EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW
(VENICE COMMISSION)
UNIDEM
Campus trieste seminar
“the independence
of the judicial
system
from the executive
and legislative power”
Trieste, Italy
28 September – 1 October 2009
|
REPORT
OVERVIEW ON THE EXISTING STANDARDS
AT INTERNATIONAL LEVEL AS REGARDS
THE INDEPENDENCE
OF THE JUDICIAL SYSTEM FROM THE
EXECUTIVE POWER
AND THE LEGISLATURE
by
Mr Sergio BARTOLE
(Member, Professor, University of
Trieste, Italy)
1. In this presentation I’ll deal
with a group of documents which come from bodies of the Council of Europe and
from associations which work in the frame of the Council. They are: the
Reccomendation of the Committee of Ministers n. 12 ( 1994 ), the European
Charter on the Statute for judges, and a Vademecum of the opinions of the
Venice Commission on the judiciary and a draft report on the independence of
the judicial system which is under preparation by the Venice Commission.
2. All these documents are based on
the recognition of the connection between the protection of the human rights
and fundamental freedoms, on one side, and, on the other side, the independence
of the judges in the light of art. 6 ECHR. The point is very important: the
construction of art. 6 offers a yardstick to measure the correct extension of
the independence of the judiciary which should be proportional to the
exigencies of the protection of the human rights and fundamental freedoms.
According to the mentioned documents the relevant rules should avoid the
temptation of connecting the independence with the corporatist interests of the
judge and of giving space to cronyism between the judges. Independence is not a
mean to promote the appointments and the promotions of the judges on the basis
of their personal friendships and to take care of their economic interests.
3. The last remark reminds us that
the danger of corporatism and cronyism is specially evident if we take in
consideration the evident preference of the documents for the establishment of
a Superior Council of the Judiciary as a mean to insure and implement the
independence of the judiciary. The idea of entrusting to this body all the
functions concerning the career of the judges previously held by the Executive
or by the Parliament is generally accepted according to the evidence offered by
the new European constitutions. As a matter of fact the new democracies follow
the suggestion of the bodies of the Council of Europe providing for the
election of at least the 50% of the membership of the new body by the judges.
The dangers of cronyism and corporatism should be avoided by the presence in
the Council of members elected by the Parliament or appointed by the Chief of
the State or by the Bar and its associations.
4. I’ll spend only few words to
explain the connection between the guarantee of human rights and the
independence of the judiciary. The independence is aimed at insuring an
interpretation of the law which is not affected by the interests of other
constitutional institutions, of the political parties, of the economic
organizations and of every other social interest which could be promoted
through an interpretation of the law adopted in conflict with the principle of
fairness and of conformity with the law. The extension of the judicial
independence has to be proportional to these principles to avoid the use of the
judicial power instrumental to bypass the rule that the judges are subject only
to the law.
5. The complexity of the membership
of the body which should be in charge of insuring the independence of the
judiciary is strictly connected with the problem of the compliance with the law
by the judiciary. On one side, all the documents of the Council of Europe
require that the rules concerning the career of the judges shall be objective,
that is that they shall not offer space to the discretion of that body. But all
of us know very well that the ideal of a legal interpretation which is not
conditioned by the intervention of the discretion of the interpreter is only
wishfulthinking. Therefore the aim of the fidelity to the ideal of the
objectivity of the rules concerning the judiciary cannot be achieved through
the individual interpretation of a single interpreter but only through the
mutual checking of the their personal interpretations by the members of a body
with a complex membership. This can be the justification for the creation of
the Councils of the judiciary, where the different contributions of the members
of the body insure their mutual balancing in view of the achievement of a
satisfying objectivity.
6. On the other side, the selection
of the judges which is made through the machinery of a complex body with a
plural membership should guarantee the appointment and the promotion
of judges who – in the frame of
their mutual cooperation – are able to guarantee an objective exercise of the
judicial function.
7. Now I want to deal with a
problem which is not very frequently dealt in the mentioned documents. The
constitutions presently in force very frequently provide for the creation of
more than one judicial organization distinguishing common or ordinary judges
and special or specialized judges. The existence of these different
organizations can arise problems with regard to the their independence as far
as the Council of the judiciary is frequently entrusted with the functions
dealing with the common judges only. If this happens, we have to solve the
problem of the independence of the special judges. Two ways are possible, on
one side the legislator could concentrate all the matters concerning the
independence of all the judges in the hand of one Council of the judiciary, or
it could provide for the establishment of more than one Council, one for every
each judicial organization. Finding a solution is not very easy, because the
question is connected with the problem of the unity or not of the judicial
system. Taking in consideration the historical message of the United Kingdom
legal system ( where in recent years the number of administrative tribunals is
in any case growing up ), we could have a slight preference for the existence
of only one common judicial system and, therefore, we could try to balance the
existence of special judges with the creation of only one Judicial Council.
