CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
7th meeting of the Bureau
The Hague (Netherlands), 17 March 2010
Secretariat document
prepared by the Directorate General of Human Rights and Legal Affairs
I. INTRODUCTION
1.The Bureau of the Consultative Council of European Judges (CCJE) held its 7th meeting in The Hague on 17 March 2010, with Mr Orlando ALFONSO (Portugal) in the chair.
2.The following members of the Bureau were also present:
- Mr Gerhard REISSNER (Austria), Vice-Chair of the CCPE
- Mr Raffaele SABATO (Italy),
- Mr Paul MAFFEI (Belgium).
3.The agenda is set out in Appendix I.
II. Information by the President of the CCJE and the Secretariat
4.The Bureau expressed its gratitude to Mr Bart VAN LIEROP and Mr Reiner van ZUTPHEN for the excellent organisation of the meeting of the CCJE-GT (17-19 March 2010) and asked them to extend warm thanks to the Netherlands Council for the Judiciary (Raad voor de rechtspraak) and in particular to its President, Mr Erik van den Emster, to the Netherlands Judicial Association (Nederlandse Vereniging voor rechtspraak), and in particular to Mr René VERSCHUUR, former member of the CCJE, at the Supreme Court of the Netherlands, and Ms Wilhelmina THOMASSEN, Mr Marc LOTH and Ms Evelyne HARTOGS, as well as to the Mayor of The Hague, Mr Jozias van Aartsen, for the warm welcome given to the CCJE delegation.
iII. Preparation of draft Opinion No. 13
5.The Bureau welcomed the large number of replies received to the questionnaire on the role of judges in the enforcement of judicial decisions and in their relationships with other state functions and/or other actors (see the compilation of the 41 replies set out in document CCJE-GT(2010)2 rev 5).
6.It agreed, with a view to guiding the Working Group in its discussions, to use the draft structure proposed by the Secretariat as a working basis (see document CCJE-GT(2010)3), while emphasising the need to limit the scope of application of the Opinion on the role of judges in enforcing judicial decisions.
7. It also proposed that reference be made to the “Guidelines for a better implementation of the Council of Europe's Recommendation on enforcement”, adopted by European Commission for the Efficiency of Justice (CEPEJ) (see document CEPEJ(2009)11 rev 2).
iv. the CCJE’s other activities
a. “Magna Carta of European judges”
8. The Bureau pointed out that the aim of the document entitled “ Magna Carta of European judges” was to go further than a mere compilation of the fundamental principles set out in previous CCJE opinions and to create a document with a real added value. The Chair of the CCJE proposed to draw on the Portuguese Magna Carta. He would take care of its translation.
9. The Bureau stressed the importance of such a document, which would:
- help highlight and group together the inviolable principles governing judges and the judicial system;
- help publicise the texts adopted by the CCJE at a most appropriate time, given that the CCJE would be celebrating its 10th anniversary in 2010;
- have legitimacy in itself insofar as the Working Group responsible for preparing it (CCJE-MC) was made up of former and current Chairs of the CCJE;
- give a long-term view of the CCJE’s activities as it was autonomous, brief, likely to be regularly updated and easily disseminated through the Internet to all members of the judicial profession in Europe.
10. It also stressed the importance of the way in which this document was disseminated: official presentation to the media on the occasion of the 10th anniversary of the CCJE, printed in hardback, using a style that could be understood by all users of the judicial system and with an index to facilitate its use.
11. The Bureau welcomed the work already carried out by the CCJE-CCJE-MC by e-mail (see document CCJE-MC(2010)2) but thought that it was necessary to hold a special meeting of the Group to finalise the Magna Carta. Such a meeting could take up a full day and should be held in Paris for practical reasons[1].
a. Practical assistance activities: Italy, Serbia, Romania, Ukraine and Slovakia
12. By way of introduction, the Chair noted that the frequency of requests for practical assistance from member states was increasing and that this was a very positive sign showing the extent to which the usefulness of the CCJE’s work was acknowledged within member states.
