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CCJE-GT(2012)1
English only

Strasbourg, 16 March/mars 2011

WORKING GROUP OF THE
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE-GT)

    THE SPECIALISATION OF JUDGES

DRAFT REPORT

by Mrs Maria Giuliana Civinini (Italy),
Expert, Presidente of Chamber, Tribunal of Livorno

1. For the year 2012, the Consultative Council of European Judges (CCJE) has been instructed to adopt an opinion (N° 15) on “The specialization of judges” for the attention of the Committee of Ministers of the Council of Europe. Following the twelfth plenary meeting of the CCJE (November 2011), a questionnaire to be completed by delegations was drawn up on the basis of a preliminary memorandum on the proposed subject written by the Chair of the CCJE.

2. The present document provides a summary of the replies to the questionnaire given by various Council of Europe member states. It also contains some comments on the specialization of judges based on national experience and on the previous work of the Council of Europe in this field. It ends with some recommendations.

A. THE QUESTIONNAIRE1

1. All judicial system encompasses special courts and specialized courts or chambers/ departments and specialization is present also in the organization of Public Prosecutor office.

3. In practice different solutions are adopted in introducing specialization; they are the consequence of many factors: the legal and judicial traditions, the constitutional order, the recruitment appointment and mutation system, the career’s mechanisms, the courts’ internal organization and rules.

4. Actually, while the overview of the various “geographies” of the national judicial organizations may give the impression of significant structural differences, a more detailed analysis reveals a surprising uniformity of approach with respect to the matters to be entrusted to specialized judges, guarantees of independence due to the same, the role of training, the mission assigned to the judiciary and to the judge in the society.

5. The questions raised relate to the following main areas: the judicial organization and the relevance of specialization of courts, how specialization of judges is implemented, the relationship between specialization of judges and specialization of lawyers and prosecutors, governance and ethic, advantages and disadvantages of special courts and of specialization of judges.

6. The notes that follow imply:

    - a definition of “special court” as a body within the judicial branch of government that address only one area of law, have specifically defined powers, have autonomous governance and organization in relation to the general jurisdiction
    - a definition of “extraordinary court” as a body – within or outside the ordinary judiciary – that is established as an answer to serious political or criminal phenomenon, address only one area of law, have special composition and follows special procedures
    - a definition of “specialized judge” and “specialized court/department” as a judge (or a court/ department) that addresses only one area of the law internally to the general court system based on legal previsions or internal organization rules of the courts.

1. JUDICIAL ORGANIZATION AND RELEVANCE OF SPECIALIZATION OF COURTS.

7. The answers to the questionnaire not always imply the same meaning of “special court” and “specialized court/ judge” and the world “specialization” is used sometimes to describe the main division between civil and criminal function, sometimes to indicate a judicial activity focused on a specific field of the law.

8. Nevertheless, the picture results clear2:

    - The prevision of “special courts” – particularly for Countries of civil law – is concentrated in the public law area and in presence of special powers of the public authorities: Administrative Court, Court of Account, Military Court and Tax Court; or in presence of socially relevant situations: Labor Court and Immigration/Asylum Court. The presence of lay judges is a recurrent characteristic of special courts; in this case, non-professional judges are often experts (i.e.: tax courts, court of account) or representatives of the categories, protected interests and rights (i.e.: labor courts).
    - Specialized courts within the general organization of the judiciary is a functional alternative adopted by the law (in the most part of the case in the same fields of competence of special courts - public law, sensitive matters -) when the establishment of a special court is not feasible on a constitutional point of view or a balance is pursued between “strong specialization” and inclusion in the ordinary judicial system; specialized chambers introduced by law, with a territorial competence different from general courts (often limited to few major courts or to the court sitting in the Country’s capital) are expression of the same tendency; specialized courts and chambers can be composed with lay judges.
    - Specialization is largely adopted as a fundamental criterion of the internal organization of the courts and for the assignment of judges; the creation of specialized chambers or departments (often simply based on internal rules) is the most diffused operational solution; the main sectors of specialization are: family and juvenile law; trademarks, commerce, bankruptcy; serious crimes, supervision of criminal investigations and of criminal enforcement; when specialization is realized in the process of internal organization, there is no impact on the general rules on competence, composition of the trial panels and procedures.

9. Generally speaking, it is the nature of the interests (fundamental rights and freedoms; security; trade) or the nature of the subjects (public administration) that are involved which determines the choice for specialty/ specialization in administration of justice. It is the answer to two kind of needs: protection of subjects/interests (Public Administration, Army …) and possession of technical and extra-juridical knowledge by the judge (juvenile, commerce, trademarks…).

10. The alternative among special court, specialization, specialized chamber is not linked to some ontological or structural characteristic of the rights to be implemented or the law to be applied. The concrete solutions are the consequence of the legal traditions, of the evolutions of national systems and of constitutional rules on composition and structure of the judiciary.

11. It can be observed that in continental European Countries the model of the “special court” often coincides with the plurality of “jurisdictions” (juridictions, giurisdizioni) or judicial systems (i.e.: general jurisdictions vs. administrative or military jurisdictions) and with the presence of autonomous governing bodies. It finds its main realization in the sector of the public administration and is anchored in the principle of the separation of powers and in the limits of the “ordinary” judicial function. The principles affirmed in post World War II Constitutions, especially the principles of equality, legality, pre-constitution independence and impartiality of judges have pushed member States towards limitation of special courts and simplification of Courts’ system3. On the other side, the need to tackle backlog of serious crimes or to face specific criminal emergency in new democracies can lead to the establishment of new special criminal court. The same “temptation” can push old democracies to choice the road of the special court to counterattack efficiently the phenomenon of terrorism and other new threatens4.

