Strasbourg, 23 February 2009

CCJE-GT(2009)7

Working party of  the Consultative Council of European Judges (CCJE-GT)

Report of the 16th meeting - Strasbourg, 16-18 February 2009

Secretariat memorandum
prepared by the Directorate General of Human Rights and Legal Affairs

I....... INTRODUCTION

1.        The Working Party of the Consultative Council of European Judges (CCJE-GT) held its  16^th meeting from 16 to 18 February 2009 in Strasbourg (Palais de l’Europe).  Members of the CCJE Bureau attended the meeting which was chaired by Mr Orlando AFONSO (Portugal), Vice-Chair of the CCJE.  The list of participants appears in Appendix I and the agenda in Appendix II to this report.  

II...... INFORMATION BY THE CHAIR OF THE CCJE AND THE SECRETARIAT

2.        The Chair of the CCJE-GT was pleased with the manner in which Opinion No. 11 on the quality of judicial decisions had finally been adopted (by written procedure), the excellent contributions made by certain members of the CCJE in this respect and the high calibre of the final text, which addressed most of the concerns expressed by CCJE members at the last plenary meeting.

3.         The Chair of the CCJE, Ms Julia LAFFRANQUE, and the Secretariat explained that there would be a number of ancillary meetings during the current meeting:

§     the hearing with the Chair of the CCJE at the meeting of the Rapporteur Group on Legal Co-operation (GR-J) of the Ministers’ Deputies, when the abridged report of the 9^th plenary meeting of the CCJE and Opinion No. 11 were presented;

§     the informal hearing by the Working Party on Institutional Reforms (GT-REF.INST) of the Committee of Ministers with the Chair of the CCJE, further to a questionnaire sent out to CCJE members; 

§     a meeting between the Director General of Legal Affairs and Human Rights, Mr Philippe BOILLAT, and the Chairs of the CCJE and the CCPE concerning a possible restructuring within the Secretariat that could lead to the creation of a new Directorate of Consultative Bodies that would include the Venice Commission, the CEPEJ, the CCJE, the CCPE and the Lisbon Network;

§     a meeting with the Estonian judge at the European Court of Human Rights, Mr Rait MARUSTE, at which the CCJE’s work could be presented, in particular Opinion No. 11.

III.       DRAFT OPINION NO. 12 ON THE RELATIONSHIP BETWEEN juDges AND PROSECUTORS

4.         The CCJE-GT noted that, in accordance with its terms of reference as approved by the Committee of Ministers at the 1015^th meeting of Ministers’ Deputies, the CCJE had been instructed to “adopt an opinion in 2009, for the attention of the Committee of Ministers on the relationship between judges and prosecution services.  This work will be carried out on the basis of the results of the European conference of judges and prosecutors on this topic, in close consultation with the Consultative Council of European Prosecutors (CCPE).”

5.         The Secretariat had accordingly asked the expert, Mr J. P. TAK (Pays-Bas), Professor of Law at Radboud University Nijmegen, to prepare, on the basis of his own experience and existing Council of Europe works on the subject, an outline of the differences in status between judges and prosecutors as well as the differences amongst prosecutors in the various member states of the Council of Europe.  The report was intended more to provide CCJE-GT and CCPE-GT members with accurate, relevant information about the status of judges and prosecutors in Europe, as a prelude to the more specific discussion on the relationship between these two institutions, than to serve as a basis for the draft opinion (document CCJE-GT(2009)4).  Without  anticipating the future content of the opinion, it was thus part of the expert’s brief to focus more on prosecutors and their different status than on judges.

6.         The CCJE had invited all its members to send the Secretariat a list of points which they wished to see addressed in the draft opinion.  These points appeared in the information note on the joint opinion for 2009 (document CCJE-GT(2009)3). Mr AFONSO (Portugal) and Mr P. MAFFEI (Belgium) had also drawn up a preliminary structure for the draft opinion (document CCJE-GT(2009)2) while Mr J. MACMENAMIN (Ireland) had prepared a report on the specific features of the prosecution service under the Irish system (document CCJE-GT(2009)1).

7.         Some members pointed to the major differences that existed between the continental and common law systems, where it seemed inappropriate to talk about a “relationship” between judges and prosecutors, prompting them to question the very choice of subject-matter.   

