14 June 2011

CCJE-BU(2011)3

BUREAU OF THE CONSULTATIVE COUNCIL

OF EUROPEAN JUDGES

(CCJE-BU)

10th meeting report

Strasbourg, 14 June 2011

Document prepared by the Secretariat

Directorate General of Human Rights and Legal Affairs

I. INTRODUCTION

1.      The Bureau of the Consultative Council of European Judges (CCJE) held its 10th meeting in Strasbourg on 14th June 2011, under the chairmanship of Mr Orlando Alfonso (Portugal).

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

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

- Mr Raffaele SABATO (Italy),

- Mr Paul MAFFEI (Belgium).

3.      The agenda is set out in Appendix I.

II. PREPARATION OF OPINION No. 14

4.        The Bureau examined the draft CCJE Opinion N° 14, prepared by the scientific expert, Ms Dory Reiling (document CCJE-GT(2011)7) and noticed that whilst this document could be considered a basis for discussion, it did not constitute a draft Opinion drawn up on the basis of the detailed structure agreed upon by the working group during its last meeting (Strasbourg, 28-30th March, 2011).

5.        The Bureau considered that it is of interest to analyse all the aspects of the non-materialisation of the judicial process in the light of Article 6, as pointed out by the scientific expert, but agreed that a different presentation would avoid repetitions. The Bureau also decided that all the paragraphs entitled “Opportunities”, present in the document, should all be gathered together under a single heading in the introduction.

 

6.        It expressed the wish that the working group do not come back on the structure of the document which was decided upon during its last meeting and suggested to the working group that it be divided into three distinct drafting groups, in a view to obtain, by the end of the meeting, a draft Opinion already formulated in a written form. It proceeded with a first reading of the document and prepared a new version where some extracts, too theoretical to be included in an Opinion, were removed. This new document will then be distributed at the CCJE-GT meeting (document CCJE-GT(2011)8).

III. OTHER ACTIVITIES OF THE CCJE

a. “Magna Carta of European Judges”

7.        Following a question put towards the Bureau by the Icelandic member of the CCJE, who is currently translating the Magna Carta into Icelandic, the Bureau examined the second sentence of the third paragraph which seems to be subject to two different interpretations.

8.        The current extract is as follows: “It shall be guaranteed (judicial independence) with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level”. According to the Bureau, this disposition clearly means that there is a necessity for those seeking justice, other judges, and society in general to guarantee judicial independence by means of national rules at the highest level. Thus, the Magna Carta neither needs to be submitted to the CCJE for a question of interpretation, nor does it need a new formulation.

b. Practical Assistance activities:

General

9.        Regarding the CCJE’s bilateral assistance activities, the Bureau examined two questions:

- which process to follow once a request has been received?

- what is the state of progress of the synthesis listing all the requests submitted to the CCJE?

10.    the Secretariat recalled that the memorandum prepared during the last meeting of the Bureau has been sent to international associations of judges but that no feedbacks have been received.

11.      The Bureau exchanged views on the future role of the CCJE confronted to the ever increasing requests for practical assistance. According to one of the Bureau members, it would be appropriate to think through the utility and efficiency of the current action of the CCJE in this field. Indeed, he wondered whether it is within the CCJE’s competences to check if the member States respect the rules contained in its Opinions and if it wouldn’t be more desirable to focus on its main task which is preparing these Opinions. This could be all the more desirable that the CCJE Bureau holds only two brief meetings a year and that the Secretariat doesn’t have the human and financial capacities to handle these requests. It has to be pointed out that a certain amount of these requests, for one or another of the reasons mentioned above, have remained unanswered or received a very formal answer. The Bureau also questioned the distribution of tasks between the Bureau and the plenary.

12.      The other members of the Bureau, on the other hand, thought that it was important that bilateral assistance to States regarding questions about judges remains part of the CCJE’s mandate and that this activity fits entirely within the competences of a Council of Europe’s Committee, aiming at enhancing the rule of law and democracy in the member States. 

13.      One member expressed that it would be useful, to carry out these tasks with better efficiency, to have a budget which would permit to fund, in each case, an investigation conducted by an expert. The Secretariat recalled that the current mandate and budget of the CCJE makes it impossible to contemplate such prospects.

14.      The Bureau decided that, as things stand at present, firstly, it is necessary to determine a process enabling the CCJE to quickly answer to the requests received from instances. This process should, in particular, list the possible answers that the CCJE may give, namely to limit itself to a reminder of the rules of the Council of Europe, to go further by offering an ad hoc solution, to ask to members of the CCJE for complementary information or to act in a more official way by resorting to a “CCJE Declaration”.