12. It worth to mention the creation of specialized courts/chambers in European Union Countries, based on EU legislative acts. It is the case of the Community Design and Trade Mark Courts established in all European Union Countries following the Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark5 and the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs6. The reasons to establish these Courts7 are both the protection of the interest of the internal market and the need of having judges with specific technical knowledge. Nevertheless, in the European Union, the fact of having only a limited number of national courts dealing with the claims related to designs and trademarks is also in keeping with requirements of certainty and effectiveness of a legal system based on the principles of: one single competent court in the European area, one valid and enforceable decision in the European legal space. It is not a case that the two regulations designated these courts as “Community courts”; even if they are (normally sections of) national courts, we can look at the phenomenon, rather than from the point of view of the specialization of national courts, as a first attempt to identify a network of “European Union courts” governed by its own rules on jurisdiction, applicable substantive law, recognition and enforceability of judgments8.

13. Beside courts/ chambers specialized on the base of the area of the law they address, a relevant group of Countries has established small claims/ minor offences courts through which to vacate the ordinary courts of a backlog in low relevance sectors (road’s infractions, petty crimes, neighborly relations, low amount credits…). The creation of such courts was, at some extent, envisaged by the CoE Recommendation No. R(86) 129 asking for: “Providing for bodies which, outside the judicial system, shall be at the disposal of the parties to dispute on small claims and in some specific areas of law”.
Member States have some time created autonomous bodies external to the judiciary (the model of Ombudsperson)10, some time established a system of “justice de paix” – “justice de proximité” constituted by a corps of non-professional judges11, some time set up a minor offences system administered by magistrates12.

2. IMPLEMENTATION OF JUDGES’S SPECIALIZATION.

14. Being “special courts” judicial bodies with from the ordinary judiciary autonomous organization and governance, selection’s procedures and careers’ mechanisms are peculiar and distinguished from the ordinary ones. “Special” technical knowledge or “special” belonging to a body or to a category is naturally taken into consideration for appointment.

15. The situation of the ordinary judicial system is completely different. The existing systems can be divided into two groups (corresponding largely to the systems of civil and common law), depending on whether the judges are selected through an open public competition (accessible after the end of university studies or a master degree) or among practitioners, which already have a significant professional experience.

16. In the first group the initial appointment doesn’t require specialized studies or professional experience; the requirements and the access procedures are unique13. In the second group is the specialist experience to be relevant (i.e. in the view of an initial appointment as family law judge or intellectual property judge).

17. The situation is different with regard to the following appointment to a specialised function or to the mutation from a generalist position to a specialized one (i.e. mutation to the position of juvenile judge, labor judge, bankruptcy judge or serious crime judge). In the most part of cases specialist studies, relevant experience and (often) a specific training delivered by the Judicial Training Institute are requirements or preferred titles for the appointment/ mutation.

18. In the majority of Member States answering to the questionnaire it is possible to move from a generalist court to a specialized one or from one specialized to another. When the transfer happens between separate court systems, an application followed by a selection based on seniority and previous specialization is usually sufficient14; in some case, the judge have to resign from the original post and to participate to a new selection internally to the relevant justice system15. When the transfer is internal to the same court system, the mutation is possible based on professional experience16, after a specialization/ reconversion training action17, by participating to a specialization exam18.

19. As a general rule, specialization has no impact on promotions and appointments to a decisional position19. Specialization can be relevant when the position to be fulfilled is a specialized one (i.e. President of a Juvenile or Labor court/chamber)20. In common law system specialization can represent a handicap21 .

20. Language requirements are not strictly related to specialization. Nevertheless, because of the relevance of the language spoken in courts for the access to justice and for the protection of minorities, it has to be underlined that member states having more official languages or language minorities give a relevant weight to linguistic skills and knowledge; they can be put as selection or promotion requirements22.

21. Among specialized functions the positions for organizational purpose, like modernization and IT coordinator, ADR services, judicial cooperation, speaker (porte parole), can be mentioned. Training is often in place for these specific functions.

22. More problematic is to determine if all judges can have access to specialization even if member states answer positively to the relevant question23. Actually, the answers to the questionnaire have taken in consideration different point of view: access to specialized knowledge through training24 and access to specialized functions through mutation / selection25.

23. Generally speaking access to both training and selection’s procedures is granted; the equity and fairness of access criteria and their application cannot be assessed. These criteria are: knowledge and experience26; training27; official requirements28; specialized studies29; publications30; needs of the court31; sometimes seniority32

24. On the economic point of view: a) with few exceptions33, judges don’t receive financial help to transfer to other towns where specialization may be required; this kind of allowances is generally previewed in occasion of mutation from a town to another or for judges assigned to “difficult” posts (i.e. post with a relevant number of vacancies; post in dangerous regions or with difficult life conditions); b) the general principle is the equality of retribution of judges without regard to the exercised functions; the exceptions are related to their belonging to different judicial systems (like administrative34 or military35 jurisdictions); c) the increasing phenomenon of creation of “serious crimes courts” in countries of new democracy is accompanied by the prevision of higher retribution then “simple” district court judges36; d) no special allowances or benefit are previewed for specialized judges37.

25. Training has a crucial role in increasing specialization. Judges can attend specialization/ reconversion courses organized by the Judicial Training Institute (and the European Judicial Training Network) and by other school or training organizations.38 Public Institutes offers courses for specialized judges only39 and organize exchanges of judicial experiences betweens specialized judges and/or generalist judges40.

3. RELATIONSHIPS BETWEEN SPECIALIZATION OF JUDGES AND SPECIALIZATION OF LAWYERS AND PROSECUTORS.

26. Lawyers’ specialization is a de facto phenomenon. In the professional experience it is well known that especially lawyers’ firm with a relevant number of associates focus their activity on specific areas of the law, mostly criminal, commercial, international, family, labor law.

27. This reality is not formalized. The legal profession is traditionally unique with homogeneous rules for the access to the profession and the association or organism representing the interest of the BAR (Barreau, Ordine) on all matters related to the profession is unique and organized on territorial base (normally the BAR / Barreau / Ordine coincides with the territory of a District Court/ Tribunal de premier instance …).

