Judge – Court of Turin
Member of the SATURN Group of
the CEPEJ
Secretary-General of the
International Association of Judges
LAST
DEVELOPMENTS
WITHIN
THE EUROPEAN UNION
IN
THE JUDICIAL FIELD[*]
|
Table of Contents: 1. Last Developments
in the Judicial Field Related to the Italian Presidency. – 1.1.
Data Protection, E-Justice, Insolvency Proceedings, Small Claims and Sales
Law. – 1.2. Recognition of Official Documents,
Matrimonial Property Regimes and Property Consequences of Registered
Partnerships. – 1.3. The European Public Prosecutor’s
Office and Eurojust. Judicial Training. – 2. Last
Developments in the Judicial Field in Italy. – 3. Last
Developments in the Judicial Field in European Countries belonging to the
International Association of Judges. |
1.
Last Developments in the Judicial Field Related to the Italian Presidency.
1.1. Data Protection,
E-Justice, Insolvency Proceedings, Small Claims and Sales Law.
In the last European semester the Italian Presidency of EU focused on some
strategic fields, affecting the legal system and the day-to-day life of
practitioners and, of course, of judges.
One of the most relevant domains was that of data protection. The
Italian Presidency strived to produce concrete achievements on key aspects of
the Data
Protection Package with the aim to provide a coherent normative framework
within which to tackle Data Protection in the various areas of Justice and Home
Affairs. The primary objective of the Presidency was to ensure the development
of a normative framework capable of ensuring the highest levels of data
protection without diminishing the efficiency of decision-making processes.
Particular attention has been given to the development of coherent legal
frameworks regulating the sharing of data with third countries, in order to be
able to ensure the smooth enforcement of the law while avoiding the
perpetration of serious crime. In this framework we may stress that on 9 July
2014, the Italian Presidency of the Council organized an informal Justice
Ministers meeting in Milan in order to find a solution to overcome the impasse
on the Data Protection Reform in the Council. In the October meeting of the
Justice and Home Affairs (JHA) Council discussions were finalised on the part
of the new Regulation on data protection concerning duties of data processors.
The issue was also discussed in the 4 and 5 December 2014 Justice and
Home Affairs Council meeting. During this event progress was made by justice
ministers. The Council reached a partial general approach on specific aspects
of the draft regulation setting out a general EU framework for data protection.
The partial general approach includes provisions which are crucial to the
question of the public sector as well as provisions relating to specific data
processing situations. The Council also held a debate on the “one-stop shop”
mechanism on the basis of a proposal presented by the Presidency. According to
this principle, in important transnational cases the draft Regulation should
establish a mechanism in order to arrive at a single supervisory decision,
which would be fast, ensure consistent application, provide legal certainty and
reduce administrative burden.
According to the proposal, the one-stop shop mechanism should only
intervene in important cross-border cases and will consist in a cooperation and
joint-decision making between several data protection authorities concerned.
The proposal clarifies that the jointly agreed decision will be adopted by the
data protection authority best placed to deliver the most effective protection
from the perspective of the data subject. In practice, that means that it will
be the local authority the one adopting the decision in all cases where the
complainant could be adversely affected by it, allowing him to have the
decision of the data protection authority reviewed by his or her own court.
A majority of ministers endorsed the general architecture of the
proposal and the Presidency concluded that further technical work will need to
be done in the coming months. Andrea Orlando, Italian Minister for Justice and
President of the Council, said: “Today we have agreed on two of the most
politically sensitive issues on data protection reform. We see this as an
important result for the Presidency, and a decisive step towards achieving
global agreement on this complex and important file.”
In the field of E-justice,
the Italian presidency concluded the works on the Commission’s proposal for
e-justice, which identifies the latter as a pivotal instrument simplifying the
access to justice in every Member State and facilitating cooperation between
civil, penal and administrative judicial bodies at the European level. Moreover
Italy tried to balance the approach grounded on minimal norms with the need to
integrate e-justice within the judicial framework. A conference on this issue
was organised in Rome
in October. Finally, the Presidency encouraged the use of instruments (i.e.
ECLI,
European Case Law Identifier and ELI, European
Legislation Identifier) between member state databases, as well as a reinforced
dialogue with the network of supreme courts, to increase the amount of
available services on the e-justice portal, especially regarding civil justice.