Italy:
13. The Bureau said that the CCJE had received a letter from the Medel dated 28 September 2007, on the subject of the resolution on alleged intelligence activities vis-à-vis judges and prosecutors unanimously adopted by the Italian Council for the Judiciary (Consiglio Superiore della Magistratura - CSM) on 4 July 2007.
14. The Bureau also took note of the fact that a new law had recently been enacted in Italy, making it possible to take judges off certain cases; it was extremely concerned at the growing pressure on Italian judges, for example spying on and insults against specific judges. The Bureau said that such situations constituted a threat to the balance of powers and to the independence of the judiciary.
15. The Bureau instructed one of its members, Mr R. Sabato (Italy), to contact the Council for the Judiciary to ascertain its response to this matter.
Serbia:
16. The Bureau examined the draft Declaration, prepared jointly by the Secretariats of the CCJE and the Venice Commission, on the basis of the conclusions of the Commission’s latest meeting. It reiterated its resolve to firmly denounce the violations of the principles of the security of tenure and the independence of judges committed in Serbia through a joint Declaration, which might have a greater impact there. The Bureau nevertheless noted the difference of approach taken by the CCJE, which was an independent committee of judges responsible for underlining the main principles governing judges, and by the Venice Commission, which was responsible for providing national authorities with official assistance in enacting laws in conformity with major European constitutional principles.
17. Mr Gerhard REISSNER, Vice-Chair of the CCJE, reported on the visit he had made to Serbia in March 2010 under the auspices of the European Union and stressed the need for immediate action.
18. Following an exchange of views with the CCJE-GT, the Bureau decided to propose an amended text to the Venice Commission[2], which, in addition to underlining the need to comply with European standards in this field and the importance of sending individual notification to judges who had not been re-appointed, drew attention to the fact that the procedure:
- needed a great deal more consideration, even in a reform context;
- had not complied with the principle of irremoveability and had ignored the Venice Commission’s recommendations;
- had not had recourse to disciplinary sanctions, which might have helped overcome the professional shortcomings of some judges;
- was detrimental to the confidence which the judicial reform strategy adopted by Serbia in 2006 was intended to develop vis-à-vis the judicial system.
19. The CCJE said it was prepared to assist the Serbian authorities but asked that they:
- give the exact reasons for not re-appointing each individual judge;
- offer these judges an effective remedy before a court and in accordance with a procedure approved by all parties concerned;
- provide these judges with means of subsistence until their appeal had been examined.
Romania:
20. The Bureau noted that the CCJE had not been given any further information on this subject.
Ukraine:
21. On 26 February 2010 the Chair of the CCJE had sent a letter to Mr Valeriy PYSARENKO, member of the Parliamentary Assembly of the Council of Europe, in reply to his letter to the CCJE concerning the alleged corruption of a judge. The reply referred to Opinions Nos. 1 and 3 of the CCJE and to the activities of the GRECO and pointed out that it was not for the CCJE to take a stance on individual cases of alleged corruption.
Slovakia:
22. On 12 February 2010 the CCJE had received a request for practical assistance from a group of Slovakian judges concerning difficulties relating to the relationship between the judiciary and other state authorities, the composition and functioning of the Slovakian Council for the Judiciary, and the disciplinary procedure vis-à-vis judges.
23. In a letter from the Chair of the CCJE, the Bureau agreed to ask Mr Milan KARABIN, former member of the CCJE in respect of Slovakia, who had signed the letter to the CCJE, for further information. The Bureau also mentioned the possibility of holding a meeting in Slovakia, if necessary, once the relevant information had been obtained.
b. Follow-up of the revision of Recommendation (94)12
24. On the basis of a document prepared by Paul MAFFEI and Raffaele SABATO, the Bureau adopted a document containing a number of amendments to the revised draft Recommendation (Document CCJE-BU(2010)2 and decided to forward it to the Bureau of the CDCJ, which should examine it at its next meeting (15-17 June 2010).
c. Draft Council of Europe guidelines on child-friendly justice
25. The Secretariat said that the CCJE had been asked to examine the Council of Europe’s draft guidelines on child-friendly justice currently being prepared by the CDCJ, to ensure that the text was consistent with the Opinions of the CCJE. The Bureau instructed Mr Raffaele SABATO (Italy) to prepare written comments on the draft text.
d. Parliamentary Assembly Recommendation on corruption
26. At their 1077th meeting (24 February 2010), the Ministers’ Deputies agreed to forward Recommendation 1896 (2010) on judicial corruption to the CCJE for any further information or comments it might wish to submit before 15 April 2010.