28. On a general base, every lawyer must be enrolled in a BAR association to practice the profession; the bar is composed of the lawyers registered on the list of the BAR/ Barreau / Ordine. There are three types of list: the roll of the BAR/ Order, which consists of lawyers who have completed their internship, the list of trainee lawyers and the list of national of a Member State of the European Union, bringing together lawyers who belong to a bar of a State of the European Union, but were entitled to exercise their profession in another member State (and, depending on National regulations, list of foreign lawyers authorized to exercise in the Country).

29. In some Country the lawyers authorized to represent the parties in front of higher courts (Court of Cassation, Council of State) are specialized, meaning that they have to be enrolled in a special panel41. Isolated regulations have introduced other specialized panels42.
As far as the Public Prosecutors Service is concerned, an internal organization based on specialization of investigative pools and departments is rather diffused 43.

30. In some case a specialized public prosecution office / service is established 44.
Public Prosecutor has to be specialized to practice in front of the special court /specialized court established by law (military, juvenile, court of account). It’s a matter of internal organization to assign specialized prosecutor to support the charge in front of a specialized chambre (i.e. organized crime, financial crime, sex crimes…) of the court.

31. Specialized Judges are not assisted by specialized personnel; the specialization of clerk and/or court administrator in the specific field of the law is realized by training during the job45.

4. GOVERNANCE AND ETHIC

32. While special court (military, administrative, commercial) have normally their own governing system, generalist and specialized judges are submitted to the same governing body (Council or equivalent body, like judicial service court or nomination board); this is in charge of the protection of their independence and impartiality.

33. All judges follow the same ethic’s principle and deontological code. Only in few Countries, specialized judges have their own professional association46.

5. ADVANTAGES AND DISADVANTAGES

34. The representation of advantages and disadvantages is almost the same for both the “special court” system and the (by law or internal organization) specialization system. Positive and negative elements are strongly homogeneous. The argumentation considers the essence of the role and the function of the Judge in the society: reparation of the wrongs; quality and efficiency of justice’s administration; independence, impartiality, absence of any improper pressures; equality of citizens.

35. The advantages of the system of special courts are: efficiency47, better quality of the judicial decision48, easier court management49, better knowledge of specialist law50, better knowledge of factual background51, predictable courts’ practices and stability in cases law52, establishment of decisional routine53.

36. The good reasons to support law or internally organized specialization are the same; possession of non-legal expertise54 and courts acting on the same level of quality as specialized lawyers join the list of advantages55.

37. The disadvantages of the special court system are: reduced caseload56, lack of flexibility in management of judicial personnel and support staff57.
38. In presence of this kind of system, it has to be avoided that: the special court system results in the formation of a body of “privileged” special judges with means and career’s opportunities more favorable then ordinary judges58; the reduction of the number of jurisdiction results in a reduced access to justice by citizens59 or in their unequal protection 60; the evolution of the jurisprudence in a special field of the law develops in a manner non consistent with the rest of the legal system61; special interest groups take an undue interest in influencing court decision62.

39. The specialization system presents similarities with the special court system’s disadvantages. In addition, it is underlined that: an efficient court system needs a sufficient number of generalist judges and judges that are able to specialize and even change specialization field of the law in which they are able to perform judicial function63 .

40. On the point of view of the typical professionalism of a judge, he or she needs to have a broad vision of the legal system while a limited knowledge of other branches of the law has in itself the risk of unbalanced judgments64. Specialization presents the risk of falling into stereotypes by coming into contact with only a narrow type of cases, narrow circle of parties, and even with a same circle of attorneys at law and prosecutors, who may influence their opinion and lead to creation of stereotypes and routines65. Another relevant risk is represented by the possible pressure or influence of different business and interest groups66 on the judges. These can also become part of an in-group with loss of impartiality and lack of broad views preventing evolution of case-law67.

41. It worth to mention two comments:
“a judge needs a wide knowledge of legal principles and institutions. A judge who only knows the specialized branch of the law he is dealing with in his daily work can hardly be a good judge.. Sometimes what is need to resolve a difficult case is not the knowledge of the full legal regulation in the specific branch of the law, but of the principle in which the law is based. Sometimes what citizens look for in a judge is not a specialized knowledge, but a general view of the law, common sense, and contact with reality.”68“On the one hand, the values and advantages of having general courts and ‘generalist’ judges are recognized. Judges work for a number of years in one department and then change to another, gaining experience in different areas of law. Judges are ‘specialists’ in analyzing and weighting arguments and in deciding cases in all kinds of legal fields. These capacities constitute the most important ‘specialization’ of judges. A broad and ‘generalist ’education is therefore important. On the other hand, it is recognized that in some specific areas, the complex character of the cases and the relatively small amount of cases in these areas call for a higher level of specialization. The discussions are not yet finalized; the proposals go into the following direction. About 80% of all cases belong to the jurisdiction of general courts, 15% of the cases call for regional specialization and 5% of the cases for specialization in one specialized court, having exclusive jurisdiction. Examples of the second category are: expropriation, human trafficking, cybercrime; examples of the third category (beside the 3 administrative courts of appeal already mentioned): banking law, maritime and transport law, intellectual property law. Research indicates that the stakeholders in these fields (companies, lawyers) value a higher level of specialization of the courts and of the judges. It is important, however, to pay attention to the possible disadvantages of a high level of specialization and to compensate for the disadvantages, e.g. by having judges rotate regularly.”69

B. OBSERVATIONS

42. Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”) refers to the main elements granting the quality of justice: fairness, transparency, timing, independence and impartiality of the judge, establishment of the tribunal by law.

43. Specialization of judicial work has to be considered and evaluated in this context.

44. Almost all ordinary judicial systems apply a main specialization between civil and criminal sectors. Over the years, coinciding with the increasing specialization of the law and with the complexity of international judicial cooperation, specialization in the courts has been extended.

