HOW TO IDENTIFY NEW JUDICIAL TRAINING NEEDS?
SUGGESTIONS AND EXPERIENCES
DRAWN FROM NATIONAL AND INTERNATIONAL
TRAINING PROGRAMMES *
Table of Contents: 1. Judicial Training in the International Legal Instruments. – 2. Judicial Training in EU Law. – 3. The Experience of “Preliminary Training” for Future Jurists. – 4. Judicial Training Needs: Putting the Focus on the Efficiency of Justice.
A first set of ideas concerning the issue “how to identify new judicial training needs” can be drawn by some international documents concerning or somehow affecting judicial training . Of course, quantity and quality of information we can get depend on the kind of instrument we are considering.
Just to give a couple of examples, we can start from Articles 56 and 57 of the recent Recommendation CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe to member states on Judges: independence, efficiency and responsibilities (adopted by the Committee of Ministers on 17 November 2010). According to these provisions, “56. Judges should be provided with theoretical and practical initial and in-service training, entirely funded by the state. This should include economic, social and cultural issues related to the exercise of judicial functions. The intensity and duration of such training should be determined in the light of previous professional experience. 57. An independent authority should ensure, in full compliance with educational autonomy, that initial and in-service training programmes meet the requirements of openness, competence and impartiality inherent in judicial office.”
Paragraph 2.3. of the European Charter on the Statute for judges of the Council of Europe (1998) provides that “The statute ensures by means of appropriate training at the expense of the State, the preparation of the chosen candidates for the effective exercise of judicial duties. The authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training programmes and of the organization which implements them, in the light of the requirements of open-mindedness, competence and impartiality which are bound up with the exercise of judicial duties.”
Coming to Opinion Nr. 4 of the Consultative Council of European Judges (CCJE) (2003), we can cite points Nr. 27, 28, 29, 32 and 46, which provide for as follows:
“27. The initial training syllabus and the intensiveness of the training will differ greatly according to the chosen method of recruiting judges. Training should not consist only of instruction in the techniques involved in the handling of cases by judges, but should also take into consideration the need for social awareness and an extensive understanding of different subjects reflecting the complexity of life in society. In addition, the opening up of borders means that future judges need to be aware that they are European judges and be more aware of European issues.
28. In view of the diversity of the systems for training judges in Europe, the CCJE recommends:
i. that all appointees to judicial posts should have or acquire, before they take up their duties, extensive knowledge of substantive national and international law and procedure;
ii. that training programmes more specific to the exercise of the profession of judge should be decided on by the establishment responsible for training, and by the trainers and judges themselves;
iii. that these theoretical and practical programmes should not be limited to techniques in the purely legal fields but should also include training in ethics and an introduction to other fields relevant to judicial activity, such as management of cases and administration of courts, information technology, foreign languages, social sciences and alternative dispute resolution (ADR);
iv. that the training should be pluralist in order to guarantee and strengthen the open-mindedness of the judge;
v. that, depending upon the existence and length of previous professional experience, training should be of significant length in order to avoid its being purely a matter of form.
29. The CCJE recommends the practice of providing for a period of training common to the various legal and judicial professions (for instance, lawyers and prosecutors in countries where they perform duties separate from those of judges). This practice is likely to foster better knowledge and reciprocal understanding between judges and other professions.
32. Such training is made indispensable not only by changes in the law, technology and the knowledge required to perform judicial duties but also by the possibility in many countries that judges will acquire new responsibilities when they take up new posts. In-service programmes should therefore offer the possibility of training in the event of career changes, such as a move between criminal and civil courts; the assumption of specialist jurisdiction (e.g. in a family, juvenile or social court) and the assumption of a post such as the presidency of a chamber or court. Such a move or the assumption of such a responsibility may be made conditional upon attendance on a relevant training programme.
46. Furthermore, the CCJE considers that the co-operation within other initiatives aiming at bringing together the judicial training institutions in Europe, in particular within the European Judicial Training Network, can effectively contribute to the greater coordination and harmonisation of the programmes and the methods of training of judges on the whole continent.”
