Overview of general European Standards
on High Courts – (theory and practice)
(on the occasion of the Conference on the Reform of the High Court of Albania – 6th-7th June 2012 Tirana-Albania)
Let me say at the outset that I am indeed honoured to have been invited by the organisers to address this very important and even crucial Conference on the Reform of the High Court of Albania. I have been given the task to talk about general European standards on High Courts. In so doing there will without doubt be some overlap with other presentations later on. Another observation is that the subject is broad and general so that only an overview will be presented. However, even with an overview not everything may be covered. Therefore, you will allow me to focus primarily on the basic issue of judicial independence, which by itself has many facets. The way one approaches this fundamental question, other secondary issues are also addressed and potentially solved. As the philosopher Roscoe Pound put it, our perception to the problem addressed for discussion, shapes both.
First, let us pose an initial question: can we really talk about the existence of general European standards? If there are such standards, are they generally acceptable across Europe? It is well known that there is a diversity of judicial systems in Europe, itself a reason for having different concepts of justice, which also affect the way a High Court, functions. The great dichotomy of the two systems of judicial thinking, that of the common law and of the continental law, on the one hand and the conceptual differences between western European countries and the new democracies of eastern Europe, have for historical, political and cultural reasons allowed for the emergence of a variety in judicial theory and practice.
One could identify however a common theme running through European thinking. The notions of liberty and freedom are both basic and inherent in humankind. In practical terms, these ideas have been translated into minimum human rights for all, which in turn cannot be fully exercised unless and until a truly independent judiciary exists. At the same time the state should also be willing (for this is what democracy is all about), to function based on the rule of law. Many European Conventions, commissions and organisations, strive for establishing, maintaining and spreading in a sustained way the idea of democracy. Apart from instruments and bodies that will be mentioned throughout this presentation, one should also refer to Resolution Res (2002) 3 of the Council of Europe, adapting the revised statute of the European Commission for Democracy through Law, known as the Venice Commission. In Article 1, the Commission aims to fulfil, among other ideas, the strengthening of the understanding of the legal systems of the participating states to bring them closer together and to promote the rule of law and democracy.
These are in essence the three overall characteristics of European standards of justice. A free society, willing to uphold and enforce human rights, through an independent judiciary.
I believe that one of the best ways to reflect on European standards on the judiciary is to have recourse to the Opinions of the Consultative Council of European Judges, known as CCJE. The Consultative Council of which I am a proud member since its inception having also participated in its working groups for a number of years, is a body composed solely of serving Judges (the only such body), from all countries of the Council of Europe. It was set up in 2000 by the Ministers of the Council of Europe given the task to study, prepare and issue Opinions on practically every aspect of the functioning of justice across Europe. The way it functions takes into account the existing diversity of judicial thinking across Europe. By means of questionnaires addressed to all judiciaries of the Council of Europe followed by an analysis made by an expert appointed to report on each subject, CCJE, while taking into account and respecting the different approaches in Europe, identifies and recommends what minimum standards of justice should in practice be followed throughout the continent. Therefore, you will allow me to refer extensively to some of its Opinions. I should perhaps add here that a number of non-European countries, which attend the meetings as observers, from Japan, to Mexico, steadily follow the plenary sessions of CCJE each November. In addition, its Opinions has found their way and have been recognised in a number of other fora not only in Europe but abroad, in countries such as Brazil*1 and in African states*2.
With your indulgence, I will also draw examples from my own jurisdiction during this speech if only to highlight some of the points made, and give the practice followed in a country that is since 2004, a member state of the European Union (it has been a member of the Council of Europe since 1962), with basically a common law tradition.
Supreme Courts, High Courts or Appellate Courts are by definition judicial authorities that have jurisdiction to adjudicate usually as a final Court of competence, on all matters that are referred to them from lower Courts by way of appeal. Moreover, they are also entrusted, depending on the constitutional structure of the country, with other specific jurisdictions that were thought fit by the drafters of the Constitution to be allotted to the High Court.
*1 (Brazil, Forum For-JVS – international conferences on terrorism).