45. This occurred primarily in the civilian sector, beyond the traditional areas of labor and family law, is mainly the field of commercial law, industrial law, corporate and business that has seen more applications.

46. Gradually, the same happends on the criminal side, where the traditional position was more in favour of a generalist judge with a broad view of the criminal system
Actually, with reference to the criminal court, it was diffused the strong fear - perhaps stirred by memories of some notorious special judge of the past – that a court focused on specific subjects (and not just on the right configuration of offenses but also on the merit’s profiles, on the recurrent facts and clues, on the more frequent rules of experience, on the social and cultural environment in which certain crimes find fertile ground) can be characterized as inquisitorial and its impartiality be tarnished, if not in practice at least in the perception of the recipients of the decisions and of the citizens in general.

47. The increasing phenomenon of organized crime, terrorism, corruption, financial crime and human being trafficking (with their increasingly complex factual configuration) has pushed towards specialization also on criminal side. This trend has been implemented both: - by regulation of the governance bodies and trough the ordinary means of internal organization of the courts (creation in of specialized chambers in courts with a sufficient number of judges); - by law previsions ruling the establishment of special / specialized chambers/ courts).

48. As the experience of the Council of Europe Member States demonstrates, specialization of the judicial work is a valid criterion for division of the labour and a tool to ensure the speedy, to reduce the margin of error in judicial decisions and to discourage useless and tiresome exceptions by the defense council. Specialization also ensures prestige in the courts, thanks to judges’ greater knowledge of special laws and factual backgrounds.

49. Specialization is also an instrument for a more efficient court management and case management. On the first point of view, because of the reduced number and typologies of cases, the flux of workload can be controlled easily and recurrent cases can be individuated timely with the adoption of adequate measures (Court / chamber meeting; distribution of the workload; reunion of cases having identical legal or factual issues). Case management is facilitated with thematic hearings, control of extra-legal knowledge, proper use of expertise.

50. Beside these undeniable advantages, serious risks have to be taken in consideration and prevented: lost of impartiality, lost of fairness of the trial, lost of the right to be trailed by an independent court, established by the law.

51. The heart of the choice for the special or specialist judge can be identified in the need – for the decision of certain categories of disputes – of possessing factual and technical-scientific knowledge that is not part of the ordinary knowledge’s baggage of the judge: to have a good knowledge of psychology helps the family and juvenile judge to manage difficult cases involving children; in the same way, to have a deep inside knowledge of mafia mechanisms and organization, or of the possible roads of the money in financial crimes, or of the connection between human being trafficking and customs officer corruption can help the judge to understand better the factual “nature” of the crime and to detect its presence; to understand the mechanisms of the business world and commercial companies can help the judge to find adequate solutions. This element, plus the reduced number of – although complex – legal issues, clearly explains the reasons of the binomial specialization – efficiency.

52. On the other side, this situation is problematic from several points of view:
- the exercise of the right of defense is more difficult when the judge has, before and outside the trial, a background factual knowledge that is not formally introduced in the trial debate through witnesses or expertises;
- a judge who is constantly focused on the protection of specific, limited interests and rights risks to become too close to the interest and the rights themselves and to loose his/her impartiality not only in the perception of parties and citizens but also in practice; a judge who become the “protector” of children, the “regulator” of the market, the super hunter of criminals will not have the detachment, broad vision, balanced perception of all involved positions that are requested to a good judge.
- to be a special /specialized judge means sometime to (feel to) be part of an “elected” group, with refined esoteric knowledge (i.e. in the field of bankruptcy, trade mark and design, company laws), that can easily become a center of lobbying interests; exchange of “good practices” with specialized lawyers or luxury training (possibly abroad) offered by “interested” public or private association/ foundation (embassies, donors, study centers …) can open the door to “oriented” interpretation of the law;

53. Beside the need of non-legal knowledge, other reasons may underline the choice for a special / specialized judge. In some disputes social classes are involved which don’t trust the ordinary judges and this distrust pushes the legislature to establish courts that give them the greater reliance and often even to establish special courts tending to subtract the litigant, not so much to ordinary courts, as, to ordinary forms of procedure.

54. The multiplicity of jurisdictions/ specialized competences multiplies the issues of jurisdiction, diminishes the authority of the ordinary judiciary, and establishes a state of things, just from another time, from the beginning of the XX° century when almost any category or corporation could obtain a special judge and almost any new law contained a new special jurisdiction. It is well known the role that the loss of the unity of the legal system, the protection of corporate interests, the lack of equality and substantial justice had on the raising of authoritarian regimes.

55. To enjoy the advantages of specialization avoiding the mentioned risks and disadvantages, concrete measures have to be adopted on the plan of the self-governing bodies regulations, court management and legal previsions.
The cases-law of the European Court for Human Rights contain useful indications.

56. The purpose of the provision that a Court must be “established by law” is to prevent that the organization of the judiciary in a democratic society is at the discretion of the executive and to ensure that this matter is governed by an act of the Parliament. Nevertheless, nor article 6 neither other Convention’s dispositions requires that the “courts established by law” meet theoretic constitutional concepts about the limit for interaction of powers70. What is relevant is to know if the Convention’s requirements are respected in specific cases.

57. There is no violation of article 6 if the members of an extraordinary court are professional judges, their mandate is not limited in time, their status is the same of other ordinary judges71.

58. Hearings before special adjudicatory bodies where specialist technical knowledge are required is admissible; members of these bodies can be practitioners in the specialist field. Independence and impartiality are not granted when the members of the body and the parties have direct links and common interests72

59. The power of military criminal justice should not extend to civilians unless there were compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis73.

60. Only in exceptional circumstances could the determination of criminal charges against civilians by a court composed, if only in part, of members of the armed forces be held to be compatible with Article 674

61. The power of military criminal justice should not extend to civilians unless there were compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis75.

