The second half of the century that has just ended saw an international awakening to the importance of the independence of the judiciary. This movement began with the Universal Declaration of Human Rights, adopted by the Assembly of the United Nations in 1948, which provides in Article 10 that “in the determination of his civil rights and obligations or of any criminal charge against him” everyone has the right to be judged by “an independent and impartial tribunal”. This same principle was included in the European Convention on Human Rights and Fundamental Freedoms signed in Rome in 1950 (Article 6).
Numerous conferences and congresses organised by international associations and bodies (including, in particular, the International Association of Judges) have devoted efforts to studying the systems guaranteeing the independence of the judiciary. Several binding declarations on this topic are to be found in the documents of international congresses, conferences and seminaries. The models and the law-making principles have begun to circulate throughout Europe and the entire world, with the result that today one can speak of not only international law for the protection of the independence of the judiciary, but also trans-national law on the subject. I would go as far as to say that it is not important that all the relevant instruments do not have binding force (or binding to the same degree): the practical experience of international associations shows, for example, that “private” documents, such as the Universal Charter of the Judge drawn up by the International Association of Judges, have served to persuade the political authorities of certain countries not to implement measures that might have limited the independence of the judiciary.
The most interesting results of this process of internationalisation and trans-nationalisation based on the principles of human rights protection are to be found in the following instruments:
Numerous conferences and congresses organised by international associations and bodies (including, in particular, the International Association of Judges) have devoted efforts to studying the systems guaranteeing the independence of the judiciary. Several binding declarations on this topic are to be found in the documents of international congresses, conferences and seminaries. The models and the law-making principles have begun to circulate throughout Europe and the entire world, with the result that today one can speak of not only international law for the protection of the independence of the judiciary, but also trans-national law on the subject. I would go as far as to say that it is not important that all the relevant instruments do not have binding force (or binding to the same degree): the practical experience of international associations shows, for example, that “private” documents, such as the Universal Charter of the Judge drawn up by the International Association of Judges, have served to persuade the political authorities of certain countries not to implement measures that might have limited the independence of the judiciary.
The most interesting results of this process of internationalisation and trans-nationalisation based on the principles of human rights protection are to be found in the following instruments:
- The European Convention on Human Rights, 1950, already mentioned;
- The International Convention on Civil and Political Rights, 1966;
- The Basic Principles on the independence of the Judiciary drawn up in 1985 by the UNO and the Procedures for their effective implementation (1989);
- The Statute of the Judge in Europe, drawn up and approved in 1993 by the European Association of Judges - Regional Group of the International Association of Judges;
- Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe to Member States on the independence, efficiency and role of judges;
- The resolution on the role of the judiciary in a state governed by rule of law, adopted in Warsaw on 4 April 1995 by the ministers participating in the Round Table of Ministers of Justice of the countries of Central and Eastern Europe;
- The European Charter on the status of judges, approved by the Council of Europe in Strasbourg, 8-10 July 1998;
- The Universal Charter of the Judge, unanimously approved by the Central Committee of the International Association of Judges at its meeting in Taipeh (Taiwan) on 17 November 1999;
- The European Parliament resolution on the annual report on respect for human rights in the European Union (1998 and 1999) (11350/1999 - C5-0265/1999 - 1999/2001(INI), adopted on 16 March 2000 (which “recommends that Member States guarantee the independence of judges and courts from the executive and ensure that appointments to the judiciary are not made on political grounds”);
- The “Charter of Fundamental Rights of the European Union” adopted in Nice on 7 December 200 (which in article 47 - Right to an effective remedy and to a fair trial”, subparagraph 2, stipulates, in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.”).
Among the Basic Principles on the Independence of the Judiciary drawn up by the UNO in 1985, the following are of particular interest:
“1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process(…).
5. (…)
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.”.
I shall now try to summarise the basic principles and the crucial requirements for the exercise of a truly independent justice system:
1. The judiciary is an autonomous body. It is not subject to either of the other state authorities. Public prosecutors should enjoy the same statutory guarantees as judges.
2. Judges and public prosecutors are subject only to the law.
3. Judges and public prosecutors should be appointed for life or for such period as is consistent with guaranteeing their independence. No change introduced in regard to the compulsory retirement age should have a retroactive effect.
4. Judges and public prosecutors should be selected by public competition. The selection and appointment of judges and public prosecutors should be carried out according to objective and transparent criteria and on the basis of the professional qualifications of the persons concerned.
5. There should be no interference by the legislative or executive authorities in the selection of judges and public prosecutors.
6. A Higher Judicial Council should be established with responsibility for appointments, assignments, transfers, promotions and disciplinary procedures in relation to judges and public prosecutors. This body should be composed of judges and public prosecutors, or at the very least should include a majority of judges and public prosecutors.
7. Judges and public prosecutors should only be transferred, suspended or removed from office in circumstances prescribed by law and then only as the result of a disciplinary finding reached by the competent body through the appropriate procedure.
8. Disciplinary proceedings should be brought before an independent council which includes a substantial representation of judges. Disciplinary proceedings against judges should only be brought under the provisions of a pre-existing law and in accordance with pre-established rules of procedure.
9. Judges and public prosecutors are entitled to an effective system of initial and in-service training. The training of judges should be carried out by an independent establishment (such as a school established specifically for the initial and/or in-service training of judges), or by an independent body (such as the Higher Judicial Council), which would include a substantial representation of judges.
10. Judges should have appropriate working conditions.
11. The salaries of judges and of public prosecutors should be established by law (and not by administrative decision) and be linked to the salaries of members of parliament or ministers. They should on no account be reduced.
12. Judges and public prosecutors should have full freedom of association. Service within such an association should be officially recognised as having the same status as the ordinary work of judges.
I must admit that none of the instruments or declarations cited above includes all of the rules that I have just proposed, but it is nevertheless clear that those international documents must be read and interpreted today as forming part of a patchwork structure, constituting a veritable “international and trans-national corpus juris on the status of judges”.
This system has already been applied to some extent at national level in Europe. One example I might quote is that of the Italian constitution: this text–although it was drawn up over half a century ago, at the end of a period of dictatorship, conflict and civil war–has nevertheless managed to protect the independence of the judiciary over the past 50 years.
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE ON SELECTION, TRAINING AND CAREER OF JUDGES
The Selection of Judges in Recommendation No. R (94) 12.
Principle I-2.c. of the above mentioned Recommendation No. R (94) 12 of the Council of Europe is concerned at one and the same time with selection and with the careers of judges. As the issues surrounding these two topics do not always coincide, perhaps a distinction should be drawn between the two aspects, considering first selection and then career.
From a general point of view it should be observed that the recruitment of judges is carried out in many different ways in the various systems throughout the world.
This variety is also present in Europe, where every imaginable system for the selection of candidates for the judiciary is to be found, including election by popular ballot, as in certain Swiss cantons (on practice within Europe, see Section 9 below).
Of course, each method has its advantages and its drawbacks.
a) The first method consists in conferring the choice of judges on the executive or legislative authorities: while, on the one hand, this serves to reinforce the legitimacy of the judicial appointment, the heavy dependence of the judiciary on the other powers, together with the political implications, carries obvious risks.
b) Election by the electorate is the method that confers on judges the highest level of legitimacy, as it comes straight from the people. However, this system obliges the judge to conduct a humiliating, and sometimes demagogic, electoral campaign, inevitably with the financial backing of a political party, which sooner or later might ask for a favour in return. Furthermore, the judge might be tempted to tailor his judgments to his electorate.
c) Co-option by the judiciary itself offers the advantage of being able to choose the judges who are best prepared technically, but there is a strong risk of conservatism and cronyism.
d) Nomination by a committee of judges and legal academics (preferably appointed by an independent body representing the judiciary) following a public competition, constitutes the final system, as currently applied in a number of countries.
Faced with these alternatives, Principle I-2.c. of the recommendation shows a marked preference for the elimination of all executive influence from the appointment of judges. The general rule in this regard is in fact explicitly stated in the first part of the said Principle I-2.c.: “The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.”
The second part of Principle I-2.c. is, by contrast, clearly conceived as an exception to the rule of the first sub-paragraph. That is to say, the recommendation appears to view as exceptional a country where “the constitutional or legal provisions and traditions allow judges to be appointed by the government”. Here a very serious problem faces the countries of Central and Eastern Europe, where historical “tradition” has not always been democratically based, and constitutions and laws instituted after the fall of the Berlin Wall–often under the influence of the Common Law systems have led to systems of appointment and control over judges’ careers that afford them no protection from attempts at undue influence on the part of the political authorities.
