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Strasbourg, 7 November 2006 CCJE-GT (2006) 6 REV
WORKING PARTY OF THE
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE-GT)
Report of the 10th and 11th meetings
Bucharest (Romania), 22-24 March 2006
Nicosia (Cyprus), 21-23 June 2006
Secretariat Memorandum
prepared by the Directorate General I – Legal Affairs
At its meetings, the CCJE-GT:
- considered the reports of the specialists and agreed to divide the draft opinion initially envisaged into two: Opinion No. 8 (2006) on the application of international and European law by national courts and Opinion No. 9 (2006) on the role of judges in dealing with the threat of terrorism (see part II of this report);
- prepared a draft report on measures to ensure that proper use was made of CCJE opinions (see part IV of this report);
- discussed the preparation of the 3rd European Conference of Judges (see part V of the report);
- considered and took a position on the request from the Slovenian Association of Judges concerning legislation that would reduce judges’ salaries (see part VII of this report);
- held a working session with Romanian judges on the recruitment of judges (see part III and Appendix V of this report);
- held a working session at the Supreme Court of Cyprus with members of the judiciary on the theme “the judge and the international law” (see part III and Appendix VI of this report).
I. INTRODUCTION
1. The Working Party of the Consultative Council of European Judges (CCJE-GT) held its 10th meeting from 22 to 24 March 2006 in Bucharest (Romania) and its 11th meeting on 21 – 23 June 2006 in Nicosia (Cyrus) with Ms Julia Laffranque (Estonia) in the Chair. The lists of participants of these two meetings appear in Appendix I to this report. The respective agendas appear in Appendix II to this report.
2. The CCJE-GT thanked Mr Mihai SELEGEAN, Director of Romania’s National Institute of Magistrates, for inviting it to Bucharest for its 10th meeting and Mr Stelios NATHANAEL for inviting it to Nicosia for its 11th meeting. It praised the comfortable working conditions and the warm welcome from its hosts.
3. 4. The CCJE-GT delegations expressed satisfaction that at the Ministers' Deputies’ 956th meeting on 15 February 2006, the Committee of Ministers had approved the CCJE’s terms of reference for 2006 and 2007 and that at the 957th meeting on 1 March 2006, it had taken note of the abridged report of the CCJE’s 6th meeting and of Opinion No. 7 (2005), to which it had also given its support. It also welcomed the Committee of Ministers’ decision to hear the Chair of the CCJE and noted that the date of the hearing would be arranged by the CCJE secretariat in consultation with the Committee of Ministers secretariat and the Chair of the CCJE.
4. They noted that the 75th meeting of the Bureau of the European Committee on Legal Co-operation (CDCJ) on 9-10 February 2006 had examined the action plan to follow up opinions of the CCJE prepared by the European Commission for the Efficiency of Justice (CEPEJ) and Observations No. 1 (2005) of the CCJE concerning this plan. They welcomed the CDCJ Bureau’s statement that account should be taken of CCJE observations when the action plan was implemented, particularly in connection with the updating of Recommendation R(94)12 on the independence, efficiency and role of judges.
5. The CCJE-GT also welcomed the decision of the CDCJ Bureau to promote CCJE opinions and its proposal to invite heads of delegation to report on the dissemination of these opinions in their countries and indicate how they could contribute to making good use of them.
6. The CCJE-GT welcomed also the setting up of the Consultative Council of European Prosecutors (CCPE) and expressed its wishes that an exchange of views could be organised in the near future to define precisely the bridges which could be established between both bodies.
7. The CCJE-GT noted that its secretarial function would henceforth be the responsibility of the Division for the Judiciary and Programmes (see also part VIII g below).
II. DRAFT OPINION ON: The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism
8. The CCJE-GT noted that there were certain differences between the version of the CCJE terms of reference for 2006 and 2007 approved by the Committee of Ministers and the one adopted by the CCJE at its 6th meeting. In particular, they concerned the title of the opinion to be adopted in 2006 and the list of participants invited to take part in the work.
9. In accordance with the CCJE’s decision (see CCJE (2005) 36, part IX), the secretariat had sent CCJE delegations, members and observers the questionnaire on the theme “the role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”, approved by the CCJE at its 6th meeting (see CCJE (2005) 29 Rev.).
10. The CCJE-GT noted that only twenty-eight countries had replied to the questionnaire and thought that all the members should be encouraged to participate actively in the CCJE’s work. The Romanian delegation noted that its reply had not been included in the working documents and invited the secretariat to rectify this.
11. Based on the answers to the questionnaire and their own experience, the CCJE specialists on this subject, Mr Daniel FRANSEN, judge at the Brussels Court of First Instance in Belgium, and Mr Jacek CHLEBNY, judge of the Administrative Supreme Court of Poland, had prepared reports for the CCJE-GT (see Appendices III and IV of this report). The working party expressed appreciation of the work carried out by the specialists in such a short time and thought that their reports formed a good basis for discussion.
12. Mr CHLEBNY outlined his report and pointed out that the questionnaire did not deal with the duties of administrative judges in the context of terrorism. He therefore proposed that delegations be sent an additional questionnaire to fill this gap. In view of the short time available to draft the opinion, the proposal was not accepted. However, CCJE-GT decided to include in its opinion the issues related to administrative law.
13. Mr FRANSEN said that his report had focussed on how criminal judges responded to the threat of terrorism. He referred in particular to the difficulties they encountered when such cases were being investigated.
14. The Chair of the CCJE presented the preliminary draft opinion he had drawn up with the Deputy Chair. The CCJE-GT delegations thought that this document would be a useful basis for discussion on the main points to be raised in the next opinion. Since it was a discussion document, it was decided not to append it to the report of the meeting.
15. After considering the preliminary draft, the CCJE-GT concluded that there was too much material for a single opinion and agreed to divide the one initially envisaged into two: Opinion No. 8 (2006) on the application of international and European law by national courts and Opinion No. 9 (2006) on the role of judges in dealing with the threat of terrorism, the exact titles to be determined later.
16. CCJE-GT considers that Opinion No. 8 (2006) should be concerned with the role of the judge in interpreting domestic law in accordance with international conventions and standards. It should include an explicit reference to conventions.
17. Turning to Opinion No. 9 (2006), the CCJE-GT emphasised that every act of terrorism was a challenge to the rule of law and that it was therefore imperative for judges to defend fundamental democratic values. The opinion should cover two fields: criminal law (Recommendation (2005) 10, international mutual assistance, enforcement measures such as detention and special courts, and so on) and administrative law (Recommendation (2004) 20, Article 13 of the European Convention on Human Rights, access to administrative documents and so on). A distinction should be made between measures to prevent terrorism and responses to terrorist acts.
18. During its 10th meeting, it was decided that, for its 11th meeting :
- Ms Laffranque would prepare the preliminary draft opinion on judges and international law;
- a drafting group made up of Mr LACABARATS, Mr MALLMANN, Mrs LAFFRANQUE, Mr SABATO and Mr O’HIGGINS would prepare the one on the role of judges in the contexte of the terrorist threat;
- Mr VALANCIUS would also send his own proposals concerning the second opinion;
- the Secretariat would draft short introductions to the two opinions.
19. At its 11th meeting, the CCJE-GT examined the two following preliminary draft opinions:
- Opinion n°8 : "The role of national judges in ensuring an effective application of international and European law and a genuine co-operation with international judicial institutions” (Document CCJE-GT (2006) 8) ;
- Avis n°9 : "The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism” (Document CCJE-GT (2006)15),
and drafted some amendements to them. Moreover, the Working group decided to reverse the numbering of both Opinions.
20.The Working Group agreed to finalise both texts, in cooperation with the Secretariat, during the summer before sending them to the CCJE members and to the CAHDI and the CDDH, for their opinions, in accordance with the provisions of its terms of reference, as well as to the CODEXTER.
21. It was agreed that at the plenary meeting of the CCJE, which would take place on 8 - 10 November 2006, the CCJE-GT members having participated in the drafting of both opinions would introduce some parts on the following way :
- Opinion of terrorism : Mr Sabato, Mr Mallmann, Mr Lacabarats and Mr Nathanael;
- Opinion on international law: MsLaffranque, Mr Sabato, Mr Lacabarats and Mr Afonso.
This presentation was considered as necessary in particular because the choice of having two opinions was not foressen in the ermes of reference for 2006.
Mr O’Higgins was entrusted to proof the English version of both draft opinions.
22. Morevore, it was suggested that, for the future, the CCJE tries to draft shorter and more foscused Opinions. It was also proposed to envisage an updating of the existing opinions so as to improve their impact in the states.
III. WORKING SESSIONS IN ROMANIA AND IN CYPRUS
A. WORKING SESSION IN ROMANIA ON THE RECRUITMENT OF JUDGES
23. The CCJE-GT thanked the Romanian authorities – the National Institute of Magistrates (NIM), the National Council of Justice (NCJ) and the Ministry of Justice – for the confidence they had shown in convening this working session on the recruitment of judges, as part of the Romanian chairmanship of the Committee of Ministers, and for the excellent way it had been organised. It expressed its appreciation of the importance of judges’ selection for the functioning of the judicial system and it welcomed the Romanian judicial authorities’ plans to reform the judicial recruitment process.
24. At the opening session, the President of the NCJ said that the criteria for selecting Romanian judges had been revised in collaboration with European experts and both the Constitutional Court and the Court of Cassation took account of them in their practice. The Council would consider the conclusions of the working session with a view to reforming the recruitment system for ordinary jurisdictions.
25. The Council of Europe Director of Legal Co-operation referred to the principles drawn up by the Council of Europe within the Organisation intended to preside over the selection and recruitment of judges in member states. He referred to Recommendation (94) 12 on the independence, efficiency and role of judges, the European Charter on the Statute for Judges and relevant CCJE opinions.
26. The President of the Court of Cassation emphasised that maintaining judicial standards in Romania was the task of the NIM, which was legally responsible for selecting and training candidates for judicial posts.
27. The Romanian Government’s Agent at the European Court of Human Rights said that competent national judges were essential for the proper application of the European Convention on Human Rights and that the quality of their work contributed to the improvement of human rights protection in the country and helped to reduce the Strasbourg court’s workload. She also told participants that the Minister for Foreign Affairs, the current Chair of the Committee of Ministers, had sent them a message of welcome and had expressed interest in their proceedings.
28. The Secretary of State at the Ministry of Justice and the Administrative Counsellor of the President of the Republic have also stated the importance attached to the reform of the judges’ recruitment system in view of improving the protection of individual rights in the country.
29. In the debate that followed the presentations (see the programme appended to the report), participants tried to respond to a number of questions:
- Who were the targets for recruitment and what was their profile?
- What candidate qualities and skills should the entry competition set out to assess?
- What form should the training take: who should do the training and in what areas? Professional or academic training?
- What sort of tests should candidates have to sit: academic or professional, written or oral?
- What recruitment methods were used in member states: competitive examinations (internal, external, other), professional examinations? Did such competitions offer access to jobs or a training establishment?
- What European standards existed in this area?
30. A lively discussion ensued on whether psychological tests should be introduced to assess candidates’ aptitude for judicial posts. No agreement was reached, but it was argued that any final decision on recruitment should be preceded by some form of practical experience to test if the candidates would not happen to be unsuited, psychologically or in other respects, for the judicial function.
31. At the end of the proceedings, the participants approved the conclusions, which would be forwarded to the NCJ and the Ministry of Justice.
32. The conclusions and the programme of the working session appear in Appendix V of this report.
33. The CCJE-GT welcomed the active participation in the proceedings of some thirty Romanian judges, most of them from the courts of appeal, and the high level of debate. It noted that the proposal to involve the CCJE directly in the national debate on judicial recruitment was fully consistent with the terms of reference of CCJE, to “provide practical assistance to enable states to comply with Council of Europe standards concerning judges”.
B. WORKING SESSION IN CYPRUS ON THE JUDGE AND INTERNATIONAL LAW
34. At the invitation of the Supreme Court of Cyprus, the members of the CCJE-GT met with the judicial community of Cyprus on 22 June 2006 to introduce the main works of the CCJE and discuss the administration of justice and human rights.
35. The President of the Supreme Court, Mr Christos ARTEMIDES, introduced the evolution of the judicial system of Cyprus and the subsequent main issues vis-à-vis the context of international law and in particular the recent membership of Cyprus to the European Union. His presentation was completed by several judges: Mr NICOLATOS as regards "legal system, administration of justice and human rights ", Mr HADJIHAMBIS and Mr NICOLAOU on the specificities of the legal and judicial system in Cyprus and Mr CONSTANTINIDES and Mr ELIADES on the administration of justice. All these contributions have been published in a specific document available at the Secretariat of the CCJE.
36. Responding to these contributrions, the President of the CCJE, Mr Raffaele SABATO, introduced the main worjking axis of the Commission. A very rich discussion followed the formal presentations, involving the judges, prosecutors, lawyers and representatives of NGOs as well as the members of the CCJE.
37. The CCJE-GT considers that joint meetings between the CCJE and the national courts in different member states should continue and be developed. They allow CCJE to acquire a better understanding of the situation at the relevant place, which in turn makes it better equipped to prepare opinions, and they were also a very effective means of familiarising domestic courts with Council of Europe judicial standards.
IV. PREPARATION OF A REPORT ON MEASURES TO ENSURE THAT PROPER USE IS MADE OF CCJE OPINIONS
38. Under its terms of reference for 2006 and 2007, the CCJE is instructed “to prepare, 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” (see CCJE (2006) 26, item 4c).
39. In reply to the Chair of the CCJE-GT, delegations recalled the steps they had taken individually (already described at the CCJE’s November 2005 plenary meeting) to publicise and apply the recommendations in CCJE opinions (see CCJE (2005) 36 part V c).
40. After discussion, the CCJE-GT decided that the report that the CCJE was required to prepare should cover:
- the role of associations having CCJE observer status in publicising its opinions and securing acceptance of its recommendations;
- the need for institutional measures (such as contacts with high councils of justice, Ministers of Justice and other bodies concerned by opinions);
- what steps the Committee of Ministers should take to familiarise member states with CCJE opinions;
- the establishment of a system to monitor member states’ implementation of CCJE opinions.
41.During its 10th meeting, it was decided that, for its 11th meeting, the President and Vice-President of the CCJE would prepare a daft report. Therefore the CCJE-GT examined this draft report in its Nicosia meeting and drafted some amendments to it. The Secretariat was entrusted to finalise the draft report to be submitted to the plenary meeting in November.
V. PREPARATION OF THE 3rd EUROPEAN CONFERENCE OF JUDGES
42. The CCJE-GT considered Mr LACABARATS’ report of his meeting of 17 February 2006 with the steering committee of the European Network of Councils for the Judiciary (ENCJ)[1] on the preparations for the 3rd European Conference of Judges. He noted that the meeting had confirmed that the ENCJ was interested in taking part in the third conference, which the CCJE proposed to hold in 2007, since the effective implementation of the principle of judicial independence had now become an important issue in numerous countries. The CCJE had chosen this theme as being closely linked to the subject of the opinion it would be preparing in 2007.
43. The CCJE-GT fully supported Mr LACABARATS’ statement at The Hague that the ENCJ would only be collaborating in the conference, since the drafting of an opinion on the Superior Council of the Judiciary was exclusively a CCJE responsibility.
44. In response to the proposal made at that meeting to establish a task force of CCJE and ENCJ members to draft a questionnaire on the structure and responsibilities of Superior Council of the Judiciary or their equivalent for the purposes of the conference, the CCJE-GT appointed Mr LACABARATS and Mr AFONSO to represent it. Mr AFONSO, who attended the annual meeting of the ENCJ in Wroclaw, Poland (25 – 26 May 2006) confirmed the great interest of the Network for a partnership with the CCJE as regards the organisation of the Conference. The Secretariat proposed to organise a meeting of this Task Force in Paris on 25 October 2006.
45. The CCJE-GT discussed whether it was appropriate to draw up one questionnaire for conference purposes and another to meet the needs of the CCJE’s within the framework of its 2007 opinion (see part VI) and decided it preferable to confine itself to the latter, since too many questionnaires could adversely affect response rates.
46. Mr LACABARATS undertook to prepare a document explaining the choice of conference theme, in response to the steering group’s request for such an explanation. This would then be sent by the Secretariat to the ENCJ.
47. It was noted that it would only be possible to hold the 3rd European Conference of Judges if the Committee of Ministers made the necessary funds available. Mr SABATO informed that and invitation for holding the Conference in Rome was due to be addressed to the CCJE by the Italian High Conuncil of Justice.
VI. PREPARATION OF THE QUESTIONNAIRE ON THE SUBJECT FOR CONSIDERATION IN 2007
48. Under its terms of reference for 2006 and 2007, the CCJE is instructed to “adopt an opinion in 2007 for the attention of the Committee of Ministers on the structure and role of the Judicial Service Commission or another equivalent independent 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”.
49. It was decided that the Chair of the CCJE-GT would prepare a draft questionnaire that would serve as the basis for drawing up a draft opinion. The draft questionnaire would be submitted to Mr LACABARATS and Mr REISSNER for comment. It would be amended to take account of these comments and then forwarded by the Secretariat to CCJE-GT delegations in time for consideration at the next meeting, in June 2006.
50. The CCJE-GT instructed the secretariat to identify a specialist to assist it in drawing up the draft opinion scheduled for 2007. It also asked for the draft questionnaire to be submitted to this specialist for his or her comments before its next meeting.
51. The Secretariat also undertook to send the draft questionnaire to the Venice Commission for possible comments before the next meeting of the CCJE-GT.
VII. REQUEST FROM THE SLOVENIAN ASSOCIATION OF JUDGES
52. The CCJE-GT noted that the Vice-President of the Slovenian Association of Judges had written to the Chair of the CCJE on 14 April 2006 with a request to act as amicus curiae in the following context.
53. The Slovenian Parliament had recently passed two laws (Law on the System of Salaries in the Public Sector and Law on the Judicial Service) and adopted a Parliamentary Decree (Decree on salaries of civil servants) with the effect of implementing the first part of a reform of the civil servants’ remuneration system. The Slovenian Association of Judges had expressed the opinion that the above-mentioned instruments were not compatible with the Slovenian Constitution, nor with international standards, as they reduced the salaries of judges. The Slovenian Association of Judges had informed the CCJE that the Association and individual judges in Slovenia had challenged the constitutionality of the above mentioned instruments before the Constitutional Court of the Republic of Slovenia[2], that on 9 March 2006 the Court had granted a provisional suspension of the enforcement of the challenged instruments, and that a public hearing was scheduled for 13 April 2006.
54. Upon the request of the Chair of the CCJE, the issue was discussed by the CCJE-GT during its 10th meeting. Further to this discussion, the CCJE-GT expressed the following views:
i) The CCJE-GT considered that judges’ associations played a relevant role in the protection of judicial independence and of professional interests of judges[3]; through their groupings operating at the European level, judicial associations also enjoyed observer status to the CCJE and were entitled as such to participate in the CCJE’s activities[4]. Since the Slovenian Association of Judges was part of the European framework of judicial associations, the CCJE-GT considered that the Slovenian Association of Judges was entitled to request discussion of the above issue by the CCJE. In connection with this, the CCJE considered that information should be provided to those European associations of judges that enjoyed observer status to the CCJE.
ii) Having regard to the fact that the CCJE was required to “provide practical assistance to member states to comply with Council of Europe standards”[5], the CCJE-GT expressed the availability of the CCJE for any co-operation or consultation on the above issues that any authority of the Republic of Slovenia might deem appropriate.
iii) The CCJE-GT considered, at this stage, that the Slovenian Association of Judges could take note of the following observations and submit them to the relevant authorities of that member state:
a. Recommendation (94) 12 of the Committee of Ministers of the Council of Europe to member states on the Independence, Efficiency and Role of Judges provided that judges’ “remuneration should be guaranteed by law” and “be commensurate with the dignity of their profession and burden of responsibilities”[6];
b. The European Charter on the Statute for Judges recognised the role of adequate remuneration in shielding judges from pressures;
c. The CCJE’s Opinion No. 1 (2001) on Standards Concerning the Independence of the Judiciary and the Irremovability of Judges, while fully supporting the European Charter’s statement, underlined that it was “generally important (and especially so in relation to new democracies) to make specific legal provision guaranteeing judicial salaries against reduction and to ensure at least “de facto” provision for salary increases in line with the cost of living”[7];
d. Changes in the level of compensation of judges must be deemed to affect, from an economic point of view, their status and career. In this respect, the CCJE-GT wished to recall that – in line with the provision of the European Charter on the Statute for Judges – the CCJE’s Opinion No.1 (2001) on Standards Concerning the Independence of the Judiciary and the Irremovability of Judges recommended that every decision relating to a judge’s career should involve the independent body responsible for the protection of judicial independence;[8] a similar recommendation had also been made in the field of court funding in its Opinion No.2 (2001) on the Funding and Management of Courts with Reference to the Efficiency of the Judiciary and to Article 6 of the ECHR[9].
55. The CCJE-GT instructed the Secretariat to send the Vice-President of the Slovenian Association of Judges a letter of reply reflecting these points.
VIII. OTHER BUSINESS
a) Co-operation with the Steering Committee on the Media and New Communication Services (CDMC)
56. The CCJE-GT considered the report of the second meeting of the CDMC (CDMC(2005)028), in particular paragraph 68, which considered the CCJE proposal to produce a European Declaration on relations between justice and the media. It noted that the CDMC proposed to prepare a text of a general nature on relations between public authorities and the media.
57. The CCJE-GT noted that as a distinct branch of state authority, the judiciary had specific problems in its dealings with the media and had a particular role to play in relations with them (see conclusions of the 2nd European Conference of Judges on “Justice and the media”, Cracow, 2005) and could not therefore be placed on the same basis with other public authorities.