The Italian Presidency promoted the progress of specific dossiers,
particularly the review of the Regulation on Insolvency Proceedings with specific regard
to cross-border insolvency. On 10th October 2014 the Council of
Ministers of Justice of the European Union, gathered in Luxembourg under the
Italian Presidency, reached political agreement on the final part of the
Regulation on cross-border insolvency proceedings. The review of the Regulation
aims to better respond to the economic and financial crisis by creating a
regulatory framework which favours enterprises, through measures for the
conservation and renovation of firms in crisis or insolvent companies. Such
result should be stressed within the current economic crisis context: the
protection of enterprises and creditors can be achieved within a framework
whose “polar star” will not be the bankruptcy of the entrepreneur in crisis
anymore but, on the contrary, the bailing and recovery of his firm. It is a
priority issue for the Italian Presidency. During negotiations, Italy did its
outmost to reach an agreement on the whole text by December 2014.
These efforts were successful, as during the JHA Council on
4th December 2014 a final agreement was reached. Actually, on
that occasion the Council approved a political agreement reached with the
European Parliament on new Euwide rules on insolvency proceedings (15414/14 +
ADD 1). The new rules are aimed at making cross-border insolvency proceedings
more efficient and effective, benefiting debtors and creditors, facilitating
the survival of businesses and presenting a second chance for entrepreneurs.
They also bring the current insolvency regulation into line with developments
in national insolvency laws introduced since its entry into force in 2002.
The scope of the regulation has been extended to go further than the
liquidation proceedings
already covered
by the current regulation. The new rules also cover:
·
proceedings which
provide for the restructuring of a debtor at a stage where there is only a
likelihood of insolvency,
·
proceedings which leave
the debtor fully or partially in control of his assets and affairs,
·
proceedings providing
for a debt discharge or a debt adjustment of consumers and self-employed
persons.
The new regulation improves the procedural framework for determining
jurisdiction. The concept of centre of main interest is further clarified to
provide useful guidance to all those concerned and increase legal certainty.
Moreover, the new rules contain a set of safeguards aimed at preventing abusive
forum shopping.
The regulation sets out specific situations in which the court seized
with a request to open secondary proceedings should be able to postpone or
refuse the opening of such proceedings. The court can do so on request of the
insolvency practitioner in main proceedings. A number of rules of cooperation
and communication between the actors involved in the main and in the secondary
proceedings are also added. Member states will be required to publish relevant
information in cross-border insolvency cases in a publicly accessible
electronic register. This will improve the information of creditors and courts
involved and will prevent the opening of parallel insolvency proceedings. The
insolvency registers will be interconnected via the e-Justice portal to
facilitate access to that information for creditors and courts located in other
member states. The regulation contains a set of procedural rules aimed at
ensuring the efficient administration of insolvency proceedings relating to
different companies forming part of a group of companies. The text of the
agreement will now be revised by the legal-linguists. To come into effect, the
text still needs to be formally approved by the Council and the Parliament.
Also the issue of the Small Claims Regulation was address by the Italian
Presidency, fostering an agreement on an alternative kind of proceeding, to be
developed through the use of standard forms.
At the meeting of 4th and 5th December, 2014 the
JHA Council reached a general approach on the proposal for a regulation
amending the European small claims regulation and the European order for
payment regulation (15841/14). That general approach constitutes the basis for negotiations with the
European Parliament in order to agree on the final text of the regulation. The
objective of the proposed amending regulation is to make the European Small
Claims Procedure more efficient, in particular by reflecting the technological
progress made in the justice systems in the member states, and to make the
procedure accessible in a larger number of cases, in particular also for
businesses.
To that end, the agreed general approach includes the following
amendments:
·
the duplication of the
threshold for a small claim from currently €2.000 to €4.000;
·
the obligation of the
member states to offer distance means of payment for the payment of court fees;
·
an increase of the use
of modern technologies for oral hearings and taking of evidence, for
communications between the court and the parties, and the set up of a general framework
that allows, under certain conditions, for the use of electronic service of
documents;
·
the minimisation of the
translation requirement (and related costs) as regards the certificate
necessary for the enforcement of a judgment given in the European Small Claims
Procedure;
·
the creation of “a
bridge” between the European Small Claims Procedure and the European Order for
Payment Procedure by allowing the claimant to use the European Small Claims
Procedure when a statement of opposition has been lodged against a European
order for payment.
