Strasbourg, 14 October 2009	CDL-UDT(2009)012 Engl. only

 

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

 

WORKSHOP: A COMPARATIVE PICTURE

ON ISSUES RELATED TO INDEPENDENCE

THROUGH THE CEPEJ REPORT

ON EUROPEAN JUDICIAL SYSTEMS

 

by

 

 Ms Elsa GARCIA-MALTRAS DE BLAS

(Senior Prosecutor, European Training Network (EJTN),

Brussels, Belgium)

 

1.  In the framework of the seminar “The Independence of the Judicial System from the Executive and the Legislative Power”, the aim of this workshop is:

 

·      To make an introduction of the role and works of the European Commission for the Efficiency of Justice (CEPEJ), namely regarding the evaluation cycles and reports on European Judicial Systems

·      To examine those parts of the CEPEJ report relevant to the topic of independence of the judicial system and see to what extent differences between systems and trends can be identified or conclusions drawn.

·      To take the data in CEPEJs report as a starting point to encourage participant’s  reflections on the strenghts and weaknesses of different systems regarding Independence of the judicial systems.

 

 

1. The CEPEJ and the evaluation of European Judicial systems

 

 

2.  The European Commission for the efficiency of justice (CEPEJ) was set up on 18 September 2002 by Resolution Res(2002)12 of the Committee of Ministers in order to improve the efficiency and the functioning of the justice system of member states, with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system. Its creation reflected the wish to reinforce the rule of law and the protection of fundamental rights in European countries, as both aspects are intrinsecally linked to the existence of judicial systems which are fair, efficient and accesible.

 

3.  To this end, CEPEJ’s tasks include examining the results achieved by the different judicial systems, making use of common statistical criteria, and defining problems and areas for possible improvements. In addition, it promotes the application of COE’s recommendations in the field of justice, as well as the exchange of views and information on the functioning of European judicial systems. CEPEJ is composed of experts from all the 47 member States of the COE. A number of observers are also associated with the work of CEPEJ, such us European institutions (Council, Parliament, Commission) and relevant international non-governmental organisations (ie. European Association of Judges, European Union of Rechtspfleger, International Union of Judicial Officers, EJTN, European Network of Councils of the Judiciary, etc).

 

4.  One of CEPEJ’s greatest achievements has been to set up a regular evaluation process of European judicial systems in European countries. This started as a pilot exercise in 2003, when the Working Group in charge of this task (CEPEJ-GT-EVAL) first elaborated a detailed questionnaire and its explanatory note (“pilot scheme”) on quantitative and qualitative aspects of justice that was sent to the member states of the COE. 42 of them participated in this exercise and a pilot report comprising judicial data for the year 2002 was issued in 2004.

 

5.  In the Action Plan adopted at their 3rd Summit (Warsaw, May 2005) the Heads of State and Government of the 47 Council of Europe’s member states expressed their support for the evaluation process set up by CEPEJ and their will to strengthen it.

 

6.  Ever since, and drawing from lessons learnt, a bi-annual evaluation exercise has been taking place. This means that, in addition to the pilot report, two full evaluation cycles have now been achieved by the CEPEJ, resulting in two detailed reports on the concrete functioning of justice in 45 European states (edition 2006 with data of 2004 and edition 2008 with data of 2006). Currently, the evaluation scheme has already been sent to member states that by the end of the year will have to provide data for 2008, with a view of elaborating and publishing a new report in 2010. In the long term, the evaluation process aims to define a core of key quantitative and qualitative data (European justice indicators) to be regularly collected and equally processed in all European states and to bring out shared indicators to measure the quality and efficiency of court activities.

 

7.  The CEPEJ’s  report on European Judicial Systems gives a comparative snapshot of many aspects related to justice: budgetary data, incoming civil and criminal cases, anual salaries of judges or prosecutors, geographical distribution of courts, satisfaction surveys amongst court users, disciplinary proceedings against lawyers…are only some examples. It is divided in 16 chapters which cover public expenditures on justice, access to justice, court users (rights and public confidence), court organisation, ADR, judges, non-judge staff, fair trial and court activity, prosecutors, status and career of judges and prosecutors, lawyers, execution of court decisions, notaries and  judicial reforms.