While it is true that Principle I-2.c. tries to suggest, in its second sub-paragraph, some expedients aimed at limiting the discretionary power of the executive (or legislative) authorities–this being particularly the case, for example, with the creation of “a special independent and competent body to give the government advice which it follows in practice”–it is the very lack of almost any detailed and reliable information on the practice actually followed that gives rise to concern. The author of this essay is well aware–having visited nearly all the countries concerned–that between the letter of the law and the daily reality of the judge’s duties, between official speeches and private conversation, there often lurks an abyss.
The Selection of Judges in the Different European Legal Systems.
It would be impossible to summarise here the diversity of methods adopted throughout Europe for the recruitment of judges. In an attempt to cover this topic in the best possible way, I propose to identify (while bearing in mind the principle of independence) the categories into which the various systems fall.
The first thing to note is that a university qualification in legal studies is required nearly everywhere.
A minimum age together with “good character” is also a requirement laid down by law nearly everywhere.
Having said this, the system of competition is certainly preponderant in Western and Southern Continental Europe (with some notable exceptions such as, for example, the Swiss cantons, where judges are elected by the people or by parliament). Such a competition may be open, in some cases, to any person with a law degree (subject to the conditions established by the various laws), or else to persons whom one could term “specialists”, in that they not only have a legal qualification, but also some form of specialisation or practical experience. Moreover, depending on the country concerned, the competition can give either direct access to the judiciary, subject to the completion of a period of initial training under the supervision of the Higher Judicial Council (such is the case, for example, in Italy), or access to a training institution (such is the case, for example, in France, the Netherlands and Portugal; the result is practically the same in Germany, although there the training precedes the choice of career and is common to judges, barristers and solicitors; the system of competition is also to be found in the Baltic states and in Turkey).
By way of contrast, the Common Law systems and those of the Nordic states are characterised either by the complete absence of any competition for access to the judiciary, or by the absence of a competition in the strict sense: here, appointment to the judiciary is primarily the culmination of a training process, a cursus honorum, which candidates complete in the field (even if the newly-established Commission for Judicial Appointments–which provides, for the first time in the U.K., an independent mechanism for applicants for judicial office who feel that their candidacy has not been considered fairly–would appear to open new perspectives in this field).
Obviously, under the first type of system it is the boards appointed to carry out the task of selecting candidates and the initial training institutions which play the determining role in selecting new judges, even if the formal instrument of nomination carries the signature of the Minister of Justice or the President of the Republic. In the other systems, however, the influence of the executive is (or can be) very considerable. However, in the Anglo-Saxon countries and the Scandinavian countries, other factors already mentioned guarantee, on the one hand, the quality of the selection and, on the other hand, the maintaining of a situation of separation between the authorities and an independent judiciary (see supra, Section 6).
In the countries of the former communist bloc the situation seems somewhat complex and difficult to grasp.
As I have already observed, the overall conclusion from this is that the situation is still weighted too heavily in favour of the political authorities lato sensu (the executive, but also, in several cases, the legislature). While it is true that very often “qualifications boards” are involved (as for example in the Russian Federation), it is by no means clear how such bodies are composed, or, in particular, what criteria are followed, or what effective powers such boards have to determine in practice, in relation to the executive, the actual choice of candidates when their number exceeds the number of posts available.
The same is true of systems where Judicial Councils only have a consultative function in this regard (in, for example, the former Yugoslav Republic of Macedonia, the Czech Republic or Slovakia), even if the perverse effects of a system that accords considerable power to the executive authorities (or to the legislature in systems where judges are elected) may be alleviated by the intervention of the association of judges (as for example in the Czech Republic). Conversely, the intervention in such a process of a Higher Judicial Council with decision-making powers in this regard (as opposed to a merely advisory function) certainly provides a very reassuring guarantee (such is the case, for example, in Croatia, Poland, Romania and Slovenia).
The Selection of Judges in the Italian Legal System.
Access to the profession of judge and public prosecutor in Italy takes place through a public competitive examination pursuant to article 106, paragraph 1, of the Constitution. Rules on the entry to the profession of judge and prosecutor have been changed over the last few years, on the one hand to simplify and expedite the examination procedure and, on the other, to promote the development of a cultural basis common to all the members of the legal world connected to the activities linked to the exercise of the judicial function: judges and prosecutors, notaries and lawyers. The legislator has thus constituted Schools of Specialisation for the Legal Professions, which are post‑graduate schools set up within the Universities for law‑graduate students that want to enter the legal professions (Legislative Decree No. 398/97).
With a view to rationalising and speeding up the relevant procedure, and with a view to implementing the assessment of the candidates in a reasonable time and with the required accuracy, the public examination for entry to the Judiciary has been completely amended by the aforesaid Legislative Decree No. 398/97 and the amendment of Article 123 of the judicial system. The–already existing–written and oral exams were sided by a computerised preliminary test on the subject matters dealt with in the written exam.
The computerised preliminary test was then subsequently set aside within the new framework of the public examination developed by Act no. 48/2001, by which, instead, the figure of an “external examiner” was constituted to expedite the correction procedure of the tests. The computerised preliminary tests will be definitely set aside as envisaged when the regulation implementing the rules on external examiners is adopted.
The competitive public examination for judges and prosecutors consists of three written exams (on: civil, criminal and administrative law) and an oral exam on the main legal subjects (see article 123 ter of the statute regulating the judicial system).
The competitive examination for judges/prosecutors is published by the Minister of Justice, pursuant to a decision of the Higher Judicial Council, which sets the number of positions. The examining committee, appointed by the Higher Council, is chaired by a judge/prosecutor with the rank and function of Court of Cassation judge/prosecutor. It consists further of twenty‑two judges/prosecutors with the rank no lower than that of an appeal court judge/prosecutor and eight university law professors. The total number of the members of this panel is thus of 32. The classification drawn up by the commission, which is based on the total sum of the votes given to each candidate in each individual test, is then approved by the Higher Council.
International Standards on Judicial Training.
The subject of judicial training figures more and more prominently in international documents concerning the status and independence of judges.
For example, Article 10 of the Basic Principles on the Independence of the Judiciary drawn up by the UN in 1985, stipulates that: “Persons selected for judicial offices shall be individuals of integrity and ability with appropriate training or qualifications in law.”
By way of contrast, the Common Law systems and those of the Nordic states are characterised either by the complete absence of any competition for access to the judiciary, or by the absence of a competition in the strict sense: here, appointment to the judiciary is primarily the culmination of a training process, a cursus honorum, which candidates complete in the field (even if the newly-established Commission for Judicial Appointments–which provides, for the first time in the U.K., an independent mechanism for applicants for judicial office who feel that their candidacy has not been considered fairly–would appear to open new perspectives in this field).
Obviously, under the first type of system it is the boards appointed to carry out the task of selecting candidates and the initial training institutions which play the determining role in selecting new judges, even if the formal instrument of nomination carries the signature of the Minister of Justice or the President of the Republic. In the other systems, however, the influence of the executive is (or can be) very considerable. However, in the Anglo-Saxon countries and the Scandinavian countries, other factors already mentioned guarantee, on the one hand, the quality of the selection and, on the other hand, the maintaining of a situation of separation between the authorities and an independent judiciary (see supra, Section 6).
In the countries of the former communist bloc the situation seems somewhat complex and difficult to grasp.
As I have already observed, the overall conclusion from this is that the situation is still weighted too heavily in favour of the political authorities lato sensu (the executive, but also, in several cases, the legislature). While it is true that very often “qualifications boards” are involved (as for example in the Russian Federation), it is by no means clear how such bodies are composed, or, in particular, what criteria are followed, or what effective powers such boards have to determine in practice, in relation to the executive, the actual choice of candidates when their number exceeds the number of posts available.
The same is true of systems where Judicial Councils only have a consultative function in this regard (in, for example, the former Yugoslav Republic of Macedonia, the Czech Republic or Slovakia), even if the perverse effects of a system that accords considerable power to the executive authorities (or to the legislature in systems where judges are elected) may be alleviated by the intervention of the association of judges (as for example in the Czech Republic). Conversely, the intervention in such a process of a Higher Judicial Council with decision-making powers in this regard (as opposed to a merely advisory function) certainly provides a very reassuring guarantee (such is the case, for example, in Croatia, Poland, Romania and Slovenia).
