FIRST PART : Do the rights granted by the Charter of Fundamental
rights of the EU lead us to a common European procedure before the
administration and the administrative courts ?
The provisions in the Charter are primarily addressed to the EU institutions and bodies but, according to article 51.1 they should be applied by the Member states when they are implementing Union law.
Through the Treaty of Lisbon the Charter, proclaimed in Nice 7 December 2000, is legally binding to the same extent as the Treaties (article 6.1 in the EU Treaty).
You will find the Charter in the Official Journal, 2010/C 83/02 .
The text of the Charter is available in the internet under :
European Parliament’s explanation, with all the links :
Another very interesting website about this Charter :
It is also useful to read the “updated Explanations relating to the text of the Charter”. You can find them under http://register.consilium.europa.eu/pdf/en/03/cv00/cv00828-re01.en03.pdf . In its preamble it says that the explanations are “a valuable tool of interpretation intended to clarify the provisions of the Charter”. Among other things there are references to a lot of case law from the ECJ where the principles now laid down in the Charter were developed.
To what extent do you apply EU law
To some extent
To what extent do you set aside rules of domestic law, if necessary, to give full effect to EU law ?
To some extent
Can you give examples if appropriate ?
For reasons of effet utile sometimes the suspending effect of appeals cannot be held
Do you apply EU law even if neither of the parties in a case before you has relied on EU law ?
Article 41 Right to good administration
41.2 a The right of every person to be heard before an individual measure is taken.
Is this right guaranteed in the procedural law for the administration/and the administrative courts/ in your country ?
If so, is this a right only “on demand” or is it an obligation for the administration to give the individual this opportunity ?
41.2.b The right of every person to have access to his or her file
Is this right guaranteed in the administrative procedural law in your country ?
only when asked for
41.2.c The obligation of the administration to give reasons for its decisions
Is there such an obligation in your country ? Can you describe how long such reasons may be – a few lines or several pages ?
Yes, however it depends whether a few lines are sufficient (often
this is the case but only in more simply legal questions). In practice
the administration gives explanations on several pages.
Article 47 Right to an effective remedy and to a fair trial
47.1 The right to an effective remedy before a tribunal
This first paragraph is based on Article 13 of the European convention on Human Rights, ECHR but the right is more extensive than in the ECHR as the remedy must be before a court, not only a “national authority”.
Are there time limits for the administration to decide upon an application of a party ? If this is the case, how long is this period of time (if it depends on the kind of case, please give some examples).
Yes there are time limits, normally of 1 month after an individual measure of an administration has been disclosed to the citizen.
Is there a legal remedy if the administration failes to decide within that time limit ?
Yes there is an appeal for failure to act (Untätigkeitsklage).
Has your country guaranteed the remedy before a court for everyone whose rights and freedoms guaranteed by the law of the Union are violated ?
Is it necessary to appeal to a higher administrative authority before a party is entitled to appeal to a court ? Please give the number of instances within the administrative law suit.
In some German states it is necessary, but e.g. not anymore in the state of Northrhine-Westphalia.
47.2 The right to a fair hearing
This second paragraph corresponds to Article 6.1 of the ECHR but the right to a fair hearing is not confined to disputes related to civil law rights and obligations. Thus, this right is also more extensive than in the ECHR.
Does your country fulfill this obligation regarding the application of EC Law ?
Are the administrative courts in your country confined to decide only on the legality of the case or can they also look into the “appropriateness” or “suitability” of the administrative decisions ?
Confined to decide only on the legality
Is the administrative court entitled to control the question of fact ? To what extent (just whether the grounds given by the administration are reasonable, or full cognition, including the hearing if witnesses and experts by the court) ?
Do administrative courts rely on experts working for the administration (on expertises that have already been delivered during the procedure before the administration) or do they nominate own experts (in order to control the experts who worked for the administration) ?
nominate own experts
Can the administrative court replace the administrative decisions with their own decisions or is it only a “cassation” ?
Is there a “two party system” before the administrative courts in your country, that is, are the individual and the administration regarded as two opposing parties ?
Is the administrative court limited to the arguments put forward by the “parties” or can the court look independently on the facts ?
Court can look independently on the facts
SECOND PART : Draft recommendation of the Council of Europe on the independence, efficiency and responsibilities of judges
The process of drafting a new Recommendation on the independence,
effectiveness and responsibilities of judges by the Council of Europe,
reactivated in 2008, will end soon. This draft Recommendation is listed on
the agenda of the next plenary meeting of CDCJ (European Committee on legal
co-operation - Comité européen de coopération juridique) to be finalized
(11-14 October 2010), and then forwarded for adoption by the Committee of
Ministers of the Council of Europe in November 2010.
An introduction about this topic will be presented during our plenary
meeting, in three parts :
Why the Council of Europe decided to write a new Recommendation on the
independence, efficiency and role of judges (The former had been adopted by
the Committee of Ministers on 13 October 1994) ?
How this new Recommendation had been elaborated ?
What is its content (a short presentation) ?
The objective of the questionnaire is to prepare the debates in subgroups
(one or two about this topic) and then a synthesis of our views.
The plan of questionnaire is the same as that of the draft recommendation,
which is structured in 8 chapters, and 72 points or paragraphs (The text of
this last version with an explanatory memorandum, dated 30 June 2010, is
sent by the same email).
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 in Beaulieu sur Mer and for each chapter, answers about the questions follow : 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… ?
1. About Chapter I General aspects : scope of the recommendation,
judicial independence and the level at which it should be safeguarded.
Main point for Germany : Fair trial and the question how
long a case may be handled by a court and what can be an appropriate
remedy for too long procedures (c.f. ECHR Sep. 2010)
2. Chapter II External independence : with government, parliament, medias and
How far is the judiciary allowed to cooperate with the
media i.e.. informing the press and TV before arresting a suspect (c.f.
cases Nadja Benaissa/Klaus Zumwinkel) ?
3. Chapter III Internal independence : hierarchy, internal organization,
distribution of cases, professional organizations.
4. Chapter IV Councils for the judiciary.
5. Chapter V Independence, efficiency and resources : resources, alternative dispute resolution, court administration, assessment, international dimension.
