Intervention of dr. iur Julia Laffranque,
Chair of the Consultative Council of European Judges (CCJE),
Justice of the Supreme Court of Estonia
On the occasion of the 1075th session of the Ministers' Deputies on 20 January 2010 at 15:00 Strasbourg (Palais de l'Europe)
Presentation of the recent work of the CCJE and in particular the Opinion No 12 on "the relations between judges and prosecutors" adopted jointly with the CCPE
Ladies and Gentlemen,
According to the oft-quoted proverb, justice must not only be done, but it must also be seen to be done. Furthermore, philosopher of law Ronald Dworkin has written in "Law's Empire" (1986) that the judge must also "try to show legal practice as a whole in its best light." But it would be very difficult for the judiciary to follow these maxims if the other professional persons dealing with justice involved in the various stages of judicial proceedings would not respect the general principles of law and above all, the protection of human rights – a fundamental value that is a basis for a real democracy. In other words, a strong Bar, an autonomous prosecution and an independent judiciary are together sine qua non for the maintenance of the rule of law. The rule of law, as we know, is one of the cornerstones of the activities of Council of Europe, which main objective 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.
Please accept my gratefulness for offering me an opportunity to talk about these issues by introducing the Opinion number 12 of the Consultative Council of European Judges (CCJE), adopted jointly with the Consultative Council of European Prosecutors (CCPE). Please allow me also to elaborate on some other recent, as well as envisaged, activities of the CCJE.
Judges and Prosecutors in a Democratic Society
On its 10th plenary session held in Brdo, Ljubljana, on 18-20 November 2009, the CCJE adopted together with the CCPE an Opinion about the relations between judges and prosecutors. The successful drafting and adopting of the above mentioned Opinion constitutes a marvellous example of a good co-operation between two Council of Europe bodies. The solid outcome of this unprecedented teamwork was not self-evident, because one had to take into account the dissimilar roles of judges and prosecutors, as well as the discrepancies in the models and structures of prosecution services in different Member States. Relations between judges and prosecutors can easily be characterized like the ones between cats and dogs: we are diverse, yet both irreplaceable for the proper functioning of democratic society and the rule of law, similarly as one could not imagine a perfect farm without a cat and a dog.
Opinion no.12 (2009) of the CCJE submitted to you today is unique not only because it has been drafted and adopted together with the public prosecutors, but also for the reason that it marks a new milestone in the presentation of the opinions: the Opinion consists of a declaration and of an explanatory note. The declaration is called a Bordeaux declaration on “Judges and prosecutors in a democratic society,” because it was initially drafted in Bordeaux during the 4th Conference of European Judges and in the working group of the CCJE jointly with the working group of the CCPE.
Personally I am very pleased with this form: a declaration has certainly a significant and far reaching meaning, but at the same time it is more compact, short and concrete than opinions which have been criticized as becoming year by year too lengthy and too comprehensive to read. The declaration sets standards for the Member States, it is easy to use it and refer to it, whereas the explanatory note elaborates the topic in a more in depth manner, presents the details for those interested and serves as an interpretive tool for understanding the declaration.
One of the main essences of the recent Opinion can be found in Article 3 of the Bordeaux declaration: "The proper performance of the distinct but complementary roles of judges and public prosecutors is a necessary guarantee for the fair, impartial and effective administration of justice. Judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear independent from each other." Fulfilling their respective roles, both, judges and prosecutors must ensure that individual rights and freedoms are guaranteed, and public order is protected. I believe that no one from us likes to find oneself one day in a "Kafka like absurd process" - the prosecution and the judiciary must therefore do everything to avoid these kinds of situations to take place. In this context, total respect of the rights of the defendants and of the victims at all level of proceedings is of crucial importance: a decision of the prosecutor not to prosecute should be open to judicial review. There should be equality of arms between prosecution and defence, as well as respect for the independence of the court, the principle of separation of powers and the binding force of final court decisions. The status of public prosecutors must be guaranteed by law in a manner similar to that of judges so that the prosecutors could be independent and autonomous in their decision-making and carry out their functions fairly, objectively and impartially. Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions; should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendants’ right to a decision on such cases by an independent and impartial authority exercising judicial functions. When the structure of prosecution service is hierarchical, it must be transparent, accountable and responsible. Directions to individual prosecutors should be in writing, in accordance with the law and, where applicable, in compliance with publicly available prosecution guidelines and criteria. The sharing of common legal principles and ethical values could justify, where appropriate, joint training for judges, public prosecutors and lawyers on themes of common interest. The interest of society requires that the media are provided with the necessary information to inform the public on the functioning of the justice system. Therefore the competent authorities should provide such information with due regard in particular to the presumption of innocence of the accused, to the right to a fair trial, and to the right to private and family life of all persons involved in proceedings. The CCJE and the CCPE are of opinion that both, judges and prosecutors, should draw up a code of good practices or guidelines for each profession on its relations with the media. In the context of international cooperation in judicial matters, the enhancement of mutual trust between competent authorities of different states is necessary. In this respect it is imperative that information gathered by prosecutors through international co-operation and used in judicial proceedings is transparent, made available to the judges and all parties, with a view to an effective protection of human rights and fundamental freedoms.
