Please let me express my happiness and gratefulness to participate at the VI Congress of the association of Spanish judges INDEPENDENT JUDICIAL FORUM. I would like to thank in particular Judge Conrado Gallardo Correa, the Chairman of the INDEPENDENT JUDICIAL FORUM and judge José Francisco Cobo Sáenz, President of the 2nd Seccion at the Audiencia Provincial (Navarra), Pamplona, Spanish member of the Consultative Council of European Judges (CCJE) for their kind invitation to your very interesting congress in beautiful Maspalomas.
One of the activities of the Consultative Council of European Judges is to encourage partnerships in the judicial field between courts, judges and judges’ associations. Therefore it is a true pleasure to see this objective been realized Today at your Congress. The members of the CCJE are always very pleased to share their experience and exchange ideas with their colleagues from different countries around Europe and the world. I believe that real contacts between judges and the mutual exchange of experiences are key elements in building a dedicated European judiciary united in diversity. In addition to meeting with colleagues from different countries, common training seminars and practical visits should continue to play an important role in this respect. However, these kinds of conferences and other means of communication also need to reach European citizens, because the seekers of justice have the right to information about the developments in the field of judiciary.
But, please let me start by introducing to you first the Consultative Council of European Judges in the context of the activities of the Council of Europe. I would like to stress the importance of the judicial independence in Europe and explain the mission and tasks of the CCJE in safeguarding this important value. In the second part of my intervention I will address the role of the association of judges as expressed in the documents of Council of Europe, in particular in the opinions of the CCJE.
Ladies and gentlemen,
60 years the Council of Europe has promoted a concept of justice in service of peace and harmony: respect and protection of human rights – a fundamental value that is a basis for a real democracy.
The main objective of the Council of Europe is to create a common democratic and legal area throughout the whole of the European continent, ensuring respect for its fundamental values: human rights, democracy and the rule of law.
There are several ways for the Council of Europe to reach this goal: e.g. it has established the European Court of Human Rights to interpret the European Convention on Human Rights, it has set up the post of the Commissioner for Human Rights, it has also carried out normative activities in the field of justice, such as the adoption of the Recommendation Rec(94)12E from 13 October 1994 on the independence, efficiency and role of judges. This recommendation is currently being revised and up-dated in Council of Europe. The Council of Europe has in the framework of various co-operation programs helped its new member states to carry out necessary legislative and institutional reforms in the field of judiciary.
Furthermore, the Council of Europe has created bodies such as the CCJE, but also the Consultative Council of European Prosecutors (CCPE), the European Commission for the Efficiency of Justice (CEPEJ), the European Commission for Democracy through Law (Venice Commission).
Thus, legal and judicial issues including the efficiency and functioning of justice play important roles in the activities of Council of Europe.
Judiciary is one of the three basic and equal pillars – the legislative, executive and judiciary - in a modern democratic state. It is also a cornerstone for the rule of law - an important fundamental value upheld by the Council of Europe.
Judicial independence, stipulated above all in article 6 of the European Convention on Human Rights, is a prerequisite to the rule of law and a fundamental guarantee for a fair trial.
The European Court of Human Rights has defined the notion of a court/tribunal (Le Compte, Van Leuven et de Meyere v. Belgium – 23.06.1981) as an important element in ensuring the rule of law; it has concretized what are the essentials for the judicial independence (Campbell and Fell v. United Kingdom – 28.06.1984 and Hirschhorn v. Romania – 26.07.2007) and what is to be understood under the impartiality of judges (De Cubber – 26.10.1984; Hauschildt v. Denmark – 24.05.1989).
In determining whether a body can be considered to be "independent" - notably of the executive and of the parties to the case, the European Court of Human Rights has had regard to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. There is no doubt, that an independent judiciary should be free of any pressure and influence from the legislature and executive.