The Italian Presidency promoted also the adoption of a Common European
Sales Law and a conference
on this topic was held in Rome in September. Negotiations on a possible
Regulation on this topic are going on since two years. Under the Italian
Presidency the Council laid down new rules to facilitate damage claims by
victims of antitrust violations. The new directive will harmonise and ensure
the effective enforcement of antitrust damages rules within the EU, thereby
allowing the victims of a cartel to receive full compensation for both the
actual loss suffered and for lost profits.
1.2. Recognition of Official
Documents,
Matrimonial Property Regimes and Property
Consequences of Registered Partnerships.
Regarding cooperation within civil justice bodies, the Italian
Presidency achieved significant results regarding cross border recognition of
official documents within the EU and the scrapping of the need to authenticate
such documents. This should facilitate and reinforce both the free movement of
citizens and that of businesses, by limiting authentication costs.
Guidelines on this topic have been drafted by the Italian Presidency for
the December 2014 JHA Council meeting. During this event discussion focused on four issues: the
scope, translations, the multilingual standard forms and the relations between
the future regulation and other instruments. Ministers adopted guidelines on
these issues for the continuation of the work at technical level (15843/14). According to the guidelines, the scope
of the proposal will be reduced to cover civil status area only. The proposed
regulation aims at simplifying the procedures for cross-border use and
acceptance of public documents between the member states, thereby contributing
towards the creation of a citizens’ Europe and a well-functioning Single Market
for EU businesses.
The original scope of this proposal
covers public documents issued by authorities of the member states and having
formal evidentiary value relating to birth, death, name, marriage, registered
partnership, parenthood, adoption, residence, citizenship, nationality, real
estate, legal status and representation of a company or other undertaking,
intellectual property rights and absence of a criminal record. Under this
proposed regulation, such documents would be exempted from all forms of
legalisation and similar formalities. Documents drawn up by private persons and
documents issued by authorities of third states are excluded from its scope.
The proposal also establishes EU multilingual standard forms concerning birth,
death, marriage, registered partnership and legal status and representation of
a company or other undertaking. The Commission presented its proposal on 24
April 2013 (9037/13).
In terms of citizens’ movement, the Italian Presidency has moreover
stated its intention to undertake a work of clarification regarding the rules
defining the patrimonial consequences of civil unions and the patrimonial
regimes established between spouses across national jurisdictions.
On these topics, during its meeting on 4th and 5th
December, 2014, the JHA Council was briefed by the Presidency on the state of play of two
proposals: the Council regulation on jurisdiction, applicable law and the
recognition and enforcement of decisions in matters of matrimonial property
regimes and on the property consequences of registered partnerships (16171/14).
These proposals complete the framework
of EU instruments of judicial cooperation in the area of family law, consisting
of the Brussels IIa regulation in matters of divorce and parental
responsibility (regulation 2201/2003), the Rome III regulation on the law
applicable to divorce (regulation 1259/2010), the maintenance obligations
regulation (regulation
4/2009) and the
succession regulation (regulation 650/2012).
Both regulations aim to determine which
judge will have jurisdiction for and which law will be applicable to matters of
matrimonial property regimes and the property consequences of registered
partnerships. The free circulation of judgments in that area will also be
ensured in a similar way as judgments are recognised and enforced under the
succession regulation. The regulations leave untouched the underlying
institutions of marriages and partnerships, which remain matters that are
defined by the national laws of the member states. Nothing obliges member
states whose law does not know the institution of registered partnership to
provide for it.
The regulations also include a series of
safeguards in order to respect national legal systems. For example, they do not
oblige a member state whose law does not know the institution of partnership to
assume jurisdiction, and alternative jurisdiction grounds are provided for in
that specific case in order to ensure that partners will benefit from a
foreseeable jurisdiction forum. In so far as possible, both regulations contain
parallel provisions, in order to ensure equal treatment of spouses and
partners.
The negotiations that took place within
the Council led to significant progress on both regulations. However, some
member states required more time to complete their internal reflection process.