*2 for example, the International Conference at Lome, Togo, November
2006, on the Independence of the Judiciary.
The Supreme Court of Cyprus is a fusion between the previous High Court and the Supreme Constitutional Court, both established by the 1960 Constitution upon the country´s independence. While the High Court was the highest Appellate Court, the Supreme Constitutional Court had exclusive jurisdiction to determine all matters relating to any recourse referred to by the President or Vice-President of the Republic on the ground that any law or decision of the House of Representatives discriminates against either of the two Communities, Greek or Turkish, as well as on other matters pertaining to solving conflict of power issues between the various state organs. It was also vested with the important jurisdiction of ruling on any question of repugnancy or inconsistency of any law or decision with any provision in the Constitution. All these jurisdictional powers are now vested in the one Supreme Court established by law in 1964, for reasons that relate to the political history of the country. It is interesting to note from the material provided for this conference, that here in Albania, as in many other countries, there is a similar juridical structure in that a constitutional court deals primarily with constitutional matters, while a High or Supreme Court hears appeals, from courts of appeal, providing a third tier system of justice. In Cyprus, due to the size of the country, only a two-tier system exists.
Having in mind the importance of the function of High or Supreme Courts as guardians of fundamental rights, the countries in Europe, be they members of the European Union or the Council of Europe family or both, have tried to establish an agreed general framework on judicial standards. Of foremost importance is the independence of the judiciary. No state may function according to the rule of law without entrenching the independence of its judiciary. It is precisely this independence, which guarantees a fair trial, a prerequisite for any free society operating within the principles of lawfulness and legality. The independence of the judiciary is a fundamental principle and according to the recital to the United Nations basic principles on the independence of the judiciary of 1985, echoed in the Beijing Statement on principles of the independence of the judiciary in the Lawasia Region of August 1997, and of course in Articles 5 and 6 of the European Convention of Human Rights of 1950, as well as in many other European and international legal instruments, judges “are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens.”.
The theory sets in an axiomatic form the essence of the independence of the judiciary. The problem however arises: how does one puts theory into practice? One way European judicial systems try to do this is by following the separation of powers doctrine. It is self evident that the three state powers need to perform their respective functions independently of each other, so that the judiciary, as one of the three basic but equal to the other pillars of a modern democratic state, may also function independently. The principle of separation of powers is not universally followed however, not even at the European level. There are variations on the theme of separation and it is not the ambit of this speech to go into any detail. It has however a tremendous impact on how independent the judiciary actually is or appears to be so. I talk of appearance, as very often in modern societies with the advent of human rights in post World War II Europe, appearances are of primary importance, as “Caesar´s wife should be free from suspicion” as the proverb goes following Caesar´s decision to divorce his second wife Pompeia*. In the U.K.’s legal system this was in essence followed in 2005 by passing a law that created the Supreme Court to replace the Judicial Committee of the House of Lords, so as to completely disassociate itself from the legislative work of the House of Lords. It even moved its venue to another place.
In Cyprus, a colony of the British Empire up to 1960, the constitutional drafters without stating the principle directly in any Article of the Constitution, have ensured that the three state powers are in essence separate from each other to a degree that one may well talk of a complete separation of powers. As far as the judiciary is concerned, this is safeguarded by the appointment of all judges of the lower Courts in Cyprus by the Supreme
* (Cicero: Letters to Atticus 1.13).
Council of Judicature, which is composed of the thirteen justices of the Supreme Court, having sole competency on the matter. No direct or indirect influence exists or is even allowed from the executive or the legislature. I understand from the Analytical Report of the European Commission´s Opinion on Albania´s application for membership of the European Union, that appointments to the first and subsequent position of Judges in the District Courts and on Appeal Courts are made by the President of the Republic on the proposal by the High Council of Justice, which however does not have competence over the High Court.
This brings me to the all-important aspect of judicial Councils, the role and function of which should in no way be underestimated. In its Opinion No. 10 of 2007, the Consultative Council of European Judges stated the following (para 8):
“The Council of the Judiciary is intended to safeguard both the independence of the judicial system and the independence of individual judges. The existence of independent and impartial courts is a structural requirement of a state governed by the rule of law.”