Should the money, which is meant to be paid to plaintiffs
suffering from too long procedures (c.f. ECHR Sep. 2010) be reallocated
in order to employ more judges ?
6. Chapter VI Status of judges : selection and career, tenure, remuneration, training, assessment.
7. Chapter VII Duties and responsabilities : duties, liability
and disciplinary proceedings.
Main point for Germany : Fair trial and the question how
long a case may be handled by a court and what can be an appropriate
remedy for too long procedures (c.f. ECHR Sep. 2010)
8. Chapter VIII Ethics of judges.
Strasbourg, 30 June 2010 CDCJ-BU (2010)
DRAFT RECOMMENDATION ON JUDGES :
INDEPENDENCE, EFFICIENCY AND RESPONSIBILITIES
AND ITS EXPLANATORY MEMORANDUM
Document prepared by the
Directorate General of Human Rights and Legal Affairs
Draft Recommendation on judges : independence, efficiency and responsibilities
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Having regard to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention") which provides that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law", and to the relevant case law of the European Court of Human Rights ;
Having regard to the United Nations Basic Principles on the Independence of the Judiciary, endorsed by the United Nations General Assembly in November 1985 ;
Having regard to the Opinions of the Consultative Council of European
Judges (CCJE), to the work of the European Commission for the
Efficiency of Justice (CEPEJ), and to the European Charter on the
statute for judges prepared within the framework of multilateral
meetings of the Council of Europe ;
Noting that in the exercise of their judicial functions, the judges’ role is essential in ensuring the protection of human rights and fundamental freedoms ;
Desiring to promote the independence of judges, which is an inherent element of the rule of law, and indispensable to judges’ impartiality and to the functioning of the judicial system ;
Underlining that the independence of the judiciary secures for every person the right to a fair trial and therefore is not a privilege for judges, but a guarantee of respect for human rights and fundamental freedoms enabling every person to have confidence in the justice system ;
Aware of the need to assure the position and powers of judges in order to achieve an efficient and fair legal system and encourage them to commit themselves actively to the functioning of the judicial system ;
Conscious of the desirability of ensuring the proper exercise of judicial responsibilities, duties and powers aimed at protecting the interests of all persons ;
Wishing to learn from the diverse experiences in the organisation of judicial institutions in accordance with the rule of law in member States ;
Having regard to the diversity of legal systems, constitutional positions and approaches to the separation of powers ;
Noting that nothing in this recommendation is intended to lessen guarantees of independence conferred on judges by the constitutions or legal systems of member States ;
Noting that the constitutions or legal systems of some member States have established a Council, known as Council for the Judiciary ;
Wishing to promote relations among judicial authorities and individual judges of different member States in order to foster the development of a common judicial culture ;
Considering that Recommendation No. R (94) 12 of the Committee of Ministers on the independence, efficiency and role of judges needs to be substantially updated in order to reinforce all measures necessary to promote judges’ independence and efficiency, assure and make more effective their responsibility and strengthen the role of individual judges and the judiciary generally ;
Recommends that governments of member States take measures to ensure
that the provisions contained in this recommendation, which replaces the
above mentioned Recommendation No. R (94) 12, are reflected in their
legislation, policies and practices and that judges are enabled to
perform their functions in accordance with those provisions.
Chapter I – General aspects
Scope of the recommendation
1. This recommendation is applicable to all persons exercising judicial functions, including those dealing with constitutional matters.
2. The provisions laid down in this recommendation apply to non professional judges, except where it is clear from the context that they only apply to professional judges.
Judicial independence and the level at which it should be safeguarded
3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the right to have their case decided in a fair trial, on legal grounds only and without any improper influence.
4. The independence of judges is safeguarded by the independence of the judiciary. As such, it is a fundamental aspect of the rule of law.
Judges should have unfettered freedom to decide cases impartially, in accordance with the law and their interpretation of the facts.
Judges should have sufficient powers and be able to exercise them in order to carry out their duties and maintain their authority and the dignity of the court. All persons connected with a case, including public bodies or their representatives, should be subject to the authority of the judge.
The independence of the judge and of the judiciary should be enshrined at the constitutional or highest possible legal level in member States with more specific rules provided at the legislative level.
Where judges consider that their independence is threatened, they should be able to refer the matter to a Council for the Judiciary or another independent authority, or they should have effective means of remedy.
A case should not be withdrawn from a particular judge without valid reasons. A decision to withdraw a case from a judge should be taken on the basis of objective pre-established criteria and following a transparent procedure by an authority within the judiciary.
Only the courts themselves should decide on their own competence in individual cases as defined by law.
Chapter II - External independence
The external independence of judges is not a prerogative or privilege granted in judges’ own interest but in the interest of the rule of law and of persons seeking and expecting impartial justice. The independence of judges should be regarded as a guarantee of freedom, respect for human rights and impartial application of the law. Judges’ impartiality and independence are essential to guarantee the equality of parties before the courts.
Without prejudice to their independence, judges and the judiciary should maintain appropriate working relationships with institutions and public authorities involved in the management and administration of the courts as well as professionals whose tasks are related to the work of judges to facilitate an effective and efficient administration of justice.
All necessary measures should be taken to respect, protect and promote the independence and impartiality of judges.
The law should provide for sanctions against persons seeking to influence judges in an improper manner.
Decisions of judges should be reasoned and made public. Judges should not otherwise be obliged to justify the reasons for their decisions.
Decisions of judges should not be subject to any revision other than appellate or re-opening proceedings as provided for by law.
With the exception of decisions on amnesty, pardon or similar, the executive and legislative powers should not take decisions which invalidate judicial decisions.
If commenting on judges’ decisions, the executive and legislative powers should avoid criticism that would undermine the independence of or public confidence in the judiciary. They should also avoid actions which may call into question their willingness to abide by judges’ decisions, other than stating their intention to appeal.
Judicial matters are of public interest. The right to information about judicial matters should, however, be exercised having regard to the limits imposed by judicial independence. The establishment of courts’ spokespersons or press and communication services under the responsibility of the courts or under Councils for the Judiciary or other independent authorities is encouraged. Judges should exercise restraint in their relations with the media.