In order to achieve all the above mentioned goals, adequate organisational, financial, material and human resources should be put at the disposal of the justice system.
Ladies and gentlemen, hopefully the text presented to you today will meet your expectations and that the Committee of Ministers will be able to fully play its role in ensuring a wide dissemination of this Opinion within ministries of justice, councils for the judiciary, prosecution services and judicial professions in your countries, including organising the translation of this Opinion to your respective languages addition to the original versions: English and French, so that it may be accessible to the largest possible public.
Consultative Council of European Judges in Service of the Rule of Law and Judicial Independence
Certainly, you are well aware of, that the CCJE serves as a guarantor of judicial independence and rule of law in Europe. It gives advice on issues such as the impartiality and competence of judges, and strengthens the role of the judiciary around the continent. One of the main means to fulfil our challenging aims is to prepare advisory opinions: since its creation the CCJE has indeed until now adopted twelve opinions on various areas identified in the Framework Global Action Plan for Judges in Europe, approved by the Committee of Ministers on 7 February 2001. All opinions contain innovative proposals for improving the status of judges and the service provided to people seeking justice. The significance of the role of the CCJE is supported by the fact that the Heads of State and Government of the Member States outlined in their Third Summit Action Plan (Warsaw, 17 May 2005), among the principal tasks of the Council of Europe, the necessity to make proper use of the opinions given by the CCJE in order to help Member States to deliver justice fairly. The work of the CCJE has been evaluated very positively by the experts (members of the CCJE). According to the analysis based on the questionnaire prepared in the end of 2008 by the Working Party on Institutional Reforms, an impressively large majority - 90% of all replies confirm that the work of the CCJE has been helpful for the elaboration of national legislation and regulations, as well as for the functioning of justice system and for the organisation of legal professions. In addition to the Member States, the opinions of the CCJE have been extensively used by the European Association of Judges, European Judicial Training Network and European Network of Councils for the Judiciary as well as other bodies of similar competence.
But it is important to note that besides the opinions; also specific interventions of the CCJE concerning the situation of national judiciaries are quoted as very valuable. According to its Terms of Reference, the CCJE provides practical assistance to enable Member States to comply with Council of Europe standards concerning judges. In past two years the CCJE has made an active use of this role by setting up a special pool of experts and by responding to the requests concerning the situation of the judiciary in several Member States (Bulgaria, Poland, Serbia, and Italy) as well as by following the operation of its previous declarations (Romania, Slovenia). The above mentioned requests have concerned mostly judicial appointments and remuneration, code of ethics, and responsibility of judges as well as judges' relations with media.
Furthermore, the CCJE co-operates effectively with other committees of the Council of Europe: such as the CCPE as demonstrated above; the European Commission for the Efficiency of Justice (CEPEJ) by commenting their reports on the evaluation of European judicial systems; European Committee on Legal Cooperation (CDCJ) (concerning the revision of the Recommendation Rec(94)12 on the independence, efficiency and role of judges, which the CCJE finds of paramount importance and regrets for not have had the possibility of being more closely involved in the drafting process); the Venice Commission (e.g. in 2008 concerning the European standards on the independence of the judiciary) and the United Nations concerning the Commentary on the Bangalore principles of judicial conduct. It is a pleasure to note that during the last year the contacts with the judges at the European Court of Human Rights have been reinforced in the framework of a fruitful exchange of views.
Another example of the wide-ranging performance of the CCJE is to organise conferences and meetings of European judges in order to encourage partnerships in the judicial field involving courts, judges and judges’ associations. As indicated above, the 4th Conference of European Judges took place in summer 2009 in Bordeaux. During the 10th plenary meeting in Slovenia, the members of the CCJE visited the Supreme Court of Slovenia and discussed the application of the CCJE Opinions and topics of possible future Opinions with their Slovenian colleagues. Several judicial bodies and association of judges from various Member States are very keen on establishing closer contacts with the CCJE. For example, the president and some members of the CCJE presented the work of the CCJE at a conference organized by an association of Spanish judges on the role of associations of judges in Europe. Many members of the CCJE have introduced via speeches and conference papers the ideas expressed in the Opinions of the CCJE at various European and international seminars and round tables to decision makers, practitioners and academics; published articles on related topics, as well as participated as trainers in training sessions. All these events are listed with further references at the web-page of the CCJE.
