I’m going at first to make a short presentation of the context. That is a necessity to understand better this new recommendation. Then I will try to summarize the answers from the different countries.
Summary of my presentation : in 6 points
1. Why did the Council of Europe decided to write a new Recommendation on the independence, efficiency and responsabilities of judges ?
2. How this new Recommendation had been elaborated ?
3. What is its content (a short presentation) ?
4. Few words about the legal validity or not of this recommendation.
5. The method of our study
6. Presentation of the answers provided by the different countries.
1°) First question : why did the Council of Europe decided to write a new Recommendation on the independence, efficiency and responsibilities of judges ?
A substantial revision of the former recommendation
It’s not the first recommendation from the Council of Europe on this subject. The former recommendation about judges No. R (94) 12 had been adopted by the Committee of Ministers, 16 years ago, on 13 October 1994.
The explanatory memorandum I sent you explains why the Council of Europe decided to elaborate a new recommendation. It’s not only to correct or to add some new elements. It’s a complete rewriting, a substantial revision and updating of the former recommendation.
The objective, goal, aim of this new recommendation it is, quotation : “to promote the role of judges and improve their efficiency and independence, as well as clarify their duties and responsibilities.”
To take account of developments since 1994
The authors of this new recommendation note that it seemed important to take account of developments since 1994. Several elements must be mentioned.
a) How were the principles of 1994 applied ?
New rules applied to judges appeared. Councils for the Judiciary have
been created in several Countries since 1994. The new recommendation
refers clearly to the experience of the Member states as follow :
quotation : “Wishing to learn from the diverse experiences in the
organisation of judicial institutions in accordance with the rule of law
in member States”.
b) Second element : judges are working in a new context :
The role of judges had been strengthened and became more complex in the European countries, related with the evolution of the democraty. It’s not only a domestic subject. Judges are working more and more in a context of globalization. They have to refer to international and European law. And today the issue of judicial independence is not the only issue. The question of efficiency is increasing, because the growth of the number of cases threatens the effectiveness of justice and the quality of decisions.
c) Third element : the subject of justice is very important for the Council of Europe :
The judges have a particular responsibility to give effect, to
enforce the principles of the European Convention of Human Rights
(ECHR), including of course the right to a fair trial within a
The Council of Europe established two important committees or councils in the matter of justice after the recommendation of 1994, to strengthen the cooperation between judges in Europe and to improve the analysis about justice :
the Consultative Council of European Judges (CCEJ) in 2000 ;
and a European Commission for the Efficiency of Justice (CEPEJ) in 2002 ;
The studies of these two committees, their opinions, their advice, must be taken into account, and especially the “European Charter on the statute for judges”, adopted in 1998, prepared within the framework of multilateral meetings of the Council of Europe.
The new recommendation refers to several texts, which are its roots, with a variety of legal value :
International documents elaborated by the UN : “The United Nations Basic Principles on The Independence of the Judiciary”, endorsed by the United Nations General Assembly in Novembre 1985, well know during the 1990th.
Of course also European texts : The European Convention for the protection of human rights and fundamental freedoms (ECHR), article 6.
To foster the development of a common judicial culture
As indicated in the explanatory memorandum, this new recommendation does not seek for harmonisation of member States’ legislation. The goal is not to upset, unify, harmonize, integrate the different legal traditions, situations and approaches about the constitutional separation of powers between Member States. It is rather to identify and expand the common principles. It outlines in greater detail the measures which should be taken, in order to reinforce or strengthen, the role of individual judges and of the judiciary, in order to foster the development of a common judicial culture.
2°) How this new Recommendation had been elaborated ?
This new recommendation is the main topic in relation with the implementation of Project 2008/DG-HL/1427 “Public and private law reform and implementation of standards”.
Two working groups
Not only one but two working groups have produced propositions in order to revise the former Recommendation published in 1994 : a “Group of specialists on the judiciary” (CJ-S-JUD) has been created in October 2008, in order to reactivate and improve the work already carried out by another working group in 2007 : “The Group of specialists on the independence, efficiency and role of judges” (CJ-S-JUST). It’s easy to mistake for these two working groups because they have quite the same title.
I don’t have a lot of information about the first working group, because we didn’t participate in its meeting. I just can say that its proposition were not adopted by the committee of ministers. So the process was reactivated in 2008.
The terms of reference of the second working group of Specialists on the Judiciary (CJ-S-JUD) were adopted by the Committee of Ministers of the Council of Europe in October 2008, and expired in December 2009.