62. Only in exceptional circumstances could the determination of criminal charges against civilians by a court composed, if only in part, of members of the armed forces be held to be compatible with Article 6.76

63. Judges cannot be submitted to a removal power by the executive.77

64. Courts and their judges shouldn’t be under administrative and material dependence from the executive.78

65. It is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused. To that end it has constantly stressed that a tribunal, including a jury, must be impartial from an objective as well as a subjective point of view79.

66. The personal impartiality of a judge or a jury member must be presumed until there is proof to the contrary80.

67. The proximity to the protected interests, the commonality of culture, the group loyalty81, the previous knowledge of the facts for the sake of office. 82

68. The reasoning of the decision and even of the verdict of the popular jury is an essential requirement of the fair trial83

C. RECOMMENDATIONS

2. Thecreation of extraordinary courts outside the ordinary court system must be avoided.

3. The creation of special courts/ chamber shouldn’t be the means for subtracting categories of citizens to the guarantees of the fair trial.

4. Only ordinary judges enjoying full prerogatives and guarantees of impartiality and independence must compose special chambers (and, if appropriate, special court).

5. When the technicality of the matter requires the presence of practitioners, every precaution must be taken to ensure their independence and impartiality (i.e. suspension from the exercise of their profession during the mandate).

6. Specialization as a principle of court management must be encouraged and improved.

7. All judges must have equal access to specialized functions (in specialized chambers both established by law and organized by the Head of Court). Governing bodies should adopt regulations to grant fairness and transparency of selections and mutations’ procedures.

8. All judges must have equal access to general and specialized training organized by Judicial Training Institutes and by European or International Judicial Training Network. The access to private training organized by “interested” associations should be regulated.

9. Specialization and flexibility have to be promoted at the same time. Governing bodies should regulate the duration of the permanence in a specialized function, promoting career pathway that enhance the gained knowledge and scheduling rotation in such a way to ensure the full functionality of the courts.

10. When specialization implies the possession or acquisition of extra-legal knowledge by the judge, a special care must be given to the implementation of the adversarial and of the reasoning in the aim of granting the right of defense.

11. Special / specialized judges shouldn’t receive special allowances or retributions if not related to particular job condition (i.e.: risk, permanence …)


1 Replies to the questionnaire have been received from 26 Countries: Albania, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Croatia, Czech Republic, Denmark, Finland, France, The Former Yugoslavia Republic of Macedonia, Georgia, Germany, Greece, Italy, Luxembourg, Monaco, The Netherlands, Norway, Romania, Slovakia, Slovenia, Spain, Sweden, Ukraine, United Kingdom.

2 See the attached summary of the answers to the questionnaire. The text is the result of a generalization of the answers; therefore, some specific case or solution can be omitted.

3 In some system, like Italy, the creation of new special courts (beside the Council of State and the Court of Account) is prohibited by the Constitution.

4 The borders between extraordinary court (juridiction extraordinaire), special court and specialized court is not always clear; see: the Slovenian extraordinary court (and special chamber at the Supreme Court) for corruption and organized crime established in 2003; the French Cour d’assises spéciale that in 1982 replaced the Cour de sureté de l’Etat and, since 1986, adjudicates the crimes of terrorism with a special composition of only professional judges; the Turkish Heavy Penal Courts (competent to examine crimes under article 250 of the Criminal Procedure Code). About this institution, The September 2006 Amnesty International’s (AI) report “Turkey Justice Delayed and Denied” noted that:

“In the context of a package of reforms to the Constitution passed in June 2004, the State Security Courts were formally abolished. The move was heralded by
the government as a ‘turning point’. After some uncertainty about their new name, the State Security Courts were transformed into Heavy Penal Courts. Heavy Penal Courts (ağır ceza mahkemeleri) already existed within the regular judicial system, but those that replaced the former State Security Courts were only competent to try cases involving organized crime, terrorism and state security. Though nominally integrated into the regular judicial system, these courts did not in fact deal with cases outside those areas… The new special Heavy Penal Courts thus continued to try cases that had started before them when they were State Security Courts.”, and: “Judges and prosecutors of the special Heavy Penal Courts are often the same individuals who presided over the same cases when they were before the State Security Courts, and lawyers have consistently complained to Amnesty International that there has been no change to the panel of judges they encounter during trial hearings. The new courts are still widely known by their old name. A large backlog of cases from the State Security Courts was thus transferred to the special Heavy Penal Courts and the main argument of this report is that the new courts have failed to confront some of the most serious violations of the right to fair trial perpetuated in the earlier courts.”

5 Official Journal L 011, 14/01/1994: Article 91: Community trade mark courts: “1. The Member States shall designate in their territories as limited a number as possible of national courts and tribunals of first and second instance hereinafter referred to as “Community trade mark courts” which shall perform the functions assigned to them by this Regulation.”

6 Official Journal L 003 , 05/01/2002: Article 80: Community design courts: “1. The Member States shall designate in their territories as limited a number as possible of national courts and tribunals of first and second instance (Community design courts) which shall perform the functions assigned to them by this Regulation.”


7 For the list of the courts see: Office for Harmonization in internal market (trademarks and designs), Communication No. 9/05 of the Office of the President of 28 November 2005 on the designation of Community design courts and Communication No. 10/05 of the Office of the President of 28 November 2005 on the designation of Community trademarks courts. Member States have not created new courts but designated some existing national courts (normally sitting in the capitals and major towns) as Community courts; Countries having Commercial Courts (like Spain, Portugal, Belgium) have designated these ones as first instance Community courts.

8 See articles 91 to 101 Reg (CE) n. 40/94 and articles 80 to 94 Reg (CE) n. 06/2002

9 Recommendation No. R (86) 12 of the Committee of Ministers to member States concerning measures to prevent and reduce the excessive workload in the courts (Adopted by the Committee of Ministers on 16 September 1986 at the 399th meeting of the Ministers' Deputies)


10 Denmark

11 Italy, France

12 This was the system in Former Yugoslavia and it can be found today in Serbia, BiH, Montenegro, FYROM; the system of minor offences courts is slowly evolving: branches of the basic courts (part of the ordinary judiciary) are replacing the minor offences courts.