The Selection of Judges in the Italian Legal System.
Access to the profession of judge and public prosecutor in Italy takes place through a public competitive examination pursuant to article 106, paragraph 1, of the Constitution. Rules on the entry to the profession of judge and prosecutor have been changed over the last few years, on the one hand to simplify and expedite the examination procedure and, on the other, to promote the development of a cultural basis common to all the members of the legal world connected to the activities linked to the exercise of the judicial function: judges and prosecutors, notaries and lawyers. The legislator has thus constituted Schools of Specialisation for the Legal Professions, which are post‑graduate schools set up within the Universities for law‑graduate students that want to enter the legal professions (Legislative Decree No. 398/97).
With a view to rationalising and speeding up the relevant procedure, and with a view to implementing the assessment of the candidates in a reasonable time and with the required accuracy, the public examination for entry to the Judiciary has been completely amended by the aforesaid Legislative Decree No. 398/97 and the amendment of Article 123 of the judicial system. The–already existing–written and oral exams were sided by a computerised preliminary test on the subject matters dealt with in the written exam.
The computerised preliminary test was then subsequently set aside within the new framework of the public examination developed by Act no. 48/2001, by which, instead, the figure of an “external examiner” was constituted to expedite the correction procedure of the tests. The computerised preliminary tests will be definitely set aside as envisaged when the regulation implementing the rules on external examiners is adopted.
The competitive public examination for judges and prosecutors consists of three written exams (on: civil, criminal and administrative law) and an oral exam on the main legal subjects (see article 123 ter of the statute regulating the judicial system).
The competitive examination for judges/prosecutors is published by the Minister of Justice, pursuant to a decision of the Higher Judicial Council, which sets the number of positions. The examining committee, appointed by the Higher Council, is chaired by a judge/prosecutor with the rank and function of Court of Cassation judge/prosecutor. It consists further of twenty‑two judges/prosecutors with the rank no lower than that of an appeal court judge/prosecutor and eight university law professors. The total number of the members of this panel is thus of 32. The classification drawn up by the commission, which is based on the total sum of the votes given to each candidate in each individual test, is then approved by the Higher Council.
International Standards on Judicial Training.
The subject of judicial training figures more and more prominently in international documents concerning the status and independence of judges.
For example, Article 10 of the Basic Principles on the Independence of the Judiciary drawn up by the UN in 1985, stipulates that: “Persons selected for judicial offices shall be individuals of integrity and ability with appropriate training or qualifications in law.”
The European Charter on the Statute for Judges approved by the Council of Europe in 1998 stipulates, inter alia, that “The statute ensures by means of appropriate training at the expense of the sate, the preparation of the chosen candidates for the effective exercise of judicial duties” and that “an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary ensure the appropriateness of training programmes and of the organisation which implements them, in the light of the requirements of open-mindedness, competence and impartiality which are bound up with the exercise of judicial duties” (Art 2.3 and 1.3).
Before the adoption of this document, the Council of Europe had organised a multilateral meeting of training bodies in the different member countries, together with those of the countries of Central and Western Europe; that conference was held in Lisbon 27-28 April 1995 and the delegates affirmed “the need to give special priority to the training of judges and public prosecutors and expressed the need to extend and improve training methods taking into account the different legal systems’ traditions and to respect and encourage the intellectual independence of judges.” The delegates participating in that discussion forum had also stressed that “the necessity for judges and public prosecutors to ensure that the efficiency of justice should not be prejudiced by the requirement of developing the qualifications and the professional conscience of members of the judiciary.”
The wishes of the Council of Europe have already become reality in France, at least in relation to the existence of a genuine right to judicial training, which was created by law No. 92-189 of 25 February 1992. This text, amending Act No. 58-1270 of 22 December 1958 (constitutional law on the statute of the judiciary), expressly confers on judges “the right to further training.” In Italy, on the other hand, the “Judicial Code of Ethics” approved on 7 May 1994 by the National Association of Judges, stipulates in Article 3 that “the judge shall carry out his duties diligently and thoroughly. He/she shall maintain and add to his professional experience by undertaking to use and extend his knowledge in the areas in which he exercises his activities.” This provision is part of a body of rules that has no binding force; however, it calls upon each judge from the point of view of professional ethics constantly to monitor his own professionalism standards.
Right to Judicial Training and Judicial Training Structures.
The discussion that is taking place internationally concerning texts on the subject of training leads us to the following conclusions:
Before the adoption of this document, the Council of Europe had organised a multilateral meeting of training bodies in the different member countries, together with those of the countries of Central and Western Europe; that conference was held in Lisbon 27-28 April 1995 and the delegates affirmed “the need to give special priority to the training of judges and public prosecutors and expressed the need to extend and improve training methods taking into account the different legal systems’ traditions and to respect and encourage the intellectual independence of judges.” The delegates participating in that discussion forum had also stressed that “the necessity for judges and public prosecutors to ensure that the efficiency of justice should not be prejudiced by the requirement of developing the qualifications and the professional conscience of members of the judiciary.”
The wishes of the Council of Europe have already become reality in France, at least in relation to the existence of a genuine right to judicial training, which was created by law No. 92-189 of 25 February 1992. This text, amending Act No. 58-1270 of 22 December 1958 (constitutional law on the statute of the judiciary), expressly confers on judges “the right to further training.” In Italy, on the other hand, the “Judicial Code of Ethics” approved on 7 May 1994 by the National Association of Judges, stipulates in Article 3 that “the judge shall carry out his duties diligently and thoroughly. He/she shall maintain and add to his professional experience by undertaking to use and extend his knowledge in the areas in which he exercises his activities.” This provision is part of a body of rules that has no binding force; however, it calls upon each judge from the point of view of professional ethics constantly to monitor his own professionalism standards.
Right to Judicial Training and Judicial Training Structures.
The discussion that is taking place internationally concerning texts on the subject of training leads us to the following conclusions:
a) training is increasingly perceived today as the something which a judge is entitled to receive from the state;
b) however, it is also a responsibility on the part of each judge;
c) it is closely bound up with the independence of the judiciary.
Those three principles enable us to reply to the question: who should be responsible for training? But in dealing with this subject, another point has to be considered:
What is training and, in particular, what is involved in the training of judges? In its report to the Italian Parliament on the state of the justice system for the year 1994, the Italian Higher Judicial Council defined training as “organised communication of technical, practical and ethical skills to supplement knowledge gained from the exercise of one’s own profession; such imparting of knowledge is carried out in an organised and systematic way using a programme in which the operator is pro-active.” That means that training is, above all else, teaching. But it is also a great deal more than that, as training is not limited to communication of theoretical knowledge, but also includes sharing a corpus of operational knowledge (know-how) and presenting models of behaviour (life skills).
If all this is true, then it is hard to see why the training of judges should be exempt from respect for freedom of education, a principle that is in fact fully recognised by the Constitutions of a number of European countries; see for example Article 33 of the Italian Constitution: “Art and science, together with their teaching, are free. (…) Institutions of higher learning, universities and academies are free to adopt autonomous forms of organisation, within the limits established by State law”; see too Article 5 of the German Grundgesetz, which in its third subparagraph stipulates that “Art and sciences, research and teaching are free. (...)”.
Independence of the judiciary and freedom of education: those are the two pillars of the training of judges. If one accepts these two propositions, the reply to the question as to responsibility for training can only be as follows: the body whose task it is to train judges should not only be independent of other state authorities, but also have a remarkable degree of autonomy in relation to the institution responsible for administering the judiciary.
With these remarks in mind, it would be desirable to affirm the principle that the training of judges should be carried out by an institution which truly represents the judiciary and which is effectively independent of any other authority (in particular the Ministry of Justice). This structure should be drawn up by the law, which should specify how its managing committee should be composed. Members of this panel should be mainly judges appointed by the Higher Council, even though some representatives of other legal professions should be included (university professors at law schools, attorneys, notaries). The managing committee should be responsible for the setting up of yearly training programmes, as well as for the detailed programme of each training course for judges. They should appoint experts to teach as well as to lead practical workshops and discussions inside each training course. The panel should be accountable to the Higher Council and should draw up an yearly detailed report on the training activity for judges.