Not all countries have a Judicial Council, but whatever body exists for the appointment, promotion and discipline of judges should conform to certain absolute prerequisites, in order to guarantee impartiality and independence. We see that the two notions go hand in hand. Both independence and impartiality are equally important. You cannot really have the one without the other. Paragraph 15 of Opinion 10, further recommends that the composition of the Judicial Council or the Council for the Judiciary “..... shall be such as to guarantee its independence and to enable it to carry out its function effectively.”
In the paragraph following, the Consultative Council states its opinion that the Judicial Council could either be composed solely of judges or have a mixed composition of judges and non-judges, but in both cases and I quote “the perception of self-interest, self-protection and cronyism must be avoided.” My jurisdiction is perhaps an almost unique case of a Council for the Judiciary that is composed solely of judges. This was not always the case. Up to 1987, the Supreme Council of Judicature was composed of the President and two senior judges of the Supreme Court, the most senior President of the District Court and the most senior District Court judge from the District Court level, the Attorney-General of the Republic, a constitutionally autonomous and independent Officer of the state, and one lawyer with at least 12 years practice.
Experience has however shown that in order to avoid outside influence directly or indirectly from political parties, or lawyers´ associations or pressure groups, it was best to abolish the old system and replace it with a Judicial Council solely of judges. The danger of having such a body is that problems might arise from the fact that it could be considered as a “closed shop” which lacks enough transparency and it does not reflect or take into consideration society´s other main actors so that their voices may be heard. I well remember when we were discussing the matter in our working group, in CCJE, this came up as a strong objection especially form certain central European countries to having a body composed solely of judges. I admit there are no easy solutions. Either a body of judges or a body of mixed judges and other jurists or actors may well be influenced by factors unrelated to the furtherance of the interests of justice. Ultimately, it boils down to the character of the individual members of such a body, as well as the maturity of the society, judicially and politically, in which the Judicial Council operates. The Consultative Council in either case took the view that judges should be elected by their peers so that any manipulation or undue pressure might be avoided. The important thing to note is to limit as far as possible the influence of political parties, parliament or the executive. To do this I trust there is convergence in the opinion that a body solely of judges or even of a majority of them would overall be in a better position to select and appoint judges on their own individual merit, character-wise and knowledge-wise, than a body that may well be influenced by considerations other than strict judicial norms. In the end, judges should be totally non-political. One needs to build up a tradition of judicial independence. This is the only way to ensure adherence to Article 19 of the Universal Declaration of Human Rights of 10.12.1948, that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal ...” The same principle is proclaimed in Article 14, paragraph 1, of the International Covenant on Civil and Political Rights, Article 6 of the Convention for the Protection of Human Rights, similar to Article 30 of the Cyprus Constitution. In addition, of course mention must be made of Article 47 of the Charter of Fundamental Rights of the European Union.
That is why in the Commentary of the Bangalore Principles of Judicial Conduct* it is stated in para. 135, in unequivocal terms that: “A judge´s duties are incompatible with certain political activities, such as membership of the national parliament or local council.”. A judge needs to appear as “de-politicized” as possible. If that should be the measure for a judge, it follows that the contrary should also hold true. If Parliament or the Executive are in a position to influence the appointment of judges the game is lost. This concern is voiced by Sir Henry Brooke in his Report on the High Court of Albania of 11th October 2010, on the influence of the Parliamentary Assembly which has to consent to the appointment of judges on the High Court. The power of veto from the Assembly has blocked many candidates nominated by the* United Nations – Office on Drugs and Crime Publication - September 2007
President, no matter how well fitted a candidate might be for appointment to judicial office in the highest Court of the land. It is also noted that despite the fact that the President has set up a Commission to advice him on suitable candidates “there is no independent, non-party political, element in the ultimate decision making body.”.
