation (CDCJ), the Group of Specialists on judicial standards (CJ-S-JU) has the task of examining the opinions prepared by the Consultative Council of European Judges (CCJE) and the Conclusions of the European Conference of Judges on the theme “Early settlements of disputes and the role of judges” (November 2003, Strasbourg) in order to consider the need to prepare or update international legal instruments to contribute to and strengthen the work of the Council of Europe and its member States for the purpose of consolidating the role of judges and the Rule of Law. The CJ-S-JU will, where appropriate, make proposals for provisions to be included in such legal instruments. It will examine and make proposals in particular concerning:
- the possible updating of Recommendation No. R (94) 12 on the independence, efficiency and the role of judges;
- the rules applicable to judicial responsibility.
5. Membership of the Committee:
a. The Group shall be composed of 7 specialists in the above-mentioned issues to be appointed by the Secretary General in consultation with the Chair of the CDCJ;
b. The travel and subsistence expenses of the specialists will be borne by the budget of the Council of Europe;
c. The European Commission and the General Secretariat of the Council of the European Union may take part in the work of the CJ-S-JU, but without the right to vote or to reimbursement of expenses;
d. The following observers may send representatives, without the right to vote or defrayal of expenses:
- the European Association of Judges (AEM);
- the Association “European Judges for Democracy and Liberties” (MEDEL).
6. Working structures and methods
a. In order to discharge its functions, the Group may seek the advice of external experts, members of the CCJE and have recourse to studies by consultants;
b. the Group will complete the above terms of reference in not more than two meetings and will report to the CDCJ or its Bureau at the end of each meeting;
7. Duration
The terms of reference shall expire on 31 December 2004.
OoO
APPENDIX VII
The CCJE, which I presently have the honour to chair, was formed as a result of a meeting of Ministers of Justice of member States of the Council of Europe in Chisinau in 1999. We are a unique legal council of judges from the different member States of the Council of Europe. We have observers from judges’ associations and countries as distant as Canada, Japan and Mexico. We are an advisory body with the role of preparing opinions for the Committee of Ministers on issues relating to the independence, impartiality and competence of judges. The aim is to strengthen the role of judges in Europe. We are asked to work in co-operation with other bodies, such as the European Committee on Legal Co-operation (CDCJ).
We first met in November 2000, when I was elected chairman. We reached agreement on a Framework Global Action Plan for judges in Europe, listing topics for study which were subsequently approved by you. We have pursued these subjects in one plenary meeting each year and up to two working party meetings. Our working methods include the submission of questionnaires to our members on the topics to be studied, the study of their answers, the instructing of independent experts in each field, and the preparation of drafts for discussion in their light. We have decided in the light of experience that the most fruitful procedure is to discuss the issues generally at the first working party meeting, and for one or two of our own members to prepare the first draft thereafter.
Our agenda, our work and copies of the opinions which we have prepared can be found on the Council of Europe website, www.coe.int (by taking the path Legal Affairs, Legal Co-operation, Legal Professionals, Judges, CCJE and then “more”). We have so far studied the following topics:
in 2001:
1. Independence of the judiciary and the irremovability of judges
2. Funding and management of courts
in 2002:
3. Judicial ethics and responsibility.
in 2003:
4. Judicial training.
The proposals which we shall be making to you for next year fall under the heading of “Fair Trial within a reasonable time”, which is closely related to article 6 of the European Convention on Human Rights. They will include, more specifically, case management and the judge’s role in legal proceedings. We also contemplate keeping under review and deepening some of the work we have already done in previous years.
Our work so far done has proved very topical. In our first opinion on Independence, we addressed the rationale of judicial independence, the level at which it should be guaranteed, the objective, non-political basis on which judges should be appointed and promoted, the nature of the appointing and promoting bodies, the requirements of secure tenure, the subjects of irremovability, discipline and remuneration and of freedom from undue influence of either an external or an internal (e.g. hierarchical) nature.
We commended the general tendency to introduce High Councils of the Judiciary or Judicial Boards, with powers in matters such as appointments, promotions and judicial training and standards. We wanted to strengthen the move in this direction in the new democracies. Our first opinions were, for example, considered and reflected in provisions in the new Lithuanian law on judiciary enacted a year ago. Recent developments in the United Kingdom have, with the intended abolition of the Lord Chancellor’s role, shown the considerable relevance of the principles we highlighted to more traditional systems.