Training activity should be open to all kind of judges (and of public prosecutors) who desire to improve their professional skills. Attendance of training activities should be made compulsory for young judges as well as for judges who change their functions after a certain period of time (e.g. for a judge who has been dealing for years only with civil law and who wants to be transferred to a post in penal law division of a court). A special statute should allocate resources for this institute, providing for that inside the annual state budget a certain amount of money be exclusively dedicate to the financing of this structure and to the training activities for judges.
The participation in training initiatives should be considered as an activity regarded as being on a par with judicial activities in the ordinary sense; furthermore, this participation should be taken into account each time a judge applies for transfer or promotion. Finally, the process of self-tuition should also be regarded as one of the pillars of the training of the modern judge. Incentives should therefore be provided (for example, tax exemptions) for the purchase of books and CD-ROMs or DVDs containing legal data bases, for on-line access to legal data bases on the Internet, etc.
The Career of Judges in Recommendation No. R (94) 12 and the Italian Experience.
As far as the career of judges is concerned, the already mentioned Recommendation No. R (94) 12 of the Council of Europe expresses a very clear preference for a system based on merit: “All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration.” The reality of rule making in many European countries presents a stark contrast, inasmuch as there is an almost total lack of objective criteria established by law for the career of judges (see infra Section 16). In this field (as in that of the selection of judges), there is a need for procedures and criteria whereby judges can be assessed in order for them to advance as desired in their careers.
However, from a more general point of view, some doubt might be cast on the efficiency of a wholly career-based system in a body such as the judiciary, which by definition should not have a hierarchy in the strict sense (see supra, Sections 1, 2 and 8). The experience of Common Law countries in this regard, on the one hand, and the discussion currently under way in a number of continental countries on imposing time limits for service as senior court judge, on the other hand, suggest that the time may have come for a pyramid-shaped structure in the judiciary.
As far as the career of judges is concerned, the already mentioned Recommendation No. R (94) 12 of the Council of Europe expresses a very clear preference for a system based on merit: “All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration.” The reality of rule making in many European countries presents a stark contrast, inasmuch as there is an almost total lack of objective criteria established by law for the career of judges (see infra Section 16). In this field (as in that of the selection of judges), there is a need for procedures and criteria whereby judges can be assessed in order for them to advance as desired in their careers.
However, from a more general point of view, some doubt might be cast on the efficiency of a wholly career-based system in a body such as the judiciary, which by definition should not have a hierarchy in the strict sense (see supra, Sections 1, 2 and 8). The experience of Common Law countries in this regard, on the one hand, and the discussion currently under way in a number of continental countries on imposing time limits for service as senior court judge, on the other hand, suggest that the time may have come for a pyramid-shaped structure in the judiciary.
Some thought should also be given subsequently to the desirability of a mechanism where advancement in one’s career (and salary received) is closely linked with the actual duties performed. It might be helpful, perhaps, to outline here the salient points of the Italian system, the only one (as far as I know) to have achieved a complete separation between grade and function.
It should be borne in mind from the start that in Italy there is a single career structure for judges and public prosecutors: the only requirement for moving from one function to the other is an aptitude test, which is very rarely negative. Advancement now takes place through the following stages: trainees (who in Italy are already regarded as part of the judiciary), after a training period of about two years, can be assigned to any of the posts in a court of first instance: judge of the court (exercising the functions of a judge sitting alone or a judge sitting as part of a bench of judges), deputy principal prosecutor, judge responsible for execution of sentence, children’s judge. The Higher Judicial Council prepares a list of posts from among the available vacancies and interviews the trainees, who state their preference according to their place in the competition pass list.
The seniority required for appointment to the grade of judge of the court is two years following appointment to the position of trainee judge. After eleven years in service (thirteen counting from appointment to the position of trainee), judges of the court may be appointed to the grade of judge of the Court of Appeal. The seniority required for a declaration of aptitude for the grade of judge of the Court of Cassation is seven years from appointment as judge of the Court of Appeal. After a further eight years, judges can be declared competent to exercise higher administrative functions (heads of higher courts). All promotion takes place, once the necessary seniority has been attained, by decision of the Higher Judicial Council, on the basis of a report by the competent Judicial Council (a local consultative body, constituted in association with each court of appeal). Any judge declared unsuitable will be subjected to a further assessment two years later.
This system, set up between 1966 and 1973, dissociated grade from office and eliminated competition for the rank of appeal judge and judge of the Court of Cassation. Thus a judge may progress all the way up the career (and salary) scale on the basis of seniority, subject to assessment by the Higher Judicial Council. As this method is based on the separation of grade from office, promotion takes place irrespective of whether or not there is actually a position available at the grade obtained. The only immediate consequence of promotion is an increase in salary. Thus, despite the fact that the designations corresponding to the grades in the former career system are still in use, in reality such designations are merely an indication of progression up the salary scale.
The system described above has had the advantage of overcoming the drawbacks of advancement by selection or by competition: that was basically a system of co-option that implied a state of psychological subordination on the part of “inferiors” and no doubt encouraged an attitude of conformity. The hierarchical principle is incompatible with the principle of independence. Two provisions of the Italian Constitution: “judges are subject only to the law” (Article 101 (2)) and “judges differ from each other only in the diversity of their functions” (Article 107 (3)), have served to guarantee not only the independence of the judiciary in relation to the government, but also “internal” independence, that of every judge in relation to the hierarchy and the judiciary. And indeed, every judge, whatever his place in the hierarchy, is exercising the same authority to judge.
The conferring on the Higher Judicial Council of the final decision in respect of assessments, assignments and appointments is a true guarantee of the independence of each judge. Furthermore, one consequence of dissociating grade and function has been that judges with a certain seniority and professional experience have been able, without fearing any detrimental effect on their career, to remain in key posts in the lower courts, dealing with big criminal organisations, business crime, the Mafia and terrorism. Otherwise, the only alternative would have been to allocate these posts to newly appointed trainee judges.
It should be borne in mind from the start that in Italy there is a single career structure for judges and public prosecutors: the only requirement for moving from one function to the other is an aptitude test, which is very rarely negative. Advancement now takes place through the following stages: trainees (who in Italy are already regarded as part of the judiciary), after a training period of about two years, can be assigned to any of the posts in a court of first instance: judge of the court (exercising the functions of a judge sitting alone or a judge sitting as part of a bench of judges), deputy principal prosecutor, judge responsible for execution of sentence, children’s judge. The Higher Judicial Council prepares a list of posts from among the available vacancies and interviews the trainees, who state their preference according to their place in the competition pass list.
The seniority required for appointment to the grade of judge of the court is two years following appointment to the position of trainee judge. After eleven years in service (thirteen counting from appointment to the position of trainee), judges of the court may be appointed to the grade of judge of the Court of Appeal. The seniority required for a declaration of aptitude for the grade of judge of the Court of Cassation is seven years from appointment as judge of the Court of Appeal. After a further eight years, judges can be declared competent to exercise higher administrative functions (heads of higher courts). All promotion takes place, once the necessary seniority has been attained, by decision of the Higher Judicial Council, on the basis of a report by the competent Judicial Council (a local consultative body, constituted in association with each court of appeal). Any judge declared unsuitable will be subjected to a further assessment two years later.
This system, set up between 1966 and 1973, dissociated grade from office and eliminated competition for the rank of appeal judge and judge of the Court of Cassation. Thus a judge may progress all the way up the career (and salary) scale on the basis of seniority, subject to assessment by the Higher Judicial Council. As this method is based on the separation of grade from office, promotion takes place irrespective of whether or not there is actually a position available at the grade obtained. The only immediate consequence of promotion is an increase in salary. Thus, despite the fact that the designations corresponding to the grades in the former career system are still in use, in reality such designations are merely an indication of progression up the salary scale.
The system described above has had the advantage of overcoming the drawbacks of advancement by selection or by competition: that was basically a system of co-option that implied a state of psychological subordination on the part of “inferiors” and no doubt encouraged an attitude of conformity. The hierarchical principle is incompatible with the principle of independence. Two provisions of the Italian Constitution: “judges are subject only to the law” (Article 101 (2)) and “judges differ from each other only in the diversity of their functions” (Article 107 (3)), have served to guarantee not only the independence of the judiciary in relation to the government, but also “internal” independence, that of every judge in relation to the hierarchy and the judiciary. And indeed, every judge, whatever his place in the hierarchy, is exercising the same authority to judge.