Judges, who are part of the society they serve, cannot effectively administer justice without public confidence. They should inform themselves of society’s expectations of them, the judicial system and of complaints about its functioning. Permanent mechanisms to obtain such feedback set up by Councils for the Judiciary or other independent authorities would contribute to this.
Judges may engage in activities outside their official functions. To
avoid actual or perceived conflicts of interest, their participation
should be restricted to activities compatible with their impartiality
and independence. Information about any such additional activities
should be publicly available where such activities could affect the
public perception of the independence and impartiality of the judge.
Chapter III - Internal independence
The principle of judicial independence means the independence of each individual judge in the exercise of adjudicating functions. In their decision-making judges should be independent and impartial and able to act without any restriction, improper influence, pressures, threats or interferences, direct or indirect, from any authority, including authorities internal to the judiciary. Hierarchical judicial organisation should not undermine individual independence.
Superior courts should not address instructions to judges about the way they should decide cases, except in preliminary rulings or when deciding on legal remedies according to the law.
The allocation of cases within a court should follow objective pre-established criteria in order to safeguard the right to an independent and impartial judge. It should not be influenced by the wishes of a party to the case or anyone otherwise interested in the outcome of the case.
Judges should be free to form and join professional organisations
whose objectives are to safeguard their independence, protect their
interests and promote the rule of law.
Chapter IV - Councils for the Judiciary
Councils for the Judiciary are legal or constitutional bodies that seek to safeguard the independence of the judiciary and of individual judges. They can also have an important role in promoting an efficient functioning of the judicial system.
Not less than half the members of such Councils should be judges elected by their peers from all levels of the judiciary and with full respect for pluralism inside the judiciary.
Councils for the Judiciary should demonstrate the highest degree of transparency towards judges and society by developing pre-established procedures and reasoned decisions.
In exercising their functions, Councils for the Judiciary should not interfere with judges’ individual independence.
Chapter V - Independence, efficiency and resources
Efficiency of judges and of judicial systems is a necessary condition for the protection of every person’s rights, compliance with the requirements of Article 6 of the Convention, legal certainty and public confidence in the rule of law.
Efficiency is the delivery of quality decisions within a reasonable time following fair consideration of the issues. Individual judges are obliged to ensure the efficient management of cases for which they are responsible, including the enforcement of decisions the execution of which falls within their jurisdiction.
The authorities responsible for the organisation and functioning of the judicial system are obliged to provide judges with conditions enabling them to fulfil their mission and should achieve efficiency while protecting and respecting judges’ independence and impartiality.
Each State should allocate adequate resources, facilities and equipment to the courts to enable them to function in accordance with the standards laid down in Article 6 of the Convention and to enable judges to work efficiently.
Judges should be provided with the information they require to enable them to take pertinent procedural decisions where such decisions have resource implications. The power of a judge to make a decision in a particular case should not be solely limited by a requirement to make the most efficient use of resources.
A sufficient number of judges and appropriately qualified support staff should be allocated to the courts.
To prevent and reduce excessive workload in the courts, measures consistent with judicial independence should be taken to assign non-judicial tasks to other suitably qualified persons.
The use of electronic case management systems and information communication technologies should be promoted by both authorities and judges and their maximisation in courts should be similarly encouraged.
All necessary measures should be taken to ensure the safety of judges. These measures may involve protection of the courts and of judges who may become or are victims of threats or acts of violence.
Alternative dispute resolution
Alternative dispute resolution mechanisms should be promoted.
Councils for the Judiciary, where existing, or other independent authorities with responsibility for the administration of courts, the courts themselves and/or judges’ professional organisations may be consulted when the judicial system’s budget is being prepared.
Judges should be encouraged to be involved in courts’ administration.
With a view to contributing to the efficiency of the administration of justice and continuing improvement of its quality, member States may introduce systems for the assessment of judges by judicial authorities, in accordance with Paragraph 58.
States should provide courts with the appropriate means to enable judges to fulfil their functions efficiently in cases involving foreign or international elements and to support international co-operation and relations among judges.
Chapter VI - Status of the judge
Selection and career
Decisions concerning the selection and career of judges should be based on objective criteria pre-established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate applying the law while respecting human dignity.
There should be no discrimination against judges or candidates for judicial office on the grounds of race, colour, gender, sexual orientation, religion, political or other opinion, national or social origin, property, disability, birth or social status. A requirement that a judge or a candidate for judicial office must be a national of the State concerned should not be considered discriminatory.
The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.
However, where the constitutional or legal provisions prescribe that the Head of State, the government or the legislative power takes decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to Chapter IV - Councils for the Judiciary) should be authorised to make recommendations which the relevant appointing authority follows in practice.
The membership of the independent authorities referred to in Paragraphs 46 and 47 should assure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision or at least the procedure under which the decision was made.
Tenure and irremovability
Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age where such exists.
Terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of gross misconduct or where the judge can no longer perform judicial functions. Early retirement should be possible only on request of the judge concerned or on medical grounds.
Where recruitment is made for a probationary period or fixed term, the decision on whether to confirm or renew such an appointment should only be taken in accordance with Paragraph 44 so as to ensure that the independence of the judiciary is fully respected.
A judge should not receive a new permanent appointment or be permanently moved to another judicial office without consenting to it, except in cases of disciplinary sanctions or reform of the organisation of the judicial system.
The principal rules of the system of remuneration for professional judges should be laid down by law.
Judges’ remuneration should be commensurate with their profession and responsibilities, and be sufficient to shield them from inducements aimed at influencing their decisions. Guarantees should exist for maintaining a reasonable remuneration in case of illness, maternity or paternity leave, as well as for the payment of a retirement pension, which should be in a reasonable relationship to their level of remuneration when working. Specific legal provisions should exist as a safeguard against a reduction in remuneration aimed specifically at judges.
Systems making judges’ core remuneration dependent on performance should be avoided as they could create difficulties for the administration of justice.
