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Description : NB_CE

CCJE-GT(2013)1

Strasbourg, 2 April 2013

WORKING GROUP OF THE
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE-GT)

OPINION (2013) N 16

ON THE RELATIONSHIP BETWEEN JUDGES AND LAWYERS AND CONCRETE MEANS TO IMPROVE THE EFFICIENCY AND QUALITY OF JUDICIAL PROCEEDINGS

DRAFT STRUCTURE PREPARED BY

NATALIE FRICERO

I. Introduction:

1. The rule of law should organise justice in a manner which guarantees democracy, primacy of law, respect for fundamental rights and freedoms and equality in accordance with the European Convention on Human Rights as well as the case law of the European Court of Human Rights.

2. The distinct but complementary roles of judges and lawyers constitute necessary and indispensable guarantees for fair, impartial and effective justice. If judges and lawyers must be independent in the exercise of their functions as well as be independent towards each other, the loyalty of their relationship is a guarantee for efficient and high-quality justice.

3. Respect of principles of ethics by each profession is indispensable for an impartial and fair procedure. In its Opinion No. 3 (2002) on the principles and rules governing the professional requirements applicable to judges, and in particular the ethics, inappropriate behavior and impartiality, the Consultative Council of European Judges (CCJE) considered that respecting rules of ethics is a condition for confidence in justice.

4. The CCJE proposes to seek answers to questions posed by the relationship and interaction between judges and lawyers in the proceedings and to define the appropriate rules and principles in order to improve the efficiency and quality of judicial proceedings, in accordance with fundamental principles of fair trial under Article 6 1 of the European Convention on Human Rights, and respond effectively to the needs of the parties. Judges and lawyers have a shared responsibility to ensure fair trial, which should lead to common ethics of judicial activities.

5. Relations between judges and lawyers have a direct impact on the efficiency and quality of judicial proceedings. In its Opinion No. 11 on the quality of judicial decisions, the CCJE concluded that "the quality standards of judicial decisions are clearly the result of interaction between numerous actors in the judicial system".

Cooperation between judges and lawyers during the procedure is essential because it addresses numerous objectives:

6. Aiming at establishing justice based on partnership and quality, the Opinion identifies the following:

In its Opinion No. 3 (2002) on principles and rules governing professional requirements applicable to judges, and in particular the ethics, inappropriate behaviour and impartiality, the CCJE considered that respecting ethical rules is a condition for confidence in justice. The Council of Bars and Law Societies of Europe (CCBE) adopted the Code of Conduct for European Lawyers on 28 October 1988 which refers to "relations with judges" and aims at respect for adversarial procedure, respect and loyalty to the judge, and prohibits giving intentionally false or misleading information to the judge. It was followed by the Charter of Core Principles of the European Legal Profession on 25 November 2006, which emphasises the important role of the lawyer, who must ensure compliance with the rule of law and the interests of those whose rights and freedoms he/she defends. The Recommendation Rec (2000)21 of the Committee of Ministers of the Council of Europe to member states on the freedom of exercise of the profession of lawyer of 25 October 2000 emphasises the fundamental role that lawyers play in ensuring the protection of human rights and fundamental freedoms, as well as the need for lawyers to receive sufficient training and find a proper balance between their duties towards the courts and those towards their clients.

1) Existence of transparent rules of ethics necessary for judges and lawyers

The responses to the questionnaire show that almost all states have adopted formal transparent rules of ethics for professionals in the field of justice. However, these principles have various sources and different content depending on whether related to judges or to lawyers.

For judges, pursuant to the Opinion No. 3 of the CCJE and the Magna Carta of Judges adopted in 2010, the codes of ethics exist, also called guidelines for judges or compilations of ethical obligations. In some exceptional cases, these codes concern both judges and prosecutors. Sometimes, the rules of ethics result from more general texts, such as the principles contained in the Constitution (principles of independence and impartiality of judges) or in the relevant charter, or in the oath taken by judges at entry level. Codes of ethics were most often developed and adopted by an Association of Judges, or by the High Council of Justice. There is still a significant number of states that have no code of ethics for judges (Luxembourg, Monaco, Czech Republic, Switzerland and Turkey).