8.         CCJE-GT members also wondered about the feasibility of having a single opinion, jointly adopted by the CCJE and the CCPE, as judges and prosecutors had conflicting interests.  The aim of the opinion, after all, was to look at how prosecutors influenced the role of the judge (in continental systems at any rate) and, more generally, to consider the issue of the independence of judges:  the answer was thus apt to vary depending on whether it came from a judge or a prosecutor.  Some members suggested preparing two separate opinions, linked by a joint statement by the two councils.  Others disagreed, saying it was important to prepare a joint text following in-depth discussions between the committees, difficult though that might be.

9.         It was important to bear in mind that the object of the exercise was not to provide an exhaustive picture of the relationship that existed in Europe between judges and prosecutors but rather to send a clear message about what a transparent, impartial relationship in the interest of citizens should look like.  The Secretariat also noted that adopting a joint opinion would send a strong signal to the Committee of Ministers, showing that legal professionals were working together, in a consensual manner, to agree common principles governing their relations, with a view to improving the efficiency of justice.

10.       The Working Party agreed that some basic rules should be observed when preparing the opinion: 

§     approach matters from the perspective of society and the rule of law;

§     bear in mind the wider issue:  the differing roles of judges and prosecutors in society;

§     the opinion should be a short, specific text setting out the main principles concerning the relationship between judges and prosecutors;

§     recapitulate the Council of Europe’s achievements in this area: ECHR, Recommendations, case-law of the European Court of Human Rights;

§     expand upon Rec(2000)19 and other relevant international instruments;

§     send a clear message about shared values as regards transparent and objective procedures with a view to ensuring an independent and efficient justice system;

§     recognise the major differences that existed between the common law and continental systems and between the various systems of prosecution in the continental system.  Recognise, too, that some principles were not applicable in certain systems. 

11.       It was further pointed out that the following key issues would need to be addressed during the work if the relationship between judges and prosecutors was to be considered thoroughly:

§     the role of judges and prosecutors in society;

§     the institutional autonomy or independence of the prosecution service, which was one of the guarantees of judicial independence and a fair trial, according to Article 6 of the ECHR;

§     the objectivity and impartiality of the prosecution service and judges;

§     the opportunity or legality principle for public prosecutors;

§     safeguards available to citizens in the event of a decision by the prosecution service not to proceed with a case;

§     the “proximity” between judges and prosecutors (as a result of undergoing training together, sharing the same buildings, etc.) and the notion of impartiality of judges;

§     the role of the prosecutor and the judge during the trial;

§     “equality of arms” between the prosecutor and the defence lawyer throughout the proceedings;

§     special methods of inquiry:  powers of the police, the prosecution service and judges;

§     police custody and remand in custody;

§     decision-making and settlement power of the prosecution service;

§     the specific case of non-criminal proceedings;

§     ethics and deontology;

§     relations with the defence and the media;

§     international co-operation;

§     social provision for prosecutors and judges (pay, corruption, etc.);

§     accountability of judges and prosecutors.

12.       The CCJE-GT and the CCPE-GT held a one-day joint meeting on Tuesday 17 February 2009, which began with Professor TAK presenting his report.  The first part of the report looked at the scope of the discretionary power enjoyed by prosecutors and judges with regard to prosecutions, which varied depending on whether these last were governed by the legality or opportunity principle.  The expert described the various systems in place, while pointing out that their functioning varied according to how the rules were interpreted and what exceptions applied.  The second part of the report examined the level of dependence or independence, internal or external, of the prosecution service.  The expert noted certain trends here, leading to significant changes in the tasks that judges and prosecutors were expected to perform.  The third part focused on the relationship between judges and prosecutors through an examination of the adjudicatory function of the prosecution service and the professional status of public prosecutors and judges.

 

13.       Both Working Parties thanked the expert for his report outlining a general approach to the status of prosecutors in Europe.  The Italian members of the CCJE-GT and CCPE-GT were unhappy, however, with the subjective manner in which the expert had described the Italian system, referring to the “lack of independence” and “politicisation” and “abuses” in connection with the prosecution service (see in Appendix III to this report the Italian delegation’s comments on the TAK report).  Some members of the working parties would also have liked to see some examples drawn from common law systems.

