Judicial independance in Europe
Judicial independance in Europe, models of self government and self responsability, conference in Frankfurt am Main, 7-8th november 2008.
The conference program
Following European trends, challenges and choices (Eric Alt)
: There is no unique model, but choices need to be made to develop mutual confidence and efficiency. We have to invent new scales of justice, so that a German judge or prosecutor asking his French or Italian counterpart for some investigations can be sure that the work is done fairly and in good time. This depends on a whole system, but the guarantees of independence are an important part of this system.
Self-government and
Constitutional Law: The Italian Experience (G. Salvi) :
Italy presents more than one unique feature, due to its history and
relatively recent democracy (determining weak liberal institutions and habits).
It is not a model to be shared. At the same time, the experience of Italy,
the effort it made to free itself from organized crime and corruption,
preserving a high level of guarantee, the importance accorded - also through judiciary
- to individual and collective rights, makes it a relevant focus of observation, a sort of laboratory) able to offer other countries good suggestions as to
what to adopt and what to reject.
Self-government in courts - vertical
(‘hierarchic' model) versus horizontal (‘democratic' model) (J. Bayo Delgado) :
ln the Spanish model there are three
areas where democratic principles of self-government have inspired the
legislator: the Council of the Judiciary (Consejo
General del Poder Judicial - CGPJ),
Governing Chambers of the Supreme Court, National Court and Superior Courts (Salas
de Gobierno) of each region (Comunidad
Autónoma, Autonomous Community or 'Land') and the
assembly of judges (Juntas de Jueces)
and its chairperson, the chief judge (Juez Decano).
Professional assessement (G. Salvi) :
The foremost, indispensable bastion in defence of the autonomy and
independence of magistrates is sound professional skills
Autonomy and self governance of the portuguese public prosecuting office (A. Cluny) :
the
position of guardian of the law is of the responsibility of the Public
Prosecutor's Office and with this limit, as is the case for judges, prosecutors
are exclusively subject to legal values and as a result prosecutors need to
enjoy the same independence that judges enjoy [...] ... a material as well as
conceived independence, in turn [...] personal independence: unremovability and
permanence which as a rule are guaranteed to prosecutors should be secured - mutatis
mutandis - according to the rules which govern judges.
Some
perspectives on Councils for the Judiciary (Lord Justice Thomas) :
When an analysis of the
tasks which must be performed to maintain the independence of the judicial
branch of the state is carried out, the inevitable conclusion is that a
Council for the Judiciary is needed. It must fulfil a central role, even though
some of the tasks may be carried out by others. There is no real alternative.
Contribution of Vito Monetti :
The Councils of the judiciary represent
the balance between opposed principles, respect of the
principle of independence for the Judiciary as well as of the principle of
political legitimacy in the public administration; as for the members elected
by the Judiciary, the fact that the electoral body is composed by all the
members of the judicial body represents - along with the widest possibility
offered to submit a candidature - a further guarantee for the internal
independence.
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Round Table on Draft Judiciary Laws in Serbia
In order to eliminate the major
unconstitutionalities and encourage the indispensable public debate on the set
of draft judiciary laws, the Judges' Association of Serbia held a round table
entitled "Judiciary Laws" on 8 November 2008, which was attended by
eminent experts - law college professors and judges and representatives of
international organisations and associations. After analysing the degree in
which the draft laws are harmonised with the Constitution of the Republic of Serbia and international standards, the
participants adopted the following conclusions:
1. The transitional and final provisions of the
Act on Judges and Act on the High Judicial Council allow for the politicisation
of the judiciary and impermissible political influence
by prescribing the so-called general
re-election of judges, in contravention of the explicit constitutional
provisions, and by establishing procedures varying from those envisaged by the
main provisions of those very laws - procedures related to the nomination of
the members of the first High Judicial Council from amongst the ranks of judges
and the determination of the necessary number of judges by the first High
Judicial Council (with the prior consent of the Minister of Justice).
The rights of citizens to an independent and
impartial judge, a fair trial, legal certainty and rule of law shall be
seriously jeopardised if the following provisions are adopted:
2. The transitional and final provisions of the
Act on Judges envisaging the so-called general re-election of judges,
given that the procedure for electing all
judges, the so-called re-election procedure, inevitably presupposes that even
the tenures of judges, who now have permanent tenures, shall be terminated
at one point without any constitutional grounds, while
the new Constitution, adopted in
accordance with the procedure laid down by the prior Constitution, envisages
the permanence of judicial tenure (Art. 146, para 1), as had the prior
Constitution, whereas
the Act on the Implementation of the
Constitution, which is a technical law for implementing the Constitution, may
not include provisions in contravention of the Constitution nor does it have
provisions on the termination of judicial tenure.