For lawyers, in the vast majority of states, it is the national Bar Association which has adopted a code of ethics for the profession as a whole. Sometimes, the principles of ethics result from decrees adopted by the executive power (France), laws adopted by the Parliament (Germany), internal regulations of the Bar Association (Liechtenstein) or internal disciplinary rules of the Bar (Turkey). States that do not have a code are rare (Monaco, Czech Republic, Romania).

It is necessary for each profession to have a code of ethics that should guide the work of professionals and meet the legitimate expectations of litigants, all in compliance with the requirements of fair trial.

2) Recognition of common principles of ethics guaranteeing fair trial

Responses to the questionnaire show that, in their content, the basic principles of ethics are adapted for each profession and cannot be completely identical. The cited principles are the following:

It should be noted that among all these principles, some are common to judges and lawyers, because they contribute to proper functioning of justice and confidence by litigants: independence, respect of law, professional secrecy, integrity and dignity, respect of litigants, competence and loyalty. These ethical rules allow organising relations between judges and lawyers. It seems indispensable to have them in the codes of civil and criminal procedure, as well as in the codes of professional ethics, even if they are not subject to discussion and global definition. States would have to propose that the principles guiding relations between judges and lawyers are specified in a separate chapter of fundamental principles in civil and criminal procedure codes and in the codes of conduct for judges as well as lawyers.

3) It is appropriate to define a platform for common principles that could be called an "ethics of judicial activity" based on the principle of honest dialogue between judges and lawyers

Currently, no state has envisaged developing common code of ethics for lawyers and judges. Two main reasons justify this. First, the tasks of each profession are different. The lawyer’s main function is to defend the client’s interests. The judge should decide the case through fair trial. Then, these two professions are independent of each other and none can dictate behaviour to the other.

However, since judges and lawyers contribute to a single objective – making decision as a result of fair trial - there are common principles applicable to both professions. The responses by states to the questionnaire note the following:

It seems necessary that the states consider defining "ethics of judicial activity". This would clarify the principles of an honest dialogue between a judge and a lawyer to improve the efficiency and quality of judicial procedures and to implement fair trial, particularly:

4) Mutual understanding of professional behaviour can be improved through professional bridges

The bridges between the professions enhance mutual understanding and common culture and improve relations. The responses by states to the questionnaire reveal different approaches, but there are no precise figures. Judges may become lawyers (e.g. after their retirement; some experience as a judge is needed). Lawyers can become judges: often they must pass an exam, or take an internship, or be accepted by the Superior Council of Justice. Exceptionally (as in the United Kingdom and Luxembourg), all judges are former lawyers (in Norway, 40% of judges are former lawyers).

Quite rarely, lawyers can become "alternate" judges: they may exceptionally fill a court in the absence of a judge; or be "judges of proximity" for a limited period.

Whatever solution is adopted, it is desirable that the combination is used to avoid conflicts of interests and to keep the image of impartiality of the judiciary.

States indicate in their responses that judges and lawyers follow common university education which gives them the same basic legal culture. Then, except in few countries (e.g. Germany), the training is organised separately. Access to the profession is through examinations or competitions or specific recruitment, and initial and continuous training is organised separately, with different programs.

1) States organise effective initial and continuous training for judges and lawyers, with quality control

The responses by states to the questionnaire show that training of judges and lawyers, initial as well as continuous, has been professionalised, and it corresponds to a high level of required competence. There are differences between the systems, but all consider that the quality of justice depends on the quality of training.

Almost all states have created specialised training institutions, which seems to be the most suitable training model:

It is essential that training programs be tailored to each profession: they include substantive and procedural laws, which constitute a common legal culture. They also include professional rules and ethics specific to each profession.

Responses to the questionnaire indicate that states have established an initial training, both theoretical and practical, and a continuous training which is often voluntary and sometimes obligatory:

Professional training of judges and lawyers is essential for achieving the goal of quality justice. The written claims by lawyers must raise the relevant facts and issues of law applicable to the case. The judge's decision is a response to the conclusions of the lawyers and the quality of motivation partially depends on the quality of the latters’ written claims. In its Opinion No. 11 on the quality of judicial decisions, the CCJE concluded that "the quality of legal education and training of judges and other legal professionals is of paramount importance for a court decision of quality".