This working Group was under the authority of the “European Committee on Legal Co-operation” (CDCJ).
It was composed of 16 specialists “with a thorough knowledge of questions relating to the functioning of judicial systems”, appointed by the Secretary General of the Council of Europe.
Chaired by Mr Eberhard DESCH, from GERMANY.
AUSTRIA : Ms Gabriele BAJONS
CROATIA : Ms Diana KOVAČEVIĆ-REMENARIĆ
ESTONIA : Ms Maris JARV
IRELAND : Mr Philip James FITZPATRICK
ITALY : Mr Giacomo OBERTO
FINLAND : Mr Tatu LEPPANEN
FRANCE : Mr Daniel LUDET
LITHUANIA : Mr Egidijus BIELIŪNAS
MOLDOVA : Mr Andrei CHIRIAC
NETHERLANDS : Mr Rene VERSCHUUR
NORWAY : Mr Inge LORANGEBACKER
POLAND : Mr Włodzimierz WROBEL
RUSSIA : Mr Bogdan ZIMNENKO
SLOVENIA : Ms Maja TRATNIK
UNITED-KINGDOM : Ms Kay BIRCH
The mission of this working group
This working group was instructed by the terms of reference, quotation, “to draw up a recommendation with an explanatory memorandum, which would, inter alia, update the Recommendation No. R (94) 12 on the independence, efficiency and role of judges, focusing on national courts, in the light of the developments which have taken place since the adoption of this recommendation and to strengthen and enrich the scope of the recommendation.”
And it was written that “particular attention shall also be paid to 6 points” :
the role of independent authorities in the court administration ;
the status and responsibilities of judges with respect to the development of modern societies ;
the balance between the independence and efficiency of the judiciary ;
the principle of irremovability of judges ;
the liability of judges from the point of view of the independence of judges ;
the training of judges and resources allocated to them.
4 meetings in 2009 between March and December
The Group of Specialists on the Judiciary (CJ-S-JUD) held its first meeting in Strasbourg on 26 and 27 March 2009, and then 3 others meetings were organized in 2009 : in July, October and December. Our association were represented in these meetings as Observer, by myself or my French colleague Pierre Vincent, president of a chamber in the Administrative court of appeal of Nancy, the Court of appeal for the east of France, former President of our association before Heinrich Zens.
This process will end soon
As I wrote you, the process of drafting a this new Recommendation on the independence, effectiveness and responsibilities of judges by the Council of Europe, will end soon.
This draft Recommendation was listed on the agenda of the plenary meeting of CDCJ (European Committee on legal co-operation - Comité européen de coopération juridique) to be finalized in October this year (11-14 October 2010), and then will be forwarded for adoption by the Committee of Ministers of the Council of Europe in November 2010.
The final draft written in June 2010, which I sent you, may be changed in the course of these two meetings. But I think nothing important will be changed. Perhaps I’m wrong ? We’ll have the results soon.
3°) What is the content of this new Recommendation : a short presentation ?
Before studying the national report, the easiest way to explain this content is to examine the orientations of the working group of the Council of Europe at the beginning of its work.
The Working Group decided first “to approve a draft structure for the Recommendation”.
Beyond the formal aspect, this structure gives explanations about the whole logic of the texte, and address substantive issues and relevant comments made about the draft Recommendation prepared in 2007 (document CJ-S-JUD(2009)6).
The proposed structure covered the following topics :
Preamble and scope of the recommendation
After mentioning the reference standards in the Preamble, a definition of the independence of judges is provided : its object and purpose, referring to the fundamental role of the judge in a law-governed state, a State under the rule of law. The independence rule is considered not only for the benefit of judges themselves, but mainly of users of system of justice. The changes that have taken place in recent years, create the need for the present revision. Eventually, the draft define the scope, it means the persons covered, and specify the level at which independence is to be guaranteed.
External and internal independance
I – External independence
The external independence of judges had to do with the institutional guarantee of the judiciary’s independence from the other branches of government, but also its freedom from the influence of other sources of “power”, such as civil society and the media. The new recommendation tries particularly to explain the judges’ relationship with other state authorities.
II – Internal independence
The internal independence of judges means their independence from their administrative authorities, and therefore involved issues such as :
internal organisation of the Courts,
the distribution of cases
The Group held that the role of court presidents ought to be clarified.
The Group noted that independence, like many other principles,
possessed an intangible hard core. But there are also “grey areas” that
might be subject to limitations, because of other constraints, such as
freedom of expression, efficiency, etc.