15.      The Secretariat proposed to prepare a draft procedure to be adopted by the Bureau (See appendix II to the present report).

16.      The Bureau examined the document entitled “Synthesis report on the bilateral assistance activities of the CCJE” (document CCJE-BU(2011)2PROV) prepared by the Secretariat. This report classifies the requests received by the CCJE according to the member State concerned. With the help of this document, the Bureau entrusts Mr O. Alfonso to draft, for early September, a synthesis listing the various infringements against judges in Europe, while being careful not to stigmatize some States in particular. This draft should then be submitted to the CCJE for adoption during its next plenary meeting (7th-9th November 2011) and, if need be, be 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 should be updated, as will be the document classifying the requests according to the members State concerned, thus giving a clear and precise state of the situation of judges in Europe.

Situation in the Member States

Italy

17. Mr R. Sabato pointed out that he had exchanged views with the Italian Parliament in the context of the constitutional reform of the judicial system aiming at modifying certain aspects of the Superior Council for the Judiciary (reduction of its competences, modification of the disciplinary division, etc…). This reform should also affect other aspects of justice: placing the inspection services under the sole responsibility of the Ministry of Justice, removal of the prosecutors' control over the judicial policy, modification of the rules concerning judges’ responsibility. The Bureau expressed its concern on this situation and entrusted Mr R. Sabato to keep the Bureau informed of the follow up of this draft reform.

Portugal

18. The Chairman replied in Portuguese and is going to prepare an answer from the CCJE, signed by the Chairman of the CCJE.

Serbia

19. Mr G. Reissner reported on the activity of the European Union on the issue of the non re-election of judges, for which he has been appointed expert. The High Council for Justice (HCJ) has sent a circular letter to each judge and not an individual reply. All complaints brought before the Constitutional Court have been transferred by means of a new law to the HCJ, the composition of which has also been changed. The implementation guidelines of the new process applied to the appointment of judges is currently being examined by the European Union and the Serbian Association of Judges.

20. The Bureau congratulated the involvement of the Deputy Chairman of the CCJE in the EU action in Serbia and suggested asking the Serbian members of the CCJE to prepare a complete report on the situation in Serbia.

Slovakia

21. The Bureau received two different requests concerning problems of judges in Slovakia, one in 2010 and another in early 2011. The Bureau agreed to carry on the enquiry on the content of these requests and instructed in particular the Secretariat to get in touch with the Permanent Representation of Slovakia to the Council of Europe.

France

22. The Bureau is preparing an answer to be signed by the chairman addressed to the Union of judges who had contacted the CCJE.

IV. CCJE MANDATE

23. The Bureau recalled that during the plenary meeting in November, the CCJE will have to adopt a project of mandate for 2012, to be submitted to the Committee of Ministers of the Council of Europe. The Bureau is going to prepare a preliminary draft in the meantime.

V. OTHER BUSINESS

24. The next Bureau meeting is scheduled on Monday 7th of November 2011 (9am-12.30), just before the plenary meeting which will be held from the 7th of November (2pm) until the 9th of November (5pm) in Strasbourg.

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.    4.   Preparation of the 21th CCJE-GT meeting and the draft Opinion No.14

                       

5.    Practical assistance activities and preparation of the synthesis

a)         Discussion concerning a general effective method to deal with the requests

b)         Preparation of a synthesis

           

6.    Participation of the CCJE to other meetings in and outside the Council of Europe

           

Appendix II

Procedure to be followed by the Bureau upon receipt of a request to the CCJE regarding bilateral assistance

Day 1:

Receipt of the request by the Secretariat or

Receipt of the request by the Chair of the CCEJ

Day 2 to 5:

1.            Transmission, if need be, of the request received by the Chair to the Secretariat

2.            Sending off of an acknowledgment of receipt to the sender by the Secretariat

3.            Transmission of the request to the members of the Bureau by e-mail

Day 6 to day 20:

Preparation by a member of the Bureau (alternately) of a draft  reply on the content of the request which will be:

·                                 whether a reminder of the CCJE’s principles

·                                 or a more general declaration

·                                 or a request for complementary information to be sent to the member of the CCJE of the State concerned.

Day 20 to day 30:

Circulation of the draft between the Bureau members

Day 30 to day 35

New draft prepared by the Secretariat on the basis of comments from Bureau members

Day 35 to day 50

Sending off of the draft for electronic approval to all the members of the CCJE (approval if no answer)

Day 50

Sending off of the reply to the sender (and) possibly to other authorities

Day 50 to Day 60

Incorporation of the request in the synthesis by the Secretariat