2) Joint training on ethics of judicial activity should be implemented to improve the cooperation in good faith between judges and lawyers

According to the responses of states, each profession organises its own training on ethics. This training is essential and every profession must master its particular rules.

Improvements need to be made to this situation in order to promote better cooperation between judges and lawyers.

- For example, ethical practice sessions can be organised by a mixed team of trainers, including a judge and a lawyer. This team could expose the challenges and good practices.

- The initial and continuous training programs could address in common the drafting of conclusions and drafting of judgment, since the writings of lawyers prepare the motivation of the judgment. The judgment necessarily responds to the parties' arguments. In addition, training programs should consider in common the organisation of hearings: the adversarial procedure, the presentation of report by judge, the "interactive" pleadings in which lawyers answer the questions of judges, deposition of files by lawyers in the court’s registry before the hearing.

- For the judges to understand the difficulties of professional lawyers, it is advisable to do an internship at a law firm during their initial training. Vice versa, it is possible to envisage that lawyers do an internship in a court (although a large number of lawyers may prevent such placement from being obligatory).

- As regards the ethics of judicial activity, which implements common principles (adversarial procedure, rapidity, loyalty), the joint continuous training sessions should be organised to address specific problems in the relations between judges and lawyers (decentralised training organised by courts and Bar Associations; possibly seminars with universities).

- The President of the Court and President of Bar Association should meet regularly to discuss any difficulties in relations between the professions, and find effective remedies.

Judges and lawyers have a shared responsibility towards the requirements of fair trial, particularly as regards reasonable time, respect of adversarial procedure and rule of law. They must ensure joint management of the procedure in the context of productive dialogue.

1) For successful interaction between judges and lawyers, several tools must be developed

Responses by states to the questionnaire show that subjective factors play an important role, such as mutual understanding, joint training, acceptance of each other's role, personal contributions by judges and lawyers, common culture, expertise of the judge, the "human" factor and the common desire to collaborate, high level of professionalism and morality.

To develop these factors, states must not only increase joint training, but also organise venues for meetings and exchanges between judges and lawyers. For example, the governing bodies of courts and Presidents of Bar Associations should organise periodic meetings to discuss general problems and difficulties: legal action must be integrated into collective consideration. These exchanges should lead to the adoption of guidelines for good practices, framework contracts of procedures. This partnership approach allows adapting the principles to practical realities, the size of the jurisdiction and its cases, the importance of the Bar. In its Opinion No. 11 on the quality of judicial decisions, the CCJE concluded that "standardised models of good practice in the procedure management process should be encouraged".

All states indicate in their responses that objective factors are indispensable for good cooperation between judges and lawyers. Among them, the principles contained in the rules of professional conduct (codes of ethics or other sources) can improve relations between the professionals. Thus, the codes of ethics prescribe the judge to maintain delicate relations with all those involved in proceedings through a behaviour based on the respect for the dignity of people and listening to them (in its opinion No. 3 on the principles and rules governing professional requirements applicable to judges and in particular ethics, incompatible behavior and impartiality, the CCJE believes that the judge "should show due consideration to all persons involved in the proceedings or affected by it"). For lawyers, codes of ethics sometimes specify that they must show respect and loyalty to the office of the judge (e.g. Article 4-3 of the Code of Conduct for European Lawyers).

These are also laws, codes of procedure, which should specify the instruments for organising and controlling relations between judges and lawyers, and define the office of each, and applicable penalties. Legal certainty, equality of arms impose clear and accessible rules.

2) Judges and lawyers interact in civil trial

It is obvious that a civil suit is under the shared responsibility of a judge and lawyers. If a lawyer must loyally serve the client’s interests and ensure the protection of the latter’s rights and freedoms, he/she also has a supplementary mission to ensure compliance with law and participate in the proper administration of justice.

- In the course of the proceedings, all states in their responses indicate that the codes of civil procedure specify the rules for judges and lawyers to interact. This is for setting deadlines, having exchanges, filing claims and participating in hearings, holding debates and peaceful settlement of disputes. These rules have two purposes: to allow for an effective adversarial procedure and pronouncement of judgment within reasonable time.