III – Independent authorities
The working group considered that special attention should be given to the controversial issue of “Councils for the Judiciary”, or other similar independent bodies, and their role in the administration of courts. This issue is not very easy to study because there is not a single model applicable in all countries, but there are many.
Opinion Number 10 of the Consultative Council of European Judges (CCJE) on “the Council for the Judiciary at the service of society”, and also the Venice Commission’s draft report, on “The independence of the judicial system, Part I” (see §23-27) provide a valuable basis for discussion.
The draft Recommendation tries to underline the benefits of such bodies in terms of safeguarding independence, and at the same time recognise the wide variety of systems.
Attention should be drawn to the potential for abuse on the part of
such bodies and the need to make them independent : through their
composition (mainly of judges elected by their peers, and open to other
members as well, in the interests of diversity and in order to stay in
touch with social reality), their transparency...
IV - Independence, means and efficiency
The new recommendation considers that there is a clear link between independence and efficiency. This issue, the question of the management and funding of courts, is one of the novel aspects of this new recommendation. It reflects the challenge facing the justice system : to spend more effectively, in order to achieve a higher level of quality.
The question of defining “efficiency” has been raised by the Working Group, and in particular the distinction between “efficiency” and “effectiveness”.
How managerial factors and the need for cost control, liable to affect judges’ independence ?
V – Statute of the judge
This classical section deals with matters relating to appointment, promotion, irremovability, remuneration, training, evaluation and termination of service.
VI – Responsibility
The basic assumption of the working group must be underlined : responsibility is first, and foremost, a thing to be valued. It should be a source of inspiration for judges, to improve the confidence of the users of the justice system and the public opinion. It’s only when they fail to carry out their duties, that judges could be liable to disciplinary sanctions, civil, professional or criminal.
The Working Group underlined the need to show the logic behind the special liability rules, which were designed to safeguard independence.
The Group had noted that there was no single approach to the question of liability in the different systems.
VII – Ethics of judges and their independence, efficiency and responsibility
The new Recommendation provide an opportunity to consider the role and legal status of various national ethical rules and the issue of personal ethics.
Ethics operate on a different level from disciplinary liability. They are related to the resources deployed to enable people to do their job properly.
This was a new issue comprising several strands that would need to be identified and explored in greater depth.
It is important to define ethics, to discuss their scope and relevance and to distinguish them from other similar concepts.
It is important to explain how these rules has to be introduced and implemented in practice. Which authority would be responsible for establishing and monitoring them : judges’ professional associations, independent bodies, etc... This body must always be separate from the one responsible for judicial discipline and promotion. This body ought to be separated from the Councils for the judiciary.
The structure of the final draft recommendation, is similar to these preparatory analysis : 8 chapters, with 72 points or paragraphs, so 72 different subjects, a huge document to study…
Chapter I – General aspects : paragraphs 1 to 10
Scope of the recommendation : paragraphs 1 and 2
Judicial independence and the level at which it should be safeguarded : paragraphs 3 to 10
Chapter II - External independence : paragraphs 11 to 21
Chapter III - Internal independence : paragraphs 22 to 25
Chapter IV - Councils for the Judiciary : paragraphs 26 to 29
Chapter V - Independence, efficiency and resources : paragraphs 30 to 43
Resources : paragraph 33 to 38
Alternative dispute resolution : paragraph 39
Courts’ administration : paragraphs 40 and 41
Assessment : paragraph 42
International dimension : paragraph 43
Chapter VI - Status of the judge : paragraphs 44 to 58
Selection and career : paragraphs 44 to 48
Tenure and irremovability : paragraphs 49 to 52
Remuneration : paragraphs 53 to 55
Training : paragraph 56 and 57
Assessment : paragraph 58
Chapter VII - Duties and responsibilities : paragraphs 59 to 70
Duties : paragraphs 59 to 65
Liability and disciplinary proceedings : paragraphs 66 to 70
Chapter VIII - Ethics of judges : paragraphs 71 to 73
4°) Few words about the legal validity of this recommendation.
The Council of Europe elaborates conventions, submitted for ratification by Member States. Most of them have the legal force of a multilateral treaty. The best known is obviously the ECHR. This recommendation about judges is not a treaty or an agreement, it’s only a recommendation, without any legal force. There will not be a ratification by member states.