It is evident that international declarations and recommendations mainly focus on general principles, such as training structures, relations between training institutes and Ministry of Justice or Judicial Council, differences between initial and continuous training, need to have some compulsory activities, the links between training and assessment of judges, etc.
However, at a closer look, also in the framework of such organisational principles we are able to find an answer, or at least a part of the answer, to the above mentioned question: “how to identify new judicial training needs.”
Let us start from the matter of judicial training in the fields of EU law. We all know how important this subject has become, up to the point that scholars do not hesitate to use the expression “methodological europeanisation” , in order to designate methods of legal interpretation which are able to bring about results compatible with EU law and with the evolution of local legislations in an European law environment.
We also know that at European level we have, since the year 2000, a European Judicial Training Network (EJTN). Generally speaking this organisation is working well, but, if we look at concrete problems, something (at least as far as my country is concerned) is not turning correctly. I am referring to the link between the network and the final addressees of its activities, which is to say the judges. In Italy any initiative concerning the judiciary has to involve the High Council for the Judiciary, with its pantagruelian tendency to “swallow” everything that concerns judicial life. Therefore, initiatives starting at European level have to be filtrated through the cumbersome and very often ineffective procedures and “rites” of the Council. Final result is that programmes from the European Network reach their addressees very, very late, sometimes even after that concerned training events have taken place.
These remarks of mine are confirmed by a recent study  compiled for the European Parliament by the Academy of European Law (ERA) in consortium with the European Judicial Training Network (EJTN). According to such report : “Only a small minority of judges and prosecutors, and a tiny fraction of court staff, have attended a European judicial training programme.” The report further states as follows: “Judges, prosecutors and court staff face a number of obstacles to participating in continuous judicial training programmes which must be overcome if the number receiving training in EU law is to be increased.
The most significant obstacle to participation in continuous judicial training is the organisation of the justice system itself, which inhibits participation in training because the caseload of training participants is not reduced and they are not replaced during their absence.
Other significant obstacles to participation in judicial training programmes include:
· Lack of information about the training programmes available;
· Short notice of when training programmes will take place;
· Lack of places, particularly for judicial exchanges;
· Lack of funding by employers;
· Institutional opposition;
· Work/life balance;
· Language barriers.”
We all know that, in order to have a well performing system of training, training organisation has to programme its activities well in advance. Furthermore, if we want to correctly identify needs for a certain service, we need to have a direct contact between the organisation providing services and “consumers” of such services. This is why I do believe that, as far as training in international and EU law is concerned, we should try to reach a sort of international agreement, according to which training should be exclusively (or mainly) provided by an European Law training institute (and not just an European Network of national institutes), which should have direct contact with judges belonging to EU countries.
This means that judges should be able to directly apply to that body, without any kind of intermediation by the High Councils of Judiciary (or by Justice departments) in member States. In this way we could establish a direct link between organisations providing training, on one side, and trainees, on the other side. This should be a sound method for collecting directly by trainees information about their training needs. Actually, nobody can deny that trainees’ opinion is one of the best sources of information, as far as training needs are concerned.
I do not deny that the set of recommendations in the above mentioned study commissioned by the European Parliament are wise and reasonable. I do not have enough place here to cite them all; I will only underline that they are placed under following titles :
· “Make training integral to work as a judge or prosecutor;
· Make training more efficient;
· Make training more practical;
· Widen access to training;
· Improve EU support for judicial training.”
This means that there is surely an awareness at European level about the need to improve current standards. However the solutions which are pursued are not in the line I have suggested above. Quite on the contrary, if we have a look to the works of the European Judicial Training Conference held in Budapest in 2011 , we can discover, quite disappointedly, that, among the conclusions of that event, the Conference underlines “the fact that primary responsibility for training in EU Law is, and always should be, with the M[ember] S[tates].” Let me point out that Pontius Pilatus could not have done better!