58. The CCJE-GT therefore renewed the CCJE’s proposal to draft, in collaboration with the CDMC, a European Declaration on the relations between justice and the media, in accordance with the conclusions of the 2nd European Conference.
b) Judicial partnership between courts, judges and associations of judges
59. The CCJE-GT took note of the message sent to the CCJE by Mrs PIOTROWSKA, the Polish member of the CCJE, who wanted exchanges to be established between judges of the court of Katowice in Poland and ones from other European cities, in particular Vienna in Austria and Seville in Spain.
60. Although its terms of reference required the CCJE to encourage judicial partnerships between courts, judges and associations of judges, it acknowledged that nothing concrete had so far been done to carry out this task. Moreover, CCJE-GT considers that the implementation of all the terms of reference of the CCJE will only be possible on condition that the Committee of Ministers would approve the required financing, in particular for providing the funds necessary to cover the interpretation cost for the exchange of ideas in the field of the judiciary.
61. The CCJE-GT therefore asked at its 10th meeting Mr REISSNER to consider the possibilities of such a partnership and prepare a background, in consultation with Mrs PIOTROWSKA, of how such an activity might be organised, in time for its next meeting. M. REISSNER prepared for the 11th meeting a document named " Judicial partenrship between courts, judges and associations of judges"; because of the lack of time available, the CCJE-GT agreed to examine this document at the 7th plenary meeting of the CCJE.
c) Request for CCJE observer status
62. The CCJE-GT noted that the Groupement européen des magistrats pour la médiation (GEMME – European group of mediation judges) had submitted a request to the Chair of the CCJE to be granted observer status with the CCJE. Following a formal request, and after having examined the Statute of GEMME, this request would be examined by the CCJE at its 7th plenary meeting, in accordiance with the procedure provided for by Resolution Res(2005)47 of the Committee of Ministers.
d) General Assembly of the European Network of Councils for the Judiciary (ENCJ)
63. The CCJE-GT welcomed the invitation made to the Chair of the CCJE to attend the ENJC General Assembly in Wrocław (Poland) on 25-26 May, on the theme “Public confidence in Europe’s independent judicial system”. It appointed Mr AFONSO to represent it at the Assembly.
e) Judicial situation in Italy and Portugal
64. The CCJE-GT noted that in both Italy and Portugal, the judicial reforms planned by their respective governments might infringe the principle of judicial independence. It was agreed to re-examine this issue at the 7th plenary meeting of the CEPEJ.
65. The Portuguese member of the CCJE invited the CCJE-GT to consider holding a meeting in his country in the near future, as part of its duty to assist member states.
f) Communication between members of the CCJE-GT
66. The CCJE-GT instructed the secretariat to draw up a list of the e-mail addresses of its members and send it to each of them, to facilitate their contacts between meetings. The list should be regularly updated.
g). Secretariat of the CCJE
67. The Director of Legal Co-operation informed the CCJE-GT that the secretarial function of the CCJE would henceforth be the responsibility of the Division for the Judiciary and Programmes, which also provided the secretariat of the CEPEJ.
68. Answering to questions, the Director said that there would be no confusion between the two bodies and neither would be subordinate to the other. The CCJE and the CEPEJ would each retain its specific status, role and responsibilities.
69. In the other hand, having the two secretariats in the same division would enable both bodies, and particularly the CCJE, to benefit from economies of a scale that would lead to better results, above all in terms of communication and management of the web site. The division’s staffing had in fact recently been strengthened, following a restructuring ordered by the Secretary General and thanks to additional funding for applying the Summit Action Plan.
70. All necessary steps would be taken to ensure that the changes to the Secretariat would not interfere with work under way or scheduled for the rest of the year.
71. The CCJE-GT offered its warm thanks to Ms WISNIEWSKA-CAZALS, who had given the CCJE competent and effective assistance in its work ever since it was established in 2000.
h) Communication tools of the CCJE
72. The Secretariat informed the Working Group that Ms Sandrine MAROLLEAU had been recruited within the Secretariat, entrusted with the specific development of the communication tools of the CCJE, and namely its Web site. A new CCJE web site CCJE, more friendly using and more complete would be presented to the Council at its 7th plenary meeting and would be on line by mid-November.
73. The Working group expressed the wish that a genuine communication policy be developed as regards the work of the Council, in particular through press releases and web information on the Council of Europe's site.
74. The Secretariat is entrusted to prepare a press release when the CCJE opinion on terrorism is adopted. The Secretariat is alsio entrusted by the wWorking group to set up a data base on the fora in judicial issues at European levalwhich might be of interest for a cooperation with the CCJE.
APPENDIX I
LIST OF PARTICIPANTS OF THE 10th MEETING
AUSTRIA/ AUTRICHE
Mr Gerhard REISSNER, Judge, Bezirksgericht Floridsdorf, VIENNA
CYPRUS/ CHYPRE
Mr Stelios NATHANAEL, Judge, District Court, NICOSIA
CZECH REPUBLIC/ REPUBLIQUE TCHEQUE
Mr Robert FREMR, Judge, Supreme Court, PRAGUE
ESTONIA / ESTONIE
Mrs Julia LAFFRANQUE, Judge, Supreme Court, TARTU (Vice-Chair of the CCJE/Vice-Présidente du CCJE)
FRANCE
M. Alain LACABARATS, Directeur du Service de Documentation et d'Etudes de la
Cour de Cassation, PARIS
GERMANY / ALLEMAGNE
Mr Otto MALLMANN, Judge, Federal Administrative Court, LEIPZIG
IRELAND / IRLANDE
Mr Kevin O'HIGGINS, Judge, High Court, DUBLIN
ITALY/ ITALIE
Mr Raffaele SABATO, Judge, Tribunal de NAPLES, (Chairman of the CCJE-GT / Président du CCJE-GT)
LITHUANIA / LITUANIE
Mr Virgilijus VANLANČIUS,President of the Supreme Administrative Court, VILNIUS
NORWAY / NORVEGE
Mr Nils Absjorn ENGSTAD, Judge, Halogaland Court of Appeal, TROMSØ
PORTUGAL
Mr Orlando AFONSO, Judge, Cour d’Appel d’EVORA, ALMADA
ROUMANIA / ROUMANIE
Mrs Rodica Aida POPA, Judge, High Court of Justice and Cassation, BUCHAREST
“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” / “L’EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE”
Mrs Aneta ARNAUDOVSKA, Judge, Basic Court of Skopje, SKOPJE
SPECIALISTS / SPECIALISTES
Mr Jacek CHLEBNY, Judge, High Administrative Court, WARSAW
M. Daniel FRANSEN, Juge d’instruction, Tribunal de première instance, BRUXELLES
COUNCIL OF EUROPE’S SECRETARIAT /
SECRETARIAT DU CONSEIL DE L’EUROPE
Mr Roberto LAMPONI, Director of Legal Co-operation, Directorate General I - Legal Affairs / Directeur de la coopération juridique, Direction Générale I - Affaires Juridiques
Mme Danuta WIŚNIEWSKA-CAZALS, Administrative Officer, Secretary of the CCJE, Directorate General I - Legal Affairs / Administratrice, Secrétaire du CCJE, Direction Générale I - Affaires Juridiques
Mrs Yoni STOJANOVA, Assistant, Department of Private Law, Directorate General I - Legal Affairs / Assistante, Service du droit privé, Direction Générale I - Affaires Juridiques
INTERPRETES / INTERPRETES
Mme Maria Eladia AGUILERA-FREEMANN
Mme Claudine PIERSON-VISCOVI
***
LIST OF PARTICIPANTS OF THE 11th MEETING
AUSTRIA/ AUTRICHE
Mr Gerhard REISSNER, Judge, Bezirksgericht Floridsdorf, VIENNA
CYPRUS/ CHYPRE
Mr Stelios NATHANAEL, Judge, District Court, NICOSIA
CZECH REPUBLIC/ REPUBLIQUE TCHEQUE
Mr Robert FREMR, Judge, Supreme Court, PRAGUE
ESTONIA / ESTONIE
Mrs Julia LAFFRANQUE, Judge, Supreme Court, TARTU (Vice-Chair of the CCJE/Vice-Présidente du CCJE)
FRANCE
M. Alain LACABARATS, Directeur du Service de Documentation et d'Etudes de la
Cour de Cassation, PARIS
GERMANY / ALLEMAGNE
Mr Otto MALLMANN, Judge, Federal Administrative Court, LEIPZIG
IRELAND / IRLANDE
Mr Kevin O'HIGGINS, Judge, High Court, DUBLIN
ITALY/ ITALIE
Mr Raffaele SABATO, Judge, Tribunal de NAPLES, (Chairman of the CCJE-GT / Président du CCJE-GT)
LITHUANIA / LITUANIE
Mr Virgilijus VANLANČIUS,President of the Supreme Administrative Court, VILNIUS
NORWAY / NORVEGE
Mr Nils Absjorn ENGSTAD, Judge, Halogaland Court of Appeal, TROMSØ
PORTUGAL
M. Orlando AFONSO, Judge, Cour d’Appel d’EVORA, ALMADA
ROUMANIA / ROUMANIE
Mrs Rodica Aida POPA, Judge, High Court of Justice and Cassation, BUCHAREST
“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” / “L’EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE”
Mrs Aneta ARNAUDOVSKA, Judge, Basic Court of Skopje, SKOPJE
SPECIALISTS / SPECIALISTES
Mr Jacek CHLEBNY, Judge, High Administrative Court, WARSAW
M. Daniel FRANSEN, Juge d’instruction, Tribunal de première instance, BRUXELLES
COUNCIL OF EUROPE’S SECRETARIAT /
SECRETARIAT DU CONSEIL DE L’EUROPE
Mr Roberto LAMPONI, Director of Legal Co-operation, Directorate General I - Legal Affairs / Directeur de la coopération juridique, Direction Générale I - Affaires Juridiques
Mr Stéphane LEYENBERGER, Secretary of the CCJE, Directorate General I - Legal Affairs / Administratrice, Secrétaire du CCJE, Direction Générale I - Affaires Juridiques
Mrs Muriel DECOT, Co-Secretary of the CCJE, Directorate General I - Legal Affairs / Administratrice, Co-Secrétaire du CCJE, Direction Générale I - Affaires Juridiques
APPENDIX II
AGENDA OF THE 10th MEETING (Bucharest, 22-24 March 2006) /
ORDRE DU JOUR DE LA 10e REUNION (Bucarest, 22-24 mai 2006)
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 report prepared by specialist and the answers to the questionnaire - of an explanatory document on "The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism", in order to prepare a draft opinion on this topic / Elaboration, sur la base du rapport préparé par le spécialiste et des réponses au questionnaire, d’un document explicatif sur le thème : « Le rôle du juge et l’équilibre entre la protection de l’intérêt public et des droits de l’homme, dans le contexte du terrorisme », en vue de l’élaboration d’un projet d’avis sur ce même thème
Working documents / Documents de travail
Reports prepared by Mr Daniel FRANSEN, Investigating Judge, Tribunal of first instance of Brussels (Belgium) and Mr Jacek CHLEBNY, President of the Regional Administrative Court in Warsaw (Poland) / Rapports établis par M. Daniel FRANSEN, Juge d’instruction, Tribunal de première instance de Bruxelles (Belgique) et M. Jacek CHLEBNY, Président de la Cour Administrative Régionale à Varsovie (Pologne)
CCJE-GT (2006)3
CCJE-GT (2006)5
Questionnaire on "The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism" / Questionnaire sur le thème : « Le rôle du juge et l’équilibre entre la protection de l’intérêt public et des droits de l’homme, dans le contexte du terrorisme »
CCJE (2005) 29 Rev
Answers to the questionnaire provided by national delegations / Réponses au questionnaire fournies par les délégations nationales :
« The Former Yugoslav Republic of Macedonia »/ « l’ex République yougoslave de Macédoine »
CCJE (2006)1
English only/anglais seulement
Luxembourg
CCJE (2006)2
French only/français seulement
Moldova
CCJE (2006)3
French only/français seulement
Bulgaria/Bulgarie
CCJE (2006)4
English only/anglais seulement
Cyprus/Chypre
CCJE (2006)5
English only/anglais seulement
Monaco
CCJE (2006)6
French only/français seulement
Turkey/Turquie
CCJE (2006)7
English only/anglais seulement
Slovenia/Slovénie
CCJE (2006)8
English only/anglais seulement
Hungary/Hongrie
CCJE (2006)9
French only/français seulement
Spain/Espagne
CCJE (2006)10
French only/français seulement
Iceland/Islande
CCJE (2006)11
English only/anglais seulement
Norway/Norvège
CCJE (2006)12
English only/anglais seulement
Lithuania/Lituanie
CCJE (2006)13
English only/anglais seulement
Azerbaijan/Azerbaïdjan
CCJE (2006)14
English only/anglais seulement
Hungary/Hongrie
CCJE (2006)15
English only/anglais seulement
Japan/Japon
CCJE (2006)16
English only/anglais seulement
Croatia/Croatie
CCJE (2006)17
English only/anglais seulement
Switzerland/Suisse
CCJE (2006)18
French only/français seulement
France
CCJE (2006)19
French only/français seulement
Latvia/Lettonie
CCJE (2006)20
English only/anglais seulement
Czech Republic/République Tchèque
CCJE (2006)21
English only/anglais seulement
Denmark/Danemark
CCJE (2006)22
English only/anglais seulement
Albania/Albanie
CCJE (2006)23
English only/anglais seulement
Slovakia/Slovaquie
CCJE (2006)24
English only/anglais seulement
Estonia/Estonie
CCJE (2006)25
English only/anglais seulement
Poland/Pologne
CCJE (2006)27
English only/anglais seulement
United Kingdom/Royaume Uni
CCJE (2006)28
English only/anglais seulement
Germany/Allemagne
CCJE (2006)29
English only/anglais seulement
Romania/Roumanie
CCJE (2006)30
English only/anglais seulement
Background document / Document de référence
Report of the 6th meeting of the Consultative Council of European Judges (CCJE) (Strasbourg, 23-25 November 2005) / Rapport de la 6e réunion du Conseil Consultatif de Juges Européens (CCJE) (Strasbourg, les 23-25 novembre 2005)
CCJE (2005) 36
Proceedings of the multilateral meeting on « The judge and international law » (Bucharest, 28-30 November 1995) / Actes de la réunion multilatérale sur “Le juge et le droit international” (Bucarest, 28-30 novembre 1995)
Conclusions of the 2nd meeting of the Lisbon network on « The training of judges on the application of international conventions » (Bordeaux, 2-4 July 1997) / Conclusions de la 2e réunion du Réseau de Lisbonne sur « La formation des magistrats à l’application des conventions internationales » (Bordeaux, 2-4 juillet 1997)
Themis3 (Bordeaux.97). Concl
5. Election of the drafting group to prepare a preliminary draft opinion on « The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism » / Election du groupe de rédaction chargé d’élaborer un avant-projet d’avis sur le thème : « Le rôle du juge et l’équilibre entre la protection de l’intérêt public et des droits de l’homme, dans le contexte du terrorisme »
6. Working session with the Romanian judges on recruitment of judges1 / Session de travail avec les juges roumains sur le recrutement des juges1
Information note / Note d’information
Programme of the working session in Bucharest, 23 March 2006 / Programme de la session de travail à Bucarest, le 23 mars 2006
CCJE-GT (2006) 2
Background documents / Documents de référence
National Institute of Magistracy of Romania / Institut National de la Magistrature de Roumanie
CCJE-GT (2006) RO 1
English only/anglais seulement
National legislation / Législation nationale
CCJE-GT (2006) RO 2
English only/anglais seulement
7. Exchange of views on the content of a report for the attention of the Committee of Ministers on the measures to be taken in order to make proper use in member states of the opinions given by the CCJE / Echange de vues sur le contenu d’un rapport à l’attention du Comité des Ministres sur des mesures à prendre afin d’assurer un bon usage des avis émis par le CCJE dans les Etats membres
Background documents / Documents de référence
Terms of reference for the CCJE for 2006 and 2007 / Mandat du CCJE pour 2006 et 2007
CCJE (2006) 26
Structures and working methods of the CCJE / Structures et méthodes de travail du CCJE
CCJE (2005) 30
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
________________________________
1Thursday, 23 March 2006, 9.30 am – 5.30 pm / Jeudi, 23 mars 2006, 9h30 - 17h30
Message from the Committee of Ministers to the Committees involved in intergovernmental co-operation at the Council of Europe / Message du Comité des Ministres aux comités oeuvrant dans le cadre de la coopération intergouvernementale du Conseil de l’Europe
CCJE (2005) CM Message
8. Exchange of views on preparation for the 3rd European Conference of Judges /Echange de vues sur les travaux préparatoires à la 3e Conférence européenne des juges
► Report by Mr Alain LACABARATS / Rapport par M. Alain LACABARATS
9. Exchange of views on the preparation of the draft questionnaire on the topic to be examined by the CCJE in 2007 / Echange de vues sur la préparation du questionnaire sur le thème à traiter par le CCJE en 2007
Background document / Document de référence
Terms of reference for the CCJE for 2006 and 2007 / Mandat du CCJE pour 2006 et 2007
CCJE (2006) 26
10. Exchange of views on item 13.d of the report of the 2nd meeting of the CDMC / Echange de vues sur le point 13.d du rapport de la 2e réunion du CDMC
Background document / Document de référence
Report of the 2nd meeting of the CDMC / Rapport de la 2e réunion du CDMC
CDMC (2005) 028
11. Any other business / Divers
AGENDA OF THE 11th MEETING (Nicosia, 21-23 June 2006) /
ORDRE DU JOUR DE LA 11e REUNION (Nicosie, 21-23 juini 2006)
1. Opening of the meeting
Ouverture de la réunion
2. Adoption of the agenda
Adoption de l’ordre du jour
Working documents/Documents de travail
Draft agenda/Projet d’ordre du jour
CCJE-GT (2006) OJ2
Social Programme/Programme social
3. Introduction of the Secretariat/Information by the President of the CCJE, the President of the CCJE-GT and the Secretariat
Présentation du Secrétariat/Informations par le Président du CCJE, la Présidente du CCJE-GT et le Secrétariat
4. Finalisation of the draft Opinion No.8 (or Opinions No. 8 and 9)
Finalisation du projet d’Avis n°8 (ou des projets d'Avis n° 8 et 9)
Working documents/Documents de travail
Draft Opinion No.8/ Projet d’avis n°8
Draft Opinion No.9/ Projet d’avis n°9
Working documents/Documents de travail
Comments on draft opinions No. 8 and No. 9 of Ms A. Arnaudovska/
Commentaires sur le projet d’avis n°8 et n°9 de Mme A. Arnaudovska
CCJE-GT (2006) 10 (English only)
Comments on the draft opinions Nos. 8 and 9 of Mr S. Nathanael/
Commentaires sur les projets d’avis n° 8 et 9 de M. S. Nathanael
CCJE-GT (2006) 9 (English only)
Contribution of Mr S. Nathanael on paragraph 9 of draft opinion No.9/
Contribution de M. S. Nathanael sur le paragraphe 9 du projet d’avis n°9
CCJE-GT (2006) 12 (English only)
Contribution of Mr O. Mallmann on draft opinion No.9/
Contribution de M. O. Mallamann sur le projet d’avis n°9
CCJE-GT (2006) 14 (English only)
Reports prepared by Mr Daniel FRANSEN, Investigating Judge, Tribunal of first instance of Brussels (Belgium) and Mr Jacek CHLEBNY, President of the Regional Administrative Court in Warsaw (Poland)
Rapports établis par M. Daniel FRANSEN, Juge d’instruction, Tribunal de première instance de Bruxelles (Belgique) et M. Jacek CHLEBNY, Président de la Cour Administrative Régionale à Varsovie (Pologne)
See Appendix of Bucharest meeting report CCJE-GT (2006)6/
Voir Annexe du rapport de la réunion de Bucarest CCJE-GT (2006)6
Questionnaire on "The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism"
Questionnaire sur: "Le rôle du juge et l’équilibre entre la protection de l’intérêt public et des droits de l’homme, dans le contexte du terrorisme"
5. Preparation of a report for the attention of the Committee of Ministers on the measures to be taken in order to make proper use in member states of the opinions given by the CCJE
Préparation d’un rapport à l’attention du Comité des Ministres sur des mesures à prendre afin d’assurer un bon usage des avis émis par le CCJE dans les Etats membres
Working document/Document de travail
Draft report/Projet de Rapport
CCJE-GT (2006) 16
6. Preparation of the 2007 working programme and, in particular of the 3rd European Conference of Judges
Préparation du programme de travail 2007 et, en particulier, de la 3ème Conférence européenne des juges
§ Discussion on programme, location and date of the Conference
Discussion sur le programme, le lieu et la date de la Conférence
§ Cooperation with the European Network of Councils for the Judiciary / Establishment of a possible Task Force between the CCJE and the ENJC
Coopération avec le Réseau européen des Conseils supérieurs de la magistrature / Etablissement d’une éventuelle Task Force entre le CCJE et le RECJ
Report of Mr O. AFONSO concerning his participation to the ENCJ 4th Annual Conference in Wroclaw
Rapport de M. O. AFONSO sur sa participation à la 4ème Conférence annuelle du RECJ à Wroclaw
§ Preparation of a draft questionnaire on the topic to be examined by the CCJE in 2007
Préparation du questionnaire sur le thème à traiter par le CCJE en 2007
Working documents/Documents de travail
Note on the Conference 2007 organised by the CCJE /
Note sur la Conférence 2007 organisée par le CCJE
Note prepared by the Secretariat concerning the organization of the Conference 2007/
Note préparée par le Secrétariat concernant l’organisation de la Conférence 2007
CCJE-GT (2006) 11
Draft questionnaire/
Projet de questionnaire
CCJE-GT (2006) 17 (English only)
Intervention of Mr Afonso in Wroclaw/
Intervention de M. Afonso à Wroclaw
Report of the ENCJ-WG “Mission and vision – Developing a strategy for the Council”
Rapport du ENCJ-WG “Mission and vision – Developing a strategy for the Council”
Anglais seulement
7. Exchange of views with the members of the Supreme Court of Cyprus and judges of district courts on "national judges and the application of international law"
Echange de vues avec les membres de la Cour Suprême de Chypre et des juges des tribunaux de district sur "le juge national et l'application du droit international"
Working document/Document de travail
Social Programme/Programme social
8. Communication strategy of the CCJE
Stratégie de communication du CCJE
9. Any other business
Divers
§ Partnership in the judicial field between courts, judges and judges associations
Partenariat dans le domaine judiciaire entre les tribunaux, les juges et les associations de juges
Working document/Document de travail
Report by Mr G. Reissner/
Rapport de M. G. Reissner
CCJE-GT (2006)…
(under preparation/en préparation)
§ Report of Mr O. AFONSO on his participation to the Conference on : « The Academy of Judges of Ukraine : future perspectives » (Kiev, 19-20 April 2006)
Rapport de M. O. AFONSO sur sa participation à la Conférence sur : «L’Académie des juges en Ukraine : perspectives futures » (Kiev, 19-20 avril 2006)
§ Co-operation with theSteering Committee on the Media and New Communications Services (CDMC)
Coopération avec le Comité directeur sur les médias et les nouveaux services de communication (CDMC)
§ State of justice in Italy, Portugal and Slovenia
Situation de la justice en Italie, Portugal et Slovénie
Background documents/Documents de référence
Report of the 6th meeting of the CCJE/Rapport de la 6ème réunion du CCJE
CCJE (2005) 36
Report of the 10th meeting of the CCJE-GT/Rapport de la 10ème réunion du CCJE-GT
CCJE-GT (2006) 6
Terms of reference for the CCJE for 2006 and 2007/Mandat du CCJE pour 2006 et 2007
Structures and working methods of the CCJE/Structures et méthodes de travail du CCJE
APPENDIX III
PRELIMINARY REPORT ON THE REPLIES
TO THE QUESTIONNAIRE ON
“The role of judges in striking a balance
between protecting the public interest and human rights
in the context of terrorism”
prepared by Daniel FRANSEN, judge at
the Brussels Court of First Instance (Belgium)
in co-operation with
Fabienne ROTTENBERG,
legal secretary at the
Brussels Court of First Instance (Belgium)
1. Preliminary remarks
Before beginning my examination of the states’ replies to the questionnaire on “the role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”, I feel I must make a few preliminary remarks.