It is necessary that the parties and their lawyers have the power to "negotiate" some phases of the procedure. The cooperation may allow deciding on the procedure to be followed: when considering civil cases, the judge cooperates with lawyers to arrange the timetable of the procedure. Sometimes, the presiding judge holds a preliminary hearing with lawyers to determine the difficulty of the case and specify the timetable adapted to the needs of the parties (search of evidence, difficulties of the case, large number of parties).

The procedure codes must organise the timetables for depositions, which define the schedules for exchange of claims, pleas and documents with the consent or opinion of lawyers; they may envisage these timetables at the beginning of proceedings, in the course of introduction or update hearings. These timetables can also be envisaged in the framework agreements containing best practices discussed by the President of the Court with the Bar Association. Thus, the judge and lawyers contribute to good administration and the reasonable promptness of justice, while protecting the private interests of the parties and their rights to defence.

- In response to requests from the parties and their lawyers, the dialogue between the judge and lawyers must create reciprocal rights and obligations. The responses by states to the questionnaire indicate that the judge who has received a claim must always respond. However, if the lawyer does not comply with the formal requirements or timetable, or with the adversarial principle, imposed by the code of civil procedure, the judge may declare his/her claim inadmissible (that is to say reject it without considering its merits). For example, the judge may declare inadmissible applications that have not been made within the schedule set by the timetable of depositions; or declare inadmissible the parts that were not assembled at the beginning of the procedure. The judge may also exclude from the debates the parts that have not been sent to the opponent in time. These instruments allow the judge to sanction the lawyers who do not meet the guidelines for the trial (respect for adversarial procedure and for reasonable schedules and timetables for consideration, honesty of debates). Sanctions must have a legitimate purpose and be based on an accessible and predictable law, so that access to justice is not impaired in its substance.

- From the responses to the questionnaire, it is clear that lawyers can always use strategic maneuvers to delay the delivery of judgment, using procedural laws (request of postponing the hearing, reopening the debates, late production of evidence, changing lawyers, delay in raising procedural objections, preparing complaints).

Since the judge should respect the right to a hearing within a reasonable time (European Court of Human Rights, case Glykantzi v. Greece, No. 40150/09, 47: "Even in the case where the procedure is governed by the principle of the initiative of the parties, the concept of "reasonable time" requires that courts also follow the progress of the proceedings and be attentive to the time between two hearings or other proceedings"), the code of procedure must give the judge possible means to sanction the conduct of lawyers which is delaying the proceedings. The responses reveal a variety of possible sanctions: refusal to postpone a hearing, fine for the abuse of procedure, inadmissibility of new means or parts, striking the case out of the list of cases to hear in the course of the court session, payment of damages or costs of the procedure.

The Recommendation R(84)5 of 28 February 1984 on principles of civil procedure designed to improve the functioning of justice has identified nine principles, among which the principle No. 2 envisages that judges should have the power to oppose any abuse of procedure by imposing sanctions on parties or lawyers. In its Opinion No. 6 on fair trial within a reasonable time and the role of judges in the trial, taking into account alternative dispute resolution, the CCJE concluded that sanctions should be envisaged for abuse of procedure. In order for judge not to be obliged to apply sanctions, dialogue with lawyers, leading to the adoption of framework protocols, can be useful: the protocol defines the commitments of each profession and limits the number of requests for postponing the hearing.

The responses by states indicate that the modalities of communicating parts, documents and conclusions between the judge and lawyers are specified by the code of civil procedure.

In principle, the communication is in writing and is carried out according to several methods, by mail, by fax. It can be done by phone. It is very often made during the formal meetings between judges and lawyers. It seems necessary that judges and lawyers together define the procedures and deadlines for submission of files to the court (e.g. submission 15 days in advance of the date of the hearing of arguments) to improve the efficiency and quality of the decision.

The electronic communications, internet, e-mail are rarely used. In its Opinion No. 14 on justice and information technology, the CCJE said that the IT should not diminish the procedural rights of the parties, but they play a vital role in providing information to judges, lawyers and other stakeholders in the justice system. The use of electronic communication should not constitute an obstacle to communication between lawyers and the judge; it should on the contrary facilitate informing the lawyers and allowing them to easily see the status of their cases and communicate effectively with the judge.