14.       After the discussions, the two working parties prepared a preliminary structure for the opinion.  It was agreed that members of the two Working Parties would share the drafting of the preliminary draft opinion as follows, based on the above-mentioned structure:

1) Introduction

i) The respective roles of judges and prosecutors in society: historical basis and current context (O. Afonso for the CCJE and C. Visart de Bocarme for the CCPE)

ii) Contribution to an efficient justice system that respects rights and fundamental freedoms:  existing Council of Europe texts (ECHR, Recommendations, case-law of the European Court of Human Rights), etc. (G. Reissner for the CCJE, J. M. Da Silva Miguel for the CCPE)

2) General principles

i) Safeguards to ensure the (internal and external) independence of judges and prosecutors as a condition for impartiality and objectivity in the performance of their tasks  (P. Mafféi for the CCJE, O. De Baynast and P. McCormick for the CCPE)

ii) Rule of law as a condition for prosecutorial and judicial independence (P. Mafféi for the  CCJE, A. Zvyagintsev, V.  Zimin and P. Polt for the CCPE)

3) Status of judges and prosecutors  

i) Ethics and deontology (A. Arnaudovska for the CCJE, A. Giraldi and H. Range for the CCPE)

ii) Training (A. Arnaudovska for the CCJE, A. Mura, A. Vercher Noguera and R. Toiviainen for the CCPE)

4) Criminal proceedings

i) Tasks of the judge and the prosecutor before (the investigation, initiating prosecutions and  coercive measures), during (the hearing) and after the trial (execution) (O. Afonso and A. Arnaudovska for the  CCJE, P. McCormick, A. Tasyurt and O. De Baynast for the CCPE)

ii) Exercise of the rights of the defence at every stage in the proceedings (J. F. Cobo Saenz for the CCJE, O. De Baynast and P. McCormick for the CCPE)

5) Non-criminal proceedings (D. Sessa for the CCJE, P. Polt, A. Zvyagintsev, V. Zimin and J. M. Da Silva Miguel for the CCPE)

6) Judges, prosecutors and the media (N. Engstad for the CCJE, A. Vercher Noguera, J. M. Da Silva Miguel, A. Mura and A. Tasyurt for the CCPE).

15.       The Working Party agreed that contributions must be submitted to the Secretariat by the end of March and the draft opinion completed by the end of April.  No contribution should be more than 1 page in length.  Once the Secretariat had pulled the various contributions together, J. MACMENAMIN (Ireland), S. NATHANAEL and P. ZAHARIA would be asked to check the overall text concerning the different systems and common law systems and to make additions where necessary; J. LAFFRANQUE was responsible for finalising the text as a whole.  

16.       It was agreed there would be another joint meeting during the forthcoming meetings of the CCJE-GT and the CCPE-GT, which were to be held on the same dates in Bordeaux (France) from 1 to 3 July 2009.

IV.      PREPARATION OF THE JOINT CONFERENCE OF THE CCJE AND THE CCPE

17.       In accordance with the terms of reference assigned by the Committee of Ministers to the CCJE and the CCPE, a European conference would be held in 2009 on the main issues involved in the relationship between judges and prosecutors, as a basis for the preparatory work on the opinion to be adopted on the same topic.   

Conference date and venue

18.       The conference would be held in Bordeaux (France) on 30 June and 1 July (ending at 2 pm) 2009, at the ’invitation of France’s Ecole Nationale de la Magistrature (ENM). The ENM was celebrating its 50^th anniversary in 2009 and had decided to open up its building to the Council of Europe on that occasion.  

Title of the conference

19.       It was agreed that the title of the conference should take account of the specific features of certain systems, in particular common law systems.  So far the suggestions were:

-               “Exercise of the missions of judges and prosecutors:  complementarity and/or autonomy”, and

-               “Exercise of the missions of judges and prosecutors:  respective visions and differences”.