Such clear form of de-responsibilization seems to be at odds with other parts of the same document, in which, much more correctly, following principles are laid down:
“Fostering a common European judicial, and judicial training culture
· European Judicial Culture is based on
o the Rule of law
o independence of the judiciary as an inseparable corollary
o empowering the individual
o confidence between legal systems
o shared law at the EU level
o primacy of EU law (Declaration 17 Lisbon Treaty)
o respect for Human rights and ECHR
o legal heritage / constitutional traditions
o institutions protecting the rule of law
o the Acquis communautaire
o the search for common ways forward
o emphasis on quality training
o the fact that judicial training is organic. It is an ever-developing science and future training will bear little resemblance to present or past training (cp training practices of 2001 with 2011 to see the evolution).
o some basic and common assumptions about future judiciaries
§ they are likely to be:
· accepting of EU law as part of their world-view
· accepting of the concept of the EU as a geographical reality within which to practice
· accepting of the need to know what is going on around Europe since they are immersed in European issues in their training
· accepting of the introduction of technologies in training (when blended with face-to-face elements)
· accepting of the need to put effort in to getting to know their neighbours
· willing to consider a blend of legal and constitutional heritage, the rule of law, human rights and national practices with empowering at the European level
· willing to engage in exchanging experiences of practice with others from within the EU.”
In this framework, it is high time that the European Training Network becomes aware of the need to operate no longer as a simple longa manus of national institutes, but to stand as a new institution, reclaiming the exclusive competence to be only body entitled to provide legal training to European judges in the field of EU law.
A key factor in programmes which should be developed at European level is the linguistic aspect: this means that European judges should be made aware of the need to develop a common judicial culture, which passes through a better knowledge of foreign cultures and languages. Courses of legal languages should be increased, together with comparative sessions on matters of substantive and procedural law. Under this respect, I do appreciate the recent initiative by the Italian High Council about the setting up of a training activity in EU law, called “European Gaius” . But I repeat that this step should be seen just as a preliminary operational move towards the setting up a truly European Judicial Training Institute.
Another organisational issue which needs to be deepened concerns what we in Italy call “preliminary training,” which is to say the training of young law-graduated people who are preparing themselves to face the competitive examination to become judges.
As far as Italy is concerned, rules on the entry to the profession of judge and prosecutor have been changed fifteen years ago, on the one hand to simplify and expedite the examination procedure and, on the other, to promote the development of a cultural basis common to all the members of the legal world connected to the activities linked to the exercise of the judicial function: judges and prosecutors, notaries and lawyers. The legislator has thus constituted Schools of Specialisation for the Legal Professions, which are post-graduate schools, set up within the universities for law-graduate students that want to enter the legal professions (Legislative Decree No. 398/97).
This experiment has been partially positive and partially negative. The good idea at the basis of this initiative is represented by both the need to provide young jurists with additional legal training (which is badly needed taking into account the huge lacks, shortfalls and drawbacks of the Italian university system), and by the idea to foster a new kind of jurist, whose skills are deeply rooted in a milieu which is common to judges, lawyers and notaries.
The negative part of the experience is that Italian legislation allows young law graduates to become lawyers even without having attended that School. What is even worse, law graduates can be admitted to the competitive examination to become judge even if they have not attended the School, provided that they have passed the bar exam (which in some regions of Italy is, unfortunately, something that occurs all too often, even for thousands of candidates whose skills are far from being satisfactory). Therefore, one of the aims for which this new system had been created, which is to say the reduction of the total number of candidates to the selection for the judicial career, could not be reached. As a consequence, competitive examinations to become judges are huge events concerning thousands of people; the organisation of such exams is getting more and more time consuming and expensive.
One of the reasons why the experiment of the Schools for Legal Professions should be enhanced and become the one and only (or at least the regular) system for recruiting judges, is the unique experience for having a cursus of studies and preliminary training which is common (or at least partly common) among judges, prosecutors, lawyers and notaries.
I underline this particular aspect because the need for a common training experience is deeply felt not only by judges. Recently the International Association of Judges was contacted by the European Affairs Commission of the International Union of Notaries on this topic. European notaries are very much interested in having a common reflection on how judges and notaries are recruited and trained all over Europe. They have prepared a questionnaire they are spreading among member notaries and we, as International Association of Judges, are trying to organise in the next future a joint event. It should be an international conference on the subject: “Judges and Notaries in Europe: Common Challenges.” Among such “common challenges” a relevant role should be played by the issues of recruitment and training. Notaries being already ready since long ago, I really do hope that also judges manage to overcome some difficulties and objections which were raised by representatives of some judicial associations against possible co-operation with notaries. Actually too many judges, being mainly engaged in criminal law affairs, cannot fully appreciate the importance of this issue.