1.1. I do not aspire to the status of “specialist” on terrorism that seems to have been attributed to me and would make even less of a claim to be an expert on the international law questions which are covered by the first and main part of the questionnaire. As an investigating judge, I run and take responsibility for investigations involving people suspected of taking part in “terrorist” activities. This means that the answers to the questionnaire have been analysed and used to prepare this report from my viewpoint as a field worker, confronted with terrorism every day.
1.2. The report is based on the procedural, factual and legal knowledge of a judge in the front line. It is not a specialist study of the legal principles, case-law and/or doctrine of the 25 states which replied.
1.3. It should be said that although our discussion is centred on terrorism in particular, only one of the four series of questions relates specifically to this problem. In spite of this, a determined attempt will be made to gear the report to this topical theme and focus primarily on this matter.
1.4. In view of the extremely short amount of time that has lapsed between my appointment and the date on which I was required to submit this report (less than a month), I do not intend it to be exhaustive. My sole aim is to make an initial contribution to the Working Party’s discussion, which could be added to later if it was felt necessary.
1.5. The working method adopted was as follows. Firstly, each reply is examined and summarised in the form of an outline of the main ideas, state by state. After this, the main trends are identified in the form of a synopsis fleshed out with a few personal comments and proposals. I would not claim that the latter are the absolute truth; they are merely possible lines of enquiry, designed above all to stimulate debate.
1.6. It should also be said that the national representatives did not always interpret the questions in the same way, and so their answers varied, reflecting the countries’ differing attitudes and cultures. Furthermore, some representatives did not answer all the questions. As a result, the report will not necessarily contain all the nuances and subtleties expressed by the respondents. This should not be seen as a value judgment on, or a lack of consideration or respect for, the different countries’ ways of thinking.
1.7. The order in which the answers were analysed was determined by the order in which the rapporteur received them and does not reflect any kind of order of precedence.
2. Examination and summary of the replies
2.A. Availability of information and documentation on all international legal instruments relevant to judicial activities
If a country’s judges are to be at home in a European and international context, that country must, beyond the uncertain substance of the iura novit curia principle, do everything to ensure that its judges can gain a full understanding of the relevant European and international reference texts, enabling them to perform their activities under the best possible conditions.
In this connection, it is important that appropriate initial and in-service training schemes should be run for judges on international subjects in both basic and specialist areas of knowledge. Judges should also have access to paper or electronic versions of legal instruments, so as to permit documentary research in the European and international legal spheres. Lastly, encouragement should be given to appropriate measures - including the allocation of grants - aimed at teaching judges foreign languages as part of their basic or specialist training and ensuring that each court has legal translation facilities, without any consequent increase in the length of proceedings.
Questions
2.A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.
The answers by the national delegations can be summarised as follows:
Bulgaria
The National Institute of Justice ensures that initial and in-service training for judges covers international and European law.
In 2005, 1065 of the 1750 Bulgarian judges had been given this type of training.
Moldova
Moldova’s legal service training college offers courses in international and European law, which are taught by professors from the Moldovan State University’s faculty of law.
In 2005, 300 of the 409 Moldovan judges had taken part in such courses.
Luxembourg
There are no particular schemes for specific training in these subjects.
However, during initial training for young judges (between five and ten a year), one morning on each training course is given over to classes in European law and human rights taught by specialists.
As far as in-service training is concerned, judges are entitled and encouraged to take part in seminars held by the French legal service training college in Paris and the Academy of European Law in Trier.
Every year about twenty of the 200 judges in the Grand Duchy of Luxembourg attend these courses.
Cyprus
Judges are not given any specific training in these areas but attend conferences and seminars held by bodies outside the Cypriot justice system (the Bar, the British Council, etc.)
Cyprus has 97 judges.
Spain
Initial training at the legal service training college in Barcelona includes courses, seminars and exchanges with other colleges, particularly with the French legal service training college.
140 students attend this college.
As to in-service training, various training courses are offered by the in-service training department and the international relations department of the General Council of the Judiciary.
Decentralised legal training courses are offered by the 17 high courts, the “Tribunales superiores de Justicia”, on working tools for mutual assistance in judicial matters.
There are other training opportunities on offer such as the Permanent Forum for European Judicial Studies, which is open to all European judges, and the European Judicial Training Network.
Spain has 812 ordinary judges, 81 judges in the Court of Cassation and 3,484 magistrates.
Norway
The Council for Professional Training of Judges (CPTJ) organises study trips to the Hague to visit the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice, Eurojust and Europol, and to Luxembourg and Strasbourg to visit the European Court of Human Rights, the European Court of Justice and the EFTA Court.
Twenty places are available to judges every year on a two-day course focusing mainly on European conventions and human rights.
Classes on the ECHR form part of the initial four-week training for new judges.
There are 500 judges in Norway.
Iceland
There is no regular training on these subjects but occasionally seminars are held.
Hungary
Since Hungary joined the European Union in 2004, Community law has been one of the subjects tested in legal service entrance examinations.
Ad hoc in-service training courses are offered according to needs linked to developments in law and case-law.
The Hungarian national legal service has 2,600 members .
Japan
The 3,266 judges in Japan receive training in international law, including European law, according to their needs.
In 2005, 127 new judges attended lectures on human rights.
Judges who take on management duties are also given training in human rights and international conventions on human rights (36 judges in 2005).
Monaco
There is no specific compulsory training in these subjects but it is possible for serving judges to attend optional training courses held once a year in co-operation with the French legal service training college, as well as lectures and conferences.
Slovenia
There is no training in these subjects.
However, “criminal district judges” do receive training in “custody orders” and international criminal law.
Turkey
Initial training for Turkish judges includes courses on the European Union covering European law.
In-service training comprises seminars on questions relating to international judicial co-operation on civil matters (100 places), an introduction to Community law (150 places) and international criminal law (150 places).
France
The national legal service training college (Ecole nationale de la magistrature) is responsible for training judges.
As part of judges’ initial training, it organises study days and specific courses on these subjects and exchanges and work placements abroad.
In-service training includes work placements, bilateral seminars and international exchanges of judges.
Switzerland
Switzerland has a federal system, meaning that there are 27 different judicial services (one federal and 26 cantonal).
There are no specific training courses for judges. There is, however, a foundation, which is responsible for in-service training.
Universities and bar associations regularly hold seminars on subjects including international and European law.
Croatia
Courses on European law are available to serving judges and are provided by the legal service training college (the “Judicial Academy”) or the Supreme Court, sometimes with the assistance of governmental or non-governmental foreign partners.
About 200 judges out of the total of 1800 have taken part in these courses.
Azerbaijan
The Law Education Centre (Ministry of Justice) is responsible for judges’ initial and in-service training in Azerbaijan. This training includes courses on the ECHR, the International Convention against Torture, etc.
In 2005, 60 of the 329 judges attended these courses, which can be said to be decentralised as they are also held outside the capital.
Lithuania
The Judicial Council and the Ministry of Justice are responsible for judges’ training.
The long-term training programme adopted in 2002 covers European law and the case-law of the European Court of Human Rights.
Questions relating to international law disputes are also covered in the courses on civil and criminal law.
Annual programmes are drawn up on the basis of the long-term programme. They comprise 18 different courses including one on European law. All judges must attend at least one training course every five years.
The Ministry of Justice and the supreme courts hold international training courses in co-operation with foreign partners. In 2005, four such training courses were held.
Initial training does not cover international or European law but these subjects are tested in the professional entrance examination for judges.
In 2006, 100 of Lithuania’s 727 judges will attend training courses on EU law.
“The former Yugoslave Republic of Macedonia”
There is no system of initial training.
In-service training is provided by the Centre for Continuing Education (CCE), which is run by the Judges’ Association of the Republic of Macedonia (MJA).
Establishing a legal service training college is one of the priorities of Macedonia’s judicial reform strategy.
Courses are taught by foreign or local experts. Numerous seminars are held, particularly on European law-related subjects.
Czech Republic
The legal service training college (Judicial Academy) offers specialist training in international and European law for serving judges and in the form of additional training for trainee judges.
Denmark
Courses on these subjects form part of judges’ initial training, which they must pass to enter the profession.
Judges can also take part voluntarily in courses given by the ”Court Administration” or other institutions. There are no specific courses in international or European law for judges but these subjects are covered in general courses.
Italy
The legal service training college is responsible for judges’ initial and in-service training and provides training in international and European law.
Latvia
The ”Court Administration” is responsible for training judges, and its training programmes include courses on European law.
This institution also encourages judges to attend international conferences and seminars and take part in international work exchange programmes.
Initial training includes courses on “international and European public law”, on which there are five places for trainee judges.
In-service training relates primarily to humanitarian law, the application of European legal standards and European labour law.
Judges are also entitled to attend activities and courses organised by the Judges’ Training Centre.
There are a total of 382 judges.
Albania
The initial training programme includes international and European law courses, as well as conferences and seminars and the possibility of a visit to the European Court of Human Rights.
There is also an in-service training programme for serving judges.
There are 360 judges.
Slovak Republic
A national education plan for judges is drawn up by the Ministry of Justice in co-operation with the legal service training college (the Judicial Academy) then approved by the Judicial Council.
Seminars on criminal aspects of the ECHR and its case-law are held, as well as specialist seminars on international and European law.
50 judges out of a total of 1260 are allowed to attend each seminar.
United Kingdom
Judges have practical experience and are accomplished lawyers who will inevitably have some knowledge of European and international law.
Nonetheless, it is the role of the Judicial Studies Board (JSB), which is chaired and run by judges, to identify training needs arising from European legislation, to participate in the European Judicial Network and to arrange for judges to participate in its activities as well as those of other European institutions.
There is also a considerable amount of legal literature on European and human rights law written by academics, practitioners and other judges and to which judges have access through court libraries or, in some cases, their own collections.
2.A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).
The main points made in the delegations’ answers are as follows:
Bulgaria
Judges do not receive full information on recent legislation and case-law at European or international level.
However, they do have access to legal databases installed on their computers, which contain international treaties, conventions and other instruments and a special section on the European Union.
Judges also have access to the Internet.
Some courts have their own library, giving judges a further source of documentation in addition to what they received during their training.
Moldova
Judges are sent free copies of the Moldovan official gazette (Monitorul Oficial), in which treaties, conventions and international agreements to which Moldova is a party are published.
They also have electronic access to documents through the electronic version of the gazette, Moldlex, which includes judgments of the European Court of Human Rights, information on judicial practice and news on academic legal developments.
Judges also have access to the Internet.
Luxembourg
All judges are sent paper copies of new European regulations on civil and criminal judicial co-operation and leading decisions of the European Court of Human Rights in Strasbourg and the European Court of Justice in Luxembourg.
Judges are also regularly reminded of the existence of Internet sites containing international documents.
Cyprus
Judges receive the Cyprus Official Gazette and court libraries receive books on subjects including European law.
Internet access costs are covered by the state.
Spain
All judges periodically receive full information on recent legislation and case-law at the European and international levels, making it unnecessary for them to perform their own research in these matters.
Every quarter the General Council of the Judiciary sends each judge updated information and documentation about legislation and case-law, on CD or DVD, via the Judicial Documentation Centre with the assistance of the Autonomous Communities and the Ministry of Justice.
Many judges are connected to the Internet and have access to legal libraries.
Judges can also use the Prontuario (a handbook of the most frequently asked questions and answers in areas including international judicial co-operation, conventions, information on institutions and contact details). The Prontuario is also available in an electronic version. It is updated quarterly.
Norway
No information on international legislation or case-law is distributed, although there are specialised periodicals which deal with the subject.
Judges have access to the Internet.
Iceland
This type of information is not distributed.
Hungary
Every judge receives the official gazette, which contains recent key decisions by the Hungarian Supreme Court but also by the European Court of Justice and the European Court of Human Rights.
The Supreme Court has a separate office providing information for judges on Community law.
Judges have access to the Internet.
Japan
No special measures are taken to distribute international legislation and case-law to judges.
Judges have access to the Internet (Westlaw).
Monaco
The palace library contains legal reviews on European and international law and judges have access to the Internet.
Slovenia
Judges do not receive information on recent international legislation and case-law. They are expected to conduct their own research.
There is no official gazette covering such subjects but certain legal reviews address them.
Turkey
A weekly periodical sent to judges contains domestic legislation and case-law and recent decisions of the European Court of Human Rights. This information is available on paper and in electronic form.
Switzerland
The Federal Gazette and the Official Collection of Federal Law, published by the Federal Chancellery of the Swiss Confederation, contain all the statutes adopted by the Federal Parliament as well as all international conventions ratified by Switzerland.
Judges have an automatic subscription to these publications and they can also be consulted on the Federal Chancellery Internet site.
Croatia
Judges can consult the case-law of the European Court of Human Rights in publications by the legal service training college.
They are expected to do their own research but they do have access to sources of international law and case-law via the Internet.
Azerbaijan
Judges have access to the paper versions of the official collections of legislation and the case-law of the country’s main courts.
Other legal literature including collections of the decisions of the European Court of Human Rights is regularly published and sent to judges with the help of international organisations.
Lithuania
Judges do not receive such information unless it is distributed by courts themselves. For example, the Supreme Administrative Court has subscribed at its own cost to the Official Journal of the European Union and also receives the Digest of Community Case-Law as a result of its bilateral contacts with the European Court of Justice.
“The former Yugoslave Republic of Macedonia”
Judges do not receive full and up-to-date information on these subjects from the national authorities.
They are sent a copy of the official gazette and very few have access to the Internet.
Czech Republic
Information of this type is not sent regularly, but judges do receive monthly reports via the Internet on the instruments and case-law of the European Union, compiled by the Ministry of Justice. Internet access is free.
A part of all judges’ pay is earmarked for the purchase of their own documents. There are also numerous legal periodicals that can be consulted in court libraries.
The leading decisions of the European Court of Human Rights are presented and discussed at seminars.
Denmark
Judges do not receive full, up-to-date information on these subjects. The Ministry of Justice periodically produces a list including summaries of leading decisions of the European Court of Human Rights for the national courts. These lists can be consulted on the “Court Administration” intranet site.
Judges also have access to the Internet.
Italy
Not all judges receive a paper copy of the official gazette, which contains relevant national and European legislation, Constitutional Court decisions, etc, but a few copies are distributed to each court.
Judges’ attention is not drawn to new legislation or recent case-law. This is viewed as the judge’s own responsibility.
All judges have access to the Court of Cassation’s database and Internet site, which also contains European legislation and case-law.
Internet access is not available to every judge, for budgetary reasons. As a result, “conventional” research in libraries is common, as is the purchase of documents by judges out of their own pockets.
The Supreme Court distributes DVDs containing a summary of its case-law.
Latvia
The Latvian courts’ Internet site contains news, literature, legal glossaries and case-law summaries.
The division of the Ministry of Justice on the ECJ prepares and distributes ECJ case-law along with summaries, features, etc.
The Supreme Court’s case-law department gathers and distributes annotated information and studies including reviews of ECHR case-law.
In 2005, seminars on the use of the Internet as an information source were held for judges at the Supreme Court to teach them how to use this tool.
Albania
Only the official gazette is sent to judges. It sometimes contains information on recent European and international legislation.
All judges receive periodic information on the case-law of the European Court of Human Rights through the periodical “Human Rights in Europe”.
Information is not distributed in electronic form.
Slovak Republic
All judges receive the full collection of Slovakian law reports and have access to the Official Journal of the European Union and the case-law published in the “Judicial Review”. These documents are available on CD-ROM.
United Kingdom
It would be counter-productive if judges received full information on European and international legislation and case-law as they would be rapidly overwhelmed by the volume of information provided.
However, judges do receive JSB circulars and professional bulletins and journals relating to their particular fields of activity.
2.A.3. Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?
The replies by the delegations were, in substance, as follows:
Bulgaria
Foreign language courses are not provided free of charge or subsidised, but judges are entitled to attend language courses at their own expense.
All courts have lists of interpreters.
All documents produced in court must be accompanied by an official translation into Bulgarian.
Moldova
Language courses are not provided free of charge or subsidised but nothing prevents judges from attending such courses.
Courts have their own Moldovan and Russian translators. For other languages, use can be made of free-lance translators where necessary.
Luxembourg
Luxembourg has three official languages – French, Luxemburgish (Letzeburgesch) and German.
The bar provides compulsory training in German and English terminology.
The courts do not have their own translation facilities but, where necessary, they may call on sworn translators.
Cyprus
No provision is made for foreign language training.
Each court has its own free translation facilities, especially in criminal cases.
Spain
Judges may attend foreign language courses subsidised by the General Council of the Judiciary and distance-learning courses.
Courts may ask the Autonomous Communities or the Ministry of Justice to translate legal texts.
Norway
Judges can attend free English classes organised by the Council for Professional Training of Judges (CPTJ).
Other language courses offered by bodies other than the CPTJ are not necessarily state-subsidised.
Courts do not have in-house translation facilities; they rely on outside services.
Iceland
There are no language courses for judges.
Use of an interpreter is provided for where needed, if the defendant or the accused is a foreigner.
Courts do not have their own translation facilities; they rely on outside services.
Foreign language documents produced in court must be translated.
Hungary
Fifty percent of the fees for French and English language courses are refunded by the state.
Japan
There are no language courses for judges or court translation facilities.
Monaco
Judges may attend free language courses given by the Civil Service Directorate.
Courts do not have in-house translation facilities but they may call on outside translators.
Slovenia
Judges are entitled to attend language courses but do not do so in practice. In principle, such courses should be free.
Courts do not have in-house translation facilities but, where necessary, they call on outside translators.
Turkey
Judges may attend language courses, some of which are free of charge and some of which are 60% subsidised.
Courts do not have in-house translation services but, where necessary, they call on sworn translators.
France
The legal service training college organises language courses for judges in France or abroad.
Switzerland
Language courses are provided by the Federal Court. Judges must pay only for their textbooks.
Judges are expected to master the two other most widely spoken national languages, in addition to their mother tongue.
The legal documentation service translates legal documents into French, German and Italian.
Croatia
Judges may attend language courses, paid for partly by the State and partly by themselves.
Courts do not have in-house translation facilities.
Azerbaijan
Interpreters and translators may be used at the court’s cost.
Judges are entitled to free language courses and such courses will be included in the initial training programme to be set up in due course.
Lithuania
Language courses (primarily English, French and German) form a part of judges’ training programmes and are provided for free by the state.
The higher courts sometimes organise language courses using their own funds.
Each court has its own interpreter/translator but his or her role is limited to interpreting during hearings and translating procedural documents.
In the lower courts, judges translate relevant documents themselves, whereas the Constitutional Court, the Supreme Court and the Supreme Administrative Court have special departments which meet translation needs.
“The former Yugoslave Republic of Macedonia”
French and English language courses are provided free of charge.
There are no court translation facilities.
Czech Republic
The legal service training college organises free language courses for judges (in English, French and German). In addition, most courts hold language courses in the workplace during office hours.
Only the Supreme Court has two qualified in-house legal translators.
Denmark
Judges have the opportunity to attend foreign language courses, which are free of charge.
Courts do not have their own translation facilities, which means that parties to proceedings must see to it that relevant documents are translated.
Italy
There are no in-house translation services and so interpreters and translators are called in on an ad hoc basis.