On that basis, the Italian presidency has submitted a possible compromise text
on the two regulations, which reflects the work completed so far, and has
opened a period of internal reflection. The Council will re-examine this matter
as soon as possible, and by no later than the end of 2015.
1.3. The European Public
Prosecutor’s Office and Eurojust. Judicial Training.
Concerning collaboration between justice systems on prosecuting crime,
the Italian priority has been that be to push for a European public
prosecutor’s office. This instrument should allow greater progress in
investigating and prosecuting individuals breaching EU laws. In this context
the Presidency also started negotiations concerning the Directive on the
Protection of Financial Interests, making significant advances in Eurojust, so
that it will be able to complement the work of the European public prosecutor’s
office. The establishment of a European public prosecutor’s office is part of
an evolving framework of increasingly sophisticated instruments to strengthen cooperation
between judicial institutions. The issue has been widely prepared for
submission to the JHA Council meeting of December 2014, in view of a possible
agreement on rules concerning structure, competences, procedural rules and
judicial review on the European Public Prosecutor Office. During that meeting
Ministers held a policy debate on how the independence of the decision making
of the Office can be best ensured. The current text build on the assumption
that the European Prosecutors will supervise investigations and prosecutions in
their member states of origin, and that instructions to European Delegated
Prosecutors in member states will be channelled through them. In order to
ensure and strength the independence of the European Prosecutors, ministers
agreed to further discuss the strengthening of the rules in Articles 13 (on the
appointment and dismissal of the European Chief Prosecutor and of the Deputy
European Chief Prosecutors) and 14 (on the appointment and dismissal of the
European Prosecutors), along the lines suggested by the Presidency (15862/1/14 REV 1)
and on the basis of a new draft text. In March 2014, the Council held a discussion on the
structure of the office, and on the delimitation of its tasks and competences.
Ministers generally agreed that the European Public Prosecutor’s Office would
be organised on the basis of a college of prosecutors originating from the
member states. In June 2014, the Council confirmed, as the basis for further
discussion, the principles of a collegially structured EPPO. Ministers also
confirmed the principle that the EPPO would have a priority competence to
investigate and prosecute offences affecting the Union’s financial interests (9834/1/14 REV 1), but that national authorities would retain
a concurrent competence in principle. The proposed regulation aims to help
combat crimes against the Union’s financial interests by introducing a European
Public Prosecutor’s Office with competence in that area. The legal basis and
the rules for setting up the EPPO are laid down in article 86 of the Treaty on
the Functioning of the European Union (TFEU). The proposed regulation will be
adopted in accordance with a special legislative procedure: the Council will
decide unanimously after obtaining the consent of the European Parliament. If
unanimity cannot be reached in the Council, the treaties provide that a group
of at least nine member states may enter into an enhanced cooperation. The
Commission presented its proposal on 17 July 2013 (12558/13).
As far as Eurojust (European Union Agency for Criminal Justice
Cooperation) is concerned, The Council reached a partial general
approach on a regulation on the European Union Agency for Criminal Justice
Cooperation (Eurojust) (16139/14). The provisions relating to the
European Public Prosecutor and the chapter IV on data protection have been
excluded from the partial general approach as they are linked to other
legislative proposals which have yet to be concluded. The proposal aims to
increase Eurojust’s efficiency by establishing a new governance model. It also
aims to improve its operational effectiveness through homogeneously defining
the powers and status of National Members. The main changes concern the
distinction between the operational and management functions of the College;
the setting up of an Executive Board; new provisions on annual and multi-annual
programming; the representation of the Commission in the Executive Board; and a
detailed description of the responsibilities and tasks of the Administrative
Director. This new regulation streamlines Eurojust’s functioning and structure
in line with the Lisbon Treaty. It also increases the democratic legitimacy of
Eurojust: the European Parliament and national Parliaments will in future be
more involved in the evaluation of Eurojust’s activities. The Commission
presented its proposal in July 2013 (12566/13).