Judges should be provided with theoretical and practical initial and in-service training, entirely funded by the State. This should include economic, social and cultural issues related to the exercise of judicial functions. The intensity and duration of such training should be determined in the light of previous professional experience.
An independent authority should ensure, in full compliance with educational autonomy, that initial and in-service training programmes meet the requirements of openness, competence and impartiality inherent in judicial office.
Where judicial authorities establish systems for the assessment of judges, such systems should be based on objective criteria. These should be published by the competent judicial authority. The procedure should enable judges to express their view on their own activities and on the assessment of these activities, as well as to challenge assessments before an independent authority or a court.
Chapter VII - Duties and responsibilities
Judges should protect the rights and freedoms of all persons equally, respecting their dignity in the conduct of court proceedings.
Judges should act independently and impartially in all cases, ensuring that a fair hearing is given to all parties and, where necessary, explaining procedural matters. Judges should act and be seen to act without any improper external influence on the judicial proceedings.
Judges should adjudicate on cases which are referred to them. They should withdraw from a case or decline to act where there are valid reasons defined by law, and not otherwise.
Judges should manage each case with due diligence and within a reasonable time.
Judges should give clear reasons for their judgments in language which is readily understandable.
Judges should, in appropriate cases, encourage parties to reach amicable settlements.
Judges should regularly update and develop their proficiency.
Liability and disciplinary proceedings
The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine the case should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.
Only the State may seek to establish the civil liability of a judge through court action in the event that it has had to award compensation.
The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine the case should not give rise to criminal liability, except in cases of malice.
Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.
Judges should not be personally accountable where their decision is overruled or modified on appeal.
Chapter VIII - Ethics of judges
Judges should be guided in their activities by ethical principles of professional conduct. These principles not only include duties sanctioned by disciplinary measures, but offer guidance to judges on how to conduct themselves.
These principles should be laid down in codes of judicial ethics which should inspire public confidence in judges and the judiciary. Judges could play a leading role in the development of such codes.
Judges should be able to seek advice on ethics from a body within the judiciary.
1. In accordance with the objectives that governed the drafting and adoption of Recommendation No. R (94) 12 on the independence, efficiency and role of judges, and which are set out in its explanatory memorandum, it has been considered necessary to undertake a substantial revision and updating of this Recommendation, leading to the drafting of a new Recommendation.
2. When establishing the rules that should be applied by member States to promote the role of judges and improve their efficiency and independence, as well as clarify their duties and responsibilities, account has been taken of the significant changes that have occurred since 1994.
3. First of all, lessons need to be learned from the way in which the principles laid down in Recommendation No. R (94) 12 were received and implemented in member States and from the establishment in some countries of bodies aimed at safeguarding the independence of individual judges and of the judiciary as a whole (Councils for the Judiciary).
4. The Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”) lays down principles which integrate substantial values for the respect of human dignity and a fair society. Judges have a duty to enforce these effectively. The role of the judge has therefore been enhanced and the function of enforcing the law has become more complex.
5. Individuals’ increasing awareness of their rights together with an
increase in recourse to litigation have created major increases in
workloads for the administration of justice which has the potential to
reduce the effectiveness of these rights. The case law of the European
Court of Human Rights on the right to a fair trial within a reasonable
time illustrates the challenge for the administration of justice in
6. One of the most significant changes since the adoption of Recommendation No. R (94) 12 has been the reinforced emphasis on efficiency in justice systems. Information technology has also greatly expanded. It is no longer enough to judge in an independent and impartial system. It is also necessary that justice produces quality decisions within a reasonable time to meet individuals’ legitimate expectations and comply with judgments of the European Court of Human Rights. This has resulted in the Council of Europe promoting the independence of judges and quality and efficiency of justice by the creation of the Consultative Council of European Judges (CCJE) and the European Commission for the Efficiency of Justice (CEPEJ) whose work has been taken into consideration in the revision of the Recommendation.
7. In addition, judges now have to perform their functions in an increasingly global society where international judicial co-operation is essential. Efficiency of justice with international elements requires facilitating information on other legal systems and improving mutual confidence. Exchanges among judges and judicial authorities should be promoted. This should not involve altering the diversity of legal systems, constitutional positions and approaches to the separation of powers in member States. Rather it seeks to identify and expand the already existing common grounds.
8. The present Recommendation (hereinafter referred to as “the Recommendation”) contains eight chapters and is structured as follows :
Chapter I - general aspects ;
Chapter II - external independence : judges’ independence in the context of government, parliament, media and civil society ;
Chapter III - internal independence : hierarchy, internal organisation, distribution of the cases and professional organisations ;
Chapter IV - Councils for the Judiciary ;
Chapter V - independence, efficiency and resources : judicial efficiency and its relationship with judicial independence ;
Chapter VI - status of the judge : selection and career, tenure and irremovability, remuneration, training and assessment ;
Chapter VII – responsibilities : civil and criminal liability, disciplinary proceedings and duties ; and
Chapter VIII – ethics of judges.
9. The Recommendation, similar to the 1994 Recommendation, does not seek harmonisation of member States’ legislation. It outlines in greater detail the measures which should be taken in order to reinforce or, in some member States, further strengthen, the role of individual judges and of the judiciary.
10. When using the word “law”, the Recommendation refers to statute
law, including the Constitutions, legislative acts and enactments of
lower rank than statutes, as well as case law and unwritten law.
Chapter I – General aspects
Scope of the Recommendation
11. The Recommendation applies to professional and non professional judges, including judges of Constitutional courts. Provisions on recruitment, remuneration, selection and career do not relate to non professional judges. The Recommendation gives no definition of what ‘non-professional judges’ are as this greatly varies from a system to another, and it is a matter for the internal law of member States to decide who are considered as non professional judges for the purposes of this Recommendation, whether they are lay judges, experts appointed on the basis of their specialised knowledge, etc.. Some of the provisions could be applicable to other professionals acting before the courts whose status is defined by the principle of independence from the Executive or the Legislative power. Nevertheless, the Recommendation relates to judges only (Recommendation, paragraphs 1 and 2).
