22nd Conference of European Ministers of Justice
17-18 June 1999, Chisinau (Moldova)
Report by the Secretary General of the Council of Europe
1. The 22nd Conference of European Ministers of Justice was held in Chisinau on 17 and 18 June 1999 at the invitation of the Moldovan Government. The agenda, list of participants and resolutions adopted appear in Appendices I to III to this report.
2. The Bureaux of the CDCJ and the CDPC held a joint meeting on the eve of the Conference, as did the Senior Officials.
3. The Moldovan Minister of Justice was elected Chair of the Conference and the Czech Republic and the United Kingdom provided the Vice-Chairs.
4. The theme of the Conference was "Independence and Impartiality of Judges". The main report was prepared by the Lord Chancellor of Great Britain, while the German and Moldovan Ministers of Justice presented co-reports.
Several delegations also presented memoranda (see list of working documents for the Conference in Appendix IV).
5. The President of the Republic of Moldova, Mr Petru Lucinschi, pointed out in his opening speech that an independent judiciary is a fundamental component of a state governed by the rule of law. Consequently, it was for the executive to provide the legislative and other guarantees to which judges and citizens were entitled.
The President also mentioned the reforms carried out in his country in recent years, both prior to and after Moldova's accession to the Council of Europe, and expressed his gratitude for the assistance provided by the Organisation.
6. In his speech, the Deputy Secretary General spoke of the work already carried out by the Council of Europe as well as the work in progress, particularly the procedure for monitoring the commitments taken by member States, which had concerned mainly the functioning of the judicial system and would be accompanied by monitoring activities in the context of the intergovernmental and ADACS (Activities for the development and consolidation of democratic stability) programmes.
He also said that the Council of Europe was prepared to play an active role in the implementation of the Stability Pact for South Eastern Europe, adopted in Cologne on 10 June 1999.
7. At the end of the discussions, during which almost all of the delegations took the floor, the Ministers adopted four resolutions (see Appendix III).
8. Resolution No. 1 "on measures to reinforce the independence and impartiality of judges in Europe" calls on the Committee of Ministers to step up the Council of Europe's action in the field of justice and, to this end, to adopt a global action programme for the strengthening of the role of judges in Europe.
The Ministers also recommended that a consultative group made up of judges be set up within the Council of Europe and that regular meetings continue to be organised for judges.
Finally, the Ministers asked that the European Committee on Crime Problems (CDPC) and the European Committee on Legal Co-operation (CDCJ) present reports at a forthcoming Conference on the independence, impartiality and competence of judges in Europe.
9. Resolution No. 2 "on South Eastern Europe" calls on the Committee of Ministers to contribute to the implementation of the Stability Pact for South Eastern Europe with regard to the functioning of democratic institutions; the member states, for their part, are called on to give the necessary support to this action.
10. Resolution No. 3 "on the fight against corruption" welcomes the action taken by the Committee of Ministers in this field and stresses the urgency of the work in progress on the draft Convention on civil aspects of corruption and the Model Code of Conduct for Public Officials.
Moreover, the member states of the Group of States against corruption - GRECO - are called on to afford it all the means necessary for its functioning.
11. Resolution No. 4 expresses the Ministers' gratitude for the organisation of the 22nd Conference of European Ministers of Justice in Chisinau and welcomes the invitation from the Lord Chancellor of Great Britain to hold the 23rd Conference in London in 2000.
12. The Lord Chancellor's report (MJU-22 (99) 1) points out that, although all states guarantee the independence of the judiciary in their legislation or constitution, the degree to which this principle is actually implemented varies considerably from country to country. Member states can and should therefore be guided by the examples set by other states.
13. The first measures that should be taken are those which ensure that the appointment and promotion of judges are free from improper political interference; it is particularly important that the public can see that judges are appointed only on the basis of merit.
Likewise, in order to guarantee intellectual independence from the other arms of the state, it is necessary to maintain a certain distance between the public prosecutor's department on the one hand and judges on the other.
14. Once judges have been appointed, they must be given adequate resources, including an appropriate salary. The public will see this not only as a sign of their efficiency and a guarantee of their integrity, but also as an indication of the importance of the judiciary for both the state and society.
15. The co-report submitted by the German Minister of Justice (MJU-22 (99) 2) examines the points raised in the British report and elaborates on the detailed analysis of the implications of the principle of the independence of judges and the means of securing that principle.
16. Although it unreservedly endorses the principles and objectives set out in the British report, the German report sometimes reaches different conclusions with regard to the measures envisaged; this proves once more that each legal system can and should find solutions that suit it, with due regard for the general principle of the independence and impartiality of judges and without aiming for universal solutions.
17. The co-report by the Minister of Justice of the Republic of Moldova (MJU-22 (99) 3) stresses the importance of the judiciary in guaranteeing the irreversibility of the democratic process; to this end, judges must obviously be independent.
The question is particularly relevant in countries which have recently made the transition to democracy. It is often noted that the new laws enacted in these countries are state-of-the-art laws and sometimes better than the laws in countries with long-standing democratic traditions; on the other hand, the enforcement of these laws still leaves much to be desired.