13 The new appointed judges normally are assigned to vacant positions, selected by the governing bodies based on the needs of the courts. Each system previews that some position (i.e. in Italy unique criminal judge, juvenile judge) cannot be assigned to young judges. In the most part of the cases, young judges (auditeurs de justice) are called to choice their first destination taking in consideration the results of the entry exams and personal or family characteristics (children, handicap …).

14 Albania, Germany, Belgium, Croatia, Czech Republic, France, FYROM, Luxembourg, Netherlands, Rumania, Sweden, Slovakia

15 Bosnia and Herzegovina, Cyprus, Italy, Luxembourg, Slovenia, Denmark

16 Albania, Germany, Belgium, Bosnia and Herzegovina, Czech Republic, Finland, France, FYROM, Italy, Netherlands, Rumania, Slovenia, Spain, United Kingdom, Slovakia, Sweden, Georgia. Professional experience is evaluated by the governing body – in case of mutation from a court to another – or by the Head of the Court – in case of internal mutation from a function to another – in selection procedures, i.e., in France, Italy, Belgium, Spain, Sweden. Only in Norway the transfer is not possible.

17 Germany, France, Greece, Italy, Spain; i.e. in Italy, the participation to specific training action is a preferential title in view of the appointment as juvenile judge or labor judge.

18 Ukraine, where it is possible to file an application for a different position when having a five years seniority and where to be transferred to a specialized court to undergo through a qualification exam is needed.

19 Albania, Germany, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, France, Greece, Luxembourg, Netherlands, Norway, Rumania, Sweden, United Kingdom, Slovakia, Denmark, Georgia.

20 Italy, Belgium, Finland, FYROM, Spain, Slovenia, France. See answers to questions 2b and 19.

21 In Cyprus Judges of specialized courts cannot be candidates for the Supreme Court because of their limited experience and limited sphere of judicial activity i.e. dealing only with labor law or family law etc, while judges from the district court level deal extensively during their career with all aspect of civil as well of criminal law.

22 In Spain, for the provision of vacancies of Chief Justices of High Courts of Justice or Provincial Courts in those Autonomous Communities which have Special or Regional Statutes and their own official language, the Council General of the Judiciary will consider as a specific merit their specialization in such Regional or Special law and knowledge of the language spoken in that Community. In Italy, the perfect knowledge of german and Italian is a requisite to serve as a judge (or prosecutor) in Alto Adige / Sud Tirol region.

23 Only Finland and Norway give a negative answer related to their generalist system.

24 Bosnia and Herzegovina, Cyprus (dissemination of case law and bibliographies), FYROM, Italy, Netherland, Rumania, Sweden

25 Germany, Belgium, Bosnia and Herzegovina, France and Ukraine (dissemination of vacancies/ call for contributions), UK (“Some specializations will only be open to judges who have had specialist experience as lawyers before being appointed a judge: i.g. Family law judges; Intellectual property law judges. Others may gain experience once appointed as judges and then be permitted to do specialist work (but not in the two areas just noted).”)

26 Germany, Slovenia and Spain

27 Belgium, Greece, Italy, UK

28 Greece

29 Albania and Greece

30 Albania

31 Check Republic and Slovakia

32 Germany, Slovenia and Spain

33 Albania, Croatia, Romania

34 Germany, Belgium, Italy, Croatia, FYROM, Sweden

35 Greece

36 Albania, Slovenia, Croatia, FYROM

37 Albania and Belgium (for juvenile and investigative judges) are the exceptions

38 Courses are organized within the judicial training institute in Albania, Germany, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, France, FYROM, Greece, Italy, Netherlands, Rumania, Slovenia, Spain, Sweden, UK, Slovakia, Ukraine, Denmark. Courses organized by an institution different from the judicial training institute can be attended by judges in Germany, Croatia, Greece, Netherland, Sweden, Denmark. No courses are given in Bosnia and Herzegovina, Cyprus, Finland, Luxembourg, UK (where no judge would be appointed to a specialist position simply on the basis of having completed a “course” in a specialist subject) and Georgia


39 Germany, Bulgaria, France, FYROM, Italy, Netherlands, Slovenia, Spain, UK, Denmark, Greece (the ones reserved to Public Prosecutors), Georgia (civil, criminal, administrative law)

40 Albania, Germany, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Finland, France, FYROM, Greece, Italy, Netherlands, Rumania, Slovenia, Spain, Sweden, UK, Slovakia, Georgia. Czech Republic, Luxembourg and Denmark don’t have these kind of practical training experiences.


41 Belgium, France, Netherlands, Bosnia and Herzegovina (for the State Court), Italy; in this last Country, the highest number of registered lawyer in the role of the Court of Cassation (only seniority is requested) makes the prevision meaningless.

42 See Slovenia: Lawyers with a master’s degree from a certain legal field (e.g. intellectual property, labour law, media law) are entitled to a special title (“a lawyer specialist”) and an extra fee from the parties.

43 Belgium (labour courts); Bulgaria (divisions based on procedures - pre-trial proceedings, supervision in penal proceedings, supervision in civil proceedings, supervision in criminal enforcement, supervision in administrative proceedings, etc. - or crimes - ex. economic, international, etc. -), Croatia and Slovakia (criminal and civil), Czech Republic (specialized departments for higher courts), France (specialized department - i.e. financial crime, terrorism, organized crime in most important Courts); Italy (organized crime, financial crime, corruption in biggest courts), Luxembourg (economic department and juvenile department in Luxembourg district), Slovenia (serious crimes), E, S (international public prosecution offices with specialist competence in order to combat organized cross-border crime, three national prosecution offices – one for combating corruption, one for dealing with suspected offenses committed by the police and one for security-related cases., Swedish Economic Crime Authority), Ukraine (environment, military, transport), Denmark (organized crime), Germany (specialized departments), Bosnia and Herzegovina (state court prosecution office), Netherland (HBT, cybercrime, financial crimes, environment), R,mania (anti-corruption and organized crime); Greece, UK, Cyprus, Finland and Georgia don't have a specialized organization.