The legal service training college holds some language courses in partnership with the European Judicial Training Network (EJTN) but this has little impact in terms of numbers of participants.
At local level, foreign language courses are offered in judicial districts in co-operation with language schools. These courses are very successful. Some of the costs are refunded by the state as training costs and some are borne by the participants themselves.
Latvia
There are opportunities to attend English, French and German courses, most of which are partly or wholly state-subsidised.
Courts may authorise the use of a language other than the official language if all the parties agree.
Any party who does not speak the language being used in court may be assisted by an interpreter and speak in court in his or her own language.
Each court has its own Latvian-Russian interpreter but the “Court Administration” makes the necessary arrangements for other languages.
Albania
Judges may attend language courses on a private basis and at their own cost.
Only one or two courts have their own translation facilities.
Slovak Republic
Judges are able to attend foreign language courses given by the legal service training college.
Courts may also make use of interpreters during proceedings.
United Kingdom
There are no language courses. Even if the necessary funds were available, there are so few judges that they would not have the time to attend.
This does not prevent individual judges from improving their knowledge of foreign languages of their own accord. Where they do so, they are added to a list and they can be called on for assistance where necessary.
There are no in-house translation facilities but, where necessary, outside translators or interpreters are called in by the parties or, in criminal cases, by the prosecution.
2.A.4. Summary of the replies to questions 2.A 1 to 3
2.A.4.1. Changes in our societies and the internationalisation of links between individuals mean that it is no longer possible to confine legal relations within the borders of single countries. Private and commercial relations as well as criminal activities take place increasingly in a transfrontier context.
When such cases are referred to them, national courts cannot afford not to apply international legal rules, which are increasing in number and complexity.
Furthermore, the existence of international institutions and the development of international standards require national courts to take account of the increasing influence of these potential new sources of law when settling domestic disputes.
2.A.4.2. In order for domestic courts to deliver high-quality justice showing due regard for legal principles universally accepted by democratic states and hence for each individual’s interests, national judges must know these rules.
Most states agree with this and so they make an effort to train their judges and help them to perfect their knowledge of international law and the interpretation of these instruments by their natural judges, the various international courts.
2.A.4.3. The delegations’ replies show that they have differing approaches to the provision of this training and to promoting effective access for judges to international legislation, a good understanding of international law and, in general, good relations with international courts and domestic courts in other countries.
The replies seem to reveal three distinct trends where it comes to the provision of initial and in-service training on international and European law.
2.A.4.4. Some countries make provision for training of this type (Bulgaria, Moldova, Spain, Norway, France, Turkey, Croatia, Azerbaijan, Lithuania, the Czech Republic, “The former Yugoslave Republic of Macedonia”, Italy, Latvia, Albania and the Slovak Republic).
It is offered to judges exclusively or to all members of the national legal service through in-house legal service training facilities or by relevant Ministry of Justice departments, or a combination of the two.
This training consists for the most part of courses, seminars, conferences, study days and visits to the European courts.
However, it was not possible, save in a few cases, to determine whether these are general or specialised courses.
Other countries (Luxembourg, Cyprus, Monaco, Switzerland) do not offer judges any specific training in international or European law themselves but do give them the opportunity to attend training of this sort offered by other bodies (universities, bar associations, foreign legal service training colleges, etc.).
Lastly, some countries (Iceland, Hungary, Slovenia) do not seem to have taken any particular measures to train judges in international and European law, although training of this sort does take place occasionally.
It should also be noted that some states do not offer any initial training of new judges in these subjects at all, relying on the assumption that they will have been covered by the university courses that have led them to a job in the legal service.
Lastly, only one country (Spain) made any reference at all to the European Judicial Training Network (EJTN) and the possibility for judges to attend the training it offers.
The low profile of the EJTN, and hence the lack of interest in it, is a reflection of what happens in practice.
2.A.4.5. With regard to the distribution of information and judges’ access to it, the replies show that, in many countries, judges are not systematically sent full and up-to-date information on international and European legislation and case-law.
In most cases, judges receive a paper copy or an electronic version of the country’s official gazette. However, save in exceptional circumstances (Moldova, Hungary, Switzerland, Albania …), these publications do not contain information on international law and case-law.
Some countries, though not many (Moldova, Luxembourg, Spain, Hungary, Turkey, Switzerland, the Czech Republic, Latvia, and the Slovak Republic), ensure nonetheless that their judges receive up-to-date and full information on new European and international legislation and case-law.
Even rarer are those countries (Spain, Hungary and Latvia …) in which judges receive information that has been processed and analysed on international and Community law.
On the other hand, in most countries, judges have access to the Internet and hence to the web sites of international and foreign institutions, on which they can conduct their own research.
2.4.A.6. Although the questionnaire did not address this matter, experience shows that, while knowledge of the legislation and case-law of international courts and tribunals is essential, neither should legal practitioners neglect domestic legislation.
International judicial co-operation and interaction between or even the joining of legal proceedings initiated in different countries, particularly in the field of terrorism, implies the direct impact of a national law on foreign proceedings, particularly as regards the lawfulness of evidence, respect for the rights of the defence, etc.
Furthermore, practical experience shows that terrorism, particularly international terrorism, cannot be approached exclusively from a legal viewpoint, as sound knowledge of the historical, sociological and political context in which terrorism occurs is essential for judges required to rule on this type of case. Consequently, it is worth asking whether any provision for specific training in these areas is made.
2.A.4.7. Even if judges have access to up-to-date, full and detailed information on recent European and international legislation and case-law, they do still have to understand such information.
As a result, a knowledge of common foreign languages is a key asset.
Here again, the replies to the questionnaire show quite distinct approaches.
Most countries (18 of the 25) provide foreign language training, which is generally free, although in some cases a financial contribution is required of the judges.
The most commonly taught languages are English, French and German.
2.A.4.8. Translation, on the other hand, seems to be less well provided for.
A distinction has to be made between translators and interpreters called on during proceedings pending in court and those employed for in-house translation of documents for judges.
In most countries, it seems to be guaranteed that the statements of anyone appearing in court will be translated by an interpreter, regardless of whether the court has its own interpreters or appoints outside interpreters according to its needs. It does seem after all that the right to express oneself in one’s own language in court is considered a fundamental right.
On the other hand, provision is rarely made (Spain, Supreme Court of the Czech Republic …) for the translation of documents which do not have to be produced in court (such as documentation and international and foreign legislation). This makes it all the more important for judges to have a minimum knowledge of the languages in which international instruments are usually drafted and/or for the international bodies themselves to provide several language versions of such texts.
2.B. Dialogue between national and European judicial institutions
For all national courts, the European Court of Human Rights and the Court of Justice of the European Communities serve as a reference regarding interpretation of a uniform European body of law. National courts have been delegated jurisdiction for administering European law since they are required, firstly, to apply it directly and, secondly, to interpret it in conformity with European standards.
To establish an effective dialogue between national and European courts, it is necessary that national judicial institutions should be the target of initiatives aimed at fostering not just the exchange of information but also, wherever possible, direct contact between institutions.
Questions
2.B.1. What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.
The replies may be summarised as follows:
Bulgaria
The National Institute of Justice organises seminars and round tables for Bulgarian judges with the participation of foreign lawyers (some working in European institutions) and judges from other national courts in Europe (eg anti-corruption seminar in Sofia in November 2005).
In addition to participation in EU and Council of Europe projects, visits are organised to the ECJ and the ECHR.
Moldova
A co-operation and exchange programme took place in 2000-2002 between the Court of Appeal of the Republic of Moldova and the Court of Appeal of Orléans (France).
Luxembourg
There is no real dialogue between national and European courts, but Luxembourg judges have the opportunity to attend lectures given by the ECJ, which helps to create contacts.
Cyprus
Judges from the ECJ in Luxembourg visited the Supreme Court in May 2005, and Cypriot judges have already visited the ECJ on various occasions.
Spain
The international relations department of the General Council of the Judiciary provides the necessary means for enhancing dialogue between national courts and European courts. This service is accessible to all judges via the Internet, e-mail, fax and telephone.
The judicial network for Spanish international judicial co-operation (REJUE) is represented by a judge in each of the 17 “Tribunales superiores de Justicia” and judges can apply to these people directly. European judges and prosecutors are invited to the network’s annual plenary meeting.
Within the REJUE, there are also contact points for the civil and criminal-law divisions of the Spanish judicial network. The judges of the REJUE take part in the meetings of this network.
The international relations department of the General Council of the Judiciary has organised various training programmes and other initiatives such as the twinning programme for judicial co-operation (especially with Bulgaria for the time being).
Norway
Initiatives are taken at national level to promote bilateral international judicial co-operation between Norway and other countries.
For instance, two Norwegian courts will be participating as pilot courts in a CEPEJ programme.
Various visits to international courts are organised, in some cases by the courts themselves (in 2005, for example, the Supreme Court visited the European Court of Human Rights).
Iceland
No particular initiatives have been taken in this area.
Every year the EFTA (European Free Trade Association) Court in Luxembourg invites Icelandic judges to a seminar to review the activities of the court.
Occasionally there are lectures and seminars.
Hungary
Hungary applies the preliminary ruling procedure.
Senior judges participated in a study visit to Luxembourg and the President of the Court of Justice and some of its members visited Hungary and gave lectures.
Monaco
It is possible to do traineeships with the European Court of Human Rights.
Slovenia
The Ministry of Justice deals with judicial co-operation at the request of the civil-law department (CRI).
The criminal and commercial law departments of Ljubljana district court have set up an expert group of judges who, several times a year, take part in European law seminars in Trier. Travel expenses are paid by the court, while the cost of the seminar is covered by the organisers.
Turkey
A number of seminars are organised.
Study visits are also occasionally organised (eg, in 2004, visit to international institutions and courts in the Netherlands, France, Belgium and Germany).
France
Traineeships and seminars are organised at European institutions.
Switzerland
Regular meetings take place between the judges of the Federal Court and European judges.
The last meeting with the ECHR was held in August 2000 and with the ECJ in March 2003. A meeting was held in November 2004 between the presidents of the Federal Court, the ECHR and the ECJ, together with representatives of Austria and Germany.
Croatia
Study visits to the ECHR are organised, and lectures and seminars are given by the Croatian judge on the ECHR.
The Constitutional Court also organised a seminar on Article 6 of the ECHR.
Azerbaijan
There is participation in Council of Europe activities and in the Council of Europe-Azerbaijan joint group on the independence, selection, appointment and evaluation of the activity of justice officials, set up in 2004.
There are also meetings between national and European judges and lectures, seminars and other events organised with the assistance of international organisations (Council of Europe, OSCE etc).
Lastly, several co-operation agreements signed by the Ministry of Justice include exchanges of information.
Lithuania
There are no centralised means for this.
There are various contacts between national judges and European judges, but they stem from initiatives by particular national courts.
Seminars are held with judges serving on European courts, usually of Lithuanian nationality.
“The former Yugoslave Republic of Macedonia”
Judges participate in international meetings, seminars and visits to other countries, such as, for example, Luxembourg.
There are also a number of workshops on the application of the ECHR organised by the CCE (in-service training centre).
Czech Republic
The organisation of courses on European law by the Judicial Academy encourages communication. These classes are given by specialists on the subject.
Denmark
The Supreme Court participates in various networks and associations of supreme courts.
The association of judges is an active member of the relevant European associations.
There are budgets for receiving or visiting foreign counterparts.
Latvia
The Court Administration encourages participation by judges in international conferences, international seminars, exchange programmes etc.
There is a bilateral project with Sweden between two Latvian courts and two Swedish courts.
Some associations encourage exchanges between national and foreign judges, such as the Association of Judges of the Baltic States and the International Association of Judges, of which the Association of Latvian Judges has been a member since 1996.
Albania
Study visits to European countries, such as visits to the ECHR, the ECJ and various courts in France, Germany, Italy, Portugal and Switzerland, are included in the initial training programme for judges in international law and European law.
Slovak Republic
There are no particular measures or initiatives in this area.
United Kingdom
Judges regularly visit the ECJ and the European Court of Human Rights. They also participate in seminars and meetings organised by the European institutions. The most productive meetings, however, are small-scale meetings, usually focused around discussions with the UK judges on the ECJ.
2.B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?
In substance, the delegations replied as follows:
Moldova
There are no co-operation programmes with European judges or with judges of a European court.
Luxembourg
No official or regular meetings are held with other European judges, but there are annual meetings between the judges of the ECJ and the Supreme Court judges, in which Luxembourg judges regularly participate.
Cyprus
Meetings of this kind are mainly attended by Supreme Court judges, but the content of the meetings is passed on to the lower courts.
Spain
Various meetings have been held, in particular the plenary meeting of members of the civil and commercial law divisions of the Spanish judicial network in December 2004, meetings between the courts of appeal of Agen, Bordeaux and Pau and the “Tribunales superiores” of Aragon, La Rioja, Navarra and Pais Vasco in November 2004, an Hispano-French judicial seminar in September 2004, and a seminar for European judges organised by the Barcelona legal service training college in November 2005, which was attended by European trainee judges.
The results of these activities are published by the CENDOJ, in hard copy and electronic form, are accessible to all Spanish judges and prosecutors and are even circulated to judges in other countries via the international relations services of the General Council of the Judiciary.
Norway
Nothing is organised in this area.
Iceland
Nothing is organised in this area.
Monaco
A conference chaired by a judge at the ECHR is scheduled for February 2006.
Slovenia
Nothing is organised officially in this area, although the Association of Slovenian Judges organises seminars and training programmes on various subjects, including European and international law. All judges are invited to attend them free of charge.
Croatia
An effort needs to be made in this area.
Lithuania
There are no events of this kind.
The higher courts are members of various European and international associations and participate in their activities.
Czech Republic
Judges attend events of this kind every year.
Denmark
Every year, five to seven judges out of a total of 337 visit the ECJ.
Judges also have the opportunity to take part in international conferences.
Italy
There are no initiatives of this kind.
A member of a European court sometimes participates in one or another conference.
Latvia
Judges of the European Court of Human Rights and the ECJ have visited the Latvian Supreme Court.
Albania
There are no initiatives of this kind.
Slovakia
The judges of the Supreme Court and the Constitutional Court take part in activities and meetings organised by the European Court of Human Rights.
2.B.3. Summary of replies to questions 2.B.1 and 2
2.B.3.1. Dialogue between national courts and the European courts can be approached from two angles.
First of all, from the formal judicial angle, the principle whereby a question is referred by a national court to an international court for a preliminary ruling is in itself a form of institutionalised dialogue. As this principle is enshrined in various legal instruments and is routinely applied, we shall not dwell on it any further.
From a more informal standpoint, dialogue between national courts and the European courts varies in degree from one state to another, but more fundamentally, it would seem, within states themselves, depending on the court’s position in the judicial hierarchy.
Generally speaking, the relations between national courts and international courts are regarded as forming part of initial or in-service training programmes for judges.
This dialogue may take on a range of different forms, including principally visits to the European Court of Human Rights and the European Court of Justice, traineeships with these courts, and participation in seminars and conferences, at home or in another country.
It has to be acknowledged, however, that the bulk of these contacts are study visits of a general nature, which is likely to reduce the professional contribution they can make.
Bilateral relations have also been established, sometimes at their own initiative, between national courts on the same level (Spain, France, Norway, Moldova, Latvia …).
Experience also shows that contacts between courts in different countries are usually established directly in the context of international judicial co-operation, in the execution of requests for assistance, which is a positive thing. This type of exchange helps to build a climate of trust, which can foster co-operation and mutual understanding of each other’s work and constraints.
It is also useful to emphasise the existence and importance of associations bringing together courts in different countries (eg associations and networks of supreme courts, international association of judges etc), judicial expert networks (the RJE in Spain, with its civil and criminal divisions, etc) and other judicial co-operation programmes (twinning programmes etc). In practice, however, these bodies are not widely known.
An analysis of the replies to the questionnaire also shows that the higher the court in the domestic judicial hierarchy (supreme courts, constitutional courts etc), the more opportunities the judges have to establish relations and dialogue both with international courts and with their counterparts in other countries.
There were few replies – and this is symptomatic – to the question of whether the results of these meetings are passed on, and if so, how. The question therefore arises of the desirability of having contact points at domestic level.
Attention should however be drawn to certain relevant initiatives, such as the existence, in Spain, of the “Prontuario”, which is a handbook containing information relevant to international judicial co-operation, the existence of contact points of the Spanish international judicial co-operation network in the 17 “Tribunales superiores de Justicia” and the dissemination of the results of these exchanges both internally and in other countries.
The fact remains that the “front-line” judges are also constantly confronted with the international and European aspects of both the facts and the law, of which, moreover, they are the first interpreters.
It seems essential, therefore, that these judges, too, should be able to engage in real and effective dialogue with international and foreign courts and that initiatives should be taken to this effect.
2.C. Application by national courts 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
Each country’s application of the European standards depends to a large extent on the rank they enjoy in national law, including under the Constitution. Nonetheless, national case-law also plays a role since it is able to give interpretations adapting national law to European law, while upholding national constitutional standards.
A study is necessary to allow the CCJE to consider the most appropriate measures to be proposed to national courts in order to solve the problems encountered in this field.
Questions
2.C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?
a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) the case-law of:
- the European Court of Human Rights
- the Court of Justice of the European Communities
d) international treaties
Please cite the relevant constitutional provisions or case-law.
The main ideas emerging from the various replies are as follows:
Bulgaria
Under the 1991 Bulgarian Constitution, international treaties which have been ratified and promulgated form an integral part of domestic law and prevail over national legislation.
Where they have not been promulgated, these treaties do not take precedence over domestic legislation.
The Constitution ranks higher than treaties to the extent that if the signing of a treaty requires an amendment to the Constitution, that amendment must be adopted and ratification must be preceded by a review of its conformity with the Constitution by the Constitutional Court.
The ECHR has been ratified and promulgated and came into force on 7 September 1992. The case-law of the European Court of Human Rights is also taken into account, particularly where there is a conflict of laws.
The EU treaties are not yet in force, as Bulgaria is not due to accede to the EU until 1 January 2007.
Moldova
The ECHR, the case-law of the European Court of Human Rights and international treaties come first in the hierarchy of legal norms, even in relation to the Constitution, in accordance with Article 4 thereof.
The case-law of the European Court of Human Rights is binding on domestic courts.
Luxembourg
The primacy, without distinction, of international law over domestic law has been enshrined in case-law, especially that of the Court of Cassation, for over 50 years.
Cyprus
Cyprus has been applying the ECHR since 1962. This convention was enshrined in Cypriot law by a law of 1962.
The 1960 Constitution also provides that all conventions, treaties and international agreements entered into by the government shall have greater legal force than all national provisions on the date of their publication in the official journal of the republic.
The same applies to European treaties and the case-law of the European Court of Human Rights and the ECJ, which are also binding on domestic courts.
Spain
Article 10 of the 1978 Spanish Constitution establishes the primacy of the ECHR.
With regard to EU treaties, the 1978 Constitution and the law of 2 August 1985 provide that all Community law shall be incorporated into the Spanish legal order, shall be directly applicable and shall have primacy.
Case-law is not a source of law, but the Spanish courts uphold the case-law of the European Court of Human Rights and the ECJ and are also guided by their criteria in deciding cases under Spanish law.
Lastly, according to the Constitution, international treaties that have been properly concluded and officially published form part of the domestic legal order.
Norway
a) ECHR
The ECHR was incorporated into Norwegian law in 1999 through the passing of the Human Rights Act, but the ECHR was already very important before that, both in terms of its principles and in practice.
Many conventions referred to in this Act have legal force in Norway and prevail over domestic law.
b) EU treaties
Norway is not a member of the EU, but European law has taken on great importance because of the 1992 Agreement on the European Economic Area (EEA Agreement). The EFTA Court has jurisdiction with regard to EFTA states which form part of the EEA. The jurisdiction of the EFTA court corresponds to that of the ECJ.
The EEA Agreement does not provide for any transfer of sovereignty to intergovernmental institutions. The obligations arising from the EEA Agreement have to be incorporated into domestic law through legislation and rank as ordinary law.
c) The case-law of the European Court of Human Rights has no formal rank in the legal hierarchy, but is significant for the application of the law in Norway.
Although the case-law of the ECJ has no formal rank in the hierarchy of legal norms, it is of great importance for the application of the EEA Agreement in Norway, owing to the fact that the ECJ and the EFTA Court have recognised the need for uniform interpretation of the rules of the treaty and those of the EEA Agreement.
d) The international conventions referred to in the Human Rights Act prevail over domestic rules.
Where other international treaties are concerned, the “ascertainment of normative harmony” means ensuring that Norwegian law is in conformity with the obligations arising from international treaties
Iceland
a) The ECHR became domestic law by act of parliament in 1994 and prevails over ordinary legislation. The Constitution was adapted in 1995 to bring it into line with the ECHR.
EU treaties have the status of ordinary legislation.
b) The case-law of the European Court of Human Rights ranks as precedent, but is not binding on judges, who may go against it. This case-law will nevertheless be an important source in a legal decision.
The case-law of the ECJ is not directly applicable, but has an influence on the interpretation or application of domestic rules. The advisory opinions of the EFTA Court are strong precedents.
c) International treaties are not sources of law unless they are passed as Icelandic law.
Hungary
The ECHR has been promulgated by an act of parliament and has therefore become part of national law.
The same applies to other international treaties promulgated by act of parliament. As a result, EU treaties are binding and European case-law is applicable.
Japan
The Constitution takes precedence over international treaties because it is the Constitution which empowers state ministers to conclude treaties and the Diet to approve them.
International treaties take precedence over national laws.
Monaco
The Constitution of 17 December 1962, revised in 2002, does not specify the rank of international law in the domestic legal system, but Article 1 of the Constitution implies that the Principality recognises the primacy of international law over domestic law.
The ECHR and international treaties have supra-legislative and infra-constitutional status.