This experience leads us to another problem, particularly affecting legal training in Italy: I am referring to the chasm existing in my country between law schools and “real life.”
We have been recently trying to find a solution to this problem by instituting a sort of training for law students in our courts. This is a very positive experiment, which was started by the way of agreements, concluded between universities and courts, on the basis of general provisions allowing Universities to sign up conventions with public bodies and private firms. In 2011 the decreto legge (“law decree”) Nr. 98, Article 37, Para. 4 and 5 introduced an interesting novelty into the Italian panorama. In taking inspiration from foreign experience, these provisions present the opportunity to enter into special agreements between the Heads of the Courts on one side and the schools of specialization for the legal professions, the local Bar Association and the universities on the other.
These conventions would allow some students (whom have attained certain levels of excellence) to replace a year of a Ph.D. or graduate course or traineeship with a period of professional education at the Court, attending and assisting the judges in the research and preparation of drafts of judgment. There are no compensation or retirement benefits and the relationship between the parties is not established under any public contract of employment; that confirms the non-onerous character of these conventions. So here is another tool that the lawmaker has parsimoniously put in place to enhance existing resources while keeping a tight grip on the purse strings.
The figure of the assistant judge, already present in the Constitutional Court, is of considerable potential value, both for the experience that gained by the young graduate and for the utility of the research assigned to him can lead to a prompt decision of the dispute.
However, please note that paragraphs 4 and 5 only provide for the mere possibility that the court enters into agreements with such bodies; they do not impose a legal obligation to take steps in that direction. Therefore, the use of the conditional is a must when it is said that these provisions, if fulfilled, will allow the establishment of the ‘Office of the judgeʼ (ie, a working group under the direction of each judge and deputy to give him assistance in his work). That ‘officeʼ could result in a considerable increase in the productivity of each individual judge, which means a decrease in the time required to process the cases. However, keep in mind that this provisions, if implemented, will fail to produce results in the short-term. The results can only be appreciated in the medium to long-term .
Coming back to the issue of legal studies at the university, main problem in Italy is that Italian Law Schools at University level currently are a sort of big “containers” filled with a lot of matters and curricula (very often created ex nihilo simply in order to satisfy the need to multiply teaching posts for new professors). What we should do is trying to single out a University law degree, which has more or less the same value in all of Europe, basically composed of both substantial and procedural law matters (private law, administrative law, criminal law, constitutional law, civil procedural law, etc.).
This should be the only degree needed to become either judge, or lawyer or notary. Training and “stages” in courts and law firms should become compulsory for law students, since their earliest years at Law School.
Some “new” matters and courses should be introduced at law school, such as judicial systems, court management, judicial and lawyer ethics, inter-active sessions with law professionals (judges, lawyers, notaries, clerks of court, bailiffs, in-house lawyers of private companies and public bodies, etc.).
The number of hours which professors and assistant professors dedicate to students should be dramatically increased. Teaching activity should be taken much more into consideration in the scores of candidates to professorship. All main courses should be endowed of compulsory training and practical activities; written (and not merely oral) exams should become the rule and not the exception, as it is nowadays.
Coming now to judicial—initial and continuous—training, let us try to see what suggestions and experiences can be drawn from national and international training programmes.
Beside the European Law perspective, which I have tried to underline above, taking into account the need (in some places, like in Italy, the dramatic need) to have a much more effective justice, court and case load management should become a compulsory subject for the initial training, as well as a basic feature of continuous training, for all judges, but in particular for Heads of Courts. In this framework, the activity and the official documents of CEPEJ (Council of Europe) on quality of justice and on judicial time management  should become a common acquis for all European judges.
Being myself a member of one of those organisms, I would like to recommend judicial training structures to contact the “SATURN Centre for judicial time management,”  whose main task is to collect information necessary for the knowledge of judicial timeframes in the member States and detailed enough to enable member states to implement policies aiming to prevent violations of the right to a fair trial within a reasonable time protected by Article 6 of the European Convention on Human Rights.