Draft programme

 

20.       Following the opening session at which Mr Jean-François THONY, President of the ENM, and Ms Maud DE BOER-BUQUICCHIO, Deputy Secretary General of the Council of Europe, were to speak, together with the Chairs of the CCJE and the CCPE, the following sessions were planned:

-           Session I: Roles and tasks of judges and prosecutors:  strengthening the independence of the judiciary in the interest of citizens

-           Session II:   Means of action of judges and prosecutors: training, organisation and management of human, budgetary and material resources

-           Session III:  Discretionary power and the removal of certain tasks from the judicial sphere

-           Session IV:  The relationship between judges and prosecutors from the standpoint of the defence lawyer             

-           Session V:  International aspect of the role of judges and prosecutors  

-           Closing session: a general summary of the conference would be prepared.

21.       Members of the Working Party were invited to send the Secretariat their suggestions for the draft programme as soon as possible.

Chairs of sessions

22.       To cut costs, the session chairs should be chosen from amongst CCJE and CCPE members.  

Speakers

23.       It was agreed that the speakers should be mostly “external” experts, judges or prosecutors (or lawyers in the case of session IV), i.e. capable of providing a fresh perspective, different from that of CCJE-GT or CCPE-GT members.  Bearing in mind the session themes, members of the Working Party were asked to send the Secretariat their suggestions for speakers as soon as possible.

Invitations/Participants

24.       Invitations to the conference would be sent to the Permanent Representations to the Council of Europe, with copies to the members of the CCJE and the CCPE.  Members of the Bureau and the Working Party of the CCJE would have their expenses paid by the Council of Europe for the two days of the conference.  On the second day, the conference would end at 2 pm.  The meeting of the CCJE Working Party would begin on Wednesday afternoon.  CCJE members who were not members of the Working Party or the Bureau were welcome to attend the conference at their own expense.

Organisation/hotels

The Secretariat had produced a registration form for the conference and a hotel reservation form.  Hotel rooms had been pre-booked by the ENM. 

Social programme

There would be a cocktail reception courtesy of the Council of Europe and possibly another reception given by the Mayor of Bordeaux.  Mr COBO SAENZ would also contact the President of the Bordeaux Appeal Court to inform him about the conference and see whether a meeting could be arranged.

APPENDIX I

AGENDA OF THE 16th MEETING

1.    Opening of the meeting

2.    Adoption of the agenda

3.    Information by the President of the CCJE, the President of the CCJE-GT and the Secretariat

4.    Preparation of the draft Opinion No. 12 concerning “the relationship between judges and prosecutors”

5.    Preparation of the joint Conference CCJE/CCPE concerning “the relationship between judges and prosecutors” (Bordeaux, France, date in June 2009 to be determined)

APPENDIX II

LIST OF PARTICPANTS

ALBANIA/ ALBANIE:

Mr Perikli ZAHARIA, Judge of the Supreme Court of the Republic of Albania, Rr. "Myslym Shyrri", TIRANA

BELGIUM / BELGIQUE :

M. Paul MAFFEI, Conseiller à la Cour de Cassation, Place Poelaert 1, 1000 BRUXELLES

CROATIA / CROATIE :

Mr Duro SESSA, Judge, Supreme Court, Trg Nikole Šubica Zrinskoga 3, 10 000 ZAGREB

CYPRUS/ CHYPRE :

Mr Stelios NATHANAEL, Judge, Supreme Court of Cyprus, Charalambos Mouskos Str., CY-1404 NICOSIA

IRELAND / IRLANDE:

Mr John MacMENAMIN, Judge, High Court, 4 Courts, Dublin 7

NETHERLANDS/ PAYS-BAS :

Mr Bart VAN LIEROP, Vice President of the Court of Appeal of The Hague, Postbus 20302, 2500 EH DEN HAAG

NORWAY/ NORVEGE:

Mr Nils A. ENGSTAD, Judge, Halogaland Court of Appeal N-0030, TROMSØ

SPAIN/ ESPAGNE:

M. José Francisco COBO SÀENZ, Magistrato, Presidente de la Secc. 2a, Provincial de Navarra, c/ Ran Roque s/n, 31071 PAMPLONA

“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA” / “L’EX-REPUBLIQUE YOUGOSLAVE DE MACEDOINE”:

Mrs Aneta ARNAUDOVSKA, Juge, Director of the Academy for training of judges and prosecutors, bul. Jane Sandanski 12 SKOPJE