Slovenia
Slovenia recognises the principle of the primacy of international law over domestic law.
Turkey
Under Article 90 of the Constitution, international treaties form part of domestic law on the date of their ratification, are directly applicable and have primacy over domestic law. This applies inter alia to the ECHR.
European treaties are not relevant given that Turkey is not a member of the EU.
France
Under Articles 54 and 55 of the Constitution, which is the supreme legal instrument, international treaties lawfully ratified by France are superior in rank to domestic law. This applies to European treaties and the ECHR. This higher-ranking status of treaties makes it necessary for the state to bring its legislation into line with them.
Switzerland
Switzerland has ratified the ECHR. It is not a member of the EU, but has signed bilateral conventions with it.
Article 191 of the Swiss Federal Constitution requires the Federal Court to apply federal laws and international law. The case-law of the Federal Court acknowledges the principle of the primacy of international law.
Croatia
International treaties come immediately after the Constitution in the hierarchy of law and therefore take precedence over national laws.
Courts are empowered to implement international treaties directly and immediately in each case brought before them, including the ECHR and the case-law of the European Court of Human Rights.
Azerbaijan
The Constitution provides for a hierarchy of law and recognises the primacy of international treaties over domestic legislation.
Accordingly, the ECHR and the European treaties to which Azerbaijan is party are essential components of the legislative system.
Lithuania
Under the Constitution, treaties ratified by the “Seimas” (parliament) form part of the legislative system. Treaties, including European treaties, have primacy over domestic law, but may not conflict with constitutional provisions.
The ECHR was ratified in 1995.
The case-law of the European Court of Human Rights and that of the ECJ are not sources of law, but are regarded as forming part of the provisions of the ECHR and European law. Domestic decisions refer to this case-law, which, moreover, is also used in interpreting domestic rules.
Since Lithuania joined the EU, Article 33 of the Law on Courts has required courts to apply the judgments of EU judicial institutions when hearing cases.
“The former Yugoslave Republic of Macedonia”
Under the Constitution, lawfully ratified international treaties form an integral part of domestic law and have primacy over it.
Czech Republic
International treaties prevail over ordinary laws, but not over constitutional laws or over the Charter of Fundamental Rights and Freedoms, which forms part of the “constitutional order”.
There is a judicial procedure which ensures harmonisation of international treaties with the “constitutional order” and of ordinary laws with treaties.
The rule of “binding” precedent does not exist, but the case-law of the European courts is taken into account in judicial proceedings. Moreover, all courts may refer questions to the ECJ for a preliminary ruling.
Denmark
The ECHR was incorporated into national law in 1992. This convention, like any other act of parliament, ranks below constitutional provisions.
EU treaties rank below constitutional provisions.
The case-law of the European courts ranks below constitutional provisions.
Other international treaties rank below constitutional provisions.
Italy
This matter is governed by the Constitution. European and other international treaties rank immediately below constitutional rules and above ordinary laws. In accordance with the case-law of the Constitutional Court, the Italian courts will reject an ordinary law which is in conflict with Community law and will apply the latter, without the Constitutional Court being required to examine this conflict of laws.
The ECHR, ratified by an ordinary law, is traditionally regarded as having the same rank as such a law. However, recent judgments by the Constitutional Court seem to be moving towards recognition of a higher rank for the convention.
Latvia
International laws and the principles of international law take precedence over the rules of national law. This principle derives from the “Staversme” (Constitution), the supreme legal instrument, which retains its primacy.
The courts refer to the case-law of the ECJ and to that of the European Court of Human Rights.
Albania
The ECHR and the case-law of the European Court of Human Rights rank higher in the hierarchy of laws than ordinary legislation and international and European treaties.
The constitutional provisions relating to human rights cite the ECHR where legal restrictions on those rights are mentioned. The ECHR and the case-law of the European Court of Human Rights accordingly have an identical rank to that of the Constitution.
European treaties and the case-law of the ECJ and other international treaties rank below constitutional provisions, but above ordinary laws.
Slovak Republic
The Constitution stipulates that international treaties relating to human rights and fundamental freedoms take precedence over national laws when the protection they afford is wider.
Since 2001, the Constitution has also provided that international treaties which confer rights or obligations directly on an individual or legal entity shall take precedence over laws.
United Kingdom
The sources of law may be classified as follows:
a) European treaties have primacy and prevail over any provisions of an act of parliament which might be incompatible with those treaties.
b) Next come the statutes of the United Kingdom.
c) Under the Human Rights Act 1998, legislation must be read and interpreted in a manner that is consistent with the ECHR.
d) The decisions of the ECJ are binding on the courts. When the latter give a ruling on a question involving application of the ECHR, they must take account of the case-law, in the broad sense, of the European Court of Human Rights.
e) Next comes UK case-law.
f) International treaties. The United Kingdom takes a dualistic view of the relations between international treaties and national law. A treaty does not form part of national law until it has been incorporated into UK law by legislation.
2.C.2. Does your country’s case-law recognise the value – at least for interpretation purpose – of Council of Europe recommendations and resolutions?
The replies may be summarised as follows:
Bulgaria
Some Council of Europe recommendations and resolutions have been incorporated directly into national law through legislation.
Where this is not the case, these recommendations and resolutions serve as guidelines in the drafting and interpretation of legislation.
Moldova
Council of Europe recommendations and resolutions are binding where case-law is concerned.
Luxembourg
Case-law does not accord this value to Council of Europe recommendations and resolutions.
Cyprus
Council of Europe resolutions and recommendations are seriously taken into account when interpreting the relevant instruments and, in some cases, for amending legislation.
Spain
Case-law takes account of Council of Europe resolutions and recommendations in the reasons given for decisions and in the interpretation of laws.
Norway
Norwegian case-law recognises the recommendations and resolutions of the Council of Europe, at least for interpretation purposes.
Iceland
Lawyers refer to them, but Council of Europe recommendations and resolutions have no influence in case-law.
Hungary
Council of Europe recommendations are being gradually incorporated into national legislation.
Monaco
The question has not arisen, but there are no obstacles to this.
Slovenia
Case-law does not accord any value to Council of Europe resolutions and recommendations.
Turkey
Council of Europe recommendations and resolutions are taken into account.
Switzerland
Council of Europe recommendations and resolutions are cited in the messages accompanying a draft federal law, and conformity with them is therefore considered from the start of the legislative process.
Recourse is had to Council of Europe recommendations and resolutions in domestic law only if several interpretations are possible. If so, the interpretation in keeping with those instruments is chosen.
Croatia
Council of Europe recommendations and resolutions are taken into account for interpretation purposes.
Azerbaijan
They are taken into account in legislation.
Lithuania
The higher courts often refer to specific recommendations when legislation is being prepared.
“The former Yugoslave Republic of Macedonia”
It is standard practice to incorporate Council of Europe resolutions and recommendations into national laws. Sometimes they may even give rise to the drafting of laws.
Czech Republic
It is possible to refer to Council of Europe recommendations and resolutions for interpretation purposes, but they have no binding legal force unless they are incorporated into a law.
Denmark
Council of Europe recommendations and resolutions are taken into account.
Italy
In general, Council of Europe recommendations and resolutions are not recognised as having any legal value, but they may be cited in decisions as an indication of international standards.
Latvia
Council of Europe recommendations and resolutions are taken into account for interpretation purposes.
Albania
The case-law of the Supreme Court recognises the value of Council of Europe recommendations and resolutions for interpretation purposes.
Slovak Republic
The courts take account of Council of Europe recommendations and resolutions in their decisions.
United Kingdom
The courts recognise the value of Council of Europe recommendations and resolutions for interpretation purposes.
C.3. If the European Court of Human Rights were to hold that certain provisions of your country’s legislation violated the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court’s judgment by the government, do the national courts have authority to prescribe their own measures implementing the Court’s decisions?
In substance, the delegations replied as follows:
Bulgaria
The courts are permitted not to apply Bulgarian provisions that violate the ECHR.
They may not prescribe their own measures implementing the Court’s decisions, but they may set guidelines which are binding on the lower courts or administrative bodies.
Moldova
If the European Court of Human Rights makes a finding against Moldova, the courts are permitted not to apply the national law in question.
The national courts cannot oblige the government to execute the judgments of the European Court of Human Rights, but, in practice, these judgments are executed in due time.
Luxembourg
The courts may not apply national law that violates the ECHR, but there is no rule authorising the courts to act on their own initiative.
Cyprus
The courts are permitted not to apply national law that conflicts with the ECHR, but they may not prescribe their own measures implementing the decisions of the European Court of Human Rights.
Spain
The courts are permitted not to apply such provisions.
Regarding the execution of Court decisions, Spanish courts are encouraged by the Constitution to prescribe their own means of implementing the decisions of the European Court of Human Rights.
Norway
The provisions contained in the ECHR form the basis for the decisions of national courts, even if the consequence of this is the non-application of Norwegian law.
Iceland
The courts are permitted not to apply national provisions that violate the ECHR.
Hungary
National courts may suspend the procedure and apply to the Constitutional Court for the national law to be set aside.
Monaco
It is for the courts to set aside domestic legislative provisions that conflict with the ECHR.
On the other hand, there is no provision allowing the courts to prescribe their own measures for implementing decisions of the European Court of Human Rights.
Slovenia
The courts are permitted not to apply provisions of domestic law that conflict with the ECHR, but they may not prescribe measures implementing the decisions of the Court, even though each judge enjoys independence in this regard.
Turkey
The courts are permitted neither to refuse to apply provisions of domestic law that conflict with the ECHR nor to prescribe measures implementing the decisions of the Court.
Switzerland
The Federal Court is permitted not to apply domestic rules that conflict with the ECHR.
National courts may not prescribe their own measures implementing decisions of the European Court of Human Rights, above and beyond the execution of the Court’s decision by the government.
Croatia
There is no such provision in national law, but if the court considers that the case-law of the European Court of Human Rights forms part of the ECHR and the courts have the right to apply the provisions of the ECHR, then judges are permitted not to apply national law that conflicts with the ECHR.
Azerbaijan
The courts are permitted not to apply domestic provisions that conflict with the ECHR.
All persons on national territory are required to execute the Court’s judgments in a timely and precise manner. There is no need to provide for other measures for implementing these judgments.
Lithuania
Yes, in such cases, generally speaking, the Lithuanian courts will not apply the national law. The courts may also ask the Constitutional Court to give a preliminary ruling on the constitutionality of these laws.
On the other hand, the courts are not empowered to prescribe their own measures implementing decisions of the European Court of Human Rights.
“The former Yugoslave Republic of Macedonia”
The judgments of the European Court of Human Rights serve as a basis for the harmonisation of domestic legislation. In the cases that have been brought against “The former Yugoslave Republic of Macedonia” in the Strasbourg Court, no violations have been established that would point to the need to change certain provisions or practices.
There is no provision that allows the courts to create their own measures implementing the decisions of the Court, but there is no legal obstacle to such a practice. The Supreme Court has the opportunity to unify court practice by giving legal opinions regarding the interpretation of domestic law in relation to the ECHR.
Czech Republic
The courts are obliged to bring the matter before the Constitutional Court if the law is contrary to the Constitution or to international treaties which take precedence over national laws.
Denmark
The courts are permitted not to apply such provisions.
The courts are indirectly permitted to prescribe their own measures implementing the decisions of the Court, in accordance with the general principles of law.
Italy
The decisions of the Court are authoritative, but the courts do not have the power to prescribe their execution directly.
Latvia
The national courts may refer matters to the Constitutional Court, which has sole authority to declare laws null and void. In such cases, the courts suspend their examination of the case.
It is for the state (the executive) to take initiatives should a national law violate the ECHR.
Albania
The courts are permitted not to apply national law.
Apart from execution of European Court of Human Rights judgments by the government, the courts may order their own measures implementing the Court’s decisions if the case stems from a complaint based on relevant obligations arising from it. There are no such cases at present.
Slovak Republic
There is no legal provision to this effect. Each case is dealt with separately, with the possibility of an appeal to the Constitutional Court.
United Kingdom
The courts must apply national legislation even if provisions in that legislation have been held to violate the ECHR by the European Court of Human Rights. The courts are however obliged to take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. In this way they may find that provisions in the legislation violate the ECHR. In these circumstances, they can make a declaration of incompatibility and strike down any subordinate legislation.
C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country for a possible application to the Court in Strasbourg:
- a direct application for re-opening of the proceedings?
- lodging of a claim for compensation?
Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which breached the reasonable time requirement.
This question prompted the following replies:
Bulgaria
It is not possible to apply directly for re-opening of the proceedings or to lodge a direct claim for compensation.
The Court’s judgment may be a ground for review of a judgment alleged to have violated the ECHR.
Moldova
It is not possible to review a final decision.
The attorney general or the parties may apply for re-opening of the proceedings if the European Court of Human Rights has held that the impugned decision infringed a right provided for under the Constitution or the ECHR.
It is possible to claim compensation.
Luxembourg
It is not possible to apply directly for re-opening of the proceedings or to lodge a direct claim for compensation.
An application for re-opening of the proceedings may be lodged, however, when the Court holds a criminal conviction to be in breach of the convention.
Cyprus
It is not possible to apply directly for re-opening of the proceedings.
The Supreme Court sitting as the final appellate court may however take a decision implementing the “total restitution” principle by expunging the decision which violated the provisions of the ECHR.
A claim for compensation is possible, particularly in the case of a breach of the reasonable time requirement.
Spain
It is possible to lodge an individual application with the Constitutional Court against a final decision in order to seek protection of the rights and freedoms provided for in the Constitution. This is the “recurso de amparo”.
This remedy is not confined exclusively to violations of the ECHR.
Norway
According to the Criminal Procedure Act, re-opening of the proceedings may be required when the decision is deemed to be based on an interpretation of international law or a treaty which differs from the interpretation that an international court has given in a parallel case which is binding on Norway, and where such an interpretation might lead to a different decision.
Re-opening may also be required if the proceedings of a case conflict with international law by which Norway is bound, if the procedural error had an impact on the judgment and if re-opening is necessary to remedy the wrong done.
In these cases, under certain circumstances, a claim for compensation is possible.
Iceland
It is possible to lodge a direct application for re-opening of the proceedings.
However, there is no provision for compensation.
Hungary
Some provisions of Article 6 ECHR (reasonable time) have been incorporated into procedural law and it is possible to claim compensation before the national courts.
Monaco
There is no procedure for re-opening proceedings or awarding compensation.
Slovenia
It is not possible to lodge a direct application for re-opening of the proceedings.
A claim for compensation is, however, conceivable, before the matter is referred to the Strasbourg Court, where legislation violating the provisions of the ECHR was applied in proceedings concluded by a final, non-appealable decision.
Turkey
It is not possible to lodge a direct application for re-opening of the proceedings or a claim for compensation.
France
Where the Court has found against France, re-opening of the proceedings is possible only in criminal matters.
Some violations of international undertakings may give rise to compensation of the victim by a national court (eg breach of the reasonable time requirement).
Switzerland
It is possible to apply for rehearing of a case decided by the Federal Court where the European Court of Human Rights or the Committee of Ministers of the Council of Europe has allowed an individual application for violation of the ECHR and compensation can only be obtained by way of a rehearing.
If the Federal Court finds that a rehearing is necessary but that it falls within the jurisdiction of a lower court, it refers the case to the latter, which is obliged to give a decision.
Croatia
A complaint may be filed with the Constitutional Court if any constitutional right has been breached. Since the provisions of the ECHR have been implemented in the Constitution, there is a remedy against any provisions that conflict with the ECHR.
It is also possible to lodge a claim for compensation if the reasonable time requirement is breached.
Azerbaijan
It is possible to apply for re-opening of the proceedings should relevant new circumstances arise.
Lithuania
A decision by the European Court of Human Rights is a ground for re-opening of the proceedings. Compensation exists, but on a limited scale.
“The former Yugoslave Republic of Macedonia”
Under the Law on Criminal Procedure, it is possible to have recourse to the extra-legal remedy of re-opening the proceedings in the event of a judgment by the European Court of Human Rights finding a violation of the rights secured in Article 6.1 of the ECHR.
Similarly, the government, through the Public Prosecutor’s Office, may lodge an extraordinary appeal in the interests of the law for violation of obligations under international treaties. A renewal of the procedure and a request for the protection of legality are therefore possible in the event of a violation of the ECHR and of other international treaties ratified in accordance with the Constitution.
In civil matters, where the European Court of Human Rights finds a violation of certain human rights or fundamental freedoms provided for under the convention, within thirty days of the date of the Court’s judgment, the parties may lodge a request with the national court which gave the initial decision asking it to amend its decision.
In the review procedure, the courts are obliged to respect the decisions of the European Court of Human Rights.
Since the ECHR is an integral part of Macedonian law, citizens may bring proceedings for violation of any article of the convention, including Article 6.
Apart from the review procedure mentioned above, no other procedure is possible.
Czech Republic
The Strasbourg Court recognises an appeal to the Constitutional Court in the event of a violation of the ECHR. Parliament is currently debating proposed new legislation which would enable parties to lodge a claim for compensation in the event of a breach of this requirement. Until such time as this legislation is enacted, such claims must be brought before the Strasbourg Court.
Denmark
The Supreme Court (in civil cases) or the Special Court of Revision (in criminal cases) may decide to re-open the case or allow an extraordinary appeal where a national ruling has been deemed in violation of the ECHR. This is the case where a hitherto accepted legal usage is later found to be in violation of the ECHR.
Depending on the circumstances, the claim for compensation may be relevant in a specific case. There are no rules which a priori exclude such a claim from being lodged.
Italy
A re-opening of the proceedings and/or a re-opening of the time-limit for appeal is available under the general legislation on this subject, and particularly under Law No.12 of 9 January 2006 on the execution of the decisions of the European Court of Human Rights.
A claim for compensation is possible before the courts of appeal, but only in the case of a breach of the reasonable time requirement under Article 6 of the ECHR.
Latvia
The Administrative Procedural Law specifies the new facts which may give rise to re-opening of the proceedings. These include the fact that a law which was applied in judging the case is found not to be in compliance with a law of higher legal force and the existence of a decision of the European Court of Human Rights or of any supranational judicial body in this matter from which it follows that the proceedings should be initiated de novo.
In civil matters, the following shall be deemed to be a newly discovered fact: recognition of the fact that a rule of law applied in judging the case is not in conformity with a provision of higher legal force.
Under the provisions of the Criminal Procedure Law, the following shall be deemed to be a newly discovered fact: a decision of the Constitutional Court declaring incompatible with the Constitution certain rules or their interpretation on the basis of which the court reached its decision.
The following is also deemed to be a newly discovered fact: a decision by an international judicial body concerning a decision of a Latvian court which has come into force but is declared contrary to the international provisions by which Latvia is bound.
In cases where legislation violating the provisions of the ECHR has been applied in legal proceedings concluded by a final decision, any person has the possibility of applying to the Constitutional Court before applying to the European Court of Human Rights. If the Constitutional Court finds that the law is not in compliance with the Constitution or the ECHR, the proceedings may be re-opened and compensation may be claimed.
Albania
Where a final, unappealable decision has been given on the basis of legal provisions violating the ECHR, an application for re-opening of proceedings and a claim for compensation are available before the case is brought before the Strasbourg Court. It is the Constitutional Court which decides on these matters.
Slovak Republic
Slovak law does not provide for the re-opening of proceedings, but it is possible for the plaintiff to apply to the Constitutional Court for violation of the human rights provided for in the ECHR. The Constitutional Court may set aside the decision and refer the case for a fresh trial. A claim for compensation is also possible before the Constitutional Court, which assesses the damage at its own discretion.
United Kingdom
The House of Lords will not re-open any appeal save in circumstances where, through no fault of a party, he or she has been subjected to unfair procedure (Article 6 of the ECHR). Where an order has been made by the House of Lords in a particular case, there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order was wrong.
There can be no lodging of a claim for compensation where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision.
2.C.5. Summary of the replies to questions 2.C.1 to 4
2.C.5.1. Generally speaking, states recognise the principle of the primacy of the international treaties they have ratified and incorporated into their domestic legislation.
This principle is usually enshrined in the Constitution (Bulgaria, Moldova, Cyprus, Spain, Japan, Turkey, France, Croatia, Azerbaijan, Lithuania, “The former Yugoslave Republic of Macedonia”, Italy, Latvia, Slovak Republic …).
To this extent, the Constitution retains its status as the supreme source of law in all states, with a few exceptions (Moldova etc).
In some countries, however, the case-law of the Supreme Court accords primacy to international law and international conventions (Luxembourg, Switzerland, …).
2.C.5.2. However, implementation of this common principle is not uniform. Distinctions may be observed.
Some national legislative systems accord primacy to all international standard-setting instruments, whereas others draw distinctions according to the nature or origin of those instruments.
Where the ECHR is concerned, it is almost unanimously accepted and ratified in the domestic legal system through legislation.
Regarding the EU member states, European treaties are incorporated into their national law, where they have legal force. In the event of a conflict of laws, they take precedence over domestic laws.
Other international treaties are general regarded either as provisions having primacy or as ordinary laws.
Regarding the role played by the case-law of the European Court of Human Rights and, where appropriate, the ECJ, there would seem to be two tendencies.
The first and most widespread is for national courts to take the decisions of these courts into account despite the fact that they are not binding on them (Bulgaria, Spain, Norway, Iceland, Croatia, Italy …).
The second tendency is for this case-law to be accorded the value of a precedent which national courts must follow (Moldova, United Kingdom …).
2.C.5.3. Other standard-setting instruments exist, in particular the recommendations and resolutions of the Council of Europe.
From the legal standpoint, these are taken into account at two levels.
First of all, during the drafting of legislation, reference may be made to Council of Europe resolutions and recommendations either to justify the legislation (Switzerland, Cyprus, Azerbaijan …) or to incorporate those provisions into the domestic legal system (Hungary, “The former Yugoslave Republic of Macedonia”, Czech Republic …).
