Recommendation
of the Committee of Ministers to member states
on judges: independence, efficiency and responsibilities
(Adopted by the Committee of Ministers on 17
November 2010
at the 1098th meeting of the Ministers
The Committee of
Ministers, under the terms of Article 15.b of the Statute of the Council
of Europe,
Having regard to
Article 6 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter referred to as “the Convention”, ETS No. 5), which
provides that “everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law”,
and to the relevant case law of the European Court of Human Rights;
Having regard to
the United Nations Basic Principles on