Strasbourg, 20 March 2011
WORKING GROUP OF THE
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
SPECIALISATION OF JUDGES
Different aspects to consider in drafting the structure of the Opinion No. 15
Suggestions by Paul Maffei, Vice President of the CCJE
• Development of increasingly in-depth law in more and more diverse areas and in more specialisation, eg: family law, juvenile law, contract law, construction law, administrative law, environmental and planning law, economic and commercial law, financial law, tax law, intellectual property law, criminal law, etc..
• More and more complexity in these matters.
• Inability to control all of these matters.
2. Judges need to specialised
• to better understand the specialised topics and identify the specificities of social, economic, financial, cultural or other realities that these matters are supposed to regulate;
• to better control the relevant matters.
3. The limits of specialisation
• interdisciplinarity of contents: numerous of cases touches several areas of law (eg, financial criminal law which, in addition to the criminal law itself and the law of criminal procedure, may also require the application of rules of financial law, business law, commercial law, tax law etc..; environment law which also concerns the application of administrative law);
• the dangers of excessive compartmentalisation: It should be avoided that the judge become too compartmentalised in a limited field of law;
• difficulties of an organisational nature: in some courts, especially small ones, it is not always possible to have specialised judges for each subject; some Chambers are responsible for several specialised subjects; judges will therefore have to show multi-competences;
• service needs: it will sometimes be necessary to replace a competent colleague in a certain matter in the absence (vacation, illness, missions); here too, the multi-competences and flexibility will be needed;
4. Specialised jurisdiction, special jurisdiction and extraordinary jurisdiction
▪ distinction between these different jurisdictions;
▪ danger of extraordinary jurisdictions;
5. Specialisation of judges or specialisation of courts:
• specialised courts: advantages, disadvantages and specific difficulties;
o consistency of the organisation of the jurisdiction;
o better management of the court and of cases;
o necessity to set clear rules of competences;
o specialised skills on national or regional level?
• specialised judges: advantages and disadvantages;
o a better efficiency in case management and decision making;
o greater expertise of judges with a positive impact on the quality and predictability of decisions;
o limits: see above in point 3;
o possibility for a judge to be specialised in several subjects of law;
6. specialisation of courts and composition of these:
▪ lay-judges from external persons such as traders, representatives of workers and employers, persons specialised in children's issues, of the family etc.. ;
▪ use of experts;
7. Specialisation and guarantee of Article 6 ECHR
▪ specialisation and independence of judges;
▪ specialisation and impartiality of judges;
▪ specialisation and rights of defense;
▪ specialisation and fair trial;
▪specialisation and access to the judge (the limited number of courts or specialised judges should not have to restrict access to the courts);
▪ other guarantees of the ECHR;
8. specialisation and procedure:
▪ normal law procedure or specific procedure appropriate to the subject matter;
▪ quality of judicial decisions;
9. Specialisation and consequenc on the status of judge:
• specialisation of juges and constitutional guarantees (judges appointed pursuant to law, irremovability, independence, separation of powers, etc.).
• access to a specialised function: terms of appointment or designation of a specialised judge;
• salary or gratuity for specialised judges?
• ethical rules specific for specialised judges?
• discipline of specialised judges?
10. Specialisation of judges and training
• specialised qualification for the appointment or designation (academic specialist, another type of training?); Need or wish that the appointment is subject to such training?
• continuous training;
• competent body for training.
11. Specialisation of judges and prosecutors (in terms of family law, juvenile law, tax law and financial, etc.).
12. Specialisation of judges and specialisation of lawyers;
13. Specialisation of judges and other specialised services (registries, administrative services, etc.).
14. Specialisation of judges and international cooperation
15. Specialisation and governance;
16. Specialisation and participation in associations of specialised judges