At the level of case-law, Council of Europe resolutions and recommendations are used, with a few exceptions (Luxembourg and Iceland) for interpretation purposes and are even sometimes binding (Moldova).
2.C.5.4. In most cases, national legislative systems allow national courts which are faced with a conflict of laws between a supranational provision and a provision of domestic law to decide directly in favour of the convention or international treaty and not apply national law.
There is, however, an alternative, which requires the national courts hearing the case to stay the proceedings and bring the case before their Constitutional Court (Hungary, Czech Republic, Latvia, Slovak Republic …).
There are a few states where the courts cannot refuse to apply the provisions of domestic law even if they conflict with the ECHR.
2.C.5.5. On the other hand, the national courts are usually not permitted to prescribe their own measures implementing the decisions of the European Court of Human Rights, this being a government prerogative.
However, it should be noted that in some countries (Spain, Croatia, Denmark, Albania …), the national courts may prescribe such measures.
2.C.5.6. Regarding the question of whether, before an application is lodged with the European Court of Human Rights, it is possible to apply directly for the review of a final decision applying provisions contrary to the rules of the ECHR, the replies to the questionnaire reveal two main tendencies.
In some states (Spain, Iceland, Latvia, Albania …), a remedy of this kind is available before the Supreme Court prior to a decision of the European Court of Human Rights.
However, a larger number of countries require a prior decision of the European Court of Human Rights against the state concerned before it is possible to apply for a review of the final decision.
2.C.5.7. Regarding the possibility, in such circumstance, of lodging a direct claim for compensation, three different approaches may be identified.
Either it is not possible to claim such compensation (Bulgaria, Luxembourg, Iceland, Monaco, Turkey, United Kingdom …).
Or a claim for compensation may be lodged after the European Court of Human Rights has found a violation of the ECHR (Luxembourg, Moldova, France, Lithuania …).
Or, lastly, a claim for compensation may be lodged before any application to the Strasbourg Court (Slovenia, Latvia, Albania …).
2.C.5.8. It should be noted, however, that some states did not specify in their replies whether, despite the absence of any review procedure prior to an application to the Strasbourg Court, it is nevertheless possible to lodge either an application to re-open the proceedings or a claim for compensation after the decision by the European Court of Human Rights.
2.C.5.9. Lastly, most legislative systems lay down some form of penalty for violations of Article 6 of the ECHR.
2.C.5.10. The replies show a great diversity in terms of the application of European standards in states’ domestic law.
While the general principle of the primacy of international standards over domestic provisions seems to be established, each state has its own system for interpreting these instruments and incorporating them into its domestic law depending on the status accorded to them.
This diversity is liable to be a source of legal uncertainty, particularly in cases on an international scale, and it is worth considering whether states should be encouraged to apply European standards more uniformly and to harmonise their policies in this area.
2.D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism
The Council of Europe has since 1949 been committed to safeguarding human rights, the rule of law and pluralist democracy. Terrorism is a denial of these three fundamental values, and the Council of Europe has introduced a number of Conventions seeking both to combat terrorism and to uphold human rights.
Questions
2.D.1 Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?
The replies given are summarised below.
Bulgaria
Bulgaria is pursuing an active and effective policy to prevent and repress terrorism, encompassing broad international co-operation.
The relevant Council of Europe recommendations and resolutions were taken into account when Bulgaria’s recent anti-terrorism legislation was drawn up.
Bulgaria also ratified the European Convention on the Suppression of Terrorism on 17 February 1998, and ratified the 2003 Protocol amending that Convention on 26 February 2004.
Bulgaria played an active part within the Council of Europe in the drawing up of the Convention on the Prevention of Terrorism and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, signing the former on 17 November 2005. Steps have been taken with a view to signature of the latter and ratification of both during 2006.
Moldova
Moldova ratified the European Convention on the Suppression of Terrorism on 18 June 1999. On 27 September 2001 it adopted Order No. 464-XV on the prevention of terrorism, and on 12 October 2001, it passed Law No. 539-XV against terrorism.
On 18 July 2002, Moldova ratified the International Convention for the Suppression of Terrorist Bombings, and on 5 June 2003, it ratified a CIS protocol on the approval of the regulations on arrangements for and implementation of joint anti-terrorism measures in the member states of the Commonwealth of Independent States.
Article 278 of the Moldovan Criminal Code relates to responsibility for acts of terrorism.
All these laws and orders have been published in "Monitorul Official" and on the "Moldlex" web site, and are accessible to the public.
Luxembourg
Luxembourg has not incorporated into its legislation the Council of Europe's recommendations and resolutions on terrorism, nor has it taken special measures to distribute and publicise them.
Cyprus
Cyprus does not currently face the problem of terrorism, so it has neither incorporated the Council of Europe recommendations and resolutions into its domestic legislation nor taken special measures to distribute and publicise these instruments or drawn up specific legislation on terrorism.
Furthermore, the ordinary provisions of the Criminal Code offer sufficient protection against any terrorist activity, while ensuring the protection of human rights. In practice, the judicial system has introduced active control by the courts at every stage of procedure, which guarantees the rights of suspects or accused persons.
At every stage of procedure, it is the court that provides protection against any possible abuses of the system and ensures that human rights are maintained and respected. This role devolves not only on the lower courts, but also on the Supreme Court, which also plays a role in regulating state activities relating to aliens.
Spain
Law and case-law alike are based on those Council of Europe Conventions, recommendations and resolutions which are intended to combat terrorism while protecting human rights.
Norway
The UN Security Council adopted Resolution 1373 against international terrorism on 28 September 2001.
On 5 October 2001, Norway adopted the necessary legislation to implement this resolution. At the same time, it introduced into its own legislation the relevant provisions of the International Convention for the Suppression of the Financing of Terrorism, of 9 December 1999.
In 2002, Parliament amended the Criminal Code, adopting new provisions to combat terrorism, and in 2005 it adopted a bill on the use of compulsory measures to prevent serious offences, which encompasses acts of terrorism.
These initiatives are presumed to be consistent with the recommendations and resolutions of the Council of Europe.
Iceland
Iceland has not incorporated into its own legislation the Council of Europe recommendations and resolutions relating to terrorism or specifically publicised these texts by distributing them.
Hungary
An Act of parliament has promulgated the Council of Europe Convention on the Suppression of Terrorism (1977).
Monaco
The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, signed in Strasbourg on 8 November 1990, was made enforceable in the Principality of Monaco on 8 August 2002.
It should be noted that, in 2005, Monaco acceded to the International Convention for the Suppression of the Financing of Terrorism, of 9 December 1999 (New York).
In the spirit of these Conventions, of the International Convention against Transnational Organised Crime, of 15 November 2000, and of the relevant FATF recommendations, Monaco has adopted several provisions relating to the financing of terrorism.
Slovenia
Slovenia has not yet incorporated into law the Council of Europe recommendations and resolutions relating to the combating of terrorism, or taken special measures to distribute and publicise these instruments.
Turkey
Turkey has incorporated into its own legislation the Council of Europe recommendations and resolutions relating to terrorism and has specifically disseminated these in order to publicise them.
Switzerland
Switzerland ratified the European Convention on the Suppression of Terrorism on 27 January 1977. There have been numerous changes in legislation in recent years affecting the criminal prosecution system.
When this new legislation has been passed or existing legislation amended, reference has systematically been made to the Council of Europe's recommendations and resolutions, where these deal with the same subject, and care is always taken to check that the recommendations and resolutions are complied with.
Croatia
The Croatian Criminal Code and Code of Criminal Procedure are fully in line with all international standards, as confirmed by the Council of Europe and European Union.
Azerbaijan
Azerbaijan is a Party to the 9 European Conventions on the suppression of terrorism.
Lithuania
The statutory basis for the prevention and suppression of terrorism is provided by those international Conventions ratified by Lithuania, the international treaties on co-operation against terrorism and national law.
The terrorist threat in Lithuania is essentially international, because of the country's geographical position.
Lithuania has ratified most of the international Conventions relating to terrorism and has also signed co-operation treaties on the suppression of terrorism with Hungary, Turkey, Kazakhstan, Germany, Uzbekistan, Sweden and Poland. It also signed an agreement with Europol in 2003.
At national level, there are many laws relating to terrorism. These are in line with the Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism.
No specific action has been taken to distribute and publicise Council of Europe recommendations and resolutions relating to the combating of terrorism.
"The former Yugoslav Republic of Macedonia"
Council of Europe recommendations and resolutions are incorporated into new criminal and administrative legislation, but lack of funds has to date prevented their translation into Macedonian and publication.
Czech Republic
The Czech Republic implements these instruments through its legislation. Other texts may be used as appropriate in legislative activity. The Council of Europe instruments are accessible on the Ministry of the Interior website.
Denmark
Denmark complies with and implements such instruments once it has acceded to them. Thus, where there are relevant Council of Europe recommendations or other instruments of this kind, these are taken into consideration as a natural part of the Danish legislative process.
Italy
No particular measure has been taken to incorporate Council of Europe recommendations and resolutions on terrorism into Italian legislation or to distribute them specifically so as to publicise them.
Italian legislation nevertheless meets the international standards.
Latvia
Council of Europe resolutions and recommendations were taken into account when the Criminal Code was amended.
No specific measure to distribute or publicise these instruments has been taken.
Albania
Albania has incorporated into its legislation the Council of Europe recommendations and resolutions intended to combat terrorism while seeking to respect human rights.
Specific measures are taken to distribute and publicise these instruments.
Slovak Republic
Protection of human rights in the context of the suppression of terrorism has been transposed into the Slovak Criminal Code and Code of Criminal Procedure, in line with the relevant Council of Europe Conventions and recommendations.
United Kingdom
The United Kingdom has not incorporated into its legislation the Council of Europe recommendations and resolutions relating to terrorism. It has not taken special steps to distribute or publicise these instruments.
2.D.2 Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe what is the role of the judge in the proceedings in this type of cases and indicate in what way his or her role in this case is different from his or her role in ordinary proceedings.
The replies given by delegations are summarised below.
Bulgaria
The Bulgarian government approved a national anti-terrorism plan in April 2004.
The Criminal Code was amended in 2002 to set down specific rules penalising terrorism and related offences. These amendments include a statutory definition of terrorist acts and the financing of terrorism.
The Criminal Code also provides for penalties for the creation or leadership of, or participation in, organised terrorist groups, as well as for using Bulgarian territory to prepare terrorist acts abroad, incitement to terrorism and threatening to commit terrorist acts.
On 5 February 2003, the National Assembly adopted a law penalising the financing of terrorism, drawn up in accordance with UN Security Council Resolution 1373 and Council Regulation 2580/2001 of 27 December 2001. This law provides for the assets of individuals or entities appearing on a list approved by the Council of Ministers to be frozen. The list is published in the Official Gazette, and the persons concerned are allowed to appeal to the Supreme Administrative Court against the decision of the Council of Ministers.
The law on money laundering also requires anyone subject to Bulgarian law to report any suspicion of the financing of terrorism to the Ministry of the Interior.
Other Bulgarian laws also relate to the prevention of terrorism.
The Code of Criminal Procedure was also amended in 2004 to enable specific investigation action to be taken (such as joint intervention team, undercover agents, controlled deliveries …).
The Constitution was amended in 2005 to enable Bulgarian nationals to be extradited for the purposes of the European arrest warrant.
Other laws have also been enacted or amended which are generally applicable to terrorist acts, which are among the most serious offences in the Bulgarian criminal-law system.
There is no rule allowing a departure from the ordinary law in respect of the prosecution and trial of persons suspected of terrorist acts.
The relevant rules appear in the Code of Criminal Procedure. Anyone accused of terrorism has the same rights as any person accused of any other offence, both during the preliminary investigation and during the trial.
The judge plays exactly the same role in such cases as in any other trial.
The Code also provides that, when a preliminary investigation is necessary in a case of terrorism, it is carried out by examining judges under the authority of the public prosecutor's office.
Moldova
The Moldovan parliament passed a law on the suppression of terrorism on 12 October 2001.
There is no difference between terrorist offences and other offences in terms of investigation or trial procedure.
Luxembourg
Luxembourg has adopted the law of 12 August 2003 on:
- the suppression of terrorism and its financing;
- approval of the International Convention for the Suppression of the Financing of Terrorism, opened for signature in New York on 10 January 2000.
The aim of this law was to incorporate various terrorist offences in the Luxembourg Criminal Code. It adapts the national Criminal Code, the Code of Criminal Procedure and certain special laws to the requirements of international instruments on terrorism, the most significant ones being the EU's Framework Decision of 13 June 2002 on combating terrorism and the UN Convention for the Suppression of the Financing of Terrorism.
The judge plays the same role in terrorist cases as in cases under ordinary law, except as provided in Article 2 of the law of 12 August 2003, according to which:
- a person who has committed a terrorist offence abroad may be prosecuted and tried in Luxembourg if an extradition request is made but the person concerned is not extradited;
- the 12 month deadline for informing a person that his or her means of telecommunication has been tapped is not applicable;
- the courts in the district of Luxembourg have sole jurisdiction.
Suspects benefit from all the safeguards in ordinary law for which domestic legislation and international Conventions, including the ECHR, provide.
Spain
Substantive and procedural provisions exist specifically to combat terrorism.
The substantive provisions, nevertheless, do not depart from the rules of ordinary law applicable to the prosecution and penalising of criminal offences, complying with the constitutional principle of the lawfulness of the criminal law.
The law lays down a definition of acts of terrorism encompassing certain offences committed in the context of terrorism as defined. Also included are participation in a group in order to prepare acts of terrorism, any collaboration with such a group, and apologising for terrorism and terrorist groups.
There are also specific rules of procedure:
- preliminary investigation is the responsibility of the Juzgados centrales de Instruccion, within the Madrid-based Audiencia national;
- extension of police custody for a maximum of 48 hours in addition to the ordinary 72 hours, under the supervision of the Juez central de Instruccion;
- the detection and interception, recording and transcription of all forms of communication is allowed, including, in certain conditions, the communications of detainees held in prisons.
The role of the judge in this kind of case is no different from his or her role in proceedings relating to other types of offence.
Norway
The amendments made to the Criminal Code in 2002 defined what is meant by "acts of terrorism".
The law on aliens was also amended to allow a foreigner who has committed an act of terrorism or given shelter to a person who has committed such an act to be deported.
The amendments made in 2005 to the Code of Criminal Procedure were mainly intended to allow the police to use investigation methods such as the identification of cell phones and communications installations provided that there is “reason to believe” (a lesser requirement than the existence of suspicions) that a suspect might commit serious crimes and offences, and particularly acts of terrorism.
The role of the judge remains the same as in respect of other offences: to monitor the lawfulness and procedural conformity of compulsory measures.
Iceland
Law 70/2002 amended the Criminal Code so that all acts of terrorism are expressly punished and the provisions of the international treaties ratified by Iceland are complied with. Other statutory provisions have also been adopted or amended to this end.
Hungary
No specific action needs to be taken in this field in the situation in Hungary, but Hungary does support the international agreements concluded in order to combat terrorism.
The Criminal Code treats terrorist acts as a specific offence.
Japan
As well as the Criminal Code and Code of Criminal Procedure, which are general laws, Japan has a specific law applicable to criminal offences including terrorism.
Some of these are substantive laws (Law on the prevention of subversive activities, Law penalising the hijacking of aircraft, Law for the prevention of damage caused by sarin gas …), while others are procedural (Law on the interception of communications during criminal investigation …).
There are no particular differences between the judge's role in a trial relating to terrorism and in any other kind of trial.
Monaco
Various standard-setting texts exist:
- sovereign order of 8 April 2002 against the financing of terrorism;
- sovereign order of 8 April 2002 on the freezing of funds in order to combat terrorism;
- law of 12 July 2002 amending the law of 7 July 1993 on the participation of financial bodies in the combating of money laundering and the financing of terrorism;
- sovereign order of 7 February 2003 in application of various international treaties relating to the combating of terrorism.
Provision has thus been made for:
- a definition of the financing of terrorism;
- the confiscation of funds relating to terrorism;
- the freezing of the funds held by a list of persons laid down in a ministerial decree;
- the liability of legal entities.
A draft text on the offence of terrorism as a crime is being considered.
Slovenia
As yet, Slovenia has not adopted legislation relating to the fight against terrorism.
The only provisions in force are the general ones applicable to criminal offences.
Turkey
Turkey has plentiful legislation to combat terrorism and is also a party to a number of bilateral and multilateral Conventions intended to prevent terrorism.
Its legislative arsenal comprises the Criminal Code, a law on the combating of terrorism and the Code of Criminal Procedure.
Judges thus have power to decide to carry out interceptions and make recordings. In urgent cases, the public prosecutor may also so decide, but the measure taken then has to be confirmed within 24 hours by a judge.
Special "aggravated felony courts" have jurisdiction to deal with acts of terrorism violating the security of the Turkish state, whether these were committed in Turkey or by Turks abroad.
France
The Criminal Code contains various provisions under which acts of terrorism are punishable by penalties which can, in the most serious cases, be as severe as life imprisonment.
The Code of Criminal Procedure also contains specific provisions on the prosecution and investigation of terrorist offences and on trials in such cases, including:
- specific jurisdiction of the Paris courts;
- remand in custody may be extended to three years, instead of the usual four months;
- a special assize court comprising professional judges has jurisdiction in the case of acts of terrorism classified as crimes;
- the time limit for prosecution in such cases is 30 years instead of 10;
- the time limit for prosecution of offences is 20 years instead of three;
- the interception, recording and transcription of telephone conversations, eavesdropping on premises or vehicles and the preservation of images of the persons there;
- maximum duration of police custody of four days, instead of 24 hours renewable for one further period of 24 hours, without the right to speak to a lawyer in the first 48 hours;
Switzerland
Switzerland has adopted a number of statutory provisions which make possible effective action against money laundering, organised crime and economic crime, starting from the premise that, while it was less affected by terrorism than other states, it nevertheless sometimes served as a logistical base for financial purposes for terrorist organisations.
The federal public prosecutor's office, the federal police force and the federal office of examining judges have been reinforced in order to combat this kind of crime effectively.
The judge's role in this kind of case does not differ from his or her role under ordinary law.
Croatia
There is no specific legislation on terrorism.
The role of the judge in terrorism cases is no different from his or her role in ordinary cases.
Azerbaijan
Under the Criminal Code, terrorism, the financing of terrorism and various other types of related offences are criminal offences.
The law on extradition excludes acts of terrorism from the definition of political crimes and provides for persons suspected of terrorism to be extradited to answer for their acts.
The law on refugees does not allow refugee status to be granted to anyone who has committed a crime against humanity, a war crime or a serious non-political crime.
Any organisation active in Azerbaijan will be liquidated by a court decision and its assets confiscated if it is connected with terrorist activity.
Under the country's criminal law, terrorism and associated offences are classified among the most serious offences and dealt with by the "serious crimes court" in accordance with the “collegial principle”.
Lithuania
Under the Criminal Code, acts of terror and the hijacking of aircraft or vessels are crimes, as has been incitement to terrorism since 2004.
In such cases, the judge's role both during the preliminary investigation and during the trial is no different from his or her usual role when dealing with crimes.
The new law on the status of foreigners allows aliens to be deported on the grounds that they constitute a threat to public safety or public order.
"The former Yugoslav Republic of Macedonia"
Macedonia has ratified a good number of international instruments making possible co-operation in combating organised crime in general, and has harmonised its domestic legislation with these different texts.
The same policy is pursued against terrorism, and Macedonia has ratified most UN and Council of Europe Conventions and incorporated these into its domestic legal system by amending its Constitution, Criminal Code or Code of Criminal Procedure.
The Criminal Code defines acts of terrorism and classifies as crimes terrorist acts, membership of a terrorist organisation, the preparation of an act of terrorism, the financing of terrorism, incitement to terrorism, and so on.
These provisions are applicable to acts committed on the territory of “The former Yugoslave Republic of Macedonia”, but also to any person who has committed a terrorist act abroad and is not extradited.
The Code of Criminal Procedure has been harmonised with European legislation and the international instruments ratified. The amendments made to the Code of Criminal Procedure concern inter alia:
- the use of special investigation techniques (interception of communications, video surveillance, observation, controlled deliveries, undercover agents, etc);
- measures to guarantee that defence counsel is present during the proceedings;
- the protection of witnesses, informers who give evidence for the prosecution and the victims of offences;
- legal proceedings against legal entities;
- the procedure facilitating the transfer of sentenced persons;
- the strengthening of victims' rights.
Other laws are also concerned. The law on the laundering of the proceeds of crime, for example, has been amended to make the system of measures and activities intended to prevent laundering applicable to the financing of terrorism.
There are also a new law on the public prosecutor's office and numerous bilateral Conventions on the combating of terrorism, with Turkey, Slovenia, Croatia, Bulgaria, Serbia, Montenegro, Romania and Albania.
Czech Republic
There are no specific rules of procedure relating to the role of the judge and the other judicial parties in the context of terrorist cases. All the usual provisions, including particular investigation methods (phone tapping, inquiries about bank information …), examination of the case and legal remedies are applied in exactly the same way as is provided in respect of the other most serious offences.
Denmark
Denmark has adopted specific substantive measures for terrorist cases.
The role of the judge in this kind of case does not differ from his or her role in other cases.
Judges are under an obligation to strike a balance between the need for security and the protection of human rights, irrespective of the offences in the cases concerned. The courts' first obligation is to check that all the statutory protective measures safeguarding the rights of the defendant to a fair trial have been respected.
Italy
A legislative decree of 18 October 2001, converted into a law on 15 December 2001, amended Article 270bis of the Criminal Code, which had been introduced in 1979 at a time when terrorism was domestic, encompassing the recent international dimension of the problem.
Activities in support of terrorism were similarly targeted.