The conferring on the Higher Judicial Council of the final decision in respect of assessments, assignments and appointments is a true guarantee of the independence of each judge. Furthermore, one consequence of dissociating grade and function has been that judges with a certain seniority and professional experience have been able, without fearing any detrimental effect on their career, to remain in key posts in the lower courts, dealing with big criminal organisations, business crime, the Mafia and terrorism. Otherwise, the only alternative would have been to allocate these posts to newly appointed trainee judges.
The Career of Judges in the Different European Legal Systems.
I could reiterate here most of the comments made before, on the subject of judicial selection. Under systems where recruitment is conducted on the basis of a competition, the Higher Judicial Council tends to make decisions about the career of judges on the basis of a series of objective criteria (or criteria that are being rendered objective through the drawing up of regulations and directives). However, a large number of legal system do not have any objective legal criteria in this regard (such is the case in, for example, Cyprus, Estonia, the Russian Federation, Finland, Iceland, Lithuania, Luxembourg, Norway, the Netherlands and the Czech Republic), while others have regulatory criteria (see e.g. Germany or Slovakia).
Moreover, in certain common law systems (to the extent, of course, to which we can speak here in terms of judges’ careers), a tendency can be seen towards greater objectivity in the rules for promotion: thus the Lord Chancellor follows well publicised criteria, while in Scotland the executive recently published a “consultation document relative to judicial appointments.”
As for the countries of Central and Eastern Europe, I can only refer once again to the distinction between systems where the Judicial Councils (or Councils of Judges, Councils of Justice, etc.) are given real decision-making powers (in particular Croatia, Poland, Romania, Slovenia and the Baltic countries) and others where, in my opinion, it is very difficult to speak in terms of the self-regulation of the judiciary in relation to the career of judges.
Mention has already been made of the special case of Italy – unique, as far as I know, in having a complete separation between grade and function in terms of career (see supra, Section 15).
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE ON THE STATUS OF JUDGES:
THE PROTECTION OF JUDICIAL INDEPENDENCE
THROUGH A HIGHER JUDICIAL COUNCIL
I could reiterate here most of the comments made before, on the subject of judicial selection. Under systems where recruitment is conducted on the basis of a competition, the Higher Judicial Council tends to make decisions about the career of judges on the basis of a series of objective criteria (or criteria that are being rendered objective through the drawing up of regulations and directives). However, a large number of legal system do not have any objective legal criteria in this regard (such is the case in, for example, Cyprus, Estonia, the Russian Federation, Finland, Iceland, Lithuania, Luxembourg, Norway, the Netherlands and the Czech Republic), while others have regulatory criteria (see e.g. Germany or Slovakia).
Moreover, in certain common law systems (to the extent, of course, to which we can speak here in terms of judges’ careers), a tendency can be seen towards greater objectivity in the rules for promotion: thus the Lord Chancellor follows well publicised criteria, while in Scotland the executive recently published a “consultation document relative to judicial appointments.”
As for the countries of Central and Eastern Europe, I can only refer once again to the distinction between systems where the Judicial Councils (or Councils of Judges, Councils of Justice, etc.) are given real decision-making powers (in particular Croatia, Poland, Romania, Slovenia and the Baltic countries) and others where, in my opinion, it is very difficult to speak in terms of the self-regulation of the judiciary in relation to the career of judges.
Mention has already been made of the special case of Italy – unique, as far as I know, in having a complete separation between grade and function in terms of career (see supra, Section 15).
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE ON THE STATUS OF JUDGES:
THE PROTECTION OF JUDICIAL INDEPENDENCE
THROUGH A HIGHER JUDICIAL COUNCIL
Irremovability of Judges in Recommendation No. R (94) 12 and in the Legal Systems of European Countries.
Coming now to some of the main rules concerning the judicial status we shall remark that one of the most crucial principles to safeguarding the independence of the judiciary is that of irremovability. In this context Principle I 3 of the above mentioned Recommendation No. R (94) 12 states that “Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office.”. The rule neither recognises nor allows for any exception, either in the event of changes in the jurisdiction of the courts or in the event of a disciplinary offence (see Principle VI 1.b., which makes provision only for “moving the judge to other judicial tasks within the court”).
No exception is made either for the situation which in Italy is termed environmental incompatibility. In this connection it should be noted that under the provisions of Article 2 of Italian Law No. 511 of 31 May 1946, even where no disciplinary offence has been committed judges can be transferred by the Higher Judicial Council when “for any reason, and even in the absence of any fault on their part, they are unable to perform their duties in that post in a manner consistent with the dignity of the judiciary”. That no disciplinary measure is involved here is shown by the fact that the Law only speaks of an “objective incompatibility” of the judge with the social, cultural or working “environment” in which he performs his functions.
Some European legislations are in conflict with the rule set out in the recommendation. What gives rise to the greatest concern is not, of course, the possibility of removal as the result of a disciplinary offence (even if one might challenge the validity of a principle that allows a judge to be at one and the same time a “bad judge” in one area and a “good judge” in another) but, once again, the actual law-making situation in certain countries of Central and Eastern Europe. For example, the case of the Czech Republic (see infra, in this same paragraph) shows that a pure and simple reference in the Constitution to the ordinary law for the purpose of determining exceptions to the principle of irremovability (a principle that is established by the Constitution itself) can lend itself to attempts to limit the independence of the judiciary.
In many European countries the irremovability of judges is enshrined within the country’s constitution (such is the case, for example, with Andorra, Croatia, the Russian Federation, France, Ireland, Iceland, the former Yugoslav Republic of Macedonia, Lithuania, Luxembourg, Malta, Norway, Poland, the Czech Republic, Romania, Slovakia, Slovenia and Turkey; to this list of countries one might add Italy) or in an ordinary law (such is the case in Belgium, the Netherlands, Switzerland and, of course, the United Kingdom, which does not have a written constitution).
As far as exceptions to this principle are concerned, a number of constitutions refer back to the ordinary law. In most cases, this would involve transfers following disciplinary proceedings, although there are situations where transfers may be made even outside the scope of such proceedings. Here one might mention Iceland, where under Article 15 of Law No. 15 of 1998 the “Council for Judicial Affairs” is allowed to “move judges between jurisdictions, if it deems it necessary, for a period up to six months every ten years.” This is once again a case of the environmental incompatibility recognised by Italian legislation, which has already been discussed.
One of the most worrying situations, however, concerns the Czech Republic. As I once had occasion to remark in Prague at a conference organised jointly by the Union of Czech Judges and the Senate of the Czech Republic, the government –because of the reference of Article 82 (2) of the Constitution to the ordinary law–is in the process of introducing a series of reforms intended to restrict the principle of the irremovability of judges. I would like to recall in this framework that in fact, neither the Basic Principles on the Independence of the Judiciary drawn up by the UN in 1985 (see Article 12, which states: “12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office”), nor Principle I 3. Recommendation No. R (94) 12, which has already been mentioned, cites any instance in which it is permissible to derogate from the rule of irremovability.
Finally in this context it is must be said that in some countries judges are nominated for a predetermined length of time: this happens for the first appointments/nominations of judges in Croatia (5 years), Slovakia (4 years) and Romania (6 years but only for Supreme Court judges). Likewise in Norway’s “temporary judges” can be appointed for a specific period to fill temporary needs, in case of illness, leaves or backlog of cases in the court. It is also in this field that the principle of the independence of the judiciary might be infringed, particularly where the “confirmation” of the appointment (or “re-appointment” or “re-election”) of judges is left to the executive or legislative authority. Clearly, in such a case there would be reason to fear that the conduct of the judges in question and, especially, a decision in any case(s) involving some politicians, or some political power centre, might inevitably be regarded as decisive by those required to decide on the applications of the judges concerned.
In this framework let me recall the final report issued on the topic of judicial independence by the Consultative Council of European Judges of the Council of Europe on 21-23 November 2001:
Coming now to some of the main rules concerning the judicial status we shall remark that one of the most crucial principles to safeguarding the independence of the judiciary is that of irremovability. In this context Principle I 3 of the above mentioned Recommendation No. R (94) 12 states that “Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office.”. The rule neither recognises nor allows for any exception, either in the event of changes in the jurisdiction of the courts or in the event of a disciplinary offence (see Principle VI 1.b., which makes provision only for “moving the judge to other judicial tasks within the court”).
