Strasbourg, 3 August 2009                                                                 CCJE-GT(2009)10

WORKING PARTY OF

THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE-GT)

Report of the 17^th meeting

Bordeaux, 1-2 July 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  17^th meeting from 1 to 3 July 2009 in Bordeaux (France), in the premises of the “Ecole Nationale de la Magistrature (ENM)”. The meeting was chaired by Mr Orlando Afonso (Portugal, CCJE). The joint meeting with the CCPE-GT was co-chaired by Mr Olivier De Baynast (France). The list of participants appears in Appendix I and the agenda in Appendix II to this report.

  

2.        The Chair of the CCJE-GT wholeheartedly thanked the French authorities and the ENM for the excellent organisation of the meeting and of the first joint Conference of judges and prosecutors on “The exercise of the missions of judges and prosecutors: complementarity and autonomy?” which was held in Bordeaux from 30 June to 1 July 2009, and pass on its warm thanks in particular to Mr Jean-François THONY, President of the ENM, for the excellent welcome given to the CCJE delegation.

II.         PREPARATION OF THE CCJE – CCPE JOINT OPINION No. 12 ON THE RELATIONSHIPS BETWEEN JUDGES AND PROSECUTORS

3.           The first joint European Conference of judges and prosecutors revealed an important number of areas and ways for the judges and prosecutors to cooperate together. In the light of the discussions and conclusions of the Conference, the CCPE-GT and the CCJE-GT members, during their joint meeting, agreed to organise the text of the joint opinion as follows:

         A declaration called the “Bordeaux Declaration - Judges and prosecutors in a democratic state” (see bellow Appendix III) which was finalised and adopted by both Working-Groups ; and

         An explanatory note which should follows the structure of the 12 paragraphs of the Declaration.       

4.            A distribution of tasks among CCJE-GT members was agreed, in order to have rapidly a draft explanatory note. The Secretariat was then entrusted to make a compilation of the contributions of the members of the CCJE-GT with the contributions of the members of the CCPE-GT. It was also agreed that the Presidents of the CCJE and CCPE will achieve the final version of the explanatory note, in particular bringing it closer to the principles set out in the Declaration and which will be sent for comment to the members of both Councils by October 2009. The Opinion should be adopted during the joint plenary meeting which will take place in Ljubljana (Slovenia), from 18 to 20 November 2009.

 

APPENDIX I

AGENDA

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.    Follow-up of the joint Conference CCJE/CCPE concerning “the relationship between judges and prosecutors”

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

***

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]

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]

APPENDIX III

BORDEAUXDECLARATION

“JUDGES AND PROSECUTORS IN A DEMOCRATIC SOCIETY”[1]

2 JULY 2009

(Draft)

The Consultative Council of European Judges and the Consultative Council of European Prosecutors, at the request of the Committee of Ministers of the Council of Europe to provide an opinion on relationships between judges and prosecutors, agreed on the following:

1. It is in the interest of society that the rule of law be guaranteed by the impartial and effective administration of justice. Public prosecutors and judges shall ensure, at all stages of the proceedings, that individual rights and freedoms, including those of victims of crime, are guaranteed, and public safety is protected, always respecting the rights of the accused to a full defence and to receive a fair trial before an impartial and independent judge. 

2. In member States where the Prosecution Service has a number of competences outside the criminal law field, the principles mentioned herewith apply to all these functions, (mutatis mutandis). (Proposal to move this paragraph at the end of the Declaration, after the current paragraph 12).

3. The fair administration of justice requires that there shall be equality of arms between prosecution and defence, as well as respect for the independence of the court, the principle of separation of powers and of the binding force of final court decisions.

4. The proper performance of the distinct but complementary roles of judges and public prosecutors is a necessary guarantee for the fair and impartial administration of justice. Judges and public prosecutors must both enjoy independence in respect of their functions and also be independent from each other.

5. The role of judges – and, where applicable, of juries – is to adjudicate cases properly brought before them by the prosecution service. Judges’ independence and impartiality are based, in particular, on freedom from any undue influence by the prosecution or defence.

6. The enforcement of the law, the equality of arms and, where applicable, the discretionary powers of the prosecution at the pre-trial stage require that the status of public prosecutors be guaranteed by law at the highest possible level, in a manner analogous to that of judges. They shall be independent and autonomous in their decision-making and carry out their functions fairly, objectively and impartially. Adequate organisational, financial, material and human resources should be put at their disposal.

7. The CCJE and the CCPE refer to the consistent case-law of the European Court of Human Rights in relation to articles 5.3 and 6 of the Convention. In particular, they refer to the decision in the case Schiesser v. Switzerland, whereby the Court recognised the requirement of independence from the executive and the parties on the part of any “officer authorised by law to exercise judicial power” , but which does not exclude subordination to higher independent judicial authority. Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions of a financial nature.

8. For an independent status of prosecutors, some minimal requirements are necessary:

-                                  that their position and activities are not subject to influence or interference from any source outside the prosecution service itself.

-                                  that their recruitment, career development, security of tenure [including mobility, irremovability] and remuneration be safeguarded through guarantees provided by the law .

9. In a state governed by the rule of law, and in a hierarchical prosecution structure, effectiveness of prosecution is, regarding the public prosecutors, strongly linked with transparent lines of authority, accountability, and responsibility. Directions to individual prosecutors should be in writing, in accordance with the law and, where applicable, in compliance with publicly available prosecution guidelines and criteria. Any review according to the law of a decision by the prosecutor to prosecute or not to prosecute should be carried out impartially and objectively, either within the prosecution service itself or by a judicial authority. In any case, due account shall be given to the interests of the victim.

10. The sharing of common legal and ethical values by all the professionals involved in the legal process is essential for the proper administration of justice. Training, including management training, is a right as well as a duty for judges and public prosecutors. Where appropriate, joint training for public prosecutors and judges, as well as for lawyers, is important for the achievement of a justice of quality. Such training should be organised on an impartial basis and regularly and objectively evaluated.

11. The interest of society also requires that the media are provided with the necessary information to allow them to inform the public on the functioning of the justice system, with due regard in particular to the presumption of innocence of the accused, to the right to a fair trial, and to the right to private and family life. Both judges and prosecutors should draw up guidelines or a code of good practice for each profession on its relations with the media.

12. Both public prosecutors and judges are key players in international cooperation in criminal matters. The enhancement of mutual trust between judicial authorities of different countries is needed. In this context it is imperative that judges have available to them transparent and full information gathered by public prosecutors through international cooperation, so that an effective protection of human rights and fundamental freedoms may be ensured.