Recently, in the framework of the activity of such group, we decided to start up coaching sessions with local courts applying for help: for instance we developed a Court coaching programme (on a volunteer basis) for the effective use of the CEPEJ’s tools and guidelines, on the basis of an implementation protocol; such activities have already been done, just to give some examples, in Malta and we are planning to expand them in other countries which do not even belong to Europe, but which applied for help, like e.g. the Supreme Court of Palestine, in Ramallah. Just to give another example, some Courts (e.g. Focsani, in Romania and Clermont-Ferrand, in France) addressed us in order to get help while preparing “Satisfaction Enquiry Questionnaires,” along the lines of the “Handbook for conducting satisfaction surveys aimed at Court users in Council of Europe’s member States,” prepared by CEPEJ in 2010.
This is also the context in which we could take inspiration by some of the programmes of the Ecole Nationale de la Magistrature (E.N.M.) of France. The E.N.M. 2012 programme shows a certain number of initiatives which are cast under the title “humanités judiciaires.” The aim is to reach a better understanding of legal and ethical rules which can lead to a renewed confidence of people in the justice system, at the same time helping judges to reflect on principles governing their mission.
We find under this title many courses dedicated to ethical and disciplinary issues, as well as to problems linked to the civil liability of the State and of judges for wrongful judgments. We can also find training activities on the essence of the “act of judging,” such as a reflection on judging in literature, philosophy, sociology, history, or on some thorny issues, like the problem of the “laity” of State and possible conflicts with religious feelings of part of the people, etc.
I hope that these few reflections of mine can contribute to debate on how to improve judicial training in the third millennium, in order to help European judges to develop a higher degree of awareness about their sharing a common heritage and hopefully a common future.
(*) Presentation submitted to the “Menu for Justice Project” Workshop, organised by IRSIG-CNR (Istituto per la ricerca sui sistemi giudiziari del Consiglio Nazionale delle Ricerche), with financial support from the “Life Long Learning Programme of the European Commission – Education and Culture DG”, held within the Department of Political Science of the University of Bologna, in Bologna, on 29-30 March 2012.
 On the issues of legal and judicial training see Cappelletti, Studio del diritto e tirocinio professionale in Italia e Germania, Milano, 1957, passim; Pisani Massamormile, La legge professionale forense e l’esigenza di formazione dell’avvocato, in Giur. it., 1990, IV, c. 1; A. Padoa Schioppa, Per una riforma degli studi universitari di giurisprudenza in Italia, in Foro it., 1991, V, c. 517; Id., Il modello dell’ insegnamento del diritto in Italia, in Foro it., 1995, V, c. 413; Consolo e Mazzarolli, La formazione dell’avvocato. L’Università, in Giur. it., 1993, IV, c. 381; Franchini, La formazione professionale e scientifica nell’Università, in Dir. e società, 1993, p. 363; Levine, Legal Education, New York, 1993, passim; Bartole, Per una valutazione comparativa dell’ordinamento del potere giudiziario nei Paesi dell’Europa continentale, in Studium juris, 1996, p. 531; Borgna and Cassano, Il giudice e il principe. Magistratura e potere politico in Italia e in Europa, Roma, 1997, p. 107; Oberto, Verardi and Viazzi, Il reclutamento e la formazione professionale dei magistrati in Italia e in Europa, in Aa. Vv., L’esame di uditore giudiziario, Milano, 1997, p. 41; Spantigati, La formazione del giurista strumentale alla costruzione del «sistema», in Pol. dir., 1997, p. 125; Caianiello, Formazione e selezione dei giudici in un’ipotesi comparativa, in Giur. it., 1998, p. 387; Donati, Storicismo e antistoricismo nella formazione del