No exception is made either for the situation which in Italy is termed environmental incompatibility. In this connection it should be noted that under the provisions of Article 2 of Italian Law No. 511 of 31 May 1946, even where no disciplinary offence has been committed judges can be transferred by the Higher Judicial Council when “for any reason, and even in the absence of any fault on their part, they are unable to perform their duties in that post in a manner consistent with the dignity of the judiciary”. That no disciplinary measure is involved here is shown by the fact that the Law only speaks of an “objective incompatibility” of the judge with the social, cultural or working “environment” in which he performs his functions.
Some European legislations are in conflict with the rule set out in the recommendation. What gives rise to the greatest concern is not, of course, the possibility of removal as the result of a disciplinary offence (even if one might challenge the validity of a principle that allows a judge to be at one and the same time a “bad judge” in one area and a “good judge” in another) but, once again, the actual law-making situation in certain countries of Central and Eastern Europe. For example, the case of the Czech Republic (see infra, in this same paragraph) shows that a pure and simple reference in the Constitution to the ordinary law for the purpose of determining exceptions to the principle of irremovability (a principle that is established by the Constitution itself) can lend itself to attempts to limit the independence of the judiciary.
In many European countries the irremovability of judges is enshrined within the country’s constitution (such is the case, for example, with Andorra, Croatia, the Russian Federation, France, Ireland, Iceland, the former Yugoslav Republic of Macedonia, Lithuania, Luxembourg, Malta, Norway, Poland, the Czech Republic, Romania, Slovakia, Slovenia and Turkey; to this list of countries one might add Italy) or in an ordinary law (such is the case in Belgium, the Netherlands, Switzerland and, of course, the United Kingdom, which does not have a written constitution).
As far as exceptions to this principle are concerned, a number of constitutions refer back to the ordinary law. In most cases, this would involve transfers following disciplinary proceedings, although there are situations where transfers may be made even outside the scope of such proceedings. Here one might mention Iceland, where under Article 15 of Law No. 15 of 1998 the “Council for Judicial Affairs” is allowed to “move judges between jurisdictions, if it deems it necessary, for a period up to six months every ten years.” This is once again a case of the environmental incompatibility recognised by Italian legislation, which has already been discussed.
One of the most worrying situations, however, concerns the Czech Republic. As I once had occasion to remark in Prague at a conference organised jointly by the Union of Czech Judges and the Senate of the Czech Republic, the government –because of the reference of Article 82 (2) of the Constitution to the ordinary law–is in the process of introducing a series of reforms intended to restrict the principle of the irremovability of judges. I would like to recall in this framework that in fact, neither the Basic Principles on the Independence of the Judiciary drawn up by the UN in 1985 (see Article 12, which states: “12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office”), nor Principle I 3. Recommendation No. R (94) 12, which has already been mentioned, cites any instance in which it is permissible to derogate from the rule of irremovability.
Finally in this context it is must be said that in some countries judges are nominated for a predetermined length of time: this happens for the first appointments/nominations of judges in Croatia (5 years), Slovakia (4 years) and Romania (6 years but only for Supreme Court judges). Likewise in Norway’s “temporary judges” can be appointed for a specific period to fill temporary needs, in case of illness, leaves or backlog of cases in the court. It is also in this field that the principle of the independence of the judiciary might be infringed, particularly where the “confirmation” of the appointment (or “re-appointment” or “re-election”) of judges is left to the executive or legislative authority. Clearly, in such a case there would be reason to fear that the conduct of the judges in question and, especially, a decision in any case(s) involving some politicians, or some political power centre, might inevitably be regarded as decisive by those required to decide on the applications of the judges concerned.
In this framework let me recall the final report issued on the topic of judicial independence by the Consultative Council of European Judges of the Council of Europe on 21-23 November 2001:
“50. Certain countries make some appointments for a limited period of years (e.g. in the case of the German Federal Constitutional Court, for 12 years). Judges are commonly also appointed to international courts (e.g. the European Court of Justice and the European Court of Human Rights) for limited periods.
51. Some countries also make extensive use of deputy judges, whose tenure is limited or less well protected than that of full-time judges (e.g. the UK and Denmark).
52. The CCJE considered that where, exceptionally, a full-time judicial appointment is for a limited period, it should not be renewable unless procedures exist ensuring that:
(i) the judge, if he or she wishes, is considered for re-appointment by the appointing body and
(ii) the decision regarding re-appointment is made entirely objectively and on merit and without taking into account political considerations.
53. The CCJE considered that when tenure is provisional or limited, the body responsible for the objectivity and the transparency of the method of appointment or re-appointment as a full-time judge are of especial importance (see also paragraph 3.3 of the European Charter).”.
Protection of Judges Against all Undue Influence in Recommendation No. R (94) 12. The Question of Judicial Immunity.
Principle I 2.d. of the Recommendation No. R (94) 12 of the Council of Europe deals with the problem of protecting the judge against “restriction, improper influence, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason”. For an efficient implementation of that rule, the text further stipulates that: “The law should provide for sanctions against persons seeking to influence judges in any such manner.”. This rule should be seen in conjunction with Principle II - the authority of judges, which stipulates that: “1. All persons connected with a case, including state bodies or their representatives, should be subject to the authority of the judge. 2. 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.”.
It would be no exaggeration to see here an incipient acknowledgement at European level of the contempt of court rule, which has as its basis the need to prevent any form of interference with the independence of the judge in deciding a case. Furthermore, the principles we have just been discussing cannot be enforced otherwise than through the imposition of a sanction that the judge concerned should be able to apply (of course, subject to a form of appeal against any such decision).
We should also see in a very positive light the final sentence of Principle I-2.d, according to which: “Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary.”.
There might also be some risk of influence where the allocation and withdrawal of cases is concerned.
In this connection, Principle I-2.e. deals with the distribution of cases, which “should not be influenced by the wishes of any party to a case, or any person concerned with the results of the case.” It appears excessive, however, to exclude any system of distribution other than one based on a “drawing of lots or a system for automatic distribution according to alphabetical order”, which might well prove detrimental to specialisation, particularly in courts with a large number of trainee judges. In fact, the recommendation mentions this system purely as an example and we should not therefore exclude such systems as, for example, allocation–by the head of the court concerned and/or the president of each division–on the basis of the special expertise of each civil or criminal division and of each judge.
As far as immunity of judges is concerned, almost all legislations in Eastern European countries extensively provide for rules on this topic. The western tradition doesn’t know this kind of guarantee for the independence of judges and international documents are silent on this subject. So, for instance, in Italy, in France, in Spain or in Germany judges are accountable for their actions according to the principles of criminal and civil law, exactly as any other citizen. But I understand very well that in societies where the respect for judges and their independence are still not so deeply rooted, it may seem preferable to protect the judiciary also by these means.
The Higher Judicial Council: International Standards.
It is sure that, as far as judicial status is concerned, the best protection for judicial independence, both “internal” and “external”, can only be assured by a Higher Judicial Council.
According to western European standards, a Higher Judicial Council should be the autonomous self-administration body in charge of safeguarding the independence of the judiciary. It should be composed exclusively of a majority representation of judges and public prosecutors. The Higher Council for the Judiciary should be entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning judges and public prosecutors. It should have the power to take decisions in all these matters and not to merely submit proposals to the administrative or legislative powers of the State.
A reference to this body is to be found already in the Recommendation No. R (94) 12 of the Council of Europe, whose Principle I 2.c. provides for that “The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.” Principle VI 3. of the same document states that “Where measures under paragraphs 1 and 2 of this article need to be taken, states should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court, and whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself. ”.
Much more than a mere hint to the self-governing body of the judiciary can be found in the European Charter on the status of judges, approved by the Council of Europe in 1998. A first direct reference to it is contained in Articles 1.3 and 1.4, respectively stating that “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary” and that “The statute gives to every judge who considers that his or her rights under the statute, or more generally his or her independence, or that of the legal process, are threatened or ignored in any way whatsoever, the possibility of making a reference to such an independent authority, with effective means available to it of remedying or proposing a remedy.”.
In the field of judicial selection, recruitment and initial training the Charter says that (paragraph 2.1) “The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, and to apply the law to them with respect for individual dignity” and that (paragraph 2.3) “The authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training programmes and of the organization which implements them, in the light of the requirements of open‑mindedness, competence and impartiality which are bound up with the exercise of judicial duties.”.