This last choice could guarantee the omogeneity of the judicial personnel: all judges
should have the same culture and professional education according to the ideal
aim of the unity of the judicial system in view of insuring a common attitude
of all judges with regard to the interpretation of the law. But the
establishment of special judges has frequently the different aim of creating
special judicial organizations whose judges have a special and peculiar legal
culture and professional education. If we need to get these results we shoul
adopt the solution of having a specific Judicial Council for every each
judicial organization.
8. In any case we have to remind
that the problem of guaranteeing the independence of the judges regards not
only the ordinary or common judges, but also the other judges which are present
in the legal system, whose organization has also to comply with the principles
of the European constitutional heritage.
9. Which is the preferable
composition of the Council? The mentioned documents show a clear preference for
a solution which reserves to the members elected by the judges at least 50% of
the seats. The choice is correct but I think that we should avoid giving to the
judges a too large majority: in a recent contribution Cass Sunstein, an
outstanding American constitutional lawyer, underlines the fact that when the
membership of a body is largely rappresentative of people who have the same
interests and the same way of thinking, the body is naturally pushed to support
an extremist interpretation of these interests and way of thinking. The
creation of a Council for the judiciary should instead guarantee an objective
and fair examination of the problems at stake. Therefore the 50% or more of
members elected by the judges should be balanced by the strong presence of
members who have a different origin and legitimacy in such a way that the
decisions of the Council shall be the result of a compromise between members
elected by the judges and members appointed or elected by other bodies.
10. What about the presence of the
Chief of the State and of the Minister of Justice in the Council? Only if the
Chief of the State has functions of constitutional guarantee and is not the
promoter of choices concerning the policy of the Cabinet and of the Parliament,
his presence in the Council is not a danger, while the presence of the Minister
of Justice – even if he is not a member, and this is the preferable solution –
can be useful to insure the coordination of the respective activities.
11. As a matter of fact, the
problem of the relations between the Council and the Chief of the State or the
Minister of Justice is very delicate, specially in the legal orders which
entrust one of them with the task of implementing the decisions of the Councils
concerning the career of the judges. Both of them frequently pretend to check
the conformity of the Council’s deliberation to the law, but it frequently
happens that the legality reasons hide the refuse of the merit of the decisions
(the Chief of the State or the Minister don’t like the concerned judges, they
have different political preferences, they don’t appreciate the previous
jurisprudence of the judges who are affected by the decisions of the Council ).
In principle the possibility of a control of legality cannot be excluded but an
interference in the choices of merit is not acceptable. Therefore the
independence of the judiciary is really guaranteed only where the Judicial
Council is allowed to complain about the interference of other bodies ( for
instance, the refusal of implementing its decisions ) before the Constitutional
Court: this is the case of the legal orders where the Constitution entrusts to
the Constitutional Court the solution of the conflict between the powers of the
State.
12. The solution which implements
the independence of the judiciary through the establishment of a Judicial
Council, is not the only arrangement adopted by European democracies. The
mentioned documents of the Council of Europe are conscious of this fact. They
approve even arrangements which entrust the executive power with the adoption
of the administrative acts concerning the career of the judges if a country
which has a long history of democracy and respect of the rule of law, is at
stake. But the approval of these practices is always balanced by the
recognition or by the suggestion that the exercise of the relevant functions of
the Executive has to be supported by the ( mandatory ) advise of neutral
technical or judicial bodies. The Executive shall follow the opinions of these
bodies and, if it does not accept them, it has to justify its choice. In any
case a judicial review of the executive acts shall be provided for.
13. It happens that in some countries
the last word on the acts concerning the appointment and the promotion of the
judges is in the competence of the parliamentary assemblies. The bodies of the
Council of Europe think that such a solution can open the doors to a dangerous
influence of the political parties. The mentioned documents underline the
recognition of the difficulty of the establishment of a new Judicial Council in
countries of recent democratization where it is not convenient giving to the
old judges the rights of elect and of being elected members of the Council,
specially if a lustration process cannot be easily promoted. But they would
prefer that in any case the intervention of the parliamentary assemblies is
avoided, or, if avoiding it is not possible, is connected with a machinery
which implies neutral and fair choices.