The same law made provision for special investigation techniques, such as preventive telephone tapping and other means of intercepting private communications, solely for the purpose of obtaining information.
In July 2005, a new law was introduced following renewed international terrorism, covering:
- the recruitment of persons for terrorist purposes;
- the possible holding by investigators of "investigation interviews", enabling them to hear suspects in detention without the presence of lawyer, provided that the consent of a judge has been obtained, material from this hearing not being allowed to be used during the trial;
- the possibility of police custody lasting 24 hours rather than 12;
- new rules on the deportation of foreign suspects, even those lawfully resident on Italian territory, by an organ of the executive (prefect), the courts not being allowed to suspend execution of the deportation order;
Latvia
On 8 December 2005, parliament amended Article 88 of the Criminal Code on the fight against terrorism. This article declares punishable a number of acts committed for specified terrorist purposes. Account was taken when this article was drafted of the European Union's Framework Decision of 13 June 2002.
The financing of terrorism has also been an offence under the Criminal Code since 28 April 2005.
At the procedural level, the law of 21 April 2005 allows persons to be extradited to other EU countries without verification of the lawfulness of the definition of the offence under Latvian law. One of the offences concerned is terrorism.
The provisions applicable to prosecution for terrorist acts and for the financing of terrorism do not differ from those which exist under the ordinary law.
Albania
Albania has adopted substantive and procedural laws specifically applicable to terrorism-related cases.
Based on the obligations derived from the relevant European and UN conventions, a law has amended the Criminal Code, redefining the concepts of terrorist organisation and terrorist act.
Nor has the financing of terrorism being overlooked. Confiscation of the assets of persons against whom suspicions of terrorism exist may be ordered.
The law on the protection of witnesses and informers who give evidence for the prosecution has been approved.
The judge's role in this type of case is no different from that in other types of case.
Slovak Republic
Where there is a suspicion of terrorist offences, the Code of Criminal Procedure provides for special investigation methods (controlled deliveries, the use of video cameras, eavesdropping and sound recordings, telephone tapping). As these methods are intrusive where human rights and fundamental freedoms are concerned, they have to be approved by a judge. Depending on the seriousness of the interference with such rights and freedoms, permission has to be given by the public prosecutor, or, in the most extreme cases, by the "judge for preparatory proceedings", a judge specially appointed to safeguard respect for human rights during preparatory proceedings.
United Kingdom
The Special Immigration Appeals Tribunal Act 1997 established the Special Immigration Appeals Commission (SIAC), a court which hears appeals against deportation on national security grounds.
It also hears appeals by individuals who are detained under the
Anti-Terrorism, Crime and Security Act 2001 pending deportation as suspected international terrorists.
The SIAC is presided over by a High Court judge and can use special procedural measures to take account of "sensitive" evidence, including sensitive intelligence material. The SIAC sits in open session where evidence is not "sensitive", in the presence of the defence lawyers. If, however, evidence needs to be withheld from the appellant in order to avoid damage to the public interest, the case is heard in closed session, and the appellant's
interests are represented instead by a "special advocate", who is not strictly speaking the appellant's own lawyer.
D.3 What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.
Can you quote some specific cases where the question about such a reconciliation was raised?
Bulgaria
The Code of Criminal Procedure provides for special investigation techniques to be used to collect evidence. A law on special investigation techniques was passed in 1997 and was most recently amended in 2005. This lays down strict conditions applicable when such techniques temporarily infringe a person's right to privacy and to respect for his or her home and correspondence.
In terrorist cases, use may be made of methods such as telephone tapping and any form of interception of communications (mail, fax …), observation, electronic surveillance, anonymous evidence, controlled deliveries …
These special investigation techniques may be authorised only by the president or deputy president of the regional court, on submission by the public prosecutor or the police of a detailed request giving grounds.
The Code of Criminal Procedure also contains the concept of "protected witness". Use of this technique is precisely regulated by a law of November 2004 which came into force on 25 May 2005.
Where protection of the rights of the victim is concerned, the Code of Criminal Procedure states that victims or their heirs may exercise their right to compensation for the damage suffered by making a claim for damages in criminal proceedings. The complainant may also take his or her case to the civil courts.
The courts play an important part in respect of persons to whom damage has been caused by terrorist acts, in that the Code of Criminal Procedure provides that the courts and the investigating authorities must explain to victims that they may take civil action relating to the damage suffered.
The law on foreigners states that suspicion of terrorism is a ground for denial of access to Bulgarian territory, refusal to issue a visa or the denial of the right to settle on Bulgarian territory.
A foreigner may be expelled if his or her presence on Bulgarian territory constitutes a serious threat to national security or public order.
Expulsion decisions and refusals of permission to settle may be the subject of an appeal to the courts (such appeals are not permitted under the law, but by case-law based on the Constitution and the ECHR).
Judicial co-operation and extradition are also applicable measures in cases of terrorism on the basis of the various international instruments binding on Bulgaria, and, even if there are no such instruments with certain states, on the basis of reciprocity.
Moldova
Moldovan legislation makes no provision for specific techniques or measures in cases of terrorism.
Luxembourg
Anyone suspected of terrorism enjoys all the guarantees under ordinary law for which both domestic legislation and the ECHR provide.
Spain
The main method used to reconcile the requirements of anti-terrorism action and the safeguarding of human rights is judicial supervision of police activities, particularly by the public prosecutor's office.
Any investigation techniques likely severely to infringe human rights always need prior authorisation by a court.
Otherwise, as in all other cases, the rules of ordinary law remain applicable to terrorist cases.
Norway
It is for the courts to ensure that the law is complied with. This is the best way of reconciling the imperatives of security and protection of human rights in cases where suspicions of terrorism exist. Any constraints imposed by the police authority have to be permitted and approved by a court, in addition to which, accused persons, in pursuance of the ECHR, have the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Iceland
As at 11 September 2001, Iceland had ratified 7 of the 13 international conventions relating to terrorism. It has subsequently started the process for ratifying the others. International police co-operation has been stepped up, as has airport security.
Hungary
If courts consider that certain anti-terrorism provisions are irreconcilable with the legislation safeguarding human rights, they can ask the Constitutional Court to decide which of the statutory provisions is to prevail.
Japan
The special laws applicable to cases relating to serious offences, including terrorism, lay down requirements and procedures designed to reconcile the imperatives of security and human rights protection, in accordance with the general provisions of the Criminal Code and Code of Criminal Procedure.
It is for the courts to interpret and apply these laws.
In several cases, these special laws provide for higher penalties than the general Criminal Code, but there are no exceptional procedures.
The law on immigration control and recognition of refugees and the law on passports do not include special provisions on this subject.
Monaco
This question does not arise in the Principality.
Slovenia
The government is considering a possible law on data collection where cell phones and e-mail are concerned.
Turkey
The Constitution guarantees individual freedom, security, respect for privacy, inviolability of the home and freedom of communications. In order to strike a balance between the requirements of security and human rights protection, reference has to be made to various provisions of the Constitution and Code of Criminal Procedure.
Thus, while the secret nature of communications is recognised, exceptions to this may be allowed in accordance with a court decision on grounds of national security, public order, the prevention of crime, the protection of public health, or the protection of the rights and freedoms of others. In urgent cases, such a decision may be taken by certain authorities with the statutory power to do so.
The protection of privacy is also guaranteed by the Constitution. Individuals, private papers and assets may be neither sought nor seized without a court decision based on the aforementioned grounds.
The judge responsible for cases of terrorism may decide, taking into consideration the requirement for security and Turkey's international commitments in respect of human rights, that a trial shall take place in one of the "aggravated felony courts", for security reasons. Such decisions are at the judge's discretion.
Any foreigners sentenced to a long term of imprisonment for terrorist acts are expelled and not allowed to return to Turkish territory.
Switzerland
No particular form of detention or confinement exists for persons charged with terrorist offences which differs from those which exist for persons suspected of other offences unconnected with terrorism.
Croatia
The courts take their decisions in accordance with the Code of Criminal Procedure.
Croatia has ratified most of the Conventions relating to the expulsion and extradition of foreigners, as well as numerous bilateral agreements with all the states of Europe.
Lithuania
The procedure applicable to cases of terrorism is identical to that applicable to cases relating to acts which come into the same category.
Where aliens’ rights are concerned, a new law provides that decisions to expel foreigners on the grounds that their presence poses a threat to public safety or public policy will now have to be taken by the Vilnius regional administrative court, and can no longer be taken by the Department of Immigration.
No foreigner may be held for more than 48 hours without a court decision.
Decisions relating to foreigners' rights may be the subject of an appeal to the Supreme Administrative Court.
"The former Yugoslav Republic of Macedonia"
Persons accused of crimes connected with terrorism have the same constitutional and procedural rights as anyone accused of other types of acts, notwithstanding the exceptions and restrictions for which the law provides.
The death penalty does not exist in Macedonian law.
The Constitution also specifies that torture and inhuman and degrading treatment are prohibited.
The Constitution also provides for individuals' right to freedom and security, the right to respect for privacy, for communication and for correspondence, and the inviolability of the home. These rights may be restricted only by a court, in the cases and according to the procedure for which the law provides.
Anyone arrested must be brought before a court within a maximum of 24 hours.
Czech Republic
The procedure does not differ in cases of terrorism or cases relating to other types of acts.
Aliens' rights where asylum, extradition and expulsion procedures are concerned do conform with the Czech Republic's obligations in terms of the protection of human rights and freedoms.
The national plan of action against terrorism has been given particular attention in this sphere, and international instruments and decisions have been taken into consideration.
The plan of action deals specifically with the application of asylum procedures, concluding that both legislation and administrative decisions are in conformity with international law.
Denmark
No specific measures are applied.
Italy
The new "anti-terrorist" measures referred to have been the subject of public debate and controversy.
All these matters require the judge to play an increasing role.
It nevertheless has to be said that it is not the judge who is concerned by many of the relevant aspects of this new legislation, but public prosecutors. In so far as public prosecutors are in the same career branch as judges, the law offers an indirect form of guarantee against violations of human rights.
In other fields, the role of the judge is necessary, especially in relation to the application of new offence definitions of which the content sometimes seems vague (difference between terrorism and guerrilla activity, relevant degree of participation in a terrorist organisation…) and to the interpretation of new concepts, particularly relating to the burden of proof.
The compatibility of the new legislation with the Constitution is bound to be examined by the Constitutional Court where these various aspects are concerned.
Latvia
Article 12 of the Code of Criminal Procedure specifies that account must be taken during the procedure of internationally recognised human rights, with the use of unjustified procedures and improper interference in privacy being excluded. Human rights may be restricted only on grounds of public security and in accordance with the Code of Criminal Procedure, in proportion to the offence.
The institution of "investigation judge" has been introduced. This judge is responsible for ensuring that human rights are respected during the procedure.
Albania
The law of 15 July 2004 introducing measures to prevent the financing of terrorism enables the Minister of Finance to freeze the assets of anyone suspected of committing terrorist acts or financing terrorism either within or outside the state.
Anyone whose assets have been frozen has the statutory right to appeal against this decision to a court.
The Supreme Court emphasises the importance of reconciling the requirements of security and human rights protection during procedures where terrorism is suspected. Courts dealing with issues relating to such reconciliation have to base their decisions on the Constitution, which refers in such situations to the European Convention and the case-law of the European Court of Human Rights.
Slovak Republic
When terrorism is suspected, the rules in the "Act of Police Corps" have to be applied, and subsequently the provisions of the Code of Criminal Procedure.
Both instruments contain provisions on the protection of human rights, encompassing the European Convention, meaning that suspects are entitled to these guarantees.
Where foreigners' rights are concerned, the courts may have to issue rulings on decisions taken by the Immigration Office.
United Kingdom
The Anti-Terrorism, Crime and Security Act 2001 provides, inter alia, for police powers to seize terrorist funds, to freeze funds at the outset of investigation and to monitor accounts which may be used to facilitate terrorism.
In the administrative sphere, legislation is currently going through Parliament which would make identity cards compulsory in the UK, an obligation which does not so far exist.
Where respect for human rights in the context of terrorism is concerned, the House of Lords has ruled that the Anti-Terrorism, Crime and Security Act 2001, which permitted the indefinite imprisonment without trial of foreign nationals suspected of international terrorism), was a disproportionate and discriminatory response to the threat to the nation. The government responded to the ruling in the Prevention of Terrorism Act 2005, which provides for a system of control orders. Similarly, the House of Lords said that evidence obtained under torture was inadmissible and could not be taken into consideration by the SIAC.
In the preventive fields, the Serious Organised Crime and Police Act 2005 introduced restrictions on the right to protest, creating tension between the demands of security and the protection of human rights.
The Terrorism Act 2000 gives the police power to stop and search anyone in a specific area if it is thought expedient for the prevention of acts of terrorism. The scope of this legislation is currently the subject of a challenge in the House of Lords.
2.D.4 Summary of replies to questions 2.D.1 to 3
2.D.4.1 Everyday experience and current events show that, while terrorism is not a new problem (the word "terror" was first used in a political sense during the French Revolution of 1789, and its derivatives, "terrorism" and "terrorist", were applied to the Robespierre regime which came to an end in 1794), it has recently taken on an unprecedented international scale.
There is undeniably a close link between terrorism and the exercise of individual rights and freedoms. First of all because terrorism violates human rights, particularly the right to life and to physical integrity. But also because terrorism encourages states to impose restrictions which themselves, unless care is taken, might be detrimental to human rights.
The international community, represented by international and supranational organisations, recognises the need for appropriate measures to combat terrorism and to protect populations from this threat and requires states to take such steps.
Thus terrorism, because of the exceptional danger it entails, has to be regarded as creating a specific situation justifying temporary exceptions to certain non-absolute rights, as provided for inter alia by Article 4 of the International Covenant on Civil and Political Rights.
While there can be no denying the legitimacy of such exceptional powers, they must nevertheless not violate the most basic, universally recognised, requirements of human rights to an extent greater than permitted by the law.
It is therefore for states and the international community as a whole to strike the balance which enables anti-terrorism action to be reconciled with respect for human rights and fundamental freedoms.
2.D.4.2 In practice, every country is likely, at some point, to be affected by terrorism, either in the form of acts committed in its territory or against its interests or directly threatening that territory or those interests, or by being used by persons involved in terrorist activities as a haven or logistical base, or even as their hub.
Thus it is only at international level, with the collaboration of all states, that there can be an effective response to terrorism.
Existing international legal instruments in this field provide a common basis for the fight against terrorism. It would therefore be advisable for the greatest possible number of countries to accede to these.
2.D.4.3 It would in any case be desirable for every state to include the specific offence of "terrorism" in its domestic law.
There are three reasons for this. Firstly, there is a symbolic objective through a clear definition of the concept of terrorism and the elements which constitute the offence.
Secondly, the offence of "terrorism", and more specifically membership of a terrorist group, also has a preventive role, in that action may be taken before more serious offences are committed which, were they to be committed, would be offences under ordinary law (manslaughter, premeditated murder, destruction using explosives, deliberate assault…), thanks to the classification as criminal offences of preparations for such offences in this particular context.
And thirdly, it is worthwhile to create the offence of "terrorism" from the point of view of procedure, both domestic and international.
In fact, bearing in mind the general acceptance that terrorist acts have to be placed in the category of the most serious offences, this classification enables use to be made of the various lawful special investigation methods which interfere most with privacy and freedoms (telephone tapping, direct eavesdropping, interception of correspondence and communications, intrusion into the home, observation of individuals or private premises, infiltration…).
The existence in all states' domestic legislation of the offence of "terrorism" is also likely to facilitate and accelerate international judicial co-operation.
2.D.4.4 Analysis of the replies submitted shows that most states have declared terrorism to be an offence, thus reflecting a common desire expressed in various international instruments of the United Nations, Council of Europe and European Union.
Virtually all states have thus included in their criminal legislation the offence of "terrorism" (acts of terrorism, participation in a terrorist group, financing of terrorism…), most of them thereby taking account of the relevant Council of Europe recommendations and resolutions.
Large numbers of the countries have also ratified, at least partly, the international Conventions which relate to the suppression of terrorism, the financing of terrorism, etc.
It also has to be said that all the states regard terrorism as one of the most serious offences and therefore allow the use of investigation and search methods involving the highest degree of interference with privacy and fundamental freedoms (telephone tapping, recording of conversations, interception of correspondence, observation of individuals or private premises, infiltration, controlled deliveries…).
2.D.4.5 It appears from the replies to the questionnaire that states are concerned to strike a balance in terrorist cases as well between the requirements of security and the safeguarding of human rights.
This balance is vital in the context of the judicial co-operation which typifies this kind of cases with an international dimension and should therefore be based on common principles.
A virtually universal response to this requirement is a refusal to use special courts, with states trusting their ordinary courts, certain that they, in compliance with the law generally applicable in democratic states - including the international Conventions and more specifically the ECHR, will manage to strike this balance.
The judge's role also extends to the preliminary phase of the trial and investigation, in so far as any special investigation techniques involving significant infringements of privacy, human rights and fundamental freedoms which are used are generally subject to authorisation by the judge.
States' practice nevertheless differs in terms of the scope of the measures restricting human rights which each tolerates.
Thus, while certain countries (Spain, France, Italy…) have, in terrorist cases, extended the period of police custody, or even detention on remand, for which the ordinary law provides, others do not intend to depart from the provisions of ordinary law. And while some states provide for specialised courts, either in the preliminary phase or the trial phase, without these really constituting special courts, others have not chosen this option.
The question of the detention conditions of persons suspected of or sentenced for terrorist acts was not raised as such, but it does reflect the difficulty of meeting the requirements of both human rights and protection of the public interest.
There is a great temptation to give automatic priority to security, entailing a risk of abuse, especially where such persons' detention conditions are concerned.
2.D.4.6 At all events, it is appropriate for democratic states not to deny the fundamental and essential values they have themselves established, and on which they are based, as they will otherwise provide terrorism with the victory it seeks, by suppressing human rights or reducing them to the point at which they are unrecognisable.
3. General conclusions
A few suggestions may be made by way of conclusions in the light of this analysis of the replies received, without wishing to encroach on the prerogatives of the CCJE.
1. Develop at national and international levels appropriate policies on international and European law training, and give judges practical details about such training and the means of access to it, particularly through the European Judicial Training Network.
2. Promote access to international instruments, but also to foreign legislation, by giving judges means of access to these, especially via the Internet.
3. Promote exchanges of experience between national and international judges, inter alia through the holding of meetings on specific, rather than general, issues and through European judicial networks.
4. Encourage a knowledge of foreign languages so as to ensure that suggestions 2 and 3 can effectively be put into practice, where appropriate through linguistic exchanges.
5. Promote the uniform application of European and international standards.
6. Develop judges' specific knowledge of terrorism and its historical, political and social context, as well as of the relevant national and international legal instruments.
7. Make "terrorism" an offence in every domestic system of legislation, taking care to include incitement, preparations to commit such acts and the financing of such acts.
8. In the sphere of terrorism, ensure that protection of the public interest is reconciled with respect for human rights and fundamental freedoms by introducing no special courts or legislation incompatible with universally recognised absolute rights.
APPENDIX IV
PRELIMINARY REPORT
ON THE REPLIES TO THE QUESTIONNAIRE ON
“The role of judges in striking a balance
between protecting the public interest and human rights
in the context of terrorism”
prepared by M. Jacek Chlebny, judge
of the Supreme Administrative Court, Poland
At the outset I would like to state that as an administrative court judge with no practice in criminal law, in my report I do not deal with the role of the criminal court judge in striking a balance between protecting the public interest and human rights in the context of terrorism. This paper deals with the judicial scrutiny of the administrative court (tribunal) judge in the context of the grounds for national security. The paper also covers the mains points concerning availability of information on the international legal instruments and application of the European Convention on Human Rights.
I. Judicial scrutiny of the administrative court (tribunal) judge in the context of the grounds for national security.
1.1. The aim of this part of my report is to highlight the specific role of an administrative court judge who is confronted with the national security considerations while deciding on the alien’s right to stay in the country, deportation (expulsion, removal) or to grant any form of protection (for example refugee status or subsidiary protection). A balance between the public interest and human rights must not lead to compromise over international obligations of the Member States of the Council of Europe. The international obligations inter alia stem from the 1950 European Convention on Human Rights (ECHR). The protection of national security may often result in the restriction of individual rights of the ECHR - Article 8 para 2 (right to respect for private and family life), Article 9 para 2 (freedom of thought, conscience and religion), Article 10 para 2 (freedom of expression), and Article 11 para 2 (freedom of assembly and association). Weighing the threat of terrorism against the individual rights enshrined in the ECHR requires striking a balance between protecting the public interest and individual human rights. However, it must not affect the absolute rights such as right to life (Article 2 ECHR), prohibition of torture (Article 3), prohibition of slavery (Article 4) or the principle nulla poena sine lege (Article 7). It is also worth reminding that even such as an absolute right like prohibition of torture (Article 3 ECHR) is nowadays challenged in cases of expulsions on grounds of national security in the context of terrorism. It is well illustrated by the case R. v. Netherlands pending before the European Court of Human Rights (EctHR). It is argued in that case that the concept of fair balance runs through the whole of the ECHR and Article 3 is no exception to this and that it must be a fair balance between the rights of the many (not to be the victims of terrorist attacks) and the right of the few (not to be exposed to a risk of mistreatment). In this case the Court in Strasbourg is requested to revisit the case of Chahal v. the United Kingdom (15 November 1996) and look again at the Chahal judgement in light of the security threat across Europe.