“It recommends that governments of member States take measures to ensure that the provisions contained in this recommendation, are reflected in their legislation, policies and practices, and that judges are enabled to perform their functions in accordance with those provisions.”
It’s interesting to mention an extract of an article, written a long
time ago by Michel Virally, a French professor of law, about “The legal
status of the recommendations of International organizations”, published
in the French Yearbook of International Law in 1956 (La valeur
juridique des recommandations des organisations internationales, Miche
Virally, Annuaire français de droit International, 1956).
The term “recommendation”, first appeared in the practice of diplomatic conferences. And It becomes constant use in the right of international organizations. Its fortune is linked to its vagueness, which reassures governments and allows international organizations to elaborate documents with more freedom. This imprecision is foremost legal : a recommendation is defined negatively : a recommendation is not legally binding. At most, do we accept to recognize it a political value, or even just a moral value.
To whom is this recommendation intended, designated ? Officially to Member States, but also of course to judges and the public opinion.
5°) Before the presentation of the reports, few words about the method of our study
It was not so easy to study this recommendation and to write the answers about this second part of our questionnaire : the recommendation is not a short text, there are a lot of subjects.
In order to facilitate your work, I sent you the text of this project and the explanatory memorandum, put together in one document (19 pages) : the explanatory memorandum has been inserted within the text of the recommendation (in italics). It should be noted that some paragraphs are not accompanied by any explanatory statement.
I gave you several advice.
It’s not useful and we would need more than two days meeting to
comment or analyse all the points. But we would like to receive from
each country represented and for each chapter, answers on the following
questions : what are the main points and the main interrogations for
your country, which principles will have the biggest impact on national
rules, which points of the new recommendation ought to be clarified, are
there ambiguities or some topics missing… ?
So, as it is written in the Italian report “to highlight only the points where the standards fixed by Council of Europe are not fulfilled or they represent new elements that the legal system does not know or points that could have a big impact on national rules” (Italy).
Additional tips to guide the study and facilitate the use, appliance of results and our debates during the meeting, had been sent.
1) To respect the summary of each country report should follow the recommendation : order of chapters, subtitles and numbers of paragraphs. You will find a summary at the end of the document. It’s not useful to copy the text of the recommendation and its explanatory memorandum in your report, only the titles.
2) This recommendation applies to all judges (common, civil and criminal, administrative, constitutional, etc...). But you were asked to analyse only issues or problematics relating to administrative justice, indicating if they concern all categories of judges, or conversely if some issues and special rules apply to administrative justice.
3) It’s possible for each chapter or paragraph to analyse the situation existing in your country : quotation of written rules or under development, case law, practices, debates ... It is important to indicate and explain the circumstances under which a rule of the new recommendation seems for you unenforceable or difficult to understand.
4) You had to study all chapters. But it was not necessary to give answers about all paragraphs when nothing important must be added. You had to stress the main points. And sometimes it is better perhaps to give answers about several paragraphs together.
5) Last advice, after this study and the answers, it would be wise to
complete the report by a conclusion to explain general considerations.
Such recommendation seems to be useful or not to improve the
administrative justice in your country ? Are you able to evaluate its
6°) Presentation of the answers from the National reports
The material provided by the participants is very impressive. I received answers from 14 countries (some of them recently…) : 7 short, 7 very long. Those especially from Austria, Bulgaria, Estonia, France, Greece, Italy, Latvia, and Lithuania, the biggest, are very long reports. About these countries It’s really a presentation of the situation and the main rules or practice applied to administrative judges.
So we wrote together not an article but a book ! The first one about the implementation of this new recommendation, before its adoption...
It’s quite an easy task to structure the answers : we just have to follow the recommendation (nb : its structure is not completely logic : there are some repetitions). But it’s impossible to make a complete presentation of all the answers in one hour. So before the ending of my introduction, I just want to underline some ideas, to give examples. I think that it would be interesting during the subgroups meeting, this afternoon, to compare more deeply the answers and the different situations, in order to analyse better the signification and the impact of this new recommendation.
NB : Presentation of these answers in a second document.
Conclusion of my introduction
It’s possible to draw an optimistic conclusión alter studying all the reports.
In all countries, almost the main principles and rules mentionned by the new recommendation are already adopted. So most of the participants think that there wille not be a great impact in the national rules or in the judicial practice. Is it really surprising ? We seem to be close to the harmonization.
But if I can add a personnal point of view, I think that for several important topics some outlook are still different, because the judicial systems are not the same in all European Countries. So we have a lot of subjects for debate in subgroups now…