Two problems arise here. If a system of justice is to strike for the best it should take steps to eliminate completely or to the greatest possible extent any political intermingling with the affairs of the judiciary. Having a Judicial Council composed solely or mainly of Judges ensures that appointment, promotions and discipline of judges are in the hands of judicial experts, i.e. professional judges that are free or should be free from political influence. Establishing a well-respected Judicial Council, which functions according to the rule of law, is the first problem to solve. Its solution also takes care of the lower courts structure. However, the second problem is even more acute. Who sets up the Judicial Council? Who appoints it members? Across Europe, the Judicial Council is not necessarily identified with the judges of the Supreme or High Court. In many countries it is a different body. The Consultative Council of European Judges recommends in paragraphs 25-26, that, “In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary”, reflecting, the widest possible representation of the judiciary at all levels. Non-judges should also be appointed by a system that entrusts such appointments to non-political authorities. Should such members be appointed in a particular state by Parliament, then they should not be members of Parliament. In any event both judges and non-judges members must be selected on the basis of their competence, experience, understanding of judicial life (a very important idea), capacity for discussion and culture of independence. CCJE makes also the all-important recommendation that it “does not advocate systems that involve political authorities such as Parliament or the executive at any stage of the selection process.... All forms of appointment by authorities internal or external to the judiciary should be avoided.”
Therefore, a system that enables interference with the appointment of members of the Judicial Council falls short of the principles enunciated. In systems that the appointment of Supreme Court Judges befalls on the President of the Republic, the danger of political appointments or appointments that are not made following the highest standards of judicial life becomes more evident if the nomination of the appointment is also made subject to approval by the legislative body. The CCJE approved on 17.11.2010, “a Magna Carta of Judges (Fundamental Principles)” on the occasion of its 10th anniversary, during its 11th plenary meeting. It this Magna Carta, all the essential themes found in its previous 12 Opinions were summarised and codified. It is apt to draw attention to the fact that all these opinions as well as the Magna Carta were brought to the attention of the Committee of Ministers and were approved, thus all Opinions have the sanction of the Committee of Ministers as regards the principles of justice that should be followed by all member states of the Council of Europe. Under the title “Body in charge of Guaranteeing Independence”, it is stated that each state shall create a Council for the Judiciary or another specific body, itself independent form legislative and executive powers, endowed with broad competences for all questions concerning their statute as well as the organisation, the functioning and the image of judicial institutions.”
In Cyprus, the appointment of judges of the Supreme Court is the sole responsibility of the President of the Republic. Up to 1988, the Courts of Justice Law provided that all appointments were made upon receiving the views of the Supreme Court itself. Despite the abolition of this provision, all Presidents of the Republic have up to now during the 52 years of the Republic´s independence sought the views of the members of the Supreme Court which views have been followed on all appointments except on two occasions, but only once was an appointment made outside the judiciary having a lawyer elevated directly to the Supreme Court. I should mention here that once the President of the Republic in exercising his constitutional right to appoint a suitable judge to the Supreme Court wrote to the Supreme Court to receive its views, also stating however that he would seek the opinion of the Attorney-General and of the Bar Association. To this the Supreme Court reacted by refusing to state its views as the President´s attempt to receive the views of non-judges was considered an affront to the independence of the judiciary and an indirect way of having other actors influence appointment based on perhaps dubious criteria. The President assured that he would in no way allow the opinion of lawyers to circumvent or undermine the gravity of the Supreme Court´s opinion, an attitude that solved the matter.
My own personal solution to the problem in order to avoid such phenomena would be that after the initial appointment i.e. the very first appointment of the judges of the Supreme or High Court by the President of the state or the executive power in general, the judicial body should be self-governed i.e. it should decide by itself who should be appointed to the Supreme or High Court and the executive head of the state should have to appoint the specific person. The objection once again to this is that of self-protecting interests and cronyism. The ultimate answer, I think, is to be sought in the maturity of the society involved. In the U.K. for example, a country with a very long and strong legal tradition and with no written constitution, the now Supreme Court Justices (the Supreme Court was established by the Constitutional Reform Act 2005), are selected by a Selection Commission set up by the Lord Chancellor which in turn consults senior judges who are not themselves candidates. A nomination is accepted or rejected by the Lord Chancellor. Then the Prime Minister makes a final recommendation to the Queen, who makes the appointment.