18. An independent judiciary guarantees the kind of social stability that attracts and reassures investors; legislative and institutional reforms should therefore be accompanied by economic reforms.
19. Lastly, the co-report acknowledges that the Council of Europe's role is to promote and consolidate the principles of a democratic society based on the rule of law.
Summary of the discussions
20. The discussions revealed that, in Europe, the question of the independence and impartiality of judges was considered to be a fundamental aspect of the rule of law. It was therefore essential to focus efforts on safeguarding and strengthening these features and to bear in mind the need to maintain a balance between Ministers of Justice and the courts in an effort to preserve the integrity of judges;
21. The Ministers acknowledged that the independence of the judiciary was also important if the public was to consider judges to be credible and have confidence in the judiciary. Attention was drawn, in this context, to the importance of information policies where the administration of justice was concerned and the transparency of procedures.
22. Likewise, several delegations reiterated their belief that, in a democratic society, the irremovability of judges - a major prerogative of their independence - must be guaranteed. It was considered extremely important that judges should be transferred, promoted or removed from office only in accordance with clear-cut procedures provided for by law.
23. Reforms of the judicial system in the new democracies confirmed the concern of States to guarantee citizens access to independent courts and impartial and competent judges. It had to be said that considerable progress had been made in this area over the past few years. However, problems continued to exist and it was necessary to continue such reforms, which should be given priority and properly financed.
24. Having recognised the need for transparency and independence in the administration of justice, some delegations acknowledged that the judicial services and court management in their countries needed to be modernised to provide better guarantees of certainty of the law where the public was concerned. To the same end, it was essential that courts be given sufficient human resources, in terms of both judges and auxiliary staff. Likewise, courts should have the financial and technical - in particular computer - resources they needed to function properly. These measures should make it possible not only to reinforce the independence of judges and enhance the image of the judiciary in society but also to reduce the length of proceedings.
25. A satisfactory level of remuneration was also seen to be an effective means of preventing corruption among judges. Many participants believed that states should invest in their judicial system in order to respond to the increasingly high demands society placed on the courts.
26. Several Ministers stressed the need to adopt appropriate procedures for the appointment and promotion of judges. These procedures should respect both the principle of independence and the legal traditions of each country. Several delegations pointed out that the appointment of judges by procedures that were transparent and respected the principle of independence was the sole means of guaranteeing that states complied with the requirements of Article 6 of the European Convention on Human Rights.
27. The Ministers considered training - both initial and further training - to be a very important means of guaranteeing judges' independence, impartiality and competence. Training played a key role in effective adjudication in keeping with the requirements of the rule of law. Consequently, states should organise training to enable judges to keep up and improve their knowledge not only of the law but also of social and cultural issues. Judges must be given the opportunity to undergo training, including training in international law, and to learn more about judicial systems in other countries. Given the changes in the types of crime perpetrated, it was proposed that judges be given more specialised training. The Ministers considered training in the ethics of the profession to be indispensable if the effectiveness of judicial practice was to be improved.
28. The concern to render justice more effective could also be seen in the Ministers' call for improvements in disciplinary procedures and measures to ensure that judges were held responsible for their actions. It was pointed out that these procedures should be administered from within the judicial system.
29. The Ministers recognised that the need to strike a balance between the rights and duties of judges was a universal problem. Some delegations therefore wanted the Council of Europe to draw up instruments specifying the duties of judges in European states, the powers and responsibilities of judges' associations and relations between judges, public prosecutors and barristers.
30. In modern society, the courts were subject to scrutiny and to the pressure of public opinion. Consequently, to ensure that the courts could administer justice serenely, in an independent and impartial manner, some delegations were in favour of educating the public in law-related matters.
31. Several Ministers welcomed the training programmes for judges proposed and run by the Council of Europe and said they wished to see more of these programmes, in particular seminars for those responsible for training judges in both member and applicant countries. Meetings between judges from the different countries were also considered particularly useful.
32. Several references were made to the importance of the Council of Europe's legal instruments in this field, in particular the European Convention on Human Rights, Recommendation No. R (94) 12 of the Committee of Ministers on the independence, efficiency and role of judges, and the recommendations made in the Report of Committee of Wise Persons. The European Charter on the Statute for Judges, although not officially recognised, had proved to be useful in drawing up a statute for judges at national level.
33. In the light of the Council of Europe's objectives, as set forth in its Statute, the Ministers called on the Organisation to strengthen and extend its activities to promote the fundamental rules governing the administration of justice. They stressed the need to prepare, within the Council of Europe, a programme designed to consolidate the independence and impartiality of judges and improve their competence. Several Ministers believed that it was necessary to carry out activities designed to promote the sharing of experience and foster the same standards of professional integrity among judges in all European states. It was pointed out that judges should be involved in the discussions so that the needs of the judiciary could be taken into account and so that the action taken was effective.
34. Lastly, emphasis was placed on the importance of the Conference in encouraging discussion on relations between the judiciary and the Ministers of Justice in a democratic state, as well as on the importance of judicial reforms for society.
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The Deputy Secretary General wishes to pay tribute to the Moldovan authorities and to thank them for organising the Conference so efficiently and for the warm hospitality extended to all the participants.