From the perspective of recent worldwide developments, one should be very cautious that problems which have lately taken unprecedented international scale, such as terrorism or global economic crises, should not urge the governments and other state authorities to take arbitrary and unlawful measures both against the individuals as well as against the judicial power and its independence and to justify their unlawful conduct for e.g. with the lack of budgetary resources. The abuse of fundamental rights and principles and control from the other state powers over the judiciary should be avoided (see also Opinion number 8 of the CCJE). In this context the existence of a truly independent judiciary is more necessary than ever in order to guarantee the rights of citizens in the face of any abuse which may be committed by the state.
As identified in the Opinion Number 1 of the CCJE on standards concerning the independence of the judiciary and the irremovability of judges: Judicial independence is not a privilege for judges, but it is for the benefit of the people, the seekers of justice. An impartial and objective justice making is an ethical obligation of the judiciary towards the citizens.
The Consultative Council of European Judges serves as a guarantor of judicial independence.
The CCJE was set up by the Committee of Ministers of the Council of Europe in the year 2000. As first of its kind (unique) within an international organisation to be composed exclusively of sitting judges as professional individuals who are not accountable to their governments, CCJE is in this respect unique in the world.
The members of the CCJE, judges from all 47 Member States of the Council of Europe, act in their own name. In addition, several states, organisations and associations holding observer status may participate at the plenary sessions of the CCJE: Holy See, USA, Canada, Japan, Mexico, the European Association of Judges, the association "Magistrats européens pour la démocratie et les libertés" (MEDEL), the Association of European Administrative Judges, the European Grouping of the Magistrates for the Mediation (GEMME) and the European Judicial Training Network. The representatives of the European Court of Justice of Human Rights and of the European Union are also invited to attend the meetings of the CCJE. The CCJE has a bureau and a working group.
In order to fulfil its challenging mission as a guarantor of rule of law, judicial independence and efficiency of justice, the activities of CCJE are wide-ranging. The CCJE adopts advisory opinions for the attention of the Committee of Ministers of the Council of Europe, organizes European Conferences of Judges, strengthens the role of the judiciary in Europe, encourages direct contacts between courts, judges and judges’ associations and co-operates with European and international bodies of related competence. Furthermore, the CCJE may be called upon to provide practical assistance to help states comply with standards relating to judiciary.
Since its creation, the CCJE has adopted eleven opinions. The opinions address the following subjects: standards concerning the independence of the judiciary; funding and management of courts; ethics and liability of judges; training for judges; law and practice of judicial appointments to the European Court of Human Rights; fair trial within a reasonable time; relations between justice and society and media; role of judges in the protection of the rule of law and human rights in the context of terrorism; role of national judges in ensuring an effective application of international and European law; Councils for the Judiciary and the quality of judicial decision. This year we will adopt together with the Consultative Council of European Prosecutors a declaration on relations between judges and prosecutors in a democratic society. The theme for our next year’s topic will most likely treat the roles of judges and ministries of justice in the enforcement of judicial decisions.
All the above mentioned documents contain innovative proposals for improving the status of judges and the service provided to people seeking justice.
It is a pleasure to notice that many institutions, bodies and associations (e.g. the European Association of Judges, European Judicial Training Network, European Network of Councils for the Judiciary) as well as countries in Europe and even elsewhere have made extensive use of CCJE opinions. The work of the CCJE has been helpful for the elaboration of the national legislation and regulations on the functioning and administration of justice and organisation of the work of the legal professions. In this context the continuing widespread dissemination of the results of the work of the CCJE is of utmost importance.
Additionally, the CCJE has made more and more an active use of its role to warrant that states not only accept the European principles and standards on the judicial system in theory, but that they also apply them in practice. In this connection the CCJE has reacted to the requests of several members (e.g. Bulgaria, Poland, Romania and Serbia) concerning the situation in their respective justice systems and has watched closely whether the CCJE responses to the problems in these countries have been taken into account. For that purpose, a special pool of experts has been created with a task to examine the circumstances in relevant states. The above mentioned requests have concerned mostly judicial independence, judicial appointments, code of ethics and responsibility of judges.
In all the documents and activities of the CCJE the protection of judicial independence has been a guiding principle.
