Speeches and Op-eds
High-Level Conference of Ministers of Justice and representatives of the Judiciary "Strengthening Judicial Independence and Impartiality as a Pre-condition for the Rule of Law in Council of Europe Member States"
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Ladies and gentlemen,
Democratic societies recognise conflict and the legitimacy of dispute. This is inherent in pluralism and diversity – values we cherish.
In order to manage people’s differences successfully, and to allow individuals to live alongside each other, under majority government, democracies grant their citizens certain rights and freedoms:
Freedom of expression; the right to privacy and family life; the freedoms of the individual vis-à-vis the state; the protection of the weak and vulnerable against the interests of the rich and powerful, and so on.
Complex rules govern these norms and relations.
And when disputes arise, as they inevitably do, judges have the extremely important task of ensuring that they are resolved in accordance with the law.
The independence and impartiality of judges is therefore the primary guarantee, for the members of any society, that they will be treated fairly and equally before the law.
If a democratic society cannot manage conflict in this just, lawful and civilised manner, it will lose the very legitimacy it needs to survive.
And if people lose faith in the ability of their courts to perform this function, social stability cannot be guaranteed.
In recent years, in many European countries, we have seen trust in institutions plummet:
Anger at the banks and financial regulators.
Frustration with the political class, parts of the media and international institutions.
Outrage at greed and lies exposed in the world of sport.
But when people see self-interest, political agenda and corruption affecting their courts – then we are really in trouble.
Because then comes the abuse of power, the breakdown of the rule of law, widespread disillusionment…and unrest is never far away.
Ladies and gentlemen, judicial independence and impartiality are the cornerstone of any robust system of checks and balances – and for that reason I am greatly encouraged to see you all here today.
The state of judicial independence and impartiality in Europe today
My most recent annual report on democratic security in Europe, published last May, found that at least one third of member states were failing to guarantee sufficient levels of impartiality and independence.
It also exposed big gaps in the available data, which meant that, in reality, the situation might well have been worse.
Since then we have worked hard to put together a clearer picture.
I commissioned two reports.
One jointly from the Consultative Council of European Judges and the Consultative Council of European Prosecutors, on the challenges in member states;
And also a review of the action taken by national authorities to meet the principles set out in the Committee of Ministers Recommendation on the independence, efficiency and responsibilities of judges (CM/Rec(2010)12).
Of course, we in Strasbourg are alive to the great variation across Europe’s judicial systems. But it is important to pause, reflect and take a pan-European view.
In nearly all member states, if not all, there are issues to be addressed – some minor or perhaps less fundamental; but even these smaller concerns will become larger ones if not dealt with promptly.
There are also trends, which require our collective attention. And, when it comes to Europe’s democratic security, weaknesses in one state almost always have consequences beyond its borders. In terms of stability, our nations are like links in a chain.
I want to acknowledge, first, the progress which has been made.
Our continent contains some of the most respected and copied legal systems in the world.
Great efforts have been taken by most member states to adapt their legal systems to the principles set out by the Committee of Ministers recommendation I cited.
At a formal level, in most states, the principles of independence and impartiality are enshrined in the constitution – which is crucial.
And, in most of the member states which do not yet sufficiently guarantee impartiality and independence, reforms are underway which we hope will lead to significant improvements in the coming years.
Still, however, serious problems, even systemic problems, remain.
The report of the Consultative Councils bears witness to many examples of interference, particularly by the executive, leading in some cases to persecution of individual judges. In a number of states we find judicial systems which suffer from chronic corruption, political interference, inadequate funding and a lack of transparency in judicial appointments, further compounding public distrust in the fairness and quality of court decisions.
There are also very troubling examples of states which have previously achieved substantial judicial reform, yet where overbearing executives and wider political events have very quickly caused setbacks for judicial independence. In these cases, appointment and removal processes for judges are increasingly politicised, while disciplinary proceedings are used – or threatened – to censor or intimidate judges.
In some of these states, judicial councils – which can be a very effective wall against interference – have been shown to be vulnerable to co-option and have been used by the executive to exert indirect control over the judiciary. Where there are unclear institutional arrangements relating to judicial self-governance, this also creates spaces in which judicial independence can be infringed.
From all this the lesson which is becoming increasingly clear – and which will feature prominently in my third annual report, which I will distribute to governments over the coming days – is, bluntly, that laws are not enough.
Constitutional guarantees, formal legal requirements and international safeguards are indispensable. Strong judicial independence and impartiality are impossible without them.
But alone they are insufficient.
In addition, we also need proper checks and balances to ensure a separation of powers between the judiciary and other branches of power.
We need a culture of independence and impartiality: the attitudes and personal integrity which sustain it in the long term.
These two additional safeguards – checks and balances and a culture of independence – are essential if states are to permanently insulate their courts from the twists and turns of politics.
The Action Plan
Putting these safeguards in place takes time. Judicial integrity, in particular, requires nurturing. The process of entry into the profession, training and promotion needs to be carefully protected from undue interference. This does not rule out any involvement of the executive or legislature, which can be beneficial. But it must always be respectful of judicial autonomy.
And not only does this process take time, it takes commitment: the personal commitment of the profession, of politicians and officials, as well as partners like ourselves.
As you know, last week, the Council of Europe’s Committee of Ministers adopted, at my request, a new Action Plan to strengthen judicial independence and impartiality. We are here to launch it and to discuss how to implement it.
I’d like to quote the conclusion of the CCJE/CCPE report I referred to earlier, which says:
“What is critical is not the perfection of principles and, still less, the harmonisation of institutions; it is the putting into full effect of principles already developed. To live those principles is the challenge at hand.”
For me, this objective is at the heart of the Action Plan.
It is a strategic approach to a series of fundamental and pressing problems.
It is about providing support – not creating new standards.
The Action Plan sets out the steps which need to be taken, first, to improve or establish formal legal guarantees of judicial independence and impartiality. As I said, these are an essential first condition.
And, secondly, to put in place the necessary structures, policies and practices to ensure that these guarantees are respected in practice.
It focuses on three areas:
- relations between the judiciary and the other powers;
- the individual judge and how to ensure his or her independence and impartiality;
- and the role of public prosecutors.
As well as highlighting the reforms needed from member states, it makes clear how the Council of Europe will continue to support you in this process. Including, of course, to help states avoid violations of the European Convention on Human Rights, which would otherwise find them in the Strasbourg Court.
While membership of the Council of Europe brings legal obligations, it also provides a community of shared experience and a wealth of expertise. This plan draws on the many bodies within the Organisation which you have at your disposal – many of whom I am pleased to see represented here today.
I also want you to be in no doubt of my personal commitment – and that of the secretariat – to this agenda.
Agreeing the Action Plan, and agreeing it so quickly, is already an achievement. It is credible, comprehensive, cost-neutral – but the work starts now.
I am doing everything I can – through my reports, the work I commission, this Action Plan – to keep judicial independence and impartiality on the international agenda, even though they may not seem as urgent as our other priorities, like the fight against terrorism or the refugee crisis…
…because honest and decent courts are there, until they are gone.
We are getting to that stage in some states, and we need to pull things back.
We, as a continent, need to say that this is a priority.
That Europe is a place where all judges should be fiercely proud of their independence and all judicial systems should be shielded from political dramas.
This is how we build our democracies on solid foundations, ensuring greater democratic security.
We all have a part to play, and I thank you very much for being here today.