Opening Address by the Slovenian Minister of Justice, Aleš Zalar, at the Joint Plenary Meeting of the Consultative Council of European Judges and Consultative Council of European Prosecutors

Members of the Consultative Council of European Judges, members of the Consultative Council of European Prosecutors, and dear guests,

A heartfelt welcome to all of you! I am pleased to see some familiar faces again, and as a longstanding member of the Consultative Council of European Judges (CCJE), I am particularly pleased that this time I have the opportunity to welcome you to my country in the capacity of Slovenian Minister of Justice on the occasion of the ceremony marking the end of Slovenia's chairmanship of the Committee of Ministers of the Council of Europe. This joint meeting is exceptional for several reasons, which makes us feel greatly honoured. One of the reasons is that, today, the two consultative councils are coming together in a joint plenary meeting for the first time, and it is also the first time that the meeting is not being held in Strasbourg. Furthermore, our gathering can be considered historic because on this very occasion the two bodies should, for the first time, adopt a joint opinion, which not only concerns a momentous relationship between judges and prosecutors but also represents a specific milestone in using new methods of conveying the subject matter in the form of the Bordeaux Declaration, which could also be called the Brdo Declaration, and the Explanatory Note. I would also like to take this opportunity to sincerely congratulate all members of the CCJE Bureau for being awarded the international prize by the "Justice in the World" Foundation in recognition of your work to strengthen the European judiciary. The award is a certain confirmation that you are doing an excellent job.

Coming from different Member States of the Council of Europe, it is you, esteemed judges and prosecutors, who represent the voice of independence, competence and effectiveness of the European judiciary and prosecution bodies that constitute the basis for implementation of the rule of law all across Europe.

Your previous opinions have had far-reaching effects and in certain cases significantly influenced amendments to legislation and practices in the Council of Europe Member States.

I am pleased to see that they have also met with a positive response in Slovenia, where it is not only the parties to proceedings that refer to the CCJE's opinions, but even the Constitutional Court of the Republic of Slovenia in its decisions. The latter considered your opinions as an interpretive tool in deliberating the content of Article 125 of the Constitution, which defines the independence of judges. It did so for the first time in 2006¹ and subsequently in its decision of 2008.² Both constitutional decisions were the cornerstone for the legislature, the National Assembly of the Republic of Slovenia, in regulating the salaries of judges and prosecutors in a manner comparable to the status of mutually comparable officials of the other two branches of power (legislative and executive), thus ensuring equality between all three branches of power as regards the material status of their officials. As the proposer of laws, the Slovenian Government has also referred to the CCEJ's opinions, most recently in proposing an amendment to the Courts Act, adopted by the National Assembly yesterday. As regards the role of the Judicial Council, it invoked Opinion No 10, while in regard to standards which concern the independence of the judiciary, it referred to Opinion No 1. This only confirms my personal opinion about the highly important and demanding role you play as members of the CCEJ and CCEP.

In these next days, a great deal of discussion will be devoted to the relationship between the judiciary and prosecution bodies, followed by the adoption of your joint opinion. Usually and most frequently, cooperation between a judge and a state prosecutor takes place in a criminal proceeding; however, this is far from being the only opportunity for interaction, which indeed depends on the scope of powers granted by the state to prosecution outside the penal area.

It is beyond any doubt that, irrespective of traditionally differing regulation of the judiciary and prosecution and their mutual relationship in various national systems, their roles in a criminal proceeding in which they appear as holders of prosecution and adjudication functions are different, yet intertwined and complementary. Most sensitive and traumatic for both the defendant and witnesses due to its repressive nature, it is indeed in a criminal proceeding where mutual respect and understanding of different positions is crucial for successful and lawful conduct of the proceeding. If in a given case the postulate of every judge is impartiality, then it should be observed that the prosecution considers the case from a different angle, meaning that it must prove that a person brought before the court is guilty. Although the prosecution must be fair, objective and impartial in dealing with a criminal offence, it is nevertheless proper that the approval of investigation measures, which most profoundly affect the constitutionally protected rights of individuals, should be subject to preliminary judicial supervision and approval. On the other hand, the prosecution has significant influence in deciding on cases to be submitted to the court for adjudication, which it does more or less autonomously, depending on the established principle of legality or opportunity. This is a great responsibility with potentially wider social consequences in terms of crime policy making. Although the verdict as to whether the guilt of the accused has been proved is delivered by the court, the state prosecutor still has the possibility of appealing to a higher instance producing a retrospective effect.

Thus, we may say that both actors are highly intertwined and interdependent. Recently, however, it has been observed that their relationship has been subject to certain changes. Due to increasing crime rates and the reduction of court caseloads, certain alternatives – traditionally more typical of the Anglo-American system – are also being promoted in the area of prosecution on the Continent that grant prosecutors certain elements of powers usually reserved for the judiciary. Some refer to this development as the "vanishing trial".

The relationship between the two actors and their status in the judicial system is also influenced by material and working conditions. These must be as equal as possible. The same applies to ensuring their impartiality and independence by considering, of course, the hierarchical structure of the prosecution and its different position in the system of the division of powers. It is fundamental for an efficient and competent judicial system enjoying the support of the general public to be ensured permanent and independent training. The state, however, must provide that these responsible offices will be assumed by persons with high ethical standards and selected according to prescribed and objective procedures.

Ladies and Gentlemen,
The relationship between the judiciary and the prosecution is complementary, complex and subject to evolution. Criminal justice is in many ways a herald of events in a society. We may observe a universal emphasis on security and an aspiration for "zero risk". There is also an aspiration for greater efficiency, productivity and transparency in the functioning of the judiciary. On the other hand, the importance of the freedom of any individual is making a breakthrough. This is where the introduction of the confession of guilt or defendant's negotiations with the prosecutor on sentences or types of charges takes its roots. Recently, we tend to speak more often about criminal risk than about a law that must not be broken. In order to deter perpetrators from committing crimes, we should appeal to their interests rather than their sense of morality. On the other hand, the interests of victims of criminal offences are being increasingly put in the forefront of attention. The model of a judge for victims introduced last year in France has opened a number of dilemmas. May, for example, a judge advocate the interests of a person at all? All this causes certain confusion in the justice system in view of a new penal philosophy, which, as some people argue, has not yet been properly understood by many. Therefore, the opinion submitted by you at the close of the plenary meeting will be a welcome guideline for regulating the relationship between the judiciary and prosecution in practice at the level of the Council of Europe Member States.

And finally, at the end of Slovenia's chairmanship of the Council of Europe Committee of Ministers, I would like to wish Switzerland every success as the next chair. While looking forward with eagerness to the conference in Interlaken, where the future of the European Court of Human Rights will be discussed, we are pleased that, as for the Slovenian chairmanship, the efficient operation of the Strasbourg Court remains a priority for the Swiss chairmanship. Let us hope that these discussions will contribute to the Court's brighter future and increase its capacity to deal with its caseload. We also pin our hopes on discussions about strengthening the independence of judges of the Strasbourg Court through the procedure of their appointment and assignment. The opinions of the CCEJ, particularly Opinions 1, 3 and 5, could certainly serve as an inspiration in addressing this issue.

Ladies and Gentlemen, I wish you every success in your work and a constructive discussion, and, of course, a very pleasant stay in Slovenia.
Thank you for your attention.