27. The Bureau welcomed the Recommendation on judicial corruption and instructed the Secretariat, in co-ordination with G. REISSNER, to prepare a document stipulating when the CCJE would be available to attend meetings concerning the drafting of a model code of conduct for the attention of officials of the judicial system (Document CCJE-BU(2010)1).
III. OTHER BUSINESS
28. The Bureau agreed that is was important to celebrate the 10th anniversary of the establishment of the CCJE at the plenary meeting in November 2010 and decided to discuss this item at its next meeting.
29. Given that its agenda was increasingly busy, the Bureau said that it would like half a day to be set aside for its meeting, on the sidelines of the meeting of the CCJE-GT. It was no longer possible to hold Bureau meetings only in the breaks during the Working Group’s meeting.
30. The Bureau consequently instructed the Secretariat to schedule the Bureau’s next meeting for the afternoon of Tuesday 1 June. The Secretariat would make the necessary arrangements, provided that the Bureau members undertook to travel on the morning of 1 June to keep within the budgetary limits.
Appendix I
DRAFT AGENDA / PROJET D’ORDRE DU JOUR
1. Opening of the meeting
Ouverture de la réunion
2. Adoption of the agenda
Adoption de l’ordre du jour
3. Information by the President of the CCJE and the Secretariat
Informations par le Président du CCJE et le Secrétariat
4. Preparation of the Opinion No.13
Préparation de l’Avis n°13
5. Other work of the CCJE
Autres travaux du CCJE
§ Current situation concerning the preparation of a document entitled “Magna Carta of European judges”
Etat de la situation concernant le document intitulé « Magna Carta des juges européens »
§ Practical assistance activities: Italy, Romania, Serbia, Poland and Ukraine
Activités d’assistance pratique : Italie, Roumanie, Serbie, Pologne et Ukraine
§ Follow-up of the revision of Recommendation (94) 12
Suivi de la révision de la Recommandation (94) 12
§ Draft of the Council of Europe guidelines on child-friendly justice
Projet de lignes directrices du Conseil de l’Europe sur une justice adaptée aux enfants
§ Recommendation 1896(2010) from the Parliamentary Assembly on judicial corruption
Recommandation 1896(2010) de l’Assemblée parlementaire sur la corruption
6. Any other business
Divers
Opinion No. 13 of CCJE
Draft Structure
This document was prepared by the Secretariat, as proposed by the Bureau of the CCJE
I) Introduction
A) Reference documents
• Report "European judicial system," Chap.13
• Enforcement of Judgments in Europe, studies of the CEPEJ No. 8
• Rec(2003)16 of the Committee of Ministers to Member States on the implementation of administrative and judicial decisions in the field of administrative law
• Rec(2003)17 of the Committee of Ministers to Member States on enforcement
• CEPEJ Guidelines for better implementation of existing Recommendations of the Council of Europe on enforcement
• Convention on Human Rights (Article 6) and jurisprudence of the Court of Human Rights
B) General principles and definitions governing the role of judges in the enforcement of judgments and scope of the Opinion
1. Recommendation Rec(2003)17 defines the enforcement as “the putting into effect of judicial decisions, and also other judicial or non–judicial enforceable titles in compliance with the law which compels the defendant to do, to refrain from doing or to pay what has been adjudged”, (for civil matters, see Recommendation Rec(2003)16 for the execution of court decisions in administrative matters).
2. Recommendation Rec(2003)17 defines agent as “a person, authorised by the State to carry out the enforcement process irrespective of whether that person is employed by the State or not”.