Enough on Judicial Councils. Let me now turn to the other important aspect of independence and impartiality. I have tried up to now to establish the direct connection between independence and the principle of separation of powers, with reference to Judicial Councils. Of equal importance in ensuring independence and autonomy is the term of service of judges whether of High or Supreme Courts or of subordinate courts. Again, there is no lack of pronouncements on the need to have a judiciary not subject to the whims of the political party in power. In its very first Opinion, CCJE on the all important subject entitled “Independence of the Judiciary” in 2001, (the full title is “Opinion No. 1 on Standards concerning the Independence of the Judiciary and the Irremovability of Judges”, CCJE had this to recommend in paragraph 60, after reviewing the practices followed in various European countries or Council of Europe member-states:
“(a) that the irremovability of judges should be an express element of the independence enshrined to the highest internal level.”
Let me stop here for a moment. This sub-paragraph refers back to paragraph 16 of the same Opinion, where the European Charter on the Statute for Judges is mentioned and which provides that, “In each European State, the fundamental principles of the statute of judges are set out in internal norms at highest level, and its rules in norms at least at the legislative level.” CCJE adopted this specific prescription of the European Charter instead of the less specific provisions of the first sentence of Principle 1.2. of Recommendation No. R (94)12, now replaced by Recommendation CM/Rec (2010) 12 of 17.10.2010. Irremovability should therefore be secured at the highest internal level. In practice this is done by a Judicial Council, which itself is independent of the two other powers. The best way however is for tenure and irremovability of judges to find their way into the Constitution of the country or under a specific legal regime. To this end, Rec. (2010)12, recognises in paragraph 49 that, “Security of tenure and irremovability are key elements of the independence of judges”, while paragraph 7, stipulates that the independence of the judge and of the judiciary should be enshrined in the constitution or at the highest possible level.
In Cyprus, the Constitution specifically stated that judges of the Supreme Court, once appointed there, hold office to the age of 68. All other judges enjoy tenure by the Courts Law of 1960, enacted right upon independence, initially until the age of 60, now until the age of 63. The salaries of the Supreme Court Judges are fixed upon the Consolidated Fund so that they are secured until retirement. In like manner, other provisions in the Constitution specifically state that the remuneration and other terms of service of judges at all levels cannot be varied to their detriment after their appointment. This provision corresponds to a similar provision in the United States Constitution. So both tenure and remuneration are safeguarded at the highest possible level as the Constitution is the basic legal instrument of the country and the House of Representatives may not pass any law contrary to its provisions. As regards irremovability, Article 133 provides that Supreme Court Judges are permanent members of the Republic´s judicial service and cannot be dismissed except on the ground of misconduct. Similar provisions cover all other judges of the subordinate courts.
It follows that if you have tenure, remuneration and irremovability entrenched at the highest possible level, no political party or outside influence may attempt to interfere with the independence of the judiciary. Such provisions are in direct conformity with the European Charter on the Statute of Judges, while paragraph 46 of Opinion No. 1 of CCJE, succinctly states that:
“European practice is generally to make full-time appointments until the legal retirement age. This is the approach least problematic from the view point of independence.”
I believe that appointment to a High or Supreme Court for a limited period, even on a full-time basis, runs contrary to the very notion of independence as re-appointment may take into account considerations not consonant with the judicial merit of the candidate. Even, if reappointment is not provided for, as I understand is the case in Albania at present, then the danger lies in that if appointment in the first place is or may be influenced by political considerations, judicial decisions later reached might also be influenced by political affiliations.