Judicial independence and the level at which it should be safeguarded
12. The Recommendation states that judicial independence is a fundamental right of each individual as safeguarded by Article 6 of the Convention. The independence of each individual judge thus safeguards every person’s right to have their case decided only on the law, the evidence and facts and without any improper influence (Recommendation, paragraph 3).
13. It is essential that judges have the authority to enable them carry out their duties. To ensure judges have the respect due to them and the authority necessary to enable them to conduct proceedings efficiently and smoothly, all parties connected with a case (e.g. plaintiffs, defendents, witnesses, experts, etc.) including State and other public bodies and their representatives, as well as members of the media and the public should be subject to the authority of the judge, in accordance with domestic law (Recommendation, paragraph 6).
14. Where the Council for the Judiciary is a constitutional body, at the same level than the legislative or executive power, a statement done by the Council is normally enough to protect the independence of an individual judge. In other cases, the independence of the judge in a specific case can be guaranteed by a legal remedy before higher courts or another authority with the competency of protecting judicial independence from external interferences eventually coming from the other powers of the State. (Recommendation, paragraph 8).
A case may not be withdrawn from a judge unless there are valid
reasons for doing so and such decisions are taken by the competent
authorities. Such authorities might be the President of the court. The
concept of “valid reasons” covers all grounds for withdrawal which do
not undermine the independence of judges. Efficiency may also constitute
a valid reason. For example, where a judge has a backlog of cases due
to illness or other reasons, cases may be withdrawn from that judge and
assigned to other judges. Similarly, it may be necessary to withdraw
cases from judges who have been assigned a time-consuming case which may
prevent them from dealing with other cases already assigned to them. It
may prove necessary for the list of valid reasons to be determined by
statute. In no event should this provision remove the entitlement of
parties to withdraw a case, nor the obligation of judges to decline to
act in the event of their having an actual or perceived conflict of
interest (Recommendation, paragraph 9).
In individual cases, judges should be able to decide on their own competence as defined by law without any external influence. Judicial independence would be illusory if executive or legislative bodies were able to interfere in and determine judges’ competence in individual cases (Recommendation, paragraph 10).
Chapter II - External independence
Some of the principles included in this Chapter as related to external independence have, in fact, a broader scope and apply to judicial independence, in general. The reason for this is that protecting the judge from improper external influence is in the origin of the concept of judicial independence. One of the innovations of the Recommendation consists in extending independence to the internal relations within the judiciary .
The reference in the Recommendation to the impartiality of judges is
of particular importance. In the definition of independence a link is
established between independence and impartiality. Both are fundamental
rights safeguarded by Article 6 of the Convention but they have
different areas of application. Independence protects judicial decision
making from improper influence from outside the proceedings.
Impartiality guarantees that the judge has no conflicts of interest or
association with the parties or with the subject of the trial that might
be perceived to compromise objectivity (Recommendation, paragraph 11).
Independence should not isolate judges from society. In an increasingly interdependent society, judicial functions cannot be efficiently performed without meaningful co-operation between the authorities and bodies which have responsibility for the administration and management of the courts, and with professionals whose tasks are related to judicial functions. In order to preserve judicial independence, these relationships should be governed by law, or written protocols which set out the different duties and responsibilities (Recommendation, paragraph 12).
The Recommendation calls for all necessary measures to be taken to protect and promote the independence of judges. These measures could include laws such as the “contempt of court”  provisions that already exist in some member States (Recommendation, paragraph 13).
Those who seek to improperly influence or corrupt judges could also be subject to criminal sanctions (Recommendation, paragraph 14).
Decisions of judges should be self-explanatory. Judges should not be obliged, outside of court proceedings, to explain or justify them further other than the reasoning contained in their judgements. This does not exclude obligations to provide information for statistical purposes or legislative reform. Concerning the obligation to give reasons for judgments, several exceptions exist, as mentioned in paragraph 60 infra. Making the decisions public goes beyond the strict requirement of Article 6.1 of the Convention which prescribes that “judgment shall be pronounced publicly” as it implies that decisions also have to be made available to the public (Recommendation, paragraph 15).
When the Recommendation states that decisions of judges can be revised only in appellate or re-opening procedures this includes all legal remedies available for revision in member States, such as “Nadzor” proceedings in the Russian Federation (Recommendation, paragraph 16).
Revision of decisions outside that legal framework, by the executive and legislative powers or the administration should not be permissible. This does not remove the power of the Legislative to change existing or enact new laws which judges must then apply. The administration, executive or legislative powers should not invalidate, in individual cases, decisions of judges. This would not exclude the special cases of amnesty, pardon, and clemency or similar situations such as rewarding compensation without admitting liability. Such exceptions are known in every democracy and their justification is contained in humanitarian principles of superior value (Recommendation, paragraph 17).
Public reporting of trials and judicial decisions is essential to create and maintain public confidence. Judicial activity is the subject of legitimate public and media interest. Information regarding the functioning of the administration of justice should be widely disseminated. However, in situations where the privacy and rights of individuals are protected by law (in camera cases), judges should protect such privacy and rights and preserve in all circumstances the professional confidentiality entrusted to them. Judges should exercise restraint in their relations with the media. This restraint cannot be precisely quantified and depends on the individual circumstances. Personal appearances by judges in the media, to explain or justify their decisions is strongly discouraged (Recommendation, paragraph 19).
It is essential that information provided on judicial decisions be accurate in order to maintain public confidence in the administration of justice. This is the reason why the Recommendation, having regard to Opinion No. 3 of the CCJE, encourages the establishment of spokespersons and communication offices to facilitate the dissemination of accurate and timely information from the courts and about the courts system (Recommendation, paragraph 19).
Judges should be aware that their membership of certain non professional organisations may infringe their independence or impartiality. Each member State should determine which activities are compatible with judges’ independence and impartiality. In Belgium for instance, incompatible activities have been identified, such as an electoral mandate, the profession of lawyer, bailiff, notary, ecclesiastic or military functions, plurality of judicial functions, etc. Furthermore, in order to ensure that judges have the time to perform their prime duty, that is to adjudicate, the plurality of mandates in various commissions should be restricted and cases in which the law prescribes for judges to sit on a commission, council, etc, should be limited (Recommendation, paragraph 21).