44 Albania (serious crimes public prosecution); Italy (juvenile, military, court of account); Bulgaria (military public prosecutor’s offices, military public prosecutor’s office of appeal, specialized public prosecutor’s office and specialized public prosecutor’s office of appeal)

45 Only exception the Land Consolidating courts in Norway.

46 Germany, Italy, France, Greece, Belgium, Bulgaria, Croatia. The Juvenile Judges association is one of the most diffused

47 Albania, Belgium, Bosnia and Herzegovina, Bulgaria, France, Netherland, UK, Ukraine

48 Bosnia and Herzegovina, France, Czech Republic, FYROM, Netherland, Romania

49 Germany

50 Belgium, Bulgaria, Cyprus, Czech Republic, France, FYROM, Romania, Slovenia, Spain, Slovakia

51 Belgium and Bulgaria

52 Bulgaria, Cyprus, Netherland, Slovenia, Spain, Ukraine

53 Bulgaria, FYRAM

54 Italy

55 Germany

56 Germany, Belgium, FYROM, Slovenia

57 Germany, Belgium, Croatia, Slovenia, Spain

58 France

59 France, Netherland

60 FYROM

61 FYROM

62 Slovenia

63 Germany, Belgium. Czech Republic

64 Belgium, Netherland, Bulgaria, Czech Republic, Greece, Netherland, Slovakia, Luxembourg

65 FYROM

66 FYROM, Slovenia

67 Italy

68 Spain

69 Netherland

70 Fruni c. Slovaquie - 8014/07, Judgment 2 June 2011; in this case the Court excluded that the prevision of the extraordinary Court for corruption and organized crime and of the special chamber at the Supreme Court violates article 6 of the Convention. The Court acknowledges that the Slovakian Constitutional Court declared the extraordinary court unconstitutional in the light of the national constitutional order.

71 Fruni c. Slovakia, 8014/07 – 2 June 2011

72 See Langborger v. Sweden, 11179/84, judgment 22 June 1989; in this case the applicant challenged the independence and impartiality of a body composed by professional judges and lay assessors nominated by a landlords’ association and a tenants’ association having an interest in the maintain of the clause he was asking to remove from his contract. The Court found a violation of Article 6 (1) of the Convention, since the applicant was not heard by an independent and impartial tribunal. It considered that the objective impartiality and independence of the lay assessors was not guaranteed, since they had been nominated by, and had close links with, two associations which both had an interest in the continued existence of the negotiation clause.

73 ERGİN - Turkey (No 47533/99) Judgment 4.5.2006 [Section IV]. In this case the applicant, a civilian standing trial before a court composed exclusively of military officers, was charged with offences relating to propaganda against military service, and he was apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings. The Court founds that principle of impartiality was violated stressing that the applicant legitimately feared that the General Staff Court might allow itself to be unduly influenced by partial considerations.

74 Incal v. Turkey, 9 June 1998; ERGİN - Turkey (No 47533/99) Judgment 4.5.2006 [Section IV].; OCALAN - Turkey (N° 46221/99) Judgment 12.3.2003 [Section I]; in this last case the Court observes: “It was true that the State Security Court was composed of three civilian judges when the applicant was convicted, as, following a constitutional amendment, the military judge who had initially been a member of the court had been replaced by a civilian judge before the applicants lawyers had made their submissions on the merits of the case. The civilian judge had sat as a substitute judge and had followed the trial proceedings from the beginning. However the last-minute replacement of the military judge was not capable of curing the defect in the composition of the state security court that had led the Court to find a violation on that point in its İncal and «iraklar judgments, as most of the trial had already taken place before the military judge ceased to be a member of the trial court. It was the presence of the military judge for most of the trial that had given rise to the problem and not the change in the court’s composition. A further factor was the exceptional nature of the trial itself, which concerned a high-profile accused who had been engaged in a lengthy armed conflict with the Turkish military authorities and sentenced to death. The presence of the military judge could only have served to raise doubts in the accused’s mind as to the independence and impartiality of the trial court.”

75 ERGİN - Turkey (No 47533/99) Judgment 4.5.2006 [Section IV]. In this case the applicant, a civilian standing trial before a court composed exclusively of military officers, was charged with offences relating to propaganda against military service, and he was apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings. The Court found that the principle of impartiality was violated stressing that the applicant legitimately feared that the General Staff Court might allow itself to be unduly influenced by partial considerations.

76 Incal v. Turkey, 9 June 1998; ERGİN - Turkey (No 47533/99) Judgment 4.5.2006 [Section IV].; OCALAN - Turkey (N° 46221/99) Judgment 12.3.2003 [Section I]; in this last case the Court observes: “It was true that the State Security Court was composed of three civilian judges when the applicant was convicted, as, following a constitutional amendment, the military judge who had initially been a member of the court had been replaced by a civilian judge before the applicant’s lawyers had made their
submissions on the merits of the case. The civilian judge had sat as a substitute judge and had followed the trial proceedings from the beginning. However the last-minute replacement of the military judge was not capable of curing the defect in the composition of the state security court that had led the Court to find a violation on that point in its İncal and «iraklar judgments, as most of the trial had already taken place before the military judge ceased to be a member of the trial court. It was the presence of the military judge for most of the trial that had given rise to the problem and not the change in the court’s composition. A further factor was the exceptional nature of the trial itself, which concerned a high-profile accused who had been engaged in a lengthy armed conflict with the Turkish military authorities and sentenced to death. The presence of the military judge could only have served to raise doubts in the accused’s mind as to the independence and impartiality of the trial court.”