Peaceful settlement of disputes (or alternative dispute resolution) has many advantages for the management of civil cases. Its development is based on a shared commitment by judges and lawyers to select a consensual solution rather than an imposed judgment. In its Opinion No. 6 on fair trial within reasonable time and the role of judges in the trial, taking into account the alternative dispute resolution, the CCJE recommends that the development of peaceful settlement of disputes be encouraged.

Responses to the questionnaire show that in most states, it is possible to complete the procedure through a peaceful settlement. The judge and lawyers cooperate so that the parties accept such settlement. Either the judge offers a peaceful settlement, or he/she encourages mediation or bargain, or he/she himself/herself takes part in the conciliation. The judge may impose a stay of proceedings or postpone the hearing in order to facilitate the search for an agreement. In most legal systems, the judge may officially endorse the agreement reached so that it becomes enforceable if the parties so wish.

It is necessary to develop interaction between the judge and lawyers in line with various methods. For example, the court may hold a mediation hearing, the code of civil procedure may provide for a conciliation phase in the procedure, or require the parties to use mediation before applying to the court (particularly in family matters). The law may develop alternative modes (in criminal cases, plea bargaining). Lawyers may turn the attention of the parties to these modes of peaceful settlement.


Responses by states to the questionnaire indicate that media is not interested in the relationship between judges and lawyers, except only in specific cases, especially criminal. Judges do not communicate about cases because they are bound by the requirements of professional secrecy, confidentiality and impartiality. Some courts communicate through a judge for press. Lawyers are free to express themselves in media, but they must respect the authority of justice.

1) Absence of consideration as regards relations between judges and lawyers

There is no consideration by media of relations between judges and lawyers. Media is interested in some trials, it criticises the operation of the procedure, challenges the impartiality of some judges, especially in criminal matters, and sometimes discredits the judges.

It would be desirable that journalists be subject to ethical rules that prohibit them from discrediting the court decisions, judges or lawyers. An independent body should exercise an ethics function, and be able to provide advice and recommendations to avoid deviations. In its Opinion No. 7 on justice and society, the CCJE concluded that the training on ethics for judges and lawyers must be improved to enhance the image of impartiality and equality of justice, and to prevent lawyers from contributing, intentionally or not, to an attitude of distrust towards the judicial system. In its Opinion No. 10 on the Council of Justice in the service of society, the CCJE noted that the Council of Justice could have the task to take all necessary steps with the public or public authorities in order to defend the reputation of the judicial institution and its members.

Hearings may be filmed for educational purposes and transparency, provided that there is an agreement of the parties, their lawyers and the court. In its opinion No. 7 on justice and society, the CCJE concluded that it is useful to improve contacts between courts and media. Public information allows for better understanding of justice and results in confidence in the institution. In its Opinion No. 6 on fair trial within reasonable time and the role of judges in the trial, taking into account alternative dispute resolution, the CCJE concluded that states should disseminate information which is relevant for the operation of justice.

2) Media freedom important for lawyers, more limited for judges

In all states, judges observe the requirements of confidentiality, professional secrecy and impartiality, and they do not comment in media about ongoing cases or judgments made. To ensure transparency of justice and confidence of society towards the judicial system, most systems introduced in courts a "press judge" who communicates and gives neutral and objective explanations about the case. This role is sometimes given to the prosecutor, or the spokesperson of the judiciary, or the President of the court. It ensures public information on matters of public interest, and makes the justice public. The European Court of Human Rights ruled that the judge has the right to communicate on matters of public interest (ECHR Kudeshkina v. Russia, 26 February 2009, No. 29492). This communication is essential: it allows media to highlight malfunctions, and contributes through general debate to improved court practices and quality of procedures.

On the contrary, for lawyers the communication is free. Numerous lawyers comment on current cases in media and criticise judgments. But freedom of expression is not absolute, since Article 10 of the European Convention on Human Rights states that limitations may be prescribed by law "for maintaining the authority and impartiality of the judiciary". The European Court of Human Rights admits that disciplinary sanctions or fines may be imposed on lawyers, but it controls the proportionality of the sanction. Lawyers are punished properly if their comments are offensive, defamatory, and they abuse their rights to defend their clients through discrediting justice (ECHR Kyprianou v. Cyprus, 15 December 2005, No. 73797/01; Alenka Pecnik v. Slovenia, 27 September 2012, No. 44901/05). Otherwise, they must be free to express themselves.