One of the most important aspects and side effects of tenure and irremovability for any High Court is that the Court is able to ensure unified application of the law on reaching and issuing judgments and decisions that can be used as precedents. The common law system has systematically followed the principle of stare decisis. Judgments of the higher courts are binding on lower courts so that a body of common law principles slowly develops to an extent that it is legally wrong and unacceptable for a subordinate court judge to reach a conclusion that is different to the legal principle established by the higher courts. High Court panels when reaching decisions also follow their own precedent so that ultimately legal certainty is attained. This helps lawyers to advice their clients properly and is a way (together with limiting the number of cases to reach appeal level by means of procedural laws and steps), to stop the high number of appeals on legal points already decided especially if the cost to do so is high. In the U.K., appeals to higher courts and especially the House of Lords, now renamed Supreme Court, are only allowed on a certified legal point of general interest and importance.
Independence is not only about the way judges of the Supreme or High Court are appointed and removed. Having secured those fundamental issues, other matters are also at stake. You cannot really have independence and impartiality if remuneration is not commensurate to the all important work judges do or if there is not state support for adequate funding of the Courts and their personnel. Court management and workload are equally important, indirectly touching upon independence. CCJE has addressed all of these issues and many more. Funding and management of Courts with reference to the efficiency of the judiciary in relation to Article 6 of the European Convention on Human Rights was the subject of Opinion 2. It was stated that despite the recognition that the funding of Courts is part of the state budget presented to the legislative power by the executive branch of government, “such funding should not be subject to political fluctuations”. It also recommended that, “Decisions on the allocation of funds to the courts must be taken with the strictest respect for judicial independence.”
Again, in Opinion No. 4 on appropriate initial training and in-service training for judges at national and international level, CCJE correlated general training with an independent judiciary as such independence imposes on judges ethical duties including the duty to perform judicial work professionally and diligently. It was CCJE´s view that the legislation in each country on the statues of judges should provide for such training, while, quoting the European Charter on the Statute for Judges, it agreed that the authority responsible for supervising the quality of training programmes should be independent of the executive and legislature with at least half of its members being judges.
Again, much is at stake for an independent judiciary in its relationship with the media. In this modern world of ours, there is urgent need to integrate justice into society and this requires judicial systems to open up and learn how to make them known. As CCJE said in Opinion No. 7 of 2005, the idea is not to turn Courts into a “media circus” but to contribute to the transparency of the judicial process, an important aspect of gaining respect in the judiciary´s independence. These “outreach” programmes primarily concern Judicial Councils or the High Courts which have to take initiatives to create offices in Courts in charge of reception and information, organise calendar or educational fora and other meetings with the public so that justice opens up to society. In this way, people will know about the activities of the Courts and what and how they do it form primary sources, not depending on the activities of the media. It is also useful to improve contact methods with the media to strengthen understanding of the respective roles and to inform the public of the complexities of judicial work.
I would like to end this speech by identifying in very general terms some issues facing High Court and judges across Europe. One of the tasks of CCJE is to monitor and give specific assistance to judicial authorities in member states where there is a complaint or a specific issue is drawn to the attention of CCJE. In a document prepared in October 2011, CCJE specifies past bilateral activities of CCJE concerning the status of justice in a number of countries such as Bulgaria, France, Italy, Poland, Portugal, Romania, Serbia, Slovakia, Spain, Ukraine etc. CCJE issues declarations or takes other appropriate actions to meet the specific needs of the country involved. The common problem facing the judiciary today all over Europe is that there is an attempt from the executive and legislative powers to interfere either directly or indirectly with the affairs of justice. Such attempts take all kinds of forms and pretences, not least of which are the current financial problems facing almost all of Europe. The attempts or actions taken by governments and parliaments range from cuts in salaries and emoluments of judges at all levels, to non-reappointment of judges, limiting budgets available for the judiciary, non signing or ratifying international or European instruments, re-organisation of the whole judicial or administrative structure of courts enabling greater and increasing influence of the Ministry of Justice, and even termination of the service of judges with a different potential reappointment scheme and re-election process.
To all the above, judiciaries, especially Supreme or High Courts must react appropriately. Having bodies such as CCJE issuing strong declarations help to reduce or even extinguish such problems. After all, one must give practical effect to such high and noble pronouncements as are found in Rec 2010/12, that the independence of individual judges, as well as of the judiciary as a whole, is a fundamental aspect of the rule of law.
Thank you for your patience.
Supreme Court of Cyprus