giurista, in Jus, 1998, p. 307; Mariani Marini, I problemi irrisolti della formazione comune tra avvocati e magistrati, in Rass. forense, 1998, p. 827; Id., Tradizione e innovazione nella formazione dell’avvocato, in Rass. forense, 1999, p. 47; Id., Agli antipodi dell’azzeccagarbugli (un modello formativo per l’avvocatura), in Rass. forense, 2000, p. 501; Padoa Schioppa, Una formazione professionale unitaria per superare le diffidenze tra le categorie, in Guida al Diritto, Il Sole 24 ore, 1998, n. 42, p.11; Alpa, L’accesso alla professione forense: nuove prospettive per l’avvocatura, in Nuova giur. civ. comm., 1999, II, p. 193; Dogliani and Sicardi, La riforma degli ordinamenti didattici e il diritto costituzionale, in Quaderni costituz., 1999, p. 563; Mariani Marini, Una formazione a servizio dell’avvocatura per governare le trasformazioni in atto, in Guida al Diritto, Il Sole 24 ore, 1999, n. 9, p. 11; Moccia, La formazione dell’«avvocato europeo»: questioni e risposte di prospettiva, in Riv. trim. dir. proc. civ., 1999, p. 567; Various Authors, Traité d’organisation judiciaire comparée, I, Zürich-Bruxelles, 1999, passim; Oberto, Recrutement, formation et carrière des magistrats dans le système juridique et constitutionnel italien, in Aa. Vv., Que formação para os magistrados hoje?, Lisbona, 2000, p. 185-209, (http://www.giacomooberto.com/portugal/rapport.htm); Id., Recrutement et formation des magistrats: le système italien dans le cadre des principes internationaux sur le statut des magistrats et l’indépendence du pouvoir judiciaire, in Riv. dir. priv., 2001, p. 717; Id., La formazione dei magistrati italiani nell’ottica della formazione del giurista europeo, in La magistratura, 1/2 (gennaio-giugno), 2002, p. 40; Id., Recrutement et formation des magistrats en Europe. Etude comparative, Strasbourg, 2003, passim; Id., Magistrati. Reclutamento e formazione. Studio comparato fra sistemi europei, Collana «Inchieste e proposte», diretta da Giuseppe Salerno, n. 37, Roma, 2003, passim; Id., La formazione dei magistrati alla luce dei principi internazionali e dei profili di diritto comparato, Collana «Le monografie di Contratto e impresa. Serie di Diritto comparato, diretta da Francesco Galgano e Franco Ferrari», Padova, 2008, passim; Fragola, Prime riflessioni sulle nuove lauree universitarie, in Riv. giur. scuola, 2001, p. 3; Open Society Institute/Eu Accession, Monitoring Programme, Monitoring the EU Accession Process: Judicial Independence, Budapest, 2001, passim; Pascuzzi, La formazione del giurista: il ruolo dell’informatica, in Dir. e formazione, 2002, p. 287; Phare Orizontal Program on Justice and Home Affairs, Reinforcement of the Rule of Law, Nimega, 2002; Danovi, Le iniziative del C.C.B.E. per la formazione dell’avvocato in Europa: analisi e proposte, in Dir. e formazione, 2002, p. 293; Ranieri, Giuristi per l’Europa: come fare e come non fare una riforma degli studi di diritto in Italia: http://www.jura.uni-sb.de/projekte/Bibliothek/text.php?id=296; Carrick and Walters, A Bibliography of United States Legal Education: From Litchfield to Lexis, Buffalo, 2003, passim; von Bogdandy, Prospettive della scienza giuridica nell’area giuridica europea. Una riflessione sulla base del caso tedesco, in Foro it., 2012, V, c. 54; Grasso, Per una cultura giuridica comune: la nuova dimensione della formazione giudiziaria in Europa. L’impegno delle istituzioni europee e il contributo della magistratura italiana, in Foro it., 2012, IV, c. 107.
 See von Bogdandy, loc. cit.
 See Directorate General for Internal Policies – Policy Department C: Citizens’ Rights And Constitutional Affairs – Legal Affairs Judicial Training in the European Union Member States: http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=60091.
 See p. 140.
 See p. 142-148.
 On such issues see Bollettinari, Court Management in Italy: from the ‘Strasbourg Programme’ to Current Law Reform under the Framework of European Principles, to be published in Contratto e impresa/Europa, 2012.