1.2. Usually the rank of the ECHR is below the national Constitution but the ECHR keeps special position vis-à-vis ordinary acts of parliament. In the majority of countries ECHR clearly prevails over acts of parliament in case of contradiction (for example, Azerbaijan, Bulgaria, Cyprus, Croatia, Denmark, Estonia, “The former Yugoslav Republic of Macedonia”, Iceland, Latvia, Lithuania, Moldova, Monaco, Norway, Poland, Switzerland, Spain, Turkey). Acts of parliaments have to be construed in the light of the ECHR although the national courts may also be required to follow acts of parliament in case of contradiction with the ECHR – the UK higher courts are entitled only to make a declaration of incompatibility. Although in Italy it seems to be still unclear what the rank of the ECHR is but nevertheless it tends to have the higher rank than as internal ordinary law. The judgements of the European Court of Human Rights in Strasbourg have to be taken into account by the national courts. The case law of the EctHR is not considered as the source of law. Generally speaking, in all responding countries, the recommendations and resolutions of the Council of Europe are allowed to be used at least as interpretative tools reflecting the European recognized standards
1.3. Access to the court and right to an effective remedy in the context of national security. Recommendation Rec (2004) 20 of the Committee of Ministers to member states on judicial review of administrative acts (adopted by the Committee of Ministers on 15 December 2004) promotes the principle that all administrative acts must be subject to judicial review. However, the Recommendation does not prevent States from defining “very limited exceptions by law, for example certain acts in the field of …national security” (point 13 of the Recommendation). It seems worth discussing what kind of administrative acts, if any, are excluded from the judicial scrutiny by the national legislations under the grounds of national security. It would require further examination in order to find out whether the exclusion of such acts falls into the category of “very limited exceptions” and also does not pose a threat to the infringement to the article 13 of the ECHR that ensures for everyone - whose the Convention rights and freedoms are violated - right to an effective remedy.
1.4. Even if the access to the court or quasi judicial authority is recognized there might be a concern about the quality of such scrutiny. The remedy should be effective within the meaning of article 13 ECHR. In the case of Chahal v. the United Kingdom (see points 149 and 153) the Court took the view that in assessing whether there is a real risk of treatment in breach of Article 3 ECHR in expulsion cases, the fact that the person is perceived as a danger to the national security of the respondent State is not a material consideration. The irreversible nature of the harm requires independent scrutiny – an effective remedy under Article 13 ECHR. In this context provisional protection of an alien concerned to remain in the territory of the state until the available remedies are exhausted could be discussed. Let me draw attention to the Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (Official Journal 326, 13.12. 2005,). The directive provides an alien with the right to an effective remedy before a court or tribunal against a negative decision on the refugee status, a decision refusing entry, or withdraw of refugee status. The remedy is called an “effective”, however, it is left to the discretion of the Member State to grant a suspended effect and allow an applicant to remain in the territory of the State concerned (Article 39 point 3 (a) of the directive). European Court of Human Rights requires the possibility of suspending the implementation of the measure impugned. In the recent case Mamatkulov and Askarom v. Turkey, of 4 February 2005, the Court stated that: „ Indeed it can be said, that, whatever the legal system is question, the proper administration of justice requires that no irreparable action be taken while proceedings are pending ( § 124).
1.5. It does not require any special justification that an access by the parties to the administrative file and the court’s file is one of the preconditions for a fair trial. In the light of the Recommendation Rec (2004) 20 on judicial review of administrative acts the right to a fair hearing comprises inter alia the principle of equality of arms between the parties to the proceedings (principle 4 b). Unless national law provides for exceptions in important cases, the administrative authority should make available to the tribunal the documents and information relevant to the case (principle 4c). The proceedings should be adversarial in nature. All evidence admitted by the tribunal should, in principle, be made available to the parties with a view to adversarial argument (principle 4d). The administrative authority is obliged to make available all the documents in its case-file on which it bases its decision. At the same time, the Recommendation recognizes that in certain circumstances it should be possible to apply special protective measures to sensitive documents and illustrates it by using an example of the grounds for national security (explanatory memorandum point 64). It is interesting to note that the Recommendation refers to special protective measures and not to the denial of the access to the case file. Similarly, in the light of the ECHR case law not absolute denial of the access to the case file but special protective measures are recommended. In the case of Chahal v. the United Kingdom it was recognized that the use of confidential material may be unavoidable where national security is at stake. In the Chahal case, inter alia, the issue of detention and deportation of the alien on the grounds of national security was debated. In order to ensure the applicant’s procedural rights the Court recommended the Canadian solution which both accommodates legitimate security concerns about the nature and sources of intelligence information and yet accords the individual a substantial measure of procedural justice. The Canadian model, at the time of the Chahal case, broadly speaking, allowed a judge to hold an in camera hearing of all the evidence. However, the applicant was provided with a statement summarizing the case and had the right to be represented and to call evidence. The confidentiality of security material was maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place was taken by a security-cleared counsel instructed by the court, who cross-examined the witnesses and generally assisted the court to test the strength of the State's case. A summary of the evidence obtained by this procedure was given to the applicant (point 144 of the judgement).
Both the Chahal case and the Recommendation tend to strike a balance between protecting the public interest and the human rights approach. It would be interesting to examine whether in all Member States of the Council of Europe confidential material is used by a judge and to determine how the right to a fair trial is guaranteed.
1.6. Special attention would require the detention of aliens in the context of article 5 (1) ECHR that sets out the right to liberty and defines the exhaustive circumstances in which it can be limited. The additional questionnaire could encompass also whether national legislations allow any exceptions to the right to liberty on the grounds of threat to terrorism. The various aspects of lawfulness of detention on national security were discussed inter alia in the above mentioned Chahal case. The general standards of the procedure related to the removal of the detained aliens were discussed particularly in the cases: Conka v.Belgium (judgement of 5 February 2002) and Shamsa v. Poland ( judgement of 27 February 2003).
1.7. Although each state deals with the removal of foreign extremist according to its own national law and practice, the minimum standards of the procedure could be considered. For example, the problem of special treatment of aliens on the national security grounds is illustrated well by Article 1 of the Protocol No 7 to the ECHR of 22 November 1984. It enumerates procedural safeguards to the expulsion of an alien who is a lawful resident in the territory of the state. Such an alien is allowed to be expelled only by virtue of a decision reached in accordance with law and should be allowed: (1) to submit reasons against expulsion, (2) to have his case reviewed (3) and to be represented for these purposes before the competent authority. However, these procedural safeguards may not be applied when such expulsion is necessary in the interests of public order or is grounded on reasons of national security. Striking balance requires answering the question - what authority takes such a primary decision and whether there is any judicial control over it. What kind of legal remedies, including the suspension of the execution of an expulsion order are offered to such an alien and whether the Convention rights are fully respected. In the German report (see point 5, pages 26-28) there was invoked the law that defines the grounds for expulsion and refusal a residence permit in the context of threat of terrorism. However, the administrative court that is responsible for considering the appeal takes into account also the human rights enshrined in the Convention (for example, protection of family life).
1.8. Conclusions
The role of an administrative court (administrative tribunal) judge often does not attract much attention and is perceived as being rather peripheral in the context of the problem of terrorism and the necessity to strike a balance between the public interest and the individual rights of those who, on various grounds, claim, for example, right to stay in the country concerned. The functions of the administrative court judge deciding on the rights of the aliens in the context of national security were only briefly included in the questionnaire (see point D. 3). The national responses partly addressed this question but sometimes completely ignored the problem (except for German report which deals with this question in depth). Both the questionnaire and the replies put the stress on the criminal law. Special procedural measures and differences from the regular procedures are often justified vis-à-vis aliens who pose a threat to national security or public order. However, it would be worth discussing the above mentioned procedural issues in the context of minimum procedural standards in a state ruled by law. In these circumstances I find it necessary to suggest the Consultative Council of European Judges should consider requesting additional responses on the more specific issues that seems to be relevant to this problem. In my opinion, more detailed answers could help the Consultative Council of European Judges to take an overall view on the extent to which national legislations balance the individual rights of aliens and the necessity of protecting the national security in the case of a threat of terrorism.
I suggest the following questions:
1. What kind of administrative acts, if any, are excluded from the judicial scrutiny under the grounds of national security?.
2. Limitation of the right to an effective remedy (appeal) in the context of the grounds for national security.
3. The principle of equality of arms – access by the parties to the administrative file and the court’s file, use of confidential material by the administrative authority and the court.
4. Expulsion on grounds of national security. Special procedural measures.
5. Detention on national security grounds – procedural safeguards.
II. Availability of information on all international legal instruments relevant to judicial activities
2.1. Judicial training.
Many national reports emphasise that courses in international law, European law or human rights are part of the university legal education. Judges needs are met by various forms of the initial and in-service training. The law may directly require training for judges (Lithuania, Latvia). Initial or in-service training for judges are often arranged by the special national institutions:
UK – Judicial Studies Board,
Azerbaijan –the Law Education Centre,
Bulgaria -National Institute of Justice (NIJ),
“The former Yugoslav Republic of Macedonia” - Centre for Continuing Education (CCE), Croatia- Judicial Academy,
Norway - Council for Professional Training of Judges,
Estonia - Law Centre Foundation,
Latvia- Judicial Training Centre
Czech Republic- Judicial Academy
France - de l’école nationale de la magistrature ( ENM ) – accesible for judges from Luxembourg, Monaco and other countries.
Moldova - Centre de qualification des cadres de la justice,
Spain - l’ Ecole Judiciaire in Barcelonaand Forum permanent d ‘ Etudes Judiciaires Européennes in Murcia
Germany- German Judges Academy
Also the Universities, Ministry of Justice, the court administration and the judges’ national associations play an important role in training. Additionally, in Italy the Higher Council for the Judiciary and in Switzerland a special foundation are responsible for an in-service training of judges.
Training is carried out through participation in the courses or seminars organized not only at national level but also internationally and regionally (for example at the European Law Academy, Trier) or by sending judges abroad to study judicial and legal systems that are in place elsewhere (Japan). In some countries the training of the judiciary was assisted by the international community (“the former Yugoslav Republic of Macedonia”, Hungary, and Estonia – PHARE programme)
2.2. Legal Information.
Legal information on recent legislation and case-law at the European and international level is accessible in two ways -.traditional (paper) and electronic. From the reports it can be gathered that modern techniques (electronic) will play the most important role, especially due to the cuts in spending (see point A 2 report of Italy). Sometimes legal information is spread by special circulars (UK – prepared by Judicial Studies Board, Croatia – publications of the Judicial Academy, Denmark - a list with a summary of recent case law, Spain – electronic versions prepared by the Conseil Général du Pouvoir Judiciaire), or it is contained in the national judicial official gazette (Hungary) or national legal periodicals (Norway, Turkey, Poland). The judgements of the EctHR are also disseminated among the judges in their own language by the national authorities: the Ministry of Justice or Ministry of Foreign Affairs (Estonia, Poland).
Sometimes support from the international organizations such as German Technical Collaboration Society (GTZ), or ABA - CEELI, OSCE, TAIEX may make legal information more accessible for judges (Azerbaijan). Judges are also expected to research European and International case law themselves because there are no special arrangements made for them (Slovenia, Iceland, and Japan).
2.3. Foreign languages courses and translation facilities.
In many reports it was stressed that the party to the procedure has the legal obligation to present translations of the documents that are submitted to the court. Translation facilities and the interpreters are normally organized by using external assistance ad hoc by the court or the parties if needed.
There are several countries where foreign language courses are available free of charge for judges (Azerbaijan, Czech Republic, Denmark, “The former Yugoslav Republic of Macedonia”, Lithuania, Norway, and Estonia, Monaco, Germany). Sometimes foreign language courses are partly subsidized by the state (Turkey, Hungary, Croatia, Spain, Latvia, Switzerland and Italy) or addressed to particular judges, for example working as the contact points of the European Judicial Network (Poland). There are also countries in which there are not free of charge foreign language courses (the UK, Bulgaria, Cyprus, Iceland, and Japan, Moldova).
2.4. Dialogue between national and European judicial institutions.
In all national reports the positive role of direct contacts between judges and facilitating communication through conferences, seminars and visits (paid by the national judges to the ECJ and ECHR and vice versa) was emphasized. Small scale meetings were considered to be the most productive. Besides the direct contact between the national judges and the judges of the European Courts, the judgements of both European Courts also frequently serve as a reference for the national judges. Additionally, preliminary ruling procedure can be utilized to the ECJ.
2.5. Conclusions
There are various forms of judicial training depending on the tradition, resources and also experience of the newly appointed judges. However, even in the countries where the appointments to the judgeship requires a long standing experience in practicing law the in service training is needed. The access to legal information in the national languages is essential and requires constant efforts. It was rightly observed that judges would be over-whelmed if they received irrelevant but vast amounts of information on recent legislation and case law of the ECHR and ECJ. Usually the rank of the ECHR is below the national Constitution but the ECHR keeps special position vis-à-vis ordinary acts of parliament. The case law of the EctHR is not considered as the source of law. In all responding countries, the recommendations and resolutions of the Council of Europe are soft law. The access to the case law in the official languages of both European Courts is easy since it is available on the website, but it requires knowledge of foreign languages.
APPENDIX V
Recruitment of judges – European standards
Recrutement des juges – standards européens
Working session
Session de travail
organised by the Council of Europe in collaboration
with the National Institute of Magistracy of Romania
within the framework of the Romanian Chairmanship of the Council of Europe
organisée par le Conseil de l’Europe en collaboration
avec l’Institut National de la Magistrature (INM) de Roumanie
dans le cadre de la Présidence roumaine du Conseil de l’Europe
Bucharest/Bucarest, 23 March/mars 2006
PROGRAMME
09.30 Arrival of participants / Accueil des participants
10h00 Opening addresses by / Allocutions d’ouverture:
Mihai Selegean, NIM Director / Directeur de l’INM
Iulian Gâlcă, President of the High Council of Justice / Président du Conseil Supérieur de la Magistrature
Roberto Lamponi, Director of Legal Co-operation, Directorate General I – Legal Affairs, Council of Europe / Directeur de la coopération juridique, Direction Générale I - Affaires Juridiques, Conseil de l’Europe
Nicolae Popa, President of the High Court of Cassation / Président de la Cour Suprême de Cassation
Beatrice Ramaşcanu, Romanian Government’s Agent at the European Court of Human Rights / L’Agente du gouvernement roumain devant la Cour européenne des Droits de l’Homme
Dan Stoica, State Secretary, Ministry of Justice / Secrétaire d’Etat, Ministère de la Justice
Ştefan Deaconu, Counsellor, Presidential Administration / Conseiller, l’Administration du Président de la République
11h00 coffee break / pause café
11h15 Skills and competences of a future judge / Qualités et compétences du futur juge
Who are we aiming to recruit and what should their profile be?
What skills and competences of candidates should be assessed during the entrance examination?
How appropriate training should be organised: who provides the training and in what? is the training professional in nature or more academic?
Qui cherche-t-on à recruter, avec quel profil ?
Quels qualités et compétences des candidats devraient faire l’objet d’une évaluation lors du concours d’entrée?
Comment organiser une formation adaptée : qui forme et à quoi ? est-ce une formation de type professionnel ou de type plutôt académique ?
Presentation of the current situation in Romania /
Présentation de la situation actuelle en Roumanie
Mr Valeriu Stoica, Professor, membre of NIM board / Professeur, membre du Conseil scientifique de l’INM
Mr Mihai Selegean, NIM Director / Directeur de l’INM
Debate / Débat
13h00 lunch / déjeuner
14h30 Models of recruitment of judges / Modèles de recrutement des juges
What the methods of recruitment are: competitions (internal, external, other), professional examinations, etc. Do the competitions lead to a job, a training school?
What are European standards in this respect?
Quels sont les modes de recrutement : concours (interne, externe, autre…), examens professionnels… Le concours donne-t-il accès à un emploi, à une école de formation ?
Quels sont les standards européens en la matière ?
Presentation of practice in the European states: members of the Working party of the Consultative Council of European Judges (CCJE-GT) /
Présentation de la pratique dans des Etats européens : membres du Groupe de travail du Conseil Consultatif de Juges Européens (CCJE-GT)
Presentation of European standards: Mr Raffaele Sabato, Chair of the Consultative Council of European Judges (CCJE)
Présentation des standards européens : M. Raffaele Sabato Président du Conseil Consultatif de Juges Européens (CCJE)
Debate / Débat
16h00 coffee break / pause café
16h15 Recruitment on the basis of competence / Un recrutement axé sur la compétence
What is the nature of the tests taken by candidates : academic, professional…? written, oral?
Quelle est la nature des épreuves que devraient subir les candidats : épreuves académiques, professionnelles… ? écrites, orales ?
Presentation of current practice in Romania:/ Présentation de la pratique actuelle en Roumanie :
Dana Vartires, Judge, High Court of Cassation / Juge, Cour Suprême de Cassation
Dana Garbovan, Judge, First Instance Court of Oradea /
Juge au Tribunal de Première Instance d’Oradea
Debate / Débat
17h15 Conclusions
17h30 End of the working session / Clôture de la session
LIST of Romanian Participants /
LISTE des participants roumains
Iulian Gâlcă, President of the Superior Council of Magistracy
Nicolae Popa, President of the High Court of Cassation
Dana Vartires, Judge, High Court of Cassation
Dan Stoica, Secretary of State, Ministry of Justice
Beatrice Ramaşcanu, Ministry of Foreign Affairs
Ştefan Deaconu, Presidential Administration
Alexandrina Rădulescu, High Council of Justice
Emma Turtoi, People`s Advocate - Romanian Ombudsman
Nicoleta Rusu, People`s Advocate - Romanian Ombudsman
Dana Cigan, Court of Apeal of Oradea
Dana Gârbovan, Judge, District Court of Oradea
Dragoş Tudorache, Delegation of the European Commission in Romania
Babeş Onesia, Parliament of Romania
Irina Moroianu, Romanian Institute for Human Rights - IRDO
Artur Răducanu, Ministry of European Integration
Valeriu Stoica, Professor - member of NIM board
Viorel Voineag, Professor - NIM
Viorel Mihai Ciobanu, member of NIM board
Tudorel Toader, member of NIM board
Liviu Pop, member of NIM board
Angela Hărăstăşanu, High Council of Justice
Annamaria Ţuluş, Magistrates` Association
Vasile Pantea, National Institute for the Professional Training of Lawyers
Gavril Chiuzbaian, Romanian Jurists Union
Mihai Albici, Romanian Jurists Union
Mariana Niţelea, Director, Information Office of the Council of Europe in Romania
Cristian Iordănescu, Baroul Bucureşti
Smaranda Angheni, Professor - NIM
Gabriel Boroi, Professor - NIM
Anastasiu Crişu, Professor - NIM
Tudorel Ştefan, Professor - NIM
Mihai Selegean, Director of NIM
Conclusions
The participants reminded that procedures for admission to Magistracy should be characterised by fairness and equal opportunities; they should be aimed at the recruitment of the best candidates.
Quality of the recruitment should be assured through selection tests and methods reflecting a profile of a magistrate apt to constantly maintain a balance between the requirement of the independence and accountability of the judge and of the judiciary system.
Testing should verify not only the legal knowledge of the candidates, but also the skills and values specific to this profession.
Even when magistrates are recruited among experienced lawyers, the participants agreed that all successful candidates should receive initial training: the performance of judicial duties involves a particular approach in many areas, notably with respect to management of procedures, relations with all the persons involved in court proceedings, and deontological skills that training programmes should appropriately cover.
The participants agreed that selections methods and training actions should ensure a European vocation of magistrates and their proficiency in one or more foreign languages.
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.
In order to promote this essential facet of judges’ duties, the participants consider that the member states, after strengthening the study of European law in universities, should also promote its inclusion in the initial training and in-service training programmes proposed for judges, with particular reference to its practical applications in day-today work.
The participants supported the idea that adequate preparatory courses in Human Rights, EC/EU Law, legal reasoning, jurisprudence and foreign languages should be provided by law faculties according to general quality standard. These subjects should be taught both as separate and in connection with all other subjects, such as Criminal Law, Civil Law etc. so that the undergraduates, regardless of their future specialisation, should know - before completing their studies - what the implications are for their fields of activity1.
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1See, to this effect, Opinion no. 4/2004 of the Consultative Council of European Judges of Europe
The participants would welcome the creation of a mechanism to ensure the implementation of public policies in the field of justice which should be made, first of all, by the magistrates themselves.
APPENDIX VI
Programme « Open Session in the Supreme Court of Cyprus
on the theme « the Judge and international law»
(22 June 2006)
- Welcoming speech by the President of the Supreme Court of Cyprus Mr. Christos Artemides
- Speech by Mr. M. Nicolatos, Justice of the Supreme Court of Cyprus on the subject “the Legal System, the Administration of Justice and Human Rights in Cyprus”
- “The Judicial System in Cyprus” by Justice D. Hadjihambis
- “An Overview of the Cyprus Legal System” by Judge G. Nicolaou
- “The Administration of Justice in Cyprus” by Judges Y. Constantinides and T. Eliades
- Organisation of the Cyprus Judiciary - Sketch
- Discussion
[1] The steering committee of the ENCJ includes representatives of the Superior Council of the Judiciary or equivalent bodies of Belgium, France, Ireland, Italy (Chair), the Netherlands (headquarter and secretariat), Poland, Spain and the United Kingdom. About 25 persons took part in the meeting of 17 February 2006.
[2] The CCJE-GT based its considerations on the examination of the Petition, dated 1 March 2006, submitted by the Slovenian Association of Judges to the Constitutional Court of the Republic of Slovenia, in the English translation.
[3] See Recommendation (94) 12 of the Committee of Ministers to Members States on the Independence, Efficiency and Role of Judges.
[4] See the above quoted Terms of reference of the CCJE, as approved by the Committee of Ministers at the 956th meeting of the Ministers’ Deputies.
[5] See the Terms of reference, paragraph 4.d.
[6] Principles I (2)(a)(II) and III (1)(b).
[7] Paragraphs 61-62
[8] Paragraphs 37-45
[9] Paragraphs 10-11