22nd Conference of European Ministers of Justice
INDEPENDENCE AND IMPARTIALITY OF JUDGES
17-18 June 1999
Conclusions, 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.
Resolution No 1 on measures to reinforce the independence and impartiality of judges in Europe
THE MINISTERS participating in the 22nd Conference of European Ministers of Justice (Chişinău, 1999),
Having discussed the topic of the independence and impartiality of judges on the basis of the report presented by the Lord Chancellor (United Kingdom) and the co-reports presented by the German and Moldovan Ministers of Justice and the other information presented during the Conference;
Having regard to the individual rights and freedoms guaranteed by the European Convention on Human Rights and in particular Article 6 thereof which provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”;
Bearing in mind the legal instruments of the Council of Europe in the field of justice, in particular Recommendation No. R (94) 12 on the independence, efficiency and role of judges;
Recalling the United Nations Basic Principles on the Independence of the Judiciary;
Drawing attention to the importance of the commitments entered into by Council of Europe member states concerning the functioning of the judicial system;
Bearing in mind also the conclusions made within the framework of the co-operation programmes in the legal field (Demo-droit, Themis, Activities for the development and consolidation of democratic stability (ADACS)), in particular the joint programmes with the European Union;
Welcoming the considerable progress already made over the past ten years in Central and Eastern Europe with regard to judicial reform and the independence and impartiality of judges;
Aware that in its report sent to the Committee of Ministers in November 1998 the Committee of Wise Persons stated in its main recommendation No 23 (see also paragraph 72 of the report) that the Council of Europe’s “direct co-operation with national institutions of the judiciary should be reinforced, having regard to the principle of independence of judiciary power and to existing judicial bodies’ own status within their states”;
Having regard to the decisions of the Committee of Ministers made in the light of the results of the monitoring procedure of the commitments entered into by member States in the field of justice;
Taking into consideration the essential role of an independent and impartial judge as the guardian of the individual rights and freedoms guaranteed by the European Convention on Human Rights;
Convinced that judges should respect ethical criteria in their professional activity;
Aware of the need to reinforce the independence, impartiality, professional and ethical standards and competence of judges in Europe in order to ensure the proper administration of justice and respect for the Rule of law;
Conscious that a properly functioning judicial system is a prerequisite for economic development;
Pointing out that a fair and impartial judicial system plays a key role in the fight against organised crime and corruption in contemporary society;
Convinced of the need to guarantee judges the vital prerequisites for performing their duties, including appropriate training and the resources necessary to discharge their responsibilities;
AGREE that judicial independence can be achieved only if the legislature, the executive and the judiciary have respect for one another;
RESOLVE anew to take all necessary measures to respect, protect and promote the independence of judges in their own countries;
INVITE THE COMMITTEE OF MINISTERS:
I. to step up the Council of Europe’s action to promote the fundamental standards of justice necessary in a State founded on the principles of democracy and the Rule of Law and to allocate the resources which are indispensable in order to carry out the various programmes of activities in this area so as to provide support for the necessary reforms.
II. to this end, to adopt a global action programme for the strengthening of the role of judges in Europe, to be prepared by the European Committee on Legal Co-operation (CDCJ) and the European Committee on Crime Problems (CDPC) in consultation with judges, taking into account the Council of Europe’s acquis in this field and aiming in particular at:
a. identifying the priority areas as regards the independence, the impartiality and also the competence of judges in member States and applicant States both at a legislative and an institutional level;
b. proposing activities aimed at strengthening the independence, the impartiality and the competence of judges;
c. proposing ways of holding consultations with judges on measures to be taken with a view to improving the functioning of justice;
d. promoting programmes to improve the functioning and effectiveness of justice by providing appropriate training of judges, including arrangements with a view to acquiring experience in other European jurisdictions;
III. to set up within the Council of Europe a consultative group composed of judges to assist in carrying out the priorities identified in the global action programme for the strengthening of the role of judges in Europe and to advise the steering committees on whether it is necessary to update the legal instruments of the Council of Europe and if so how;
IV. to instruct the European Committee on Crime Problems (CDPC) and the European Committee on Legal Co-operation (CDCJ) to report to a future Conference of European Ministers of Justice on the independence, impartiality and competence of judges in Europe;
V. to continue the organisation of regular meetings for judges in European countries and in particular:
a. multilateral meetings of Presidents of Supreme Courts;
b. meetings of the Lisbon Network (on training for judges in Europe);
c. meetings of judges’ Associations.
Resolution No 2 on South Eastern Europe
THE MINISTERS participating in the 22nd Conference of European Ministers of Justice (Chişinău, 1999),
Referring to the Stability Pact for South Eastern Europe adopted on 10 June 1999 at the Ministerial Conference in Cologne;
Bearing in mind Resolution 1244 (1999) of the Security Council of the United Nations;
Having regard to the 50 years experience of the Council of Europe in promoting the Rule of law, pluralist democracy and Human Rights;
Welcoming the action and the proposals of the Council of Europe, in order to contribute with the United Nations and the OSCE, to the assurance of the proper functioning of an efficient and independent judiciary in Kosovo;
Wishing to contribute to reconciliation in the region,
INVITE THE COMMITTEE OF MINISTERS to contribute to the implementation of the Stability Pact with regard to the functioning of democratic institutions, in particular by working with the countries of the region to help :
- to ensure the functioning of independent and efficient judicial systems,
- to provide sufficient training for all persons involved with the functioning of justice,
- to combat corruption, organised crime and terrorism,
- to contribute to the protection of minorities by means of the programmes and legal instruments of the Council of Europe
INVITE the governments of member States to give the necessary support to this action.
Resolution No 3 on the fight against corruption
THE MINISTERS participating in the 22nd Conference of European Ministers of Justice (Chişinău, 17-18 June 1999),
Recalling Resolution N° 1 of their 21st Conference (Prague, 1997) on “Links between corruption and organised crime”,
Welcoming the considerable political support given by the Second Summit of Heads of State and Government of the Council of Europe (Strasbourg, 1997) to the action proposed in the Prague Resolution, as well as the rapid and efficient follow-up given to the Resolution by the Committee of Ministers :
- adoption on 6 November 1997 of Twenty Guiding principles for the fight against corruption;
- creation on 5 May 1998 of the Group of States against Corruption – GRECO –which started operating on 1 May 1999, with 18 Member States to-date;
- opening for signature on 27 January 1999 of the Criminal Law Convention on Corruption, already signed by 26 Member States,
URGE the Committee of Ministers to adopt the draft Convention on civil aspects of corruption and open it for signature before the end of 1999, and EXPRESS THE WISH that the Model Code of Conduct for Public Officials may be finalised at the beginning of the year 2000,
RECOMMEND that the Committee of Ministers grant the highest priority to the work in hand in this area,
RECOMMEND that the member States of GRECO, which will hold its first meeting in the Autumn 1999, afford it all means necessary for its functioning.
Resolution No 4
THE MINISTERS participating in the 22nd Conference of European Ministers of Justice (Chişinău, 1999),
Aware of the advantage of arranging personal contacts between the Ministers responsible for their governments’ policy in the legal field in order to foster the progress of cooperation in this area in Europe,
EXPRESS the warmest thanks to the Moldovan Government for the excellent organisation of the 22nd Conference in Chişinău and for its kind hospitality ;
WELCOME with appreciation the invitation of the Lord Chancellor of Great Britain to hold the 23rd Conference of European Ministers of Justice in London in the year 2000 on the subject “Delivering Justice in the 21st Century”.