***

Members of the CCJE-BU /

Membres du the CCJE-BU

AUSTRIA / AUTRICHE :

Mr Gerhard REISSNER, President, District Court of Floridsdorf, Vice-President of the Austrian Judges Association, Gerichtsgasse 6, 1210 WIEN

ESTONIA / ESTONIE :

Mrs Julia LAFFRANQUE, Judge, Supreme Court, Lossi Str. 17, 50093, TARTU

ITALY / ITALIE:

M. Raffaele SABATO, Juge à la Cour de Naples, Viale Europa, 130, 80053, CASTELLAMMARE DI STABIA – NAPLES

PORTUGAL :

M. Orlando AFONSO, Juge Conseiller à la Cour d’Appel d’Evora, rue Général Humberto Delgado 43, 2^e ét.e., Cova da Piedade, 2800-423, ALMADA

***

COUNCIL OF EUROPE’S SECRETARIAT /

SECRETARIAT DU CONSEIL DE L’EUROPE

Directorate General of Human Rights and Legal Affairs

/ Direction Général des Droits de l’Homme et des Affaires Juridiques

E-mail : [email protected]

Fax : +33 (0) 88 41 37 43

Mme Muriel DECOT, Secretary of the CCJE, Secrétaire du CCJE

Tél: +33 (0)3 90 21 44 55, E-mail : [email protected]

M. Stéphane LEYENBERGER, Deputy Head of the Justice Division/ Chef Adjoint de la Division de la Justice

Tél: +33 (0)3 88 41 34 12,  E-mail : sté[email protected]

Mme Sandrine MAROLLEAU, Webmaster

Tél : + 33 (0)3 90 21 52 08, E-mail : [email protected]

M. Jean-Pierre GEILLER, Documentalist

Tél : + 33 (0)3 88 41 22 27, E-mail : [email protected]

Mme Emily WALKER, Assistant / Assistante,

Tel. +33 (0)3 90 21 48 39, E-mail: [email protected]

***

INTERPRETERS / INTERPRÈTES

Mme JAFFREY

M. GUITTONNEAU

Mme YOESLE

APPENDIX III

Comments BY Mr Mura AND MR Sabato concerning THe rEport DRAFTED BY ProfessOr TAK

A. MURA, Italy (CCPE-WG)

• appreciation for Professor Tak’s effort
• paper informative and interesting, as it helps to go beyond different national perspectives and to reach an overall view of the main (judicial, but mainly prosecutorial) models existing in Europe
• but Prof. Tak’s Report leaves the objective approach when it deals with the Italian system, expressing comments that – although authoritative – are personal opinions of the Author and appear quite far from the points of views widely shared by judges and public prosecutors in Italy
• the result is a devaluation of the concept that represents one of the main bases of the Italian system: the idea of independence and impartiality as fundamental characters of jurisdiction and prosecution as well. As it has been said, the lack of independence at the beginning of a process weakens meaning and relevance of independence at the end of it
• Some remarks on Prof. Tak’s Report [the numbers refer to paragraphs of paper CCJE-GT(2009)4 dated February 5th, 2009]:

§ 85. “... The lack of hierarchical subordination appeared not to be beneficial for an effective fight against Mafia criminality and organised crime...”

Several aspects must be taken into account to understand manners and results of the fight against mafia and organised crime, but “lack of hierarchical subordination” in the public prosecution system appears to play no role at all in this respect.

“... Recently new legislation has been enacted to provide high ranking public prosecutors with instruments to co-ordinate the prosecution of organised crime ...”

Recent legislative reforms modified significantly the organisation of public prosecution in the country (and the Report would need to be updated with regard to them), but they have a general character and are not specifically referred to the prosecution of organised crime.

§ 98. “...in no country a guarantee exists that a political authority never can prevent a prosecution for certain offences ...”

It can be said exactly the contrary, as far as the Italian experience is concerned, thanks to the full independence of public prosecution.

§ 104. “... the independence has led to judicial activism – a political way of applying powers – that initially may have had beneficial effects in the fight against political corruption but later on has led to serious abuse of power by individual public prosecutors ...”

