Strasbourg, 27 April 2011

CCJE-BU(2011)1

BUREAU OF THE CONSULTATIVE COUNCIL

OF EUROPEAN JUDGES

(CCJE)

Report of the 9th meeting

Strasbourg, 28 March 2011

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 9th meeting in Strasbourg on 28 March 2011, under the Chairmanship of Mr Orlando ALFONSO (Portugal).

2.             The following members of the Bureau were also present:

            - Mr Gerhard REISSNER (Austria), Vice-Chair of the CCJE

            - Mr Raffaele SABATO (Italy),

            - Mr Paul MAFFEI (Belgium).

3.    The agenda is set out in Appendix I.

II.            PREPARATION OF DRAFT OPINION N°14

4.             The Bureau congratulated the large number of replies received to the questionnaire on the role of judges and the non-materialisation of the judicial process (36 member States replied to the questionnaire – see replies on the website of the CCJE).

5.             The Bureau took note that a scientific expert, Ms Dory REILING, Senior jugde at the Amsterdam district Court and independent IT and judicial reform expert, has prepared a synthesis on the replies received to the questionnaire and has been entrusted to prepare the draft Opinion on the basis of a draft structure to be adopted by the Working Group during its meeting.

6.             The Bureau recalled that the Opinion should underline the advantages of the non-materialisation of the judicial process (improvement of the access to justice, swiftness, legal security, etc), but also the risks that could be generated (dehumanisation of the justice, breach to the judicial independence, etc.). It insists on the importance of the involvement of the Councils for the judiciary and of the judges in the process of non-materialisation.

III.           other activities of the CCJE

a.             “Magna Carta of European judges”

7.    On proposition of the Secretariat, the Bureau proceeded in an exchange of views regarding paragraph 22 of the Magna Carta of European Judges (Fundamental Principles), adopted by the CCJE on 17th November 2010 on the occasion of its 10th anniversary. Paragraph 22 of the French version then reads as follows: « Sauf en cas de faute volontaire, il ne convient pas que dans l'exercice de ses fonctions, un juge soit exposé à une responsabilité personnelle, même par le biais d’une action récursoire de l'État. ». The CCJE, at the moment of adoption of the text, had also instructed the Secretariat to make any additional editorial changes.

8.    However, after official adoption, certain members of the CCJE had reported to the Secretariat:

-               that the French text of the Magna Carta did not correspond exactly to the text in the CCJE’s Opinion N°3, paragraph 57 that mentioned in fine: « (…) sauf en cas de faute volontaire, il ne convient pas que dans l'exercice de ses fonctions, un juge soit exposé à une responsabilité personnelle, celle-ci fût-elle assumée par l'État sous la forme d'une indemnisation. » ;

-               that this same paragraph 57, in the English version was different to that of the French version in what mentions: « by way of reimbursement of the state » that can be translated by « par le biais d’une action récursoire de l'État ».

9.    The Secretariat then decided, on the basis that it was an editorial modification, to align the text of the Magna Carta on that of Opinion N°3 taking the French text as the basis.

10.          . After analysis of the different texts and in particular paragraph 57 that provides details on the types of responsibilities to be excluded by the judge in the case of wilful default, the Bureau decided that paragraph 22 must explicitly specify « par le biais d’une action récursoire de l'État » (“even by way of reimbursement of the state”). It notes that this corresponds to the official version adopted by the CCJE in November 2010. It instructed the Secretariat of deleting the modified version thereafter and to show this change on the CCJE’s website.

b.            Practical assistance activities: Bulgaria, France, Italy, Portugal, Serbia and Slovakia

11.  Faced with the ever increasing requests for practical assistance to the CCJE, aware of the consequences that this work has on the Secretariat and the Bureau, and taking into account the low impact that the answers have given to the requests, the Chairman of CCJE proposed to adopt a uniform procedure for all requests.

12.  Thus the Bureau started preparing a memorandum (see Appendix II) which would be sent to each body who has sent to the CCJE a request, as well as to international and European association of judges:

-               listing the requests received by the CCJE, the origin of these requests and the European             standards concerned;

-               specifying that “a white paper on the Status of Justice in Europe” will be prepared, and will be     a summary of the requests for specific assistance received by the CCJE;

-               inviting the addressees to send complementary information on the situations mentioned in this    summary.

13.  This memorandum, which will be the acknowledgement of receipt to each request of specific assistance received by the CCJE, will explain the steps taken by the CCJE to these requests.

14.  The synthesis that will be drafted by the Bureau with the help of Mr A. LACABARATS (France), past Chairman of the CCJE, should be adopted by the CCJE during its next plenary meeting (7-9 November 2011) and presented to the Committee of Ministers during the exchange of views with the Chairman of the CCJE scheduled in January 2012. Each year, this document will be updated, thus giving a clear and precise state of the situation of judges in Europe.

