Transcript Council of Europe Rec. (2010)12

Cooperazione Giudiziaria UE
Criteria for evaluation of organisation of the judiciary
in preventing and combating corruption
Kiev, 8 February 2013
Workshop on the implementation of the anticorruption legislation
TAIEX – JHA 49058
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Context
Integrity, independence and impartiality of the
judiciary are essential prerequisites for the
effective protection of human rights and
economic development and for ensuring that
there was no discrimination in the
administration of justice, (Res. ECOSOC
2006/23)
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
UN Bangalore Principles of Judicial Conduct (2002)
Preamble:
•Universal Declaration of Human Rights - principle that everyone is
entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, established by the law, in the
determination of rights and obligations and of any criminal charge
• importance of a competent, independent and impartial judiciary to
the protection of human rights - implementation of all the other
rights ultimately depends upon the proper administration of justice
• A competent, independent and impartial judiciary is likewise
essential if the courts are to fulfil their role in upholding
constitutionalism and the rule of law
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
UN Bangalore Principles of Judicial Conduct (2002)
Principles
1.
2.
3.
4.
5.
6.
Independence
Impartiality
Integrity
Propriety
Equality
Competence and Diligence
Implementation (effective resources)
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
UN Bangalore Principles of Judicial Conduct (2002)
Integrity
Integrity is essential to the proper discharge of the
judicial office
Application
3.1. A judge shall ensure that his or her conduct is
above reproach in the view of a reasonable observer.
3.2. The behaviour and conduct of a judge must reaffirm
the people’s faith in the integrity of the judiciary. Justice
must not merely be done but must also be seen to be
done.
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12
Standard-setting activity of CoE
Recommendation CM/Rec(2010)12 of the Committee of Ministers to member
states on judges: independence, efficiency and responsibilities (Adopted by
the Committee of Ministers on 17 November 2010)
Art. 6 ECHR
Diverse experiences and legal systems
Common core-values of democracy and rule of law
8 chapters – 74 paragraphs
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
General aspects
Judicial independence as a fundamental right; its
purpose is to guarantee every person the right to have
their case decided in a fair trial, on legal grounds only
and without any improper influence.
The level at which judicial independence should be
safeguarded is the constitutional or highest possible
legal level in member States with more specific rules
provided at the legislative level.
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
External independence
Judicial decisions should be reasoned
and made public. Decisions of judges
should not be subject to any revision
other than appellate or re-opening
proceedings as provided for by law.
Judicial matters are of public interest.
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
External independence
Link between independence of judges and the principle of equality
of citizens before the law.
Independence of the judiciary as a whole is not a prerogative or
privilege, but it is granted in the interest of the rule of law and of
persons seeking and expecting impartial justice.
As judges operate in the society, they should maintain appropriate
working relationships with institutions and public authorities
involved in the management and administration of the courts as
well as professionals to facilitate an effective and efficient
administration of justice.
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
Internal independence
• Independence of each individual judge in the exercise of
adjudicating functions, without any restriction, improper influence,
pressures, threats or interferences, from any authority, including
authorities internal to the judiciary, in the decision-making.
• The allocation of cases within a court should follow objective preestablished criteria, as well as the withdrawal of a case.
• Freedom to form and join professional organisations whose
objectives are to safeguard independence of judges, protect their
interests and promote the rule of law is to be ensured.
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
Independence, efficiency and resources
• Efficiency as the delivery of quality decisions
within a reasonable time.
• Adequate allocation of resources, facilities and
equipment to the courts to enable them to
function in accordance with the standards of the
fair trial
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
Independence, efficiency and resources
• Allocation of a sufficient number of judges and appropriately
qualified and experienced professional staff
• Use of electronic case management systems and information
communication technologies
• Consultation of Councils for the Judiciary or other independent
authorities with responsibility for the administration of courts, the
courts themselves and/or judges’ professional organisations when
the judicial system’s budget is being prepared
• Provision of appropriate means to fulfil judicial functions efficiently
in cases involving foreign or international elements
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
Councils for the Judiciary
Where existing, Councils for the Judiciary are governing bodies
that have proved to be essential in safeguarding the independence
of the judiciary
The establishment of such Councils at the constitutional or highest
possible legal level, is recommended - not less than half the
members of such Councils should be judges elected by their peers
and with full respect for pluralism inside the judiciary
Opinion n. 10 CCJE
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
Status
Selection and career of judges - decisions on selection and career
based on objective criteria pre-established by law or by the
competent authorities, having regard to merit, qualifications, skills,
capacity, and respect to human dignity - independence of the
executive and legislative powers - right to challenge the procedure
Tenure - security of tenure (guaranteed tenure until a mandatory
retirement age) and irremovability (consent of the judge to a new
appointment or to transfer, except in cases of disciplinary sanctions
or reform of the organisation)
Remuneration - commensurate with profession and responsibilities
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2010)12 – Key features
Duties and responsibilities
• Protection of the rights and freedoms of all persons equally,
respecting their dignity in the conduct of court proceedings
• Management of each case with due diligence and within a
reasonable time
• Reasoning of judgements
• Regular training
• Specific rules on civil, criminal and disciplinary liability
• Any reference to the concept of immunity, general or functional,
deliberately avoided in the text of the Recommendation
• Promotion of codes of judicial ethics, as a means to uphold justice
and strengthen public confidence in the judiciary.
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Council of Europe Rec. (2000)19 on Public Prosecutors
Recommendation 2000)19 of the Committee of Ministers to member
states on the role of public prosecution in the criminal justice system
(Adopted by the Committee of Ministers on 6 October 2000)
• Functions of the public prosecutor
• Safeguards provided to public prosecutors for carrying out their functions
• Relationship between public prosecutors and the executive and
legislative powers
• Relationship between public prosecutors and court judge
• Relationship between public prosecutors and the police
• International co-operation
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Critical issues
• Reforms including a strong ethical component
• Independence of judges and autonomy of prosecutors t be
assured through legislative provisions preventing undue political
influence on work and career development of judges and
prosecutors
• Independence counterbalanced by accountability .
• Issue of immunity vis-à-vis judicial independence Forms of
functional limitation of liability might be needed but criminal liability
for offences committed outside judicial office (e.g. accept bribes) is
not to be limited
• Need of effectiveness of disciplinary liability In case of
misbehaviour
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
Critical issues
• Credible track record as regards final court judgements in high
level corruption cases
• Awareness of complexity of financial crime cases and allocation of
appropriate and specialised resources
• In depth audit review of the anti-corruption framework (institutional
and legal) which allows identifying the main weaknesses and how
to address them
• Avoid both political influence on the judiciary and self-protection
and cronyism of high judicial councils
• Involvement of the civil society
European Commission
Justice
March 2012
Cooperazione Giudiziaria UE
THANK YOU FOR YOUR ATTENTION!
Questions?
Gualtiero MICHELINI
Corte d’Appello di Roma
[email protected]
European Commission
Justice
March 2012