77 Henryk Urban and Ryszard Urban v. Poland - 23614/08; in this case, the applicants complained about the lack of independence of the trial court, composed of an assessor (junior judge, "asesor sadowy") rather than a judge. The Court – like already the Polish Constitutional Court - considered that the assessor in the applicants' case had lacked independence, as she could have been removed by the Minister of Justice at any time during her term of office and that there had been no adequate guarantees protecting her against the arbitrary exercise of that power by the Minister. It worth to underline that the Court find not relevant the fact that the Government’s statistics indicating that the Minister of Justice had never exercised the power to remove an assessor. Differently, in Fruni v. Slovakia the Court observes: “Ils pouvaient être démis s’ils cessaient de satisfaire aux conditions requises pour bénéficier d’une habilitation de sécurité, mais il semble que cela ne se soit jamais produit et, en tout état de cause, le juge concerné pouvait en pareil cas solliciter un contrôle juridictionnel.”.

78 See: MIROSHNIK - Ukraine (No 75804/01) Judgment 27.11.2008 [Section V]. In this case, the applicant filed a claim against the Ministry of Defense about his dismissal from the military in front of a regional military court. The Court decided that he didn’t have the opportunity to present his case in front of an independent tribunal. Actually, until 2002, the judges of the military courts were military servicemen, and in that capacity they constituted a part of the staff of the Armed Forces subordinate to the Ministry of Defence. It was up to the Ministry of Defense to provide the judges of the military courts with appropriate flats or houses if they needed to improve their living conditions and to finance logistics and maintenance of the military courts on a practical level. These aspects, taken cumulatively, had given objective grounds for the applicant to doubt whether the military courts complied with the requirement of independence when dealing with his claim against the Ministry of Defense. Salov v. Ukraine, 65518/01, judgment 06-09-2005; the doubt of the applicant about impartiality of the court was justified for the Court taking in consideration that reducing the State budget for the judiciary and lowering judicial salaries the Cabinet of Ministers acted against independence of the judiciary; the statement on violation of article 6 was based also on the organizational structure of the courts, in particular the relationships between the Presidium of the Regional Court and the District courts.

79 see Hauschildt v. Denmark, 24 May 1989, § 46, Series A no. 154; Kyprianou, ; Pullar v. the United Kingdom, 10 June 1996, § 30, Reports of Judgments and Decisions 1996-III; and Gregory v. the United Kingdom, 25 February 1997, § 43 Reports 1997-I; HANIF AND KHAN v. THE UNITED KINGDOM, nos. 52999/08 and 61779/08, 20 December 2011

80 see Piersack v. Belgium, 1 October 1982, § 30, Series A no. 53; Kyprianou, cited above, § 119; Sander v. the United Kingdom, no. 34129/96, § 25, ECHR 2000-V; and Szypusz v. the United Kingdom, no. 8400/07, § 80, 21 September 2010; HANIF AND KHAN v. THE UNITED KINGDOM, nos. 52999/08 and 61779/08, 20 December 2011, about police office ras jury member, in which the Court affirms: “The Court is of the view that, leaving aside the question whether the presence of a police officer on a juror could ever be compatible with Article 6, where there is an important conflict regarding police evidence in the case and a police officer who is personally acquainted with the police officer witness giving the relevant evidence is a member of the jury, jury directions and judicial warnings are insufficient to guard against the risk that the juror may, albeit subconsciously, favor the evidence of the police”

81 HANIF AND KHAN v. THE UNITED KINGDOM, nos. 52999/08 and 61779/08, 20 December 2011

82 Vera Fernández-Huidobro v. Spain (application no. 74181/01). The applicant was Minister of State for Security in the Ministry of the Interior. Criminal proceedings were brought against him on counts of misappropriation of public funds, holding a person against his will and belonging to an armed group. He complained of a lack of independence and impartiality on the part of central investigating judge no. 5 (in view of his poor relationship with that judge and the latter’s connection to the subject matter of the proceedings in question) and, more generally, of a violation of his right to a fair trial under Article 6 § 1. He also alleged a violation of his right to presumption of innocence under Article 6 § 2, complaining that the investigating judge had been biased and that statements made by co-defendants with a view to securing personal advantages had been taken into account by the investigating judge as evidence against him. Applying the objective test, the Court examined in particular whether the post held by central investigating judge no. 5 within the Ministry of the Interior (where he would have had dealings with the persons concerned by the GAL case) could have raised an issue as to his impartiality once he had returned to his post as a judge and taken over the investigation of the pending criminal case. It considered that the applicant’s concerns on that account were objectively justified. After he had left political office to resume the investigation in the present case, central investigating judge no. 5 did not satisfy the impartiality requirement of Article 6. See also Procola v. Luxembourg in which the same judges had performed both advisory and judicial roles in the case

83 CASE OF TAXQUET v. BELGIUM, (Application no. 926/05), JUDGMENT, 13 January 2009; in this case, issuing from a Cour d’Assis trial, the Court has evaluate that “the questions to the jury were formulated in such a way that the applicant could legitimately complain that he did not know why each of them had been answered in the affirmative when he had denied all personal involvement in the alleged offences. The Court considers that such laconic answers to vague and general questions could have left the applicant with an impression of arbitrary justice lacking in transparency. Not having been given so much as a summary of the main reasons why the Assize Court was satisfied that he was guilty, he was unable to understand – and therefore to accept – the court's decision. This is particularly significant because the jury does not reach its verdict on the basis of the case file but on the basis of the evidence it has heard at the trial. It is therefore important, for the purpose of explaining the verdict both to the accused and to the public at large – the “people” in whose name the decision is given – to highlight the considerations that have persuaded the jury of the accused's guilt or innocence and to indicate the precise reasons why each of the questions has been answered in the affirmative or the negative.  In these circumstances, the Court of Cassation was prevented from carrying out an effective review and from identifying, for example, any insufficiency or inconsistency in the reasoning”.