Chapter III - Internal independence
Judicial independence is not just freedom from improper external influence, but also improper influence from within the judicial system either by other judges or judicial authorities. Each individual judge is subject only to the law. Therefore, judicial hierarchical interferences in the exercise of judicial functions cannot be permitted. Instructions from presidents of courts should never interfere in the decision making in individual cases by judges (Recommendation, paragraph 22).
Internal independence prevents superior courts addressing to lower courts general instructions or practice guidelines on the way they should apply the law other than through their case law and judgements when deciding on legal remedies against decisions of lower courts. This should be without prejudice to superior courts’ ability to develop the law in member States where their legal systems permit. This is not intended to interfere with the functions of appellate courts to ensure legal consistency. Moreover, a court may be bound by decisions taken by other courts, such as the referral decision, res iudicata or decisions on preliminary questions. The legal remedies mentioned in the Recommendation include appeals as well as other legal remedies to higher courts against decisions of judges (“Nadzor” proceedings in the Russian Federation) (Recommendation, paragraph 23).
There are various systems for the distribution of cases on the basis of objective pre-established criteria. These include, inter alia, the drawing of lots, distribution in accordance with alphabetical order of the names of judges or by assigning cases to divisions of courts in an order specified in advance (so-called “automatic distribution”) or the sharing out of cases among judges by decision of court Presidents. What is important is that the actual distribution is not subject to external or internal influence and designed to benefit any of the parties. Appropriate rules for substituting judges could be provided for within the framework of rules governing the distribution of cases. Caseload and overburdening are valid reasons for the distribution or removal of cases provided such decisions are taken on the basis of objective criteria (Recommendation, paragraph 24).
Recommendation No. R (94) 12 establishes a right of association for
judges confined to protecting their independence and promoting the
interests of the profession. In some member States judges have created
professional organisations which do not necessarily confine themselves
to safeguarding judges’ independence and protecting their professional
interests, but also seek to uphold other principles of the justice
system in the interest of individuals. The
Recommendation, drawing lessons from this diversification of forms of
joint action by judges, contains a recommendation on the right to form
“professional organisations”, stating, as did the European Charter on
the status for judges, that judges may freely join such organisations.
Such organisations, according to the United Nations’ principles, may
operate at national or international level, have authority to take part
in discussions with the competent institutions on matters related to
their purpose and participate in the training of judges (Recommendation,
Chapter IV - Councils for the Judiciary
In a number of states, variously named independent authorities whom the CCJE refers to as “Councils for the Judiciary”, have been established. Chapter IV only applies where Councils for the Judiciary have been established. Their objective is to protect and safeguard the independence of the judiciary. They are involved to a greater or lesser extent in, inter alia, the selection, career, professional training of judges, disciplinary matters and court management. In the light of the various experiences observed, the changes noted since the early 1990s and the latest developments on this subject (see in particular Opinion No. 10 of the CCJE), it was considered necessary to recommend guidelines for the organisation, composition and functioning of such Councils (Recommendation, paragraph 26).
It should be added that some legal systems traditionally adhere to the alternative which consists of securing the independence of each individual judge in the decision making process while entrusting executive bodies with certain administrational matters. Both approaches to judicial independence being equally acceptable, no part of the Recommendation should be read as preferring one of these traditional models over the other.
While Councils for the Judiciary have proved to be helpful in preserving judicial independence their mere existence does not, in itself, guarantee it. Therefore it is necessary to regulate their composition, appointment of members, respect for pluralism, transparency and reasoning of their decisions and to ensure that they are free from political or corporate influences. As regards the composition and the requirement to have no less than “half of judges elected by their peers”, it should be underlined that in member States where prosecutors have a similar status to the one of judges, they may be members of the Council for the Judiciary (Recommendation, paragraphs 27 and 28).
Chapter V - Independence, efficiency and resources
Independence should not be an obstacle or impediment to efficiency. Both are complementary. However it is necessary to balance independence and efficiency. The search for enhanced efficiency should never compromise independence. Independence protects the judge as a member of a power of the State. Efficiency concerns the judge’s role in the justice system from which people expect clarity, speed, cost-effective organisation, courtesy and sensitivity - especially towards victims - and efficiency in the protection of their rights and determination of their obligations (Recommendation, paragraph 30).
The Recommendation includes a definition of judicial efficiency which is delivering quality decisions within a reasonable time (Article 6 of the Convention). Judges should be receptive to decisions and policies adopted by authorities responsible for the administration and management of the courts, to improve efficiency provided they do not interfere with or compromise in any way judicial independence (Recommendation, paragraph 31).
Efficiency relates to both qualitative and quantitative aspects. It involves both individual judges and authorities responsible for the organisation and the functioning of the judicial system.
In their work, judges should be aware of their contribution to efficiency and should, for example use every procedural means of case management provided for by law, as well as demonstrate personal organisation (punctuality and availability during court sitting hours, adequate preparation, notice of planned absence and prompt report on unavoidable absences, etc.).
A balance should be achieved between the entitlement of judges to adequate working conditions and their responsibility to use efficiently the resources provided to them. In principle, prevailing economic conditions should not restrict judges’ choice of a certain line of action or decision. Judges should be informed about the costs of the different options to enable them assess such options. Therefore judges should be informed about the costs of their procedural decisions in cases where these decisions involve important resources implications, such as genetic testing, auditing, legal aid or others (Recommendation, paragraph 34).
The needs should be assessed and evaluated on the basis of objective criteria. Judges will work more efficiently and deliver their judgements more promptly when provided with adequate back-up staff chosen on the basis of objective criteria and equipment. Some national systems and some constitutional courts assist judges with decision-making by providing them with highly qualified support staff for legal/research assistance. The Recommendation calls for the further development of such resources (Recommendation, paragraph 35).
To ease the burden on judges and enable them to concentrate on hearing and determining cases, non-judicial tasks could be assigned to other suitably qualified persons, in conformity with Recommendation No. R (86) 12 concerning measures to prevent and reduce excessive workload in courts (Recommendation, paragraph 36).