We also underlined the importance for national systems of international courts and the integrity of their judicial systems of the principles identified in relation to national judiciaries. We had in mind the need for objective appointment systems and for security of tenure. We suggested in the latter connection that single, non-renewable terms were to be preferred to shorter, renewable terms. Confidence in international courts and their composition is a fundamental pre-condition for continued loyalty to their decisions. I refer to our Opinion No. 1 at paragraphs 54-56 (cf the CCJE website, above).
Our work in relation to the constitutional aspects of independence led to me as Chairman being asked to address the Venice Commission on the subject earlier this year, and for it to be agreed that there was scope for joint work on future constitutional issues affecting the judiciary. Arising from my chairmanship, I have also been asked to report as an expert on the terms of service of the Judges of the European Court of Human Rights.
In the CCJE’s opinion on funding, we stressed the link between the requirement on courts to decide cases within a reasonable period and the need for proper funding, facilities and support; and we recommended procedures to enable courts’ views to be made known to Parliament, when agreeing any budget covering the judicial system. The topic is again closely linked with article 6 of the Convention, and the need to ensure improvement of domestic standards, which in turn should ultimately impact on the relentless increase in the workload of the European Court of Human Rights in Strasbourg.
In the course of addressing the issue of ethics in 2002, we were consulted by the UN Special Rapporteur on Judicial Independence, Param Cumaraswamy. We made suggestions for re-drafting in relation to the Bangalore project for a world-wide statement of judicial ethical principles. Our suggestions were fruitful, as a reader of the two versions set out in our 2002 report will see. They even included the change of the name of the instrument from a Code to Principles, and the removal of any direct link between failure to follow the Principles and disciplinary offences. The thinking was that the Principles should represent best practice to which all judges should aspire, not minimum standards.
There has also been significant spin-off at the national level. For example, our opinion and the Bangalore Principles have influenced the work of a committee set up in France to develop a set of Principles, which my Vice-President, Alain Lacabarats, has been asked to join. They have been considered by a similar English committee, with which I am in contact. I have been asked to speak to Commonwealth countries on the topic in Melbourne last April, and next week the Foreign Office and former LCD have asked me to join overseas mission, which has the subject on its agenda.
We also considered the extent to which judges should incur any personal liability, be it criminal, civil or disciplinary in connection with their exercise of their functions. The CCJE is very conscious of the problems of corruption faced in some countries, but considered that, apart from such cases and cases of willful default, judges should not face criminal or civil liability, although there should be effective disciplinary systems before a court or other independent body, with a right of appeal.
Earlier this year, we held a conference in Portugal in conjunction with the High Council of the Portuguese Judiciary on this year’s topic of judicial training, following a working party meeting. The CCJE is now preparing for a conference in November on the subject of Early settlement of litigation – the judges’ role, which links with the topic which we shall propose for study next year.
We have recently heard that the CDCJ is establishing a small group of experts, to seek to reduce points which we have made in our Opinions, particularly Nos. 1 and 3, into the form of specific proposals for amendment of Council of Europe instruments such as Recommendation No. R (94) 12. We will co-operate with this group to this end.
All the members of the CCJE have found its work stimulating and useful. As you would expect from judges, not only are we able to express our opinions, but there are often different viewpoints, and we consider our involvement in the CCJE personally very valuable. If Europe is to be a reality - if its legal systems are to function properly and in co-ordination - then the exchange of information and experience that the CCJE offers is a crucial part of the secret. So we believe that our work has already shown value at the international and national level, and we consider that it has contributed to better understanding between judges of different member states. We are confident that it will continue to do so. Thank you for listening to me.
[1] Was present at the 4th meeting of the CCJE-GT (Strasbourg, 7-8 April 2003) /
Etait présent à la 4ème réunion du CCJE-GT (Strasbourg, 7-8 avril 2003).
[2] Was present at the 5th meeting of the CCJE-GT (Strasbourg, 8-10 July 2003) /
Etait présent à la 5ème réunion du CCJE-GT (Strasbourg, 8-10 juillet 2003).
[3] Was present at the 4th meeting of the CCJE-GT (Strasbourg, 7-8 April 2003) /
Etait présent à la 4ème réunion du CCJE-GT (Strasbourg, 7-8 avril 2003).
[4] Was present at the 5th meeting of the CCJE-GT (Strasbourg, 8-10 July 2003) /
Etait présent à la 5ème réunion du CCJE-GT (Strasbourg, 8-10 juillet 2003).
[5]The observations on the draft opinion sent by the delegations following the written process are marked in yellow/grey.