However, the judicial independence does not exclude the judiciary from the application of the principles of transparency, responsibility and accountability. Therefore it is noteworthy, that in the framework of the opinions of the CCJE, for the first time, the judges themselves have elaborated the issues concerning the quality of judicial decisions and the evaluation thereof (Opinion number 11 of the CCJE). Ensuring the quality of justice in general is of crucial importance throughout Europe.
Yet, the quality of judicial decisions is directly conditioned by the funding made available to the judicial system. The CCJE has underlined in its Opinions that courts cannot operate efficiently with inadequate human and material resources (Opinion number 11 of the CCJE). Adequate judicial remuneration is necessary to shield from pressures aimed at influencing judges’ decisions and more generally their behaviour and to ensure that the best candidates enter the judiciary. The assistance of a qualified staff of clerks, and the collaboration of judicial assistants, who should relieve the judges of more routine work and prepare the papers, can evidently contribute to improve the quality of decisions delivered by a court. If such resources are lacking, effective functioning of the judicial system to achieve a high quality product will be impossible.
Dear Spanish judges,
You have chosen as a topic for this year’s Congress the judicial associations: their objectives and roles in the society, the problems they face, the level of affiliation of and response from judges, etc. This is a very fascinating subject to focus on.
The recommendation (94) 12 of the Council of Europe on the independence, efficiency and role of judges stresses the importance of judges associations in its Principle IV – Associations. According to the Recommendation (94) 12 judges should be free to form associations which, either alone or with another body, have the task of safeguarding their independence and protecting their interests.
The European Charter on the statute for judges from 1998 recognises the role of professional associations formed by judges, to which all judges are freely entitled to adhere, which precludes any form of legal discrimination vis-à-vis the right to join them (Paragraph 1.7.). It also points out, that such associations contribute in particular to the defence of judges’ statutory rights before such authorities and bodies as may be involved in decisions affecting them. Judges may therefore not be prohibited from forming or adhering to professional associations.
Although the Charter does not assign these associations exclusive responsibility for defending judges’ statutory rights, it does indicate that their contribution to such defence before the authorities and bodies involved in decisions affecting judges must be recognised and respected. Furthermore the Charter provides (Paragraph 1.8.) that judges should be associated through their representatives, and through their professional associations, with any decisions taken on the administration of the courts, the determination of the courts’ budgetary resources and the implementation of such decisions at the local and national levels.
/.../ Consultation of judges by their representatives or professional associations on any proposed change in their statute or any change proposed as to the basis on which they are remunerated, or as to their social welfare, including their retirement pension, should ensure that judges are not left out of the decision-making process in these fields.
Even though there does not exist an Opinion of the CCJE dedicated exclusively to the judicial associations, different Opinions of the CCJE refer at various occasions on the role of the associations of judges.
According to the Opinion number 3 of the CCJE on ethics and liability of judges, the judges should conduct themselves in a respectable way in their private life. Therefore, the CCJE encourages the establishment within the judiciary of one or more bodies or persons having a consultative and advisory role and available to judges whenever they have some uncertainty as to whether a given activity in the private sphere is compatible with their status of judge. To take just two possibilities, such bodies or persons could be established under the aegis of the Supreme Court or judges’ associations. They should in any event be separate from and pursue different objectives to existing bodies responsible for imposing disciplinary sanctions (Para 29).
In addition, the Opinion number 3 of the CCJE foresees that judges should be allowed to participate in certain debates concerning national judicial policy. Under their freedom of expression and opinion, judges may exercise the right to join trade unions (freedom of association), although restrictions may be placed on the right to strike (Para 34).
Furthermore, the CCJE finds that professional associations should act as forums for the discussion of judges' responsibilities and deontology; they should provide wide dissemination of rules of conduct within judicial circles (Para 47).
Opinion number 4 of the CCJE on appropriate initial and in-service training for judges at national and European levels mentions in Paragraph 16 that judges’ associations can also play a valuable role in encouraging and facilitating training, working in conjunction with the judicial or other body which has direct responsibility.