Judicial systems and court administrations should be continuously modernised. Modern technologies such as electronic case management systems and other information and communication technologies should be available. Modern technologies are important to support judges in their work but should never substitute judges’ decision-making. It is essential that all office automation and data processing be available to judges, who themselves have an important role in promoting the use of new and modern technologies. Safeguards aiming at the protection of personal data (processing, storage or profiling) should be respected when using such technologies (Recommendation, paragraph 37).
To assist budgetary authorities make informed assessments of courts’ needs, the Recommendation states that Councils for the Judiciary or other independent authorities with responsibility for the administration of courts can be consulted and involved in the preparation of courts’ budgets. In some countries this includes not only the State itself but also decentralised authorities where they are competent in these matters (Recommendation, paragraph 40).
The administration of courts should help improve efficiency and
preserve the independence and impartiality of judges. Independence
covers judicial decision making and the conduct of court hearings. It
does not prevent the adoption of common working methods necessary for
the performance of judicial duties in an efficient manner. Protocols,
guides or bench books aimed at this goal should be validated by judges
of the court or of the judicial sector they are addressed to, or by
their representatives, so as to guarantee the efficiency of working
rules and their respect for judicial independence. Management
accountability systems should only relate to managerial activities and
never to adjudicating activities (Recommendation, paragraph 41).
The implementation of assessment mechanisms for judges similar to those for the performance of courts should improve the efficiency and the quality of justice. Where they exist, such mechanisms must comply with the statutory safeguards set out in paragraph 58 of the Recommendation and cannot compel judges to report on the merits of cases they are dealing with (Recommendation, paragraph 42).
The importance of international judicial co-operation in the
modern-day global society is explicitly acknowledged. The work of judges
should be facilitated by providing appropriate support to enable
cross-border cases be dealt with efficiently, including providing
information on foreign legal systems, international and supra-national
law, and the necessary information technologies tools (Recommendation,
Chapter VI - Status of the judge
Selection and career
The independence of judges should be preserved not just when they are appointed but throughout their careers. Career includes promotion and appointment to new positions. Decisions to promote a judge to another position could in practice be a disguised sanction for an “inconvenient judge”. Such a decision would not be compatible with the Recommendation. To address such situations, some member States, such as Italy, have adopted a system of separation of judicial careers and judicial functions, the hierarchical level, which only determines the level of remuneration, being separate from the function exercised. In the majority of states, judges’ careers are based on merit. In such cases, this should be assessed using objective criteria, as previously specified. Those objective criteria should be pre-established by law or by the competent authorities, noting that basic criteria should in all cases be prescribed by law. The competent authority will in some member States be the Council for the Judiciary (Recommendation, paragraph 44).
It is essential that the independence of judges should be guaranteed when they are selected and throughout their professional career, and that there should be no discrimination. All decisions concerning professional careers of judges should be based on objective criteria, free from considerations outside their professional competence. The reference to possible grounds of discrimination is not intended to be exhaustive. Where justified, positive action criteria could be introduced for the selection and promotion of judges provided that they have been previously established by law. Disability should not prohibit appointment to judicial positions, provided such disability does not affect the capacity to perform judicial duties (Recommendation, paragraph 45).
The Recommendation confers an essential role on independent authorities established to decide on the selection and career of judges. At least half of their members should be judges chosen by their peers (Recommendation, paragraph 46).
In some member States the appointing authority is not obliged to accept recommendations made. Nevertheless it is desirable that recommendations be followed in practice. Concerning the composition of the independent and competent authority, it is recommended that a substantial part of the members be drawn from the judiciary, which implies that member States are free for the remaining seats to include, for instance, representatives of other legal professions as well as the general public (Recommendation, paragraph 47).
The “widest possible representation” aims at ensuring gender balance, geographical balance as well as a balance in hierachical levels (Recommendation, paragraph 48).
Tenure and Irremovability
Security of tenure means judges cannot, except for disciplinary reasons, be removed from office, until mandatory retirement age unless they have requested early retirement. It also requires, in systems where judges must undergo a probation period before being confirmed in their posts, that the decision on this renewal or confirmation be taken by an independent authority. Irremovability implies that judges cannot receive new appointments or be moved to another post without their consent. Grounds for terms of office should be prescribed by internal law, whether this concerns disciplinary sanctions, loss of nationality, etc. (Recommendation, paragraphs 49 and 50).
Judges’ remuneration is an important element to address when dealing with independence and impartiality. For this reason general principles on judges’ remuneration should be established by the law while more specific rules can be set at other levels. This does not exclude collective agreements (Recommendation, paragraph 53).
An adequate level of remuneration is a key element in the fight against corruption of judges and aims at shielding them from any such attempts. The rules which prevent measures expressly seeking to reduce the level of judges’ remuneration do not exclude that specific legal provisions apply in case of long term illness or medical incapacity. Where the Recommendation refers to ‘maternity or paternity leave’ it concerns the legal leave offered, according to national legislations, to mothers and fathers on the occasion of the birth or adoption of a child and does not concern the longer parental leave that exists in some members states to enable parents to look after their child, with sometimes part of a remuneration being payed by family allowances schemes (Recommendation, paragraph 54).
Initial training, as a precondition to the exercise of judicial functions, and in-service training for all judges, comprising both theoretical and practical teaching, should be fully funded by the State. In some member States in-service training is compulsory. In others it is an ethical obligation. Initial and in-service training should include European law, with particular reference to its practical application in day-to-day work, the Convention and the case law of the European Court of Human Rights, as well as the practice of foreign languages as required. Training on economic, social and cultural issues is meant to take into consideration the general need for social awareness and understanding of different subjects reflecting the complexity of life in society. Initial and in-service training should allow for study visits to European jurisdictions and other authorities and courts. In-servive training assessment should not be used as a form of integrated assessment of the judge. When referring to the intensity and duration of the training in the light of previous experiences, the idea is not to have an individualised training system but rather to reflect the variety of systems, noting that in some member States, candidates may sometimes have a long professional experience as non-judges before being trained to become judges, and that in this precise case, their initial training will be different from the one provided to post-university candidates with no professional experience. This recommendation has been developed having regard to Opinion No. 4 of the CCJE (Recommendation, paragraph 56).
