The need to ensure the independence of the judiciary and the functioning of the judicial system in the interest of society continues to be an important source of activities for the Venice Commission. Two general reports adopted by the Commission in 2010 on the most important European standards applicable to the judiciary constitute a key reference for the Commission in the assessment of country-specific legislation regulating the judiciary and the guarantees put in place to ensure its independent functioning. The Commission also adopted, in 2007, a Report on judicial appointments.
- Restrictions on freedom of expression and freedom of association of judges – CDL-AD(2015)018
- Implementation of international human rights treaties in domestic law and the role of courts - CDL-AD(2014)036
- Remedies to excessive length of proceedings CDL-AD(2006)036rev
- Execution of judgments of the European Court of Human Rights CDL-AD(2002)034
Recurrent issues raised by the Commission in its recent opinions were related to the independence and immunity of judges, their appointment and discipline, the composition, mandate and independence of judicial councils, appointments to leading positions in the judiciary. Appraisal systems for judges, judicial ethics, are also a recurrent topic.
Specific problems of amnesty and miscarriages of justice as well as the general problem of corruption within in the judiciary have also been at the centre of the attention of the Commission. The Commission was also called upon to analyse the recent controversial judicial reforms introduced in a number of countries in recent years and criticised some of the measures taken as a serious threat to the independence and efficiency of the judiciary.
The Commission has provided assistance, in the light of the existing standards and the best practices in the field, with regard to the powers of the prosecutors and the legal framework for the organisation and operation of the public prosecutor’s service, and the organisation and powers of prosecutorial councils, as well as, more recently, of specialised anti-corruption prosecution bodies.
In 2018, the Venice Commission adopted eight opinions on the judiciary in respect of Malta, the Republic of Moldova, Romania, “the former Yugoslav Republic of Macedonia”, Montenegro, Georgia and Kazakhstan.
In its opinion on the constitutional arrangements and separation of powers and the independence of the judiciary and law enforcement bodies of Malta, the Commission recommended especially setting up an office of an independent Director of Public Prosecutions with security of tenure, being responsible for all public prosecutions, subject to judicial review. The opinion also recommended abolishing the possibility that judges are dismissed by Parliament and suggested a number of modifications in the system of the judicial appointment.
The Commission examined as well the constitutional amendments on the judiciary of the Republic of Moldova. The opinion welcomed the removal of probationary periods for judges and the introduction of the functional immunity of judges on the constitutional level. At the same time, it emphasized the importance of ensuring the dialogue between the Superior Council of the Magistracy and the other institutions and recommended clarifying some issues regarding the composition of the former institution.
At the request of the President of Romania and the Monitoring Committee of the Parliamentary Assembly the Venice Commission prepared an opinion in respect of three drafts amending to a large extent the laws on the status of judges and prosecutors, on the judicial organisation and on the Superior Council of Magistracy. While acknowledging some proposed positive changes, the opinion highlighted important new features which seen alone, but especially taking into account their cumulative effect, in the complex political context prevailing in Romania, were likely to undermine the independence of Romanian judges and prosecutors, the public confidence in the judiciary, as well as the country’s fight against corruption. In another opinion, the Commission criticised recent draft amendments to the Romanian Criminal and Criminal Procedure Codes due to the serious risk that they pose to the effectiveness of the Romanian criminal justice system in the fight against various forms of crime, including corruption-related offences, violent crimes and organised criminality.
Two opinions on “the former Yugoslav Republic of Macedonia” analysed changes made to the Law on Courts and the Law on the Judicial Council in 2018. The Commission concluded that most of the recommendations made in its earlier opinions regarding the system of judicial discipline and performance evaluations had been followed, and the new texts were providing better protection for judicial independence.
The opinion on the amendments to the law on the Judicial Council and Judges of Montenegro related to the difficulty of achieving the constitutionally required a two-thirds majority in electing the four lay members of the Judicial Council in a situation where the opposition boycotted parliament. The Commission stressed the need to provide for anti-deadlock mechanisms in respect of elections with a qualified majority of “safeguard institutions”. The parliament of Montenegro adopted the amendments, following the Commission’s recommendations.
An opinion on the concept paper on the reform of the High Judicial Council of Kazakhstan analysed a set of measures - which were later transformed into draft legislation - aimed at increasing the role of this body in the process of recruitment and promotion of judges, and changing the process of selection of young judges in order to increase the professionalism of the judiciary.