3. The transitional and final provisions of the
Act on the High Judicial Council, which envisage a procedure for the
appointment of the first High Judicial Council in contravention of the other
provisions of the Act and rule out a judicial vote on nominees for the High
Judicial Council from amongst the ranks of judges,
which is in contravention of international
standards and allows the executive and legislative authorities to influence the
make-up of the first High Judicial Council, which is to conduct the re-election
of all judges, i.e. this allows for the politicisation of the judiciary.
4. Unclear, inappropriate and omitted provisions
on financial safeguards for the independence of the judges, in contravention of
international standards envisaging that remuneration of judges has to be
regulated by law, prohibiting the lowering of the salaries they had attained
and stating that a judge's retirement pension must be
at the closest possible level to the level of their final salary as a judge, because
all international standards must be applied as a whole if an independent,
professional and efficient judiciary is to be genuinely ensured.
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Independance of judiciary and challenges of transition
C O N C L U S I O N S OF THE
INTERNATIONAL CONFERENCE
“
Judges'
Association of Serbia along with the Prosecutors' Association of Serbia was the
hosts of an International Conference “Independence of Judiciary and Challenges
of the Transitions”, held on
The Conference
was attended by over 120 participants, representatives of the professional
associations of judges and prosecutors from Serbia, Bosnia and Herzegovina,
Croatia, Montenegro, Slovenia, Republic of Srpska, Macedonia, Romania and
Bulgaria, as well as from Greece, Italy, Cyprus, Germany, Poland, Portugal,
France, Czech Republic and Spain, whose judges' and prosecutors' associations are members of MEDEL (European
association of judges and prosecutors). Council of
Through the
exchange of experiences, participants noticed almost identical or similar
problems concerning the independence of judiciary, both in the countries that
are currently in transition or have recently gone through it, as well as in the
countries of so called “old democracies”. They concluded that, for the sake of
realization of the citizens' right to a fair trial, problems of the judiciary
should substantially be resolved:
- by conducting a
radical and comprehensive change of the judicial system, rather than by merely
replacing the current judges and prosecutors,
- by establishing
strong guarantees of independence and autonomy of the High Court Council and
State Council of Prosecutors, through designing of a legal framework for
election of their members among the judges and prosecutors and based on their
colleagues' proposals, as well as through creating preconditions for their
work, including adequate budget, appropriate spatial and technical working
conditions and sufficient number of employees in their supporting services,
- by establishing
relevant comparable criteria of competence, qualification and worthiness of the
candidates judges/prosecutors, as well as developing the objective criteria for
continuous evaluation of their work, that should be the only basis for
judges'/prosecutors' promotion, responsibility and dismissal,
- by training (initial
and continuous) of the judges and prosecutors, which should be considered not
only as their right but also as an obligation, in order to master theoretical
and practical knowledge and skills, aiming to a broadminded, professional and
independent performing of duties, in an
adequate and efficient manner, under the supervision of the High Court Council,
i.e. State Council of Prosecutors,
- by establishing of the system of disciplinary responsibility of the judges and prosecutors, which should be counterbalance and guarantee of their independence.
Judges and prosecutors liablility
Medel dedicated two meetings to this theme: a seminar in Prague (June 2006), and a round table during the conference of Belgrade (June 2007)
French report (Eric Alt)
Italian report (Alessandro Sutera Sardo)
Austrian report
Czech report (Ivana Hrdličková)
Discipline, ethics and the independence of the judiciary (Eric Alt)
Independance of the judiciary (René Versshur)
Texts
Opinion no 3 of the Consultative Council of European Judges (CCJE) on the principles and rules governing judges' professional conduct, in particular ethics, incompatible behaviour and impartiality
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A european statute for magistracy
On January 16th 1993, in Palermo, Italy, the associated magistrates of Medel have adopted the «Elements of a European Statute of Magistracy. This text expresses the conviction that a democratic, independent and transparent judiciary constitutes an essential element of the Rule of Law: The Palermo Declaration: Elements of a European Statute of Magistracy. Today, these principles are mainly dedicated, in the Council of Europe's European Charter on the Statute for Judges, to the development MEDEL has contributed to.
Statements of Medel
Freedom of speach (march 2008), about the situation in Spain.
Nominations in international courts
Medel on the CCJE Opinion concerning Councils of judiciary (2007)
Documents
Independance and impartiality of justice -International standarts. (Cristi Danilet)
Basic principles on the independance of the judiciary (UN)
Recommandation 94/12 of the Council of Europe
European charter on the statute of judges