The dynamism and changes of the field warrant the need for a more
adequate training of civil servants and judges. In order to ensure this, the
Italian Presidency intensified cooperation with the Commission on the
Multiannual Financial Framework for Justice to ensure a full execution of the
objectives of judicial training. Greater cooperation and a strengthening of the
European network for judicial training have also been completed. On 4th
December, 2014 the JHA Council has issued several
conclusions on the subject: “Training of legal practitioners: an essential
tool to consolidate the EU acquis.” Among such conclusions, the Council called
on the national judicial training providers and the training providers of the
legal professions to “Integrate systematically training in EU law and in
particular in the Charter of Fundamental Rights of the European Union in
initial and continuous training activities at national level, where necessary
for the proper discharge of judicial or professional functions” and invited the
European Commission to “Organise regular EU-level meetings with the
stakeholders involved in training of legal practitioners in order to take stock
of progress and help preparing, where necessary, further improvements of
European judicial training; (…) Encourage training providers, whether public or,
if appropriate, private, to organise more training in EU law and in foreign
legal language skills for legal professions, bearing in mind the aim that such
training be of high quality and cost-efficient; (…) Increase progressively,
respecting EU budgetary requirements and procedures, the financial support to
the European Judicial Training Network, which is the essential tool to improve
the training of judges and prosecutors in the EU; (…) Continue developing the
training section of the European e-Justice Portal, including e-learning, as an
efficient tool to further develop European judicial training.”
The Italian presidency tried as well to establish a dialogue with the
European Parliament concerning the right of minors within judicial procedures and
it also started discussion within the council concerning presumption of
innocence and the right to free sponsorship. With regards to forms of serious
crimes such as human trafficking, the Italian Presidency pushed for a maximal
amount of dialogue between the Presidency, the institutions, member states and
civil society.
All income illegally obtained by criminal organisations or individuals
should be confiscated: in this optic the Presidency examined to what extent the
principle of mutual recognition could be used to help confiscate financial
belongings following a judicial decision. These matters have been discussed
during a high level meeting held in September in Syracuse.
2.
Last Developments in the Judicial Field in Italy.
Italy being one of
the oldest and most important Member States of both EU and CoE, we cannot omit
some references to legal and judicial reforms which have been recently approved
in my country, in order to improve the administration of justice system.
Particular attention was paid in these last months to the field of civil
procedure, in order to try, on one hand, to speed the pace of civil cases and,
on the other hand, to reduce the staggering backlogs of courts.
A recent law decree – an act drafted and adopted by the
government, subsequently converted into law with some amendments by the
parliament (d.l. 12 settembre 2014, n.
132, “Misure urgenti di degiurisdizionalizzazione ed altri interventi per la
definizione dell’arretrato in materia di processo civile”, convertito con modificazioni
in l. 10 novembre 2014, n. 162) – tried to speed the course of civil
proceedings first of all by giving parties the possibility to have their cases
decided by referees or mediators, or even by their lawyers, through a process
of “negotiation.” This process is a mandatory preliminary step for new cases
concerning pecuniary claims up to 50,000 Euros: here the judge will have to
adjourn the case if parties did not go through the “negotiation” process prior
to lodging the Court with their claims.
A special kind of “negotiation” process is the one affecting
marriage crisis (legal separation or divorce). Spouses who desire to settle
their separation or divorce case in a friendly way can empower their lawyers to
reach an agreement, with no need to lodge a petition with a Court (as it was
the case before); only the agreement of the local Prosecutor Office will be
needed. Parties can also address directly the registrar, without any need of a
lawyer, but only when the couple has no minor children (or children who came of
age, but who are not economically independent, or who are disabled).
As far as ordinary
proceedings are concerned, judges are now empowered to switch the procedure
from the complex “ordinary track” to a sort of “less complex, faster track,” even
without the consent of parties. Also the enforcement procedure was speeded up.
The full implementation of IT and online civil proceedings will surely be of
use. The current Minister of justice, Mr. Orlando, hopes that recent new rules
requiring lawyers to file preliminary documents online will contribute to speed
up proceedings, especially in labour and insolvency disputes.
Talking about last
developments, another important step has to be singled out in Italy.