 

8.  The report is unique in the number of subjects and countries covered and offers policy makers, practitioners and researchers a wealth of information and a tool for reflection and policy making. It is however not the end but the beginning of the evaluation process. Beyond the useful data it contains, there is room for in depth analysis on specific issues and this task is also undertaken by CEPEJ during the year following the adoption of each report. Topics such as access to justice, use of ICT, execution of court decisions, or court organisation have or will be the subject of CEPEJ studies. In addition, the continuity of evaluation cycles will hopefully allow for a dinamic approach, in which the evolution of judicial systems can be followed and major trends identified, and proposals can be made accordingly to improve the efficiency and quality of justice.

 

9.  The CEPEJ report itself alerts of the need to be very cautious when it comes to the comparison of quantitative figures from very different countries with varied geographical, economic and legal situations. The closer the characteristics between compared systems the more meaningful the comparison will be. Thus the recommendation to think of comparing clusters of countries: according to the characteristics of the judicial systems (for instance civil law and common law countries; countries in transition or with old judicial traditions), geographical criteria (size, population) or economic criteria (for instance within or outside the Euro zone). In any case, comparing (as the report says), is not ranking. The particularities of the systems, which explain differences from one country to another must be always kept in mind, and to this end the explanations and country reports carefully read before trying to reach any conclusión.

 

10.  The data collected in the report is provided by member states and one of CEPEJ’s main concerns is to ensure the quality and control the coherence of such data. A number of improvements have been introduced to this end since the first pilot experience:

 

·        The updating and revisión of the Evaluation Scheme (questionnaire and explanatory note) was undertaken by the Working Group EVAL, to come up with a stable questionnaire that could be used systematically and introducing more precise definitions in the explanatory not aimed at helping national correspondents to answer the questions in a homogeneous way. To facilitate the process of collecting and processing judicial data, an online electronic version of the Scheme was created. Each national correspondent could accede to a secured webpage to register and to submit the relevant replies to the Secretariat of the CEPEJ.

 

·        A meeting between the National Correspondents, responsible for filling in the questionnaire, the EVAL working group and the scientific expert in charge of processing the information submitted by member states is organised during the elaboration of the report.  This allows to validate, clarify and improve the quality of the data provided.

 

·        A peer evaluation pilot process concerning the systems for collecting and processing judicial data in the member states was set up in 2008. This process aims at supporting the states in improving the quality of their judicial statistics and developing their statistics system so that such statistics are in line with the common indicators defined through the CEPEJ's Evaluation Scheme. It is also due to facilitate exchange of experiences between national judicial statistics systems, share good practices, identify benchmarks and facilitate knowledge transfer. Thus it should contribute to ensuring the transparency and accountability of the CEPEJ process for evaluating European judicial systems. Three volunteer member states (Bosnia and Herzegovina, France and Poland) participated in this exercise that has been extended into 2009.

 

·        Finally, the CEPEJ has also drafted Guidelines on judicial statistics for the relevant services in the member states, which aim at ensuring quality of national judicial statistics collected and processed by the member states, as a tool for public policy and should also facilitate comparison of data on European countries by ensuring adequate homogeneity despite the substantial differences between countries.

 

 

2. A comparative picture of issues related to Independence of the judicial system through the CEPEJ’s report

 

11.  CEPEJ’s report contains comparative information on many characteristics of the judicial systems, some of which can be directly linked to the topic of independence of the judiciary.
Taking Recommendation (94) 12  of the Committee of Ministers to member states on Independence, efficiency and role of judges as a starting point, we have identified those parts of the Report relevant to different aspects of judicial Independence. Not all the essential aspects inherent to judicial independent can be found in the Report, but it has been possible to select information about the following standards included in the Recommendation:

 

Proper working conditions: material and personal means

 

- Budget allocated to courts

- Number of professional judges

- Support staff: Non-judicial tasks

- Support equipment: Office automation and data processing facilities

- Remuneration

 

General principles on the independence of judges

 

- Recruitment and career

- Terms of office

- Training

- Conflicts of interest

 