In order to improve the work of the CCJE, which due to only two working group and bureau meetings per year and one annual plenary session has to be done extensively via electronic means out of free time of the members of the CCJE, the CCJE has introduced new working methods which have already proven to be very effective during the preparations and sessions of the plenary meeting last year.
Consultative Council of European Judges as Laureate of a Prestigious International Award: High expectations for the Future
Ladies and gentlemen,
In 2009 the CCJE was awarded with a prestigious prize "Justice in the World." The Foundation “Justice in the World”, created under the patronage of the International Association of Judges, decided to honour the CCJE with this award for its action in favour of Judges in Europe. According to the bases for the reward, the prize will be awarded to the persons, bodies or institutions who have carried out activities aimed at not only to safeguard the independence and status of the judicial power, but also to increase and improve the knowledge society has concerning the Judicial Power. This is a very significant credit for the work of the CCJE. In fact, the opinions of the CCJE have been mentioned in media and have given possibilities to organise public debates on relevant themes.
With this enormous merit the international judicial community recognized that it was a remarkable invention of the Council of Europe to set up the Consultative Council of European Judges in the year 2000. As first of its kind within an international organisation to be composed exclusively of sitting judges as professional individuals who are not accountable to their governments, CCJE is indeed in this respect unique in the world.
The statuette of the “Justice of the World” award which will very soon be exhibited in the visitors' entrance of the Palais de l'Europe, as you will see represents a globe with scales of justice. Thus, the Council of Europe and the CCJE was handed over a duty to guarantee the independence and efficiency of the judiciary in our entire planet for at least one year. This responsibility can not be measured in words. Achievements place high expectations and challenges for our future work.
Hopefully this obligation inspires also the Council of Europe to carry on to support and strengthen the activities of the CCJE both morally and financially.
The CCJE can only assure to you that we will continue within our competences and at our best to make sure that the rule of law and the judicial independence will be respected. The CCJE has already become a distinguished expert for significant European and international working parties covering judicial issues and it should expand its activities in the future. It is necessary to express the judges' vision about the concept and content of justice to the European decision-makers.
At this stage, please let me briefly point out the main plans and targets of the CCJE for the next two years:
1) In 2010 the CCJE will adopt for your attention an Opinion on the role of judges in the enforcement of judicial decisions and propose concrete means to improve the efficiency of enforcement procedures. This work will be carried out in consultation with CEPEJ and the Department for the execution of Judgements of the European Court of Human Rights;
2) In 2011 the CCJE will adopt an Opinion on non-materialisation of the judicial process. This work will be carried out on the basis of the results of a European Conference of Judges on this topic. Most certainly there is no risk to run out of possible topics for further opinions in the future beyond 2011, as there are already now proposals discussed in the bureau;
3) The CCJE has made increased use of its role to warrant that states not only accept the European standards on judiciary in theory, but that they also apply them in practice. This function should be strengthened: The CCJE must have the means to entrust a limited number of its members with specific tasks, in order to organise hearings and if necessary, on spot missions.
4) In 2010 the CCJE will celebrate its 10th anniversary. Therefore, a completely new project will be launched: with an aim to prepare a unique document to summarise, update and codify the main conclusions of the adopted Opinions. It is desired that this document would constitute a kind of a Magna Charta of European Judges;
5) It is of utmost importance to continue widespread dissemination of the results of the work of the CCJE and to increase our visibility; The CCJE needs also to reach more and more European citizens. Hopefully the Magna Charta will among others help to do so.
6) The CCJE should continue to promote contacts with judges around Europe. In this context the working group meetings should continue to take place in different Member States in order to spread the ideas of the CCJE and enhance direct relations. The tradition of biannual Conferences of European Judges should definitely continue. Moreover, the CCJE needs to reinforce its relations with its partner organisations, among them the European Union, including the latter’s courts.
Ladies and gentlemen, it has been an enormous honour and responsibility for me personally to chair this distinguished body. It is also a source of pride for the Estonian judiciary and for the Supreme Court of Estonia where I serve as a justice. I have felt very much committed to CCJE reaching its goals in the interest of all Europeans. The CCJE has a very special part in my heart. I hope to continue to participate in the working group of the CCJE, because I think that the judge’s task is not only to adjudicate cases, but also to make sure that decisions are understood, to contribute to raising public awareness, to participate actively in finding the best ways to administer justice while respecting the protection of human rights, the rule of law and judicial independence. At the same time it is important to realize that judicial independence does not exclude the judiciary from the application of the principles of transparency, responsibility and accountability.
Thank You for your attention, for your trust and confidence!