The current Head of
the Department of Judicial Organization, of Personnel and Services of the
Italian Ministry of Justice, Mr. Mario Barbuto, is the former President of the
First Instance Court and of the Appellate Court of Turin. He is the person who,
in 2001, launched the so-called “Strasbourg
Programme,” the first experiment of case management tested in Italy, aiming
at obtaining a significant reduction of judicial backlogs and the acceleration of
the treatment of civil cases. This initiative was so successful in Turin court
that it convinced the Italian legislator to extend it to all judicial offices
in 2011. Actually, article 37 of Law Decree No. 98 of the 6 July 2011,
converted with amendments into Law No. 111 of July 15, 2011 (Budget Law)
provides for that the Heads of the Courts, after consulting with the Presidents
of the District Bars organise a program for the management of civil,
administrative and tax proceedings, intended to determine: a) the targets of
reducing the duration of the processes which are concretely achievable in the
current year; b) the targets of the performance of the office, taking due
account of the work load exigible from the judges at its disposal and the order
of priority in dealing with pending cases, as identified according to
objectives and consistent criteria that take into account the length of the
case, with reference to any previous areas of jurisdiction and the nature and
value thereof.
This year, as soon
as he was called at the head of the above mentioned Department, Mr. Barbuto
proposed a new “revolutionary” system for assessing court backlogs. In fact,
the first step for addressing this issue is to exactly know what we should intend as “backlog,” how it was created and grew up, what is
it composed of. The revolutionary
idea was to try to separate certain kind of “cases,” which actually have
nothing to do with what we intend as “case” and as “civil proceeding.”
As a consequence,
we discovered that a huge figure (about 300,000 files) had to be separated from
the “traditional” backlog, as it had to do with not contentious situations
which are inevitably bound to last for very long time. We can cite here the
case of debarment or incapacitation: when a physical person is placed under
legal disability, a “process” is started and is left “pending” as long as that
person lives, but this does not mean that there is a violation of the
“reasonable deadline” provided for by Article 6 of the European Convention on
Human Rights!
Another important
directive given by the above mentioned document deals with the need to know not
only of what kind of cases the backlog is composed, but also what are the
percentages of “seniority” of concerned cases. A head of court and a judge have
to know how many cases are pending for longer than x, for longer than y and for
longer than z years, in order to know where to focus and concentrate energies,
so to give priority to “older” cases.
Finally, Mr. Barbuto’s study tries to single out the
“places” (i.e.: the judicial offices) in which the most serious problems are
located. The document shows what are the kinds of courts and the geographical
areas experiencing the longest delays and the greatest backlogs. There are the
areas in which a narrower work will have to be done, in order to understand
what kind of “focused” actions will have to be imagined at national and local
level. The
program launched by President Barbuto is totally available on-line in the
website of the Italian
Justice Ministry and is composed by analysis and by a large number of
statistics, graphics, and performance indicators at the highest level of detail
i.e. by office, matter, year of filing. This result was possible also thanks to
the development by the Italian department
of statistics (directed by CoE’s expert Mr. Fabio Bartolomeo) of the new
information system called “Datawarehouse of the
civil justice”.
As the title of my
report encompasses in a general way all kinds of developments affecting the
judicial field within the EU and CoE member States, I cannot omit a reference
to the “judicial side” of this issue. As maybe you know, I have the honour of
occupying the post of Secretary-General of the International
Association of Judges, an international ONG founded in 1953 as a
professional, non-political, international organisation, bringing together
national associations of judges, not individual judges, from 83 Countries of
all five Continents. The main aim of the Association is to safeguard the
independence of the judiciary, which is an essential requirement of the
judicial function, guaranteeing human rights and freedom.
This entity is
organised in four continental groups. One of these regional groups is the
European Group, or European Association of Judges (EAJ). The EAJ encompasses
now 44 countries,
among which all the countries belonging to EU and almost all 47 countries
members of the CoE.
We meet twice a
year in order to discuss local problems affecting the independence of the
judiciary. This year we met in May and in November.