3. The enforcement of court decisions is an essential element of running a State based on the rule of law.
4. The effective enforcement of court decisions is considered as a relevant indicator of well-functioning of judicial systems (Report "European judicial systems", Chap.13, p. 242, § 13.4).
5. The enforcement of judgments is part of the individuals' confidence in their judicial system and strengthens the credibility of the system.
6. The enforcement of judgments within a reasonable time is part of the right to a fair trial and participates in compliance with legal certainty.
7. The enforcement procedure should preserve the parties' interests and ensure a balance between these interests, taking account, in particular, Article 8 ECHR (right to the family on children's rights etc.).
8. The procedure must be implemented in respect of fundamental rights and freedoms: role of the regular judge?
C) Scope
9. The Opinion should focus on the role of the judge in the enforcement of court decisions and not deal with the enforcement procedure in general.
II) The role of judges in the enforcement of judicial decisions in their relationships with other functions or state and other actors in civil and administrative matters
A) The role of the judge when he is judge of the enforcement
• Is the enforcement of decisions the sole jurisdiction of the judge or can the judge be the one who made the decision? Should a new procedure be instigated? Should the procedure give rise to a new decision?
• Competence on the initiative and to the initiation of proceedings
• Means available to the judge to accelerate the process or create an accelerated procedure in certain fields (family law, the defendant fled, deportation cases, damage to property etc.)
• Means available to the judge to force the enforcement or to ensure the effective enforcement of decisions
• Other skills? example: developing the role of the judge as regards the service of documents for better enforcement of judgments
B) The relationship between the judge and the enforcement agents (when the judge is not the enforcement judge)
• Identification of actors: public / private actors or mixed system
• Competence on the initiative and the initiation of proceedings
• Nature of relationships: co-operation, supervision, judicial review (scope of that review: legality and relevance of measures taken by the agents?)
• Means available to the judge to accelerate the proceedings, to force the enforcement or to ensure the effective implementation by the enforcement agents?
• Is the judge in charge of disputes concerning the enforcement procedure?
C) The judge's role vis-à-vis of the legislator
D) The judge and the protection of the rights of parties and third parties involved in the procedure
• Prevention of abuse of the procedure?
• To ensure data protection (including in the research of the defendants and their property)
• Need for information to all users at all stages of the implementation procedures in all areas (in the way the process in carried out, cost of enforcement, previsible length of procedure, liability incurred by the various protagonists etc.)
• Right of appeal (absence of reasonnable time, fault fo the enforcement agents)
III) The role of judges in the enforcement of judicial decisions in their relations with other state functions and other actors in criminal matters
A) The role of the judge when he is the enforcement judge
• Is the enforcement of decisions the sole jurisdiction of the judge or can the judge be the one who made the decision? Should a new procedure be instigated? Should the procedure give rise to a new decision?
• Competences on the initiative and to the initiation of proceedings
• Means available to the judge to accelerate the process or to install an accelerated process in some fields (e.g. minors causing the damage)
• Means available to the judge to force the enforcement or enforce effective (deprivation of liberty: research regarding the sentenced person, effective incarceration; effective payment of fines; connected civil matters: damages, compensation of victims)
• Other skills: alternative sentences to imprisonment? Execution of sentences? (arrangement, parole, leaving permission, electronic supervision)?
B) The relationship between the judge and the enforcement agents (when the judge is not the enforcement judge)
• Identification of actors
• Competence on the initiative and the initiation of proceedings
• Nature of relationships: cooperation, supervision, judicial review (scope of that review: legality and relevance of measures taken by the for enforcement agents?)
• Means available to the judge to ensure the effective implementation by the enforcement agents?
• Is the judge in charge of disputes concerning the enforcement procedure?
C) The judge's role vis-à-vis the legislator
D) The judge and the protection of the rights of parties and third parties involved in the procedure
• Respect the rights of detainees (including living conditions of prisoners)
• Information on victims
• Victim's rights (compensation)
• Right of appeal (absence of reasonnable time, fault of the enforcement agents).