As far as appointment and irremovability are concerned the same document provides for that (paragraph 3.1) “The decision to appoint a selected candidate as a judge, and to assign him or her to a tribunal, are taken by the independent authority referred to at paragraph 1.3 hereof or on its proposal, or its recommendation or with its agreement or following its opinion” and that (paragraph 3.3) “Where the recruitment procedure provides for a trial period, necessarily short, after nomination to the position of judge but before confirmation on a permanent basis, or where recruitment is made for a limited period capable of renewal, the decision not to make a permanent appointment or not to renew, may only be taken by the independent authority referred to at paragraph 1.3 hereof, or on its proposal, or its recommendation or with its agreement or following its opinion.”.
As well in the field of career development the Charter states that “Decisions as to promotion are then pronounced by the authority referred to at paragraph 1.3 hereof or on its proposal, or with its agreement,” whereas, in the field of judicial liability, paragraphs 5.1, 5.2 and 5.3 provide for as follows: “The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.” (paragraph 5.1).
“Compensation for harm wrongfully suffered as a result of the decision or the behaviour of a judge in the exercise of his or her duties is guaranteed by the State. The statute may provide that the State has the possibility of applying, within a fixed limit, for reimbursement from the judge by way of legal proceedings in the case of a gross and inexcusable breach of the rules governing the performance of judicial duties. The submission of the claim to the competent court must form the subject of prior agreement with the authority referred to at paragraph 1.3 hereof.” (paragraph 5.2).
“Each individual must have the possibility of submitting without specific formality a complaint relating to the miscarriage of justice in a given case to an independent body. This body has the power, if a careful and close examination makes a dereliction on the part of a judge indisputably appear, such as envisaged at paragraph 5.1 hereof, to refer the matter to the disciplinary authority, or at the very least to recommend such referral to an authority normally competent in accordance with the statute, to make such a reference.” (paragraph 5.3).
Finally, paragraph 7, dealing with the issue of termination of office, provides for that “A judge permanently ceases to exercise office through resignation, medical certification of physical unfitness, reaching the age limit, the expiry of a fixed legal term, or dismissal pronounced within the framework of a procedure such as envisaged at paragraph 5.1 hereof," (paragraph 7.1) and that “The occurrence of one of the causes envisaged at paragraph 7.1 hereof, other than reaching the age limit or the expiry of a fixed term of office, must be verified by the authority referred to at paragraph 1.3 hereof” (paragraph 7.2).
The Higher Judicial Council: The Italian Experience (Members and Electoral System).
The Italian Constitution of 1947 stipulates in its Article 104 as follows:
“The Judiciary is an autonomous body. It is not subject to any other power of the State.
The President of the Republic is Chairman of the Higher Council for the Judiciary.
The Chief Justice of the Supreme Court of Cassation and the Chief Public Prosecutor of the same Court are ipso jure members of it.
As for the other members, two-thirds of them are elected by all regular judges of different categories, and one-third by Parliament in joint session, selection being made among professors of law faculties and lawyers of at least fifteen years standing.
The Council elects an Assistant Chairman from among the members elected by Parliament.
The elected members hold office for four years and are not immediately re-eligible.
While they are in office they may not be registered on the Rolls of the legal profession, nor be members either of Parliament or of a Regional Council.”.
The Minister for Justice is not member of the Council. However he/she can attend its meetings when it appears necessary in order to give explanations or information. He/she can not take part in the vote. According to Article 110 of the Italian Constitution the Minister is entrusted only with “the organization and operation of services concerning the administration of justice.”
The Higher Judicial Council (Consiglio Superiore della Magistratura – C.S.M.) is therefore the self governing body of the ordinary judiciary.
Under the judicial system’s laws, the C.S.M. is entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning Judges and Public Prosecutors (see Art. 105 Const.).
Currently the Council is composed of twenty-seven members:
‑ the President of the Republic, who chairs the C.S.M.;
‑ the Chief Judge of the Supreme Court of Cassation;
‑ the Prosecutor General of the Supreme Court of Cassation;
‑ eight members appointed by Parliament (the so‑called “laymen”);
‑ sixteen members appointed by the judges and prosecutors (the so‑called “togati”–from toga, which means “robe”–or professional judges and prosecutors).
The Constitution (Art. 104 Const.) envisages that the President of the Republic and the Chief Judge and Prosecutor General of the Court of Cassation should be members of the Council “by right”. The only other restriction it imposes is to require two thirds of the other members to be elected by the ordinary judges and prosecutors belonging to the various ranks and one third by Parliament in joint session chosen from among regular university law professors and lawyers with fifteen years experience in the legal profession. Therefore, the number of elected members and the election procedures are regulated by ordinary law.
As mentioned earlier, the number of elected members is currently set at 24 (16 judges and 8 “laymen”). The eight “lay” members are elected by Parliament in joint session by secret ballot and by a majority of three fifths of the members forming the assembly. After the second ballot, a majority of three fifths of voters is, however, sufficient.
The members to be elected by the judges and prosecutors are chosen as follows: two from the judges/prosecutors with the rank and function of Court of Cassation judge/prosecutor, four from among the prosecutors performing their duties as prosecutors before first instance or appellate courts, ten from among judges performing their duties within first instance or appellate courts.
Before the last reform of the C.S.M. electoral system (Statute of 28 March 2002, No. 44) the elections of the members chosen from among the Judiciary took place on the basis of an adjusted proportional election system in which all judges and prosecutors participated. Candidates formed electoral lists to be submitted to the colleagues. These lists reflected the four “wings” belonging to the National Judges and Prosecutors Association (Associazione Nazionale dei Magistrati – A.N.M.), thus acting as a sort of political parties.
This system was radically changed through Statute of 28 March 2002, No. 44, which reduced from 33 to 27 the total number of the C.S.M. members. The old proportional system was replaced by a majority one. As usual all judges and public prosecutors have the right to vote, but “regional” constituencies (or electoral districts) have now been abolished. Currently there are only three constituencies concerning respectively:
(a) judges and prosecutors of the Supreme Court of Cassation,
(b)prosecutors before first instance and appellate courts and
(c) judges of first instance and appellate courts.
Any voter receives three ballots and has to cast a vote (just one vote) for any of the three ballots:
(a) one for one candidate of the Supreme Court,
(b) one from a candidate from a public prosecutor office before a first instance or an appellate court, and finally
(c) one for a judge from a first instance or an appellate court. Elected are those candidates who have received the most votes.
Under the Italian Constitution, C.S.M.’s elected members hold office for four years, and are not immediately eligible for reappointment (Art. 104 Const. ).
The Constitution (Art. 104 Const.) also provides for the C.S.M. to elect a Vice President from among the members designated by Parliament. The Vice President, who chairs the Presidency Committee, is entrusted with the task of promoting the C.S.M.’s activity and implementing its resolutions, as well as managing the funds in the budget. Furthermore, the C.S.M.’s Vice President will replace the President if he is absent or unable to attend and will exercise the functions delegated to him by the President.
The Higher Judicial Council: The Italian Experience (Constitutional Position and Activities).
As far as the C.S.M.’s position is concerned, the Constitutional Court has established that, although the C.S.M. is an organ that performs basically administrative functions, it is not part of the public administration, as it is extraneous to the organisational system directly under the control of the State or Regional governments.
With reference to the functions assigned to it by the Constitution, the C.S.M. has been defined as “a body of clear constitutional importance.” Its functions may be defined as the “administration of the activities of the judiciary”: as already said, they consist in the recruitment, assignment, transfer, promotion and disciplinary measures concerning judges and prosecutors, including also the organisation of the judicial offices with a view to ensuring and guaranteeing that each and every member of the judiciary is subject “only to the law” when exercising his/her office. In this latter respect, it should be stressed that at the proposal of the Presidents of the Appeal Courts, and after consulting the Judicial Councils, every two years the C.S.M. approves the personnel “tables” of the judicial offices of each district (i.e.: in how many sections each court is divided and to which of any section judges are assigned) and at the same time approves objective and predetermined criteria for assigning the case files to individual judges.
The C.S.M. is thus the highest ranking body in charge of the administration of judicial activities. Local judicial Councils and the heads of individual judicial and prosecuting offices also co‑operate, with different, mostly advisory, roles.
Works within the Council are always carried on through two phases. Any decision has to be first discussed within one of the Commissions of which the C.S.M. is composed. So e.g. the decision of appointing a candidate to the post of President of a court has to be discussed within the relevant C.S.M. Commission, which will issue a proposal. This proposal shall be brought before the plenary session, which shall take the final decision on it. Any commission is composed of six members (two “laymen” and four professional judges or prosecutors).