In 2018 the Commission also examined and welcomed the provisions on the Prosecutorial Council in the draft law of Georgia on the Prosecutor’s Office and on the provisions on the High Council of Justice in the Law on General Courts of Georgia and made several recommendations in order to improve them.
In its 2017 opinion on the Draft Judicial Code of Armenia, the Commission found that the composition of the Supreme Judicial Council was more balanced; however, the Draft Code would benefit from clarification, especially as regards the criteria and methods of performance evaluation and the appointments procedures. The Armenian authorities revised the Draft Code, taking into account many of the recommendations of the Commission.
The 2017 opinion on the judicial reform in Bulgaria, which followed the 2015 constitutional reform, focused on three core issues. The powerful position of the Prosecutor General and his/her weak accountability, the composition of the Judicial Chamber as well as the question of inspections and appraisals of judges.
The reform of the Polish judiciary was examined by the Commission in the 2017 Opinion on three acts: the Act on Ordinary Courts of July 2017, and two Draft Acts - on the National Council of the Judiciary (NCJ) and on the Supreme Court (SC). The Commission acknowledged the necessity for a reform, but criticized the proposed model in which judicial members of the NCJ are elected by Parliament, a large number of the SC judges are removed prematurely, and two special chambers within the SC are created, which are superior to the other chambers. The Commission concluded that the on-going reform poses a grave threat to judicial independence. In 2018 the criticised amendments were put into practice, which gave rise to a major controversy between the European Commission and the Polish Government.
Another 2017 opinion on Poland concerned the reform of the prosecution service, and in particular the merger of the function of the Public Prosecutor General and that of the Minister of Justice, which was criticised by the Commission.
A 2017 opinion on Turkey concerned competences and functioning of the criminal peace judgeships. Peace judgeships were created to improve the quality of the reasoning by way of specialisation, but a major flaw of the system was that there were only horizontal appeals - from one peace judgeship to the next - within small groups of peace judges in each region or city. The heavy workload of the peace judgeships did not leave them enough time to provide sufficiently individualised reasoning, notably when deciding on detention. The Commission called for the reform of this system.
Anti-corruption courts in Ukraine were at the heart of another 2017 opinion. The opinion acknowledged the need of the establishment of a specialised anti-corruption court, with international involvement in the selection of its judges, in Ukraine. The opinion approved the general direction taken by one of the drafts under examination (no. 6011), but made several recommendations. In particular, specific rules on anti-corruption courts and judges should be limited to what is necessary for them to work effectively, so as to make it clear that such courts cannot be regarded as special or extraordinary courts, which are prohibited by the Constitution.
In 2017 the Commission issued an amicus curiae brief for the Constitutional Court of the Republic of Moldova on the criminal liability of judges. The question was whether or not a judge could incur criminal liability for rendering a decision that was then overruled by a higher court. The brief concluded that disciplinary or criminal liability should only arise in cases of intentional violations of the law by a judge, or, arguably, in cases of repeated or gross negligence.
In 2017 the Commission also adopted a follow-up opinion on the proposed amendments to the legislation of the former Yugoslav Republic of Macedonia on judges; in this opinion the Commission welcomed the abolition of the Council for the Establishment of Facts and transferal of its functions to the Judicial Council, but stressed that it was important to maintain the balance of judicial and lay members in the composition of the Judicial Council which decides on disciplinary matters.
In 2016 the Commission examined the constitutional reform in Albania which sought a complete overhaul of the judiciary, through two parallel reforms: reorganisation of the permanent bodies of the judiciary, and introduction of a temporary ad hoc vetting procedure supposed to eliminate corrupt judges and prosecutors from the system. The Commission also examined the new Code of Judicial Ethics of Kazakhstan, and adopted amicus curiae brief for the Constitutional Court of the Republic of Moldova on the right of recourse by the State against judges.
In 2015, opinions were adopted in relation to the legislation on the judiciary and the status of judges and the judicial council of Ukraine, reforms of the public prosecution service in Georgia, Montenegro and the Republic of Moldova as well as to constitutional amendments aiming at implementing important judicial reforms in Bulgaria as well as in Ukraine. The Commission also examined the laws governing disciplinary liability of judges of the former Yugoslav Republic of Macedonia.