This is a politically oriented interpretation. Most of Italian judges and prosecutors would strongly disagree on it.

The example given on this point in the Report concerns a marginal episode and, anyway, the judicial system showed its effectiveness at this respect, too.

§ 105. “In general one may conclude that a fully independent prosecution service modelled after the situation in Italy is not a preferred option because in practice it may lead to a serious crisis in the Rule of Law State ...”

This is a personal opinion that Mr. Mura totally contests.

There can certainly be discussions on how efficient the Italian system is (as a consequence of the constitutional provisions about the mandatory criminal action and the right to appeal to the Supreme Court against any judicial decision), but to speak of a serious crisis of the Etat de droit as a consequence of prosecutorial independence appears absolutely misleading.

As far as the Italian system is concerned, further remarks could be referred to other paragraphs (§§ 10, 30, 45, 46, 56, 60, 92, 116, 145, 148, 149, 153). They are not raised here to allow the discussion to be concentrated on the focal points.

R. SABATO, Italy (CCJE-WG)

• Prof. Tak’s report provides valuable insight into the European systems, and will be an excellent support to the CCJE’s and CCPE’s work on the topic.
• Gladly accepting Prof. Tak’s invitation to provide additional information and comments, as the report was based on insufficient information, as far as Italy is concerned, in order to complement what has been already very well noted by Mr. A. Mura, one should first of all note that, since implementation of the 1946-1948 Italian Constitution providing for elimination of competences of the executive on public prosecution, the independence recognised in Italy to public prosecution, belonging to a unified judiciary, has guaranteed the Rule of Law by ensuring that all criminal charges be evaluated by a magistrate, operating in the interest of the justice users. The alleged “politicisation” of prosecutorial activity and “abuse” of prosecutorial independence – to which unfortunately Prof. Tak’s report makes reference (§ 104) – are to be traced to statements which may be found in some political debate after the 1990’s; these statements are certainly lacking all foundation, and the issue needs a more objective approach.
• The only reference to “abuse” of prosecutorial independence, contained in the report, concerns one single investigation, led by the Chief Prosecutor of a small prosecution office of Southern Italy, having as object the gathering of information on alleged secret associations. The true cost of such investigation should be verified. It does not seem that any imprisonment was ordered.
• On the contrary, prosecutorial independence has made possible, in Italy, complex investigations on Mafia cases and corrupt practices.
• A correction of the approach taken in Prof. Tak’s report should also concern the statement according to which there is a lack of hierarchy in prosecutorial offices, which has jeopardised Mafia investigations (§ 85). On the contrary, in Italy it has always been possible, for relevant reasons, and with a reasoned ruling, both for the Chief Prosecutor and the General Prosecutor, to withdraw a case, with some guarantees under the supervision of the High Council of the Judiciary. Since 2006, furthermore, a hierarchy has been established, concentrating in the Chief Prosecutor responsibility of investigations. This not being the proper place to comment on such legislation, the High Council has issued resolutions to guarantee the smooth operation of hierarchy. One more aspect to consider is that since the 1990’s, through the operation of the National Anti-Mafia Prosecution Office, investigations on Mafia cases are dealt with only by Prosecutors sitting in the Districts’ capitals, and are coordinated by the above mentioned Anti-Mafia central prosecution office. Therefore, the strong coordination existing in Mafia investigations, that has been reflected by systems in other countries, strongly contradicts Prof. Tak’s sources of information.
• The Italian delegates in the CCJE and the CCPE will gladly provide Prof. Tak any additional information he may need to prepare a second draft report.

Joint request by A. MURA and R. SABATO

Mr. Mura and Mr. Sabato gladly took note that, during his reply to comments as above, Prof. Tak clarified that he had no intention to challenge the Italian model of independent prosecution, and that he had just reported information coming from some comments available in literature, the objectivity of which is not certain.

Therefore the two Italian experts asked Prof. Tak to kindly consider the above information in the process of further drafting his report.

In the meantime, Mr. Sabato and Mr. Mura highlighted that the examined report constitutes a relevant contribution to the debate, but it is not supposed to be the base for the joint CCJE-CCPE opinion.

They asked the Secretariat to kindly mention in the minutes the essential points clarified as above.