The law setting up the C.S.M. entrusts it the power to issue quasi‑statutory measures which may be divided into three categories:
a) internal regulations and administrative/accounting regulation, both of which are envisaged by the law;
b) regulations covering the training of trainee judges and prosecutors, which is also expressly envisaged by the law constituting the C.S.M. It regulates the training of the judges/prosecutors once they have passed the entrance exam;
c) circular letters, resolutions and directives. Circular letters are used to self‑discipline the exercise of the administrative discretionary power assigned to the C.S.M. by the Constitution and by ordinary laws. The resolutions and directives are used to propose and implement the application of judicial system laws pursuant to a systematic interpretation of the sources.
As far as the disciplinary power of the C.S.M. is concerned, it should be remarked that the Council cannot start before itself any disciplinary proceedings. This power is entrusted only to the Minister of Justice and to the Chief Prosecutor before the Supreme Court of Cassation. The proceeding is later carried on by a special Disciplinary Section of the Council. According to Statute No. 44 of 28th March 2002, members of this Section are:
· The Vice President of the C.S.M., who chairs this Section,
·One of the members elected by the Parliament,
·One member elected from among the judges or prosecutors of the Supreme Court of Cassation,
·One member elected from among the prosecutors performing their duties before a first instance or an appellate court,
·Two members elected from among the judges performing their duties within a first instance or an appellate court.
The total number is therefore of six. In case of parity the most favourable solution for the accused judge will prevail. Rules concerning judicial liability are provided for by Statutes as well as by the C.S.M. case law.
The Council plays as well a relevant role in the field of judicial selection and training, as in Italy no school for the judiciary exists: this topic has already been dealt with (see supra, Sections 10-14).
Giacomo Oberto, juiz de Turim.
Currently the Council is composed of twenty-seven members:
‑ the President of the Republic, who chairs the C.S.M.;
‑ the Chief Judge of the Supreme Court of Cassation;
‑ the Prosecutor General of the Supreme Court of Cassation;
‑ eight members appointed by Parliament (the so‑called “laymen”);
‑ sixteen members appointed by the judges and prosecutors (the so‑called “togati”–from toga, which means “robe”–or professional judges and prosecutors).
The Constitution (Art. 104 Const.) envisages that the President of the Republic and the Chief Judge and Prosecutor General of the Court of Cassation should be members of the Council “by right”. The only other restriction it imposes is to require two thirds of the other members to be elected by the ordinary judges and prosecutors belonging to the various ranks and one third by Parliament in joint session chosen from among regular university law professors and lawyers with fifteen years experience in the legal profession. Therefore, the number of elected members and the election procedures are regulated by ordinary law.
As mentioned earlier, the number of elected members is currently set at 24 (16 judges and 8 “laymen”). The eight “lay” members are elected by Parliament in joint session by secret ballot and by a majority of three fifths of the members forming the assembly. After the second ballot, a majority of three fifths of voters is, however, sufficient.
The members to be elected by the judges and prosecutors are chosen as follows: two from the judges/prosecutors with the rank and function of Court of Cassation judge/prosecutor, four from among the prosecutors performing their duties as prosecutors before first instance or appellate courts, ten from among judges performing their duties within first instance or appellate courts.
Before the last reform of the C.S.M. electoral system (Statute of 28 March 2002, No. 44) the elections of the members chosen from among the Judiciary took place on the basis of an adjusted proportional election system in which all judges and prosecutors participated. Candidates formed electoral lists to be submitted to the colleagues. These lists reflected the four “wings” belonging to the National Judges and Prosecutors Association (Associazione Nazionale dei Magistrati – A.N.M.), thus acting as a sort of political parties.
This system was radically changed through Statute of 28 March 2002, No. 44, which reduced from 33 to 27 the total number of the C.S.M. members. The old proportional system was replaced by a majority one. As usual all judges and public prosecutors have the right to vote, but “regional” constituencies (or electoral districts) have now been abolished. Currently there are only three constituencies concerning respectively:
(a) judges and prosecutors of the Supreme Court of Cassation,
(b)prosecutors before first instance and appellate courts and
(c) judges of first instance and appellate courts.
Any voter receives three ballots and has to cast a vote (just one vote) for any of the three ballots:
(a) one for one candidate of the Supreme Court,
(b) one from a candidate from a public prosecutor office before a first instance or an appellate court, and finally
(c) one for a judge from a first instance or an appellate court. Elected are those candidates who have received the most votes.
Under the Italian Constitution, C.S.M.’s elected members hold office for four years, and are not immediately eligible for reappointment (Art. 104 Const. ).
The Constitution (Art. 104 Const.) also provides for the C.S.M. to elect a Vice President from among the members designated by Parliament. The Vice President, who chairs the Presidency Committee, is entrusted with the task of promoting the C.S.M.’s activity and implementing its resolutions, as well as managing the funds in the budget. Furthermore, the C.S.M.’s Vice President will replace the President if he is absent or unable to attend and will exercise the functions delegated to him by the President.
The Higher Judicial Council: The Italian Experience (Constitutional Position and Activities).
As far as the C.S.M.’s position is concerned, the Constitutional Court has established that, although the C.S.M. is an organ that performs basically administrative functions, it is not part of the public administration, as it is extraneous to the organisational system directly under the control of the State or Regional governments.
With reference to the functions assigned to it by the Constitution, the C.S.M. has been defined as “a body of clear constitutional importance.” Its functions may be defined as the “administration of the activities of the judiciary”: as already said, they consist in the recruitment, assignment, transfer, promotion and disciplinary measures concerning judges and prosecutors, including also the organisation of the judicial offices with a view to ensuring and guaranteeing that each and every member of the judiciary is subject “only to the law” when exercising his/her office. In this latter respect, it should be stressed that at the proposal of the Presidents of the Appeal Courts, and after consulting the Judicial Councils, every two years the C.S.M. approves the personnel “tables” of the judicial offices of each district (i.e.: in how many sections each court is divided and to which of any section judges are assigned) and at the same time approves objective and predetermined criteria for assigning the case files to individual judges.
The C.S.M. is thus the highest ranking body in charge of the administration of judicial activities. Local judicial Councils and the heads of individual judicial and prosecuting offices also co‑operate, with different, mostly advisory, roles.
Works within the Council are always carried on through two phases. Any decision has to be first discussed within one of the Commissions of which the C.S.M. is composed. So e.g. the decision of appointing a candidate to the post of President of a court has to be discussed within the relevant C.S.M. Commission, which will issue a proposal. This proposal shall be brought before the plenary session, which shall take the final decision on it. Any commission is composed of six members (two “laymen” and four professional judges or prosecutors).
The law setting up the C.S.M. entrusts it the power to issue quasi‑statutory measures which may be divided into three categories:
a) internal regulations and administrative/accounting regulation, both of which are envisaged by the law;
b) regulations covering the training of trainee judges and prosecutors, which is also expressly envisaged by the law constituting the C.S.M. It regulates the training of the judges/prosecutors once they have passed the entrance exam;
c) circular letters, resolutions and directives. Circular letters are used to self‑discipline the exercise of the administrative discretionary power assigned to the C.S.M. by the Constitution and by ordinary laws. The resolutions and directives are used to propose and implement the application of judicial system laws pursuant to a systematic interpretation of the sources.
As far as the disciplinary power of the C.S.M. is concerned, it should be remarked that the Council cannot start before itself any disciplinary proceedings. This power is entrusted only to the Minister of Justice and to the Chief Prosecutor before the Supreme Court of Cassation. The proceeding is later carried on by a special Disciplinary Section of the Council. According to Statute No. 44 of 28th March 2002, members of this Section are:
· The Vice President of the C.S.M., who chairs this Section,
·One of the members elected by the Parliament,
·One member elected from among the judges or prosecutors of the Supreme Court of Cassation,
·One member elected from among the prosecutors performing their duties before a first instance or an appellate court,
·Two members elected from among the judges performing their duties within a first instance or an appellate court.
The total number is therefore of six. In case of parity the most favourable solution for the accused judge will prevail. Rules concerning judicial liability are provided for by Statutes as well as by the C.S.M. case law.
The Council plays as well a relevant role in the field of judicial selection and training, as in Italy no school for the judiciary exists: this topic has already been dealt with (see supra, Sections 10-14).
Giacomo Oberto, juiz de Turim.
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