Failure to carry out responsabilitites and disciplinary offences

 

 

12.  The most representative tables and figures contained in the Report for each of these topics are provided to participants for reflection and discussion during the workshop. A similar exercise could be done in relation to public prosecutors. The full version of the report as well as individual country reports and additional information about CEPEJ can be found in its website:

 

http://www.coe.int/T/dghl/cooperation/cepej/default_en.asp

 

 

 

PROPER WORKING CONDITIONS: MATERIAL AND PERSONAL MEANS

 

BUDGET ALLOCATED TO COURTS

 

Figure 1. Annual public budget allocated to all courts per inhabitant in 2006 (without prosecution and legal aid), in €

 

Figure 2. Annual public budget allocated to all the courts without prosecution and legal aid

in 2006, as a percentage of per capita GDP

Figure 4. Average percentage of the main components of the court budget at European level in 2006 (Q8)

 

 

NUMBER OF PROFESSIONAL JUDGES

Number of professional judges sitting in court per 100.000 inhabitants

 

SUPPORT STAFF: NON-JUDICIAL TASKS

 

Table 54. The distribution of non-judge staff in courts (Q55, Q56)

 

 

Figure 33. The proportional distribution of court staff (Q56)

 

 

Figure 34. The number of non-judge staff for each professional judge (Q55)

 

SUPPORT EQUIPMENT: OFFICE AUTOMATION AND DATA PROCESSING FACILITIES

 

Table 33. Classification of countries on the level of computerization of courts for the three areas of application

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Figure 26. Level of implementation of computer equipment for the direct assistance of a judge or non-judge staff (Q62)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

REMUNERATION

 

Figure 59. Gross annual salaries of judges in 2006, in € (Q114)

 

 

 

Table 93. Comparative, detailed table of judges and prosecutors salaries in 2006, in € (Q114)

 

 

GENERAL PRINCIPLES ON THE INDEPENDENCE OF JUDGES

 

RECRUITMENT AND CAREER

 

 

Figure 54. Modalities of recruitment of the judges in Europe (Q99)

 

 

Table 83. Modalities of recruitment of judges (Q99)

 

 

 

Table 84. Composition of the authorities competent for the recruitment of judges (Q100)

 

 

 

TRAINING

 

Table 87. Types of mandatory trainings for judges (Q110)

 

No mandatory training	Initial training	All trainings except for specific functions	At least 2 types of training	All trainings mandatory
Croatia	Austria	Greece	Andorra	Georgia
Cyprus	Azerbaijan	UK-Scotland	Armenia	Hungary
Czech Republic	Bulgaria	Iceland	Belgium	Lithuania
Finland	Ireland		Bosnia and Herzegovina	Montenegro
Serbia	Italia		Denmark	Norway
Slovenia	Luxembourg		Estonia	Romania
	Portugal		France	FYROMacedonia
	Russian Federation		Germany	Sweden
	Spain		Latvia	Ukraine
	Switzerland		Malta
	UK-England and Wales		Monaco
	UK-Northern Ireland		Netherlands
			Poland
			Slovakia
			Turkey

 

 

 

 

 

TERMS OF OFFICE

 

Table 97. Characteristics of the mandate of judges and prosecutors (Q107, Q108)

 

 

 

 

CONFLICTS OF INTEREST

 

Figure 62. Combination of a judge work with other activities – number of countries concerned (Q117)

 

 

Table 57. Number of successful challenges of a judge in 2006 (Q83)

 

Country	Number of successful challenges
France	77
Hungary	4150
Monaco	1
Poland	522

 

 

FAILURE TO CARRY OUT RESPONSIBILITIES AND DISCIPLINARY OFFENCES

 

 

Figure 66. Distribution of the sanctions pronounced against judges at the European level in 2006 (Q125)

 

 

Figure 65. Authorities responsible to initiate the disciplinary proceedings against judges in 2006 – number of positive responses (Q122)

 

Table 102. Disciplinary proceedings initiated and sanctions pronounced per 1000 judges and prosecutors in 2006 (Q124, Q125)

 

* see the comments below.