Opinion number 6 of the CCJE on fair trial within a reasonable time and judge’s role in trials taking into account alternative means of dispute settlement speaks under access to justice (Para 15) that information on the functioning of the judicial system can, among other sources, originate from the public legal advice services organised by lawyers’ associations as well as other sources.
Opinion number 7 of the CCJE on Justice and Society stipulates that Courts and associations of judges can co-operate with schools, universities, and other educational agencies, making the judge's specific insight available in teaching programmes and public debate (Para 12).
According to Para 55 of the same Opinion, bearing in mind the fact that the courts can rectify erroneous information diffused in the press, the CCJE believes it would be desirable that the national judiciaries benefit from the support of persons or a body (e.g. judges associations) able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases.
Opinion number 10 of the CCJE: "Council for the Judiciary in the service of society,” admits that although the roles and tasks of professional associations of judges and of the Council for the Judiciary differ, it is independence of the judiciary that underpins the interests of both. CCJE adds that sometimes professional organisations are in the best position to contribute to discussion about judicial policy. Therefore, judges' associations must be allowed to put forward judge candidates (or a list of candidates) for the elections of the members of the Council for the Judiciary (Para 28). However, the choice should be based exclusively on a candidate’s merits rather than on more subjective reasons, such as personal, political or an association/trade union interests.
The judges associations should also have the responsibility for organising and supervising judicial training. (Para 65).
Dear Chairman, of the independent JUDICIAL FORUM, in your letter introducing the Congress, you mentioned that the idea of the Congress is, among others, to analyse the reality of judicial association in the different countries comprising Europe. Please, allow me at this stage, as an Estonian Supreme Court justice, to explain very briefly the judicial association in my home country, Estonia.
The current Estonian Association of judges (Eesti Kohtunike Ühing) was established in 1991. The Association has the following statutory objectives: to associate judges within a professional organisation, to protect the independence of courts and judges, to protect the individual, work-related and socio-economic rights and legal interests of judges, to shape and maintain the high level of professional ethics of judges, and to study the history of the courts which have functioned on Estonian territory.
The Association has followed these objectives during its years of operation. While in its early years the Association’s priority was to stand for the social guarantees of judges, then already since the mid-1990s the discussions began within the Association on whether it should be more of a trade union or professional association. Considering that it is the only association of judges in our country, it has inevitably had to take on both these functions.
The Association has Today around 184 members, whereas the total number of judges in Estonia is ca 240.
Until 2002, when the Council of Administration of Courts and the Court en banc were set up under the Courts Act, the Estonian judges had no self-government bodies. The Association was the channel through which the judiciary was able to stand up for its interests, communicate with the legislative and executive powers, and voice its positions on issues regarding the judicial system and the judges.
The Association has elaborated the Code of Conduct for Estonian judges. It has dealt with issues such as the relations between judges and media. The Association and its members have actively participated in the discussions on the matters of administration of the courts, which have been topical almost throughout the Association’s period of activity.
The Association has been a member of the IAJ (International Association of Judges) since 1995 and has recently become a member of the Association of European Administrative judges. The Estonian Association is together with its Latvian and Lithuanian colleagues, a member of the Baltic Association of Judges since its creation in November 1993.
The Estonian Association of Judges has also cooperated with other professional organisations of lawyers in Estonia: the Association of Prosecutors and the Estonian Lawyers’ Union.
Social events have as well played a role in uniting and acquainting the judges. Training and holiday tours to different European countries have been organised for the Association members and their families. The association also conducts charity related work, such as helps the disabled children at Maarja Village.
As seen above, the subject of your congress will raise many issues for further conversation. Perhaps it will also inspire the CCJE to dedicate more time and work for determining the role of the association of judges. Therefore I welcome your initiative and courage you to continue your fruitful discussions here today and tomorrow, but also to co-operate with the CCJE, as well as elaborate both bi-lateral and multi-lateral co-operation with the judicial associations on European level.
Perhaps we will meet again with some of you soon, on 3 November in Madrid where the CCJE will be awarded with the international prize “Justice in the world.”