Italy:

15.  Mr R. SABATO reported on the situation of the judiciary in Italy, which has formed the object of worrying reports in the international press. He also informed the Bureau that the President of the Republic of Italy, in his capacity of President of the High Council of the Judiciary, would welcome on 5th April the Association of Italian Judges concerning the various attacks on the status of the judge. The Bureau entrusts Mr R. SABATO to inform the Bureau, on the basis of information provided by the relevant bodies or association of the Italian judiciary.

Serbia:

16.  Mr G. REISSNER informed the Bureau that he participated in a new mission of experts in Serbia under the umbrella of the European Union concerning the decisions on the High Council of Justice on the implementation of the laws on the amendments to the laws on judges and on the public prosecution of Serbia. The Bureau decides to maintain this point on its agenda for its next meeting.

Portugal:

17.  The Bureau took note of the letter addressed to the Chairman of the Committee of Ministers of the Council of Europe, and which the CCJE received a copy, from the Portuguese Association of Judges dated 10th January 2011. This Association expresses its concerns following the modification of the status brought to the Portuguese judges and to the cut in salary thus ensuing. In a general manner, the Bureau is worried about the cuts in salary that judges are subjected to in a number of European countries following the economical crisis.

18.  It questioned nevertheless the necessity of a reply to this letter as the CCJE is not the principal addressee. It entrusted its President, Mr O. AFONSO to prepare however a reply.

Romania:

19.  The Bureau noted the absence of the member of the CCJE on behalf of Romania during the last plenary meeting of the CCJE and entrusted M. P. MAFFEI to draft a letter to the attention of the Romanian authorities requesting additional information.

Slovakia:

20.  The Bureau entrusted M. G. REISSER to ensure the follow-up of the Slovakian request following the new letter sent to the CCJE in February 2011 by the member of the CCJE on behalf of Slovakia and decided to add this point to its agenda for the next Bureau meeting.

IV.  OTHER BUSINESS

21.  The Bureau took note of the document entitled “Reform of the Council of Europe : heading into the future – Progress review report” that was distributed to the Chairs of the Committees governed by Resolution (2005) 47 of the Committee of Ministers concerning the Committee and the subordinate bodies, their terms of reference and their working methods. The current reform aims, in particular, to streamline intergovernmental structures within the institution. The Secretariat explained that in this framework and following an extensive consultation process, the Secretary General will submit proposals for a new organisation of the intergovernmental structures. These new proposals should not alter the existing structure of the CCJE. The Bureau decides to keep this point on its agenda for its next meeting to review the follow-up given to these propositions.

22.  The next Bureau meeting is scheduled on Tuesday 14th June 2011 in the afternoon. The Bureau also wished to propose to the Working Group that its meeting be held over two full days (Wednesday 15th and Thursday 16th) in order that the Friday morning 17th June is kept free for an ad hoc meeting of a drafting group entrusted to prepare a synthesis on the action taken by the CCJE regarding the activities of bilateral assistance on judges.


Appendix I

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 20th CCJE-GT meeting and the draft Opinion No.14

Working document

Draft structure of the Opinion N°14

CCJE-GT(2011)2

5.            Examination of paragraph 22 of the “Magna Carta of judges (Fundamental principles)” with a view of clarification

Working document

Magna Carta of judges (Fundamental principles)

6.            Practical assistance activities and in particular Bulgaria, France, Portugal, Serbia and Slovaquia

7.            Participation of the CCPE to other meetings in and outside the Council of Europe


Appendix II

Memorandum of the Bureau of the CCJE

On practical assistance activities aiming to help States comply with Council of Europe norms concerning judges

After several requests to theConsultative Council of European Judges (CCJE) by judges' associations concerning non-compliance of Council of Europe standards concerning regards justice, and in particularly those contained in the Opinions of the CCJE, the Bureau of CCJE proposes to prepare a report each year summarizing its practical assistance activities aiming to enable States to comply with Council of Europe standards concerning judges[1]. This report will be forwarded to the Committee of Ministers of the Council of Europe and should be widely published. This idea came about during the 10th plenary meeting of CCJE (November 2010).

The situations to be considered are, presently, Bulgaria, France, Spain, Italy, Portugal, Romania, Serbia, Slovakia and Turkey where difficulties in the following areas are stated:

·                     Access to justice

·                     Training, appointment, transfer of position, professional development, resignation and remuneration of judges.

·                     Discipline

·                     The Judicial Council: composition, functions, undue pressure, etc.

·                     Quantitative evaluation of the efficiency and civil liability of judges

·                     Changes that may affect the proper functioning of the criminal and civil procedure

·                     Non-enforcement of judicial decisions

·                     Interference or undue pressure from media on the work or status of judges:

The report that the CCJE will prepared will include:

a)            A description and an analysis

b)            Conclusions

c)            Propositions

In order to accomplish this task, the CCJE will be in contact with European associations. Please feel free to send to the CCJE’s Secretariat any further information concerning the situations already made to the CCJE.



[1] In accordance with point 4.iv of the CCJE’s terms of Reference as approved by the Committee of Ministers of the Council of Europe (1075th meeting of the Ministers ‘Deputies).