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 the independence of judicial councils. 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 has also 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 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 Commission proposed to provide for the right of appeal to a court of law against decisions in disciplinary matters. 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 first was the powerful position of the Prosecutor General within the system of judicial governance, and his/her weak accountability. The composition of the Judicial Chamber was another point of concern, because within the Judicial Chamber itself, judges elected by their peers were in a slight minority. The third issue was 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 Act on Ordinary Courts gives too much power to the Minister of Justice vis-à-vis court presidents, and, through them, vis-à-vis the judiciary as a whole. The Commission concluded that the on-going reform poses a serious threat to judicial independence.
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. Against the background of the increased powers of the Public Prosecutor General/Minister of Justice vis-à-vis the entire prosecution service, and the ensuing risk for abuse and political manipulation of the prosecutorial service, this merger was ill-advised.
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 (decisions on detentions, search warrants, body searches), 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 (including decisions on traffic misdemeanors) 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 ineffective handling of high-profile corruption cases by existing courts. Hence, the rapid establishment of a specialised anti-corruption court, with international involvement in the selection of its judges, was needed 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.
In 2014, the Commission examined legal texts on the functioning of the judiciary (courts and prosecution offices, judicial and prosecutorial councils) in Armenia, Bosnia and Herzegovina, Georgia, the Republic of Moldova, Montenegro, Serbia and Slovakia, as well as to the Kyrgyz Republic.