Explanatory Screening

Presentation of European Standards

Chapter 23 - Judiciary

Brussels, 27 September 2018

European Commission�Justice

Sources – Acquis/Hard Law

• Art. 49 TEU – Requirement for new members: Respect and promotion of EU values

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• Art. 2 TEU/Art. 19 TEU/Art. 67 TFEU – Different legal systems but common Rule of Law Standards for:

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• Assuring effective legal protection (effective remedy/fair trial)

- Art. 47 Charter of Fundamental Rights

- Art. 6 + 13 European Convention on Human rights

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Sources – Acquis/Hard Law

• Assuring judicial cooperation based on mutual trust and mutual recognition

- Example: European Arrest warrant (ECJ, C-216/18)

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Art. 7 TEU – Serious and persistent breach of RoL

- Rule of Law Framework

- Reasoned proposal of EU- Commission (20.12.2017)

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Art. 258 TFEU – Infringement procedure

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Sources – European Standards/Soft law

• Council of Europe (CoE):

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• Recommendation CM/Rec(2010) 12 of the Committee of Ministers to member States on judges: independence, efficiency and responsibilities
• European Guidelines on Ethics and conduct for public prosecutors (the Budapest guidelines adopted on 31 May 2005)
• Recommendation Rec(2000) 19 on the Role of Public Prosecution in the Criminal System
• European Charter on the statute of judges (1998)

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• Venice Commission (VC), Rule of Law Checklist (2016)
• VC, Report on the independence of the judicial system (2010) – Part I: the independence of judges, Part II: the prosecution service
• Compilation of VC opinions and reports concerning courts and judges and concerning prosecutors

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Sources – European Standards/Soft Law

• CoE - Consultative bodies:
• Consultative Council of European Judges (CCEJ) Opinion No 1 (2001) on standards concerning the independence of the judiciary and the irremovability of judges
• CCEJ Opinion No 3 (2002) on ethics and liability of judges
• CCEJ Opinion No 11 (2008) on quality of judicial decisions
• CCPE Opinion No 9 (2014) on European Norms/Principles for prosecutors

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• Others:
• European Network of Councils for the Judiciary (ENCJ), Development of minimum judicial standards I – V (appointment, evaluation, independence, disciplinary proceedings etc.)
• United Nations (UN), Bangalore Principles of Judicial Conduct (adopted 23 April 2003)

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�Principle of Independence of judges�

European Court of Justice (C-216/18) – two main aspects:

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1) No undue external influence/pressure

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• Avoidance of criticism that undermines independence/public confidence
• Possibility of recourse to an independent authority and sanctions in case of undue influence
• Court decisions need to be respected/enforced

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2) Impartial decision-making in concrete cases

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• Equal distance from parties in proceedings/ no bias
• No private interest/strict application of the law

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Principle of autonomy of prosecutors

Difference between autonomy of prosecutors and judicial independence:

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• No need for approval or confirmation of actions but

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• due to hierarchical organisation bound by guidelines/instructions.

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Safeguards against undue interference:

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• General guidelines must be in writing and made public
• Individual instructions must be in writing, reasoned and become part of the court file
• Instructions not to prosecute should be ruled out or subject to an appropriate specific control
• Right to request evaluation by an independent body if an instruction is deemed illegal
• Right to replacement if an instruction is illegal/ against consciousness.

European Standards: Appointment/Promotion/Evaluation

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• Decisions concerning the appointment/promotion and evaluation of judges and prosecutors should be based on objective criteria pre-established by law. Main criteria for recruitment should be merit/ability, integrity and experience

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• No discrimination on any ground (sex, race, color, political opinion etc.)

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• The authority taking these decisions should be independent of executive and legislative powers

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• An unsuccessful candidate should be entitled to know why he failed and should have the right to challenge the decision

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• Judges/prosecutors should be appointed permanently until retirement age

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• Decent remuneration in order to shield from undue influences

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European Standards: Accountability

• Discipline offenses should be defined with sufficient clarity

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• Decision of judges and prosecutors conducted in good faith should not give rise to disciplinary liability except in cases of malice and gross negligence

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• Disciplinary proceedings should be conducted by an independent authority/court. Magistrates should have all the guarantees of a fair trial and the right to challenge the decision and sanction

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• Disciplinary sanctions should be proportionate (no dismissal unless serious breach, recommendable to have a reasonable range of possible sanctions)

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• No transfer to another court without consent should be possible except in cases of disciplinary sanctions or reform of the organisation of the judicial system

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Management bodies: HJC/HPC

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• Main function: safeguard the independence of the judicial system meanwhile avoiding negative effects of corporatism

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• Recommended competences: appointment, promotion, evaluation, discipline + ethics, management

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• Composition: A significant number (for HJP at least half) of its members should be judges/prosecutors chosen by their peers. If lay members are elected by parliament a qualified majority coupled with anti/deadlock mechanism should be ensured. The chair should be an impartial person.

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• Exclusion of possible conflict of interest needs to be ensured.

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• Councils should demonstrate the highest degree of transparency: Pre-established procedures, reasoned decisions and reports

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European Standards: Quality

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• Sufficient number of qualified support staff and adequate resources, facilities and equipment should be allocated to courts and prosecution services

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• Judgements should be well reasoned

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• Online access to jurisprudence (case law database including effective research tool)

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• Consistency of case law (through decisions of higher courts and not through general directives or instructions)

�European Standards: Efficiency�

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• Proceedings shall start and judicial decisions shall be made in a reasonable time (Art. 47 CFR/Art. 6 ECHR)

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• There shall be a remedy against undue lengths of proceedings

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• A functioning alternative dispute resolution system should be in place

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• A functioning case management system should be in place (random allocation of cases, main statistical data)

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European Standards: Judicial Training

• Judicial training is a guarantee of the independence and impartiality of judges
• Encourage participation in EJTN activities
• EJTN is an essential actor of judicial training and the only network at Union level gathering the judicial training bodies of the Member States.
• Nine principles of judicial training https://prezi.com/view/0a0X19JIylxt2h1wwqNE/
• the promotion of good training practices and a hub for expertise for WB
• WB judicial training bodies- EJTN observers
• 2017 EJTN grant from DG NEAR – to cover participation of observers in EJTN (March- July 2018: Albania- 17 Participants, Former Yugoslav Republic of Macedonia- 15)
• Encourage participation in Justice Programme /take advantage of this (Albania, Montenegro)- it allows participation in EJTN activities funded by this, but also applications for Calls for proposals launched under the Justice Programme
• Encourage applications for TAIEX assistance –Judicial Academies qualify as Local Coordinators

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Final recommendations

• Use tools of measurement of real results like

- CEPEJ indicators

- Justice surveys

- Track records

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for proactive monitoring, guidance of reform process and to help to convince public and Member States that there is real progress on the ground

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• Enlargement negotiations is a merit based process (with focus on RoL) therefore best changes to make progress when real results can be shown and actions go beyond "minimum standards"

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Thank you for your attention!

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Jan Petry,

Diana Ungureanu

DG JUSTICE

International Unit 02/Training B1

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jan.petry@ec.europa.eu

diana.ungureanu@ec.europa.eu

www.ec.europa.eu/justice