The assessment of the judge’s activity is the appraisal of his/her professional performance following modalities which may vary between judicial systems (hierarchical authority, panels of judges, Council for the Judiciary, etc.). Arrangements for such assessment must be consistent with the legal and constitutional provisions of member States. As the assessment may determine judges’ promotion in their careers, it must be implemented having full regard to the guarantees contained in the Recommendation so as to preserve individual independence. Whatever assessment mechanism exists, appeals should be made possible where the assessment may impact on the carreer path (in Belgium, the Council for the Judiciary ruled in 2006 that where the assessment is purely a managerial tool entailing no financial threat or disciplinary effect, no right to appeal is justified (Recommendation, paragraph 58).
Chapter VII – Duties and responsibilities
Judges’ duty is to protect, in all cases, the rights and freedoms of individuals equally, while respecting their dignity. This has taken on special significance following the introduction, in some States, of legislation or practices necessary in order to deal with exceptional situations (in particular terrorism), potentially leading to less protection for rights and freedoms. It is essential, in such circumstances, that judges’ responsibility and vigilance remain undiminished (Recommendation, paragraphs 59 and 60).
Presidents of courts have a key role in ensuring the efficient management of cases, particularly the compliance with the “reasonable time” requirement of Article 6 of the Convention and the desirable uniformity in the interpretation and application of the law done by the judges working in the court, with full respect for the independence of every individual judge. Presidents should encourage the sharing and dissemination of “good practices” among judges of their jurisdiction and set priorities and objectives to be achieved in the management of cases, having regard to the necessity to contain, reduce and eliminate backlogs.
Judges should be seen as taking an active stand against delaying tactics. They should seek to contain legal costs for parties to a reasonable level by the speedy and transparent management of cases (Recommendation, paragraph 62).
Giving clear reasons in understandable language for their judgements is an obligation of judges. This is to ensure law is visibly applied and to enable the parties to decide whether or not to appeal and to prepare appeals. Reasons may be omitted for certain decisions , in particular decisions involving the management of the case (e.g. adjourning the hearing), minor procedural issues or essentially non-contentious issues (judgements by default or by consent), decisions by an appeal court affirming a first instance decision after hearing similar arguments on the same grounds, jury decisions and some decisions concerning leave to appeal or to bring a claim, in countries where such leave is required (Recommendation, paragraph 63).
Judges have a duty to update and develop their proficiency. They can do so by training in the Judicial School or similar competent body and also by personal efforts in achieving the knowledge and skills required to continually provide a quality justice (Recommendation, paragraph 65).
Liability and disciplinary proceedings
When not exercising judicial functions, judges are liable under civil and criminal law in the same way as any other citizen. In the exercise of their judicial functions, judges should only be liable under civil law and disciplinary procedures in cases of malice and gross negligence (Recommendation, paragraph 66).
The Recommendation provides that the personal civil liability of judges may be incurred only as a result of actions brought before a court by the state after having had to award compensation to persons who sustained damages as a result of an action or inaction by judges in situations prescribed by law only. In German law, if an official breaches his official duties in a judgment in a legal matter, redress is only possible, if the breach of duty consists in a criminal offence. Member States may decide to protect themselves through the subscription of insurance schemes covering gross negligence. In belgian law, the judicial Code stipulates that judges’ responsability can be engaged in case of denial of justice or, in the broad sense, when they commit a fraud at any stage of the proceeding. Such responsibility has to be prescribed by law and judges can be convicted to award compensation. The case can also be assigned to other judges (Recommendation, paragraph 67).
When exercising judicial functions, judges should be held criminally
liable only if the failing committed was clearly intentional. Depending
on the constitutional provisions and traditions of each state as well as
on the gravity of the misconduct, disciplinary sanctions may include,
for instance :
a. reprimand or censure ;
b. withdrawal of cases from the judge ;
c. moving the judge to other judicial tasks within the court ;
d. economic sanctions such as a reduction in salary for a temporary period ;
e. suspension or removal (Recommendation, paragraph 69).
Chapter VIII - Ethics of judges
Since Recommendation No. R (94) 12, codes of judicial ethics have been adopted in some member States. This has also been dealt with at a European and international level (see in particular Opinion No. 3 of the CCJE). These texts highlight independence and impartiality as standards of judicial ethics but also refer to clear reasoning of the judgements, institutional responsibility, diligence, active listening, integrity, courtesy to the parties and transparency, all of them narrowly related to the principles that have informed this new Recommendation.
Public confidence in the administration of justice is one of the essential components of a democracy. This involves not only respect for independence, impartiality, efficiency and quality but also relies on the quality of the individual behaviour of judges. Respect by judges of ethical requirements is a duty which comes with their powers.
An adequate legal framework and appropriate institutions for the preservation of judicial independence are not enough to ensure that judicial decisions are free from improper influences if judges do not personally administer justice in an independent manner. Judicial independence is also a judicial virtue, a standard of judicial ethics. This is the reason why the Recommendation ends with an appeal to the ethics of judges, understood as a set of duties guiding their ethical approach even in the cases where breaches to such duties are not sanctionable by the law (Recommendation, paragraph 71).
Ethical principles should be laid down in codes of judicial ethics. In some states, such “codes” include judges’ disciplinary regime but ethics standards should not be confounded with the disciplinary regime. Ethics standards aim at achieving in an optimum manner the best professional practices while disciplinary regimes are essentially meant to sanction failures in the accomplishment of duties (Recommendation, paragraph 71).
Judges seeking advice on ethics should be able to consult bodies established for such purpose. Such special bodies should be distinct and well differentiated from organs enforcing disciplinary sanctions (Recommendation, paragraph 73).
 The concept of comtempt of court (either civil – breach of a court order - or criminal,i.e. contempt in the face of court) is one derived from the common law. It is part of the machinery that enables the courts to ensure that there is no undue interference with the judicial process and to ensure that court orders are obeyed.
 See in this respect Opinion No. 11 (2008) of the CCJE on the quality of judicial decisions, footnote 11, paragraph 34.