Among the issues
discussed I have to mention the opinions expressed by the EAJ on two relevant
EU documents:
·
EU
Justice Agenda and
As far as the first
item is concerned, the EAJ expressed its view on relevant points such as
·
Enhancing mutual trust (stressing the need for a
better Judicial training and better communication between judges and legal
practitioners);
·
Rule of Law (remarking that, unfortunately, lack of
respect for the rule of law has grown in recent times and attacks from
governments to the principle of judicial independence have been constantly
increasing);
·
Consolidation and codification (launching the idea of
gathering and organizing all legal instruments passed in the last decades. Most
of the instruments have created, as the European arrest warrant for criminal
law or the Rome regulation for international private law, a whole new area of
law. The experience from judicial decisions rendered in these years should be
used for thorough analyses and, where needed careful complementation of
existing legal instruments. In the criminal field, the work, academics have
started 18 years ago with the “Corpus Juris” should be perpetuated into a
discussion between academics and judges, prosecutors and lawyers about the
fundamental ideas of European criminal law and its dogmatic basis and which
could end in a “Common Frame of European Criminal law”. The EAJ would support
such a process and would participate in the discussions).
As for the EU
Public Prosecutor, the EAJ stressed that three major criteria for the Office
and its members have to be met:
· Independence and
quality of all the members of the office;
· A legal framework
to cover all questions arising with its establishment;
· The guarantee of
judicial review of all of investigations.
·
Another major
problem on the floor of this year’s meetings of the EAJ was the situation of
the judiciary in two countries: one belonging to the EU and the other one
possible candidate, but already member of the CoE.
I am referring
first of all to the situation in Slovakia, where a Constitutional Act adopted
by the National Council (Parliament) of the Slovak Republic on 4th
June 2014 is interfering in various ways with the independence of the
judiciary. Requests for a comment or an opinion were made by the Supreme Court
of Slovakia to the European Consultative Council and the by the Slovak Judicial
Council to the European Network of the Judicial Council (ENCJ). The EAJ sent a letter
to the President of the Slovak Republic, the Prime Minister and the Minister of
Justice in which the EAJ’s concerns on the constitutional amendments were
expressed. On 1st July 2014 the Bureau of the Consultative Council
of European Judges (CCJE-BU) issued a comment on certain provisions of the
Constitutional Act of 4th June 2014 amending and supplementing the
Constitution of the Slovak Republic.
After examining the
amendments the CCJE concluded as follows:
·
The tenure of judges, which is an essential element of
their independence is unduly questioned and endangered if, without concrete and
reasonable suspicion, examinations of judges can be initiated.
·
The lustration of all judges with tenure is not in
line with international standards. The Slovak Republic has, for many years,
been a state committed to the rule of law and, at the present time there is no
post-revolutionary change from a totalitarian regime to a democratic state,
which is the situation when, exceptionally, such means may be acceptable.
·
As a rule it is inappropriate that material gathered
by secret service institutions be used in procedures to decide if judges fulfil
the necessary requirements established by clearly laid down laws. Any attempt
to use against judges material which is gathered in the usual manner in which
secret service institutions do so is likely seriously to infringe the
independence of the judiciary. The Influence of a secret service, which is part
of the executive power of the state, on judges’ performance and career will conflict
with the principles of separation of powers.
During the last meeting of the European Association of Judges,
last November, the Assembly approved a resolution summarising the
above-mentioned worries of the CCEJ-BU and urging Slovak authorities to act
upon these concerns.
As far as Turkey is concerned, EAJ established a monitoring
committee and a fact-finding mission of the EAJ visited Ankara in October this
year, gathering the concerns about the process of election of members of the
High Council for the Judiciary. The ad
hoc commission met several high ranked judges and also some lower ranked
colleagues, as well as the president of the constitutional court and the chief
of the Turkish bar. A special report was written to express the concern of the commission
due to the violation of all fundamental legal principles for the protection of
the judiciary from inappropriate influence or external pressure. After
reporting this situation within the Central Council of the International
Association of Judges, it was decided to adopt the following text:
·
The International Association of Judges, being
concerned about the recent violations of the independence of the Judiciary and
of the difficulties that follow for the Turkish judges and prosecutors,
expresses its entire support of the Turkish judges.
·
The International Association of Judges supports
YARSAV’s (Turkish Association of Judges and Prosecutors) courageous action to
defend the principles of the rule of law.
·
The International Association of Judges urges the
Turkish authorities to respect the international standards for an independent
and impartial Judiciary, and emphasises the absolute necessity to observe the
separation of powers.
[*] Paper submitted to the 24th Plenary Meeting
of the European Commission for the Efficiency of Justice (CEPEJ) of the Council
of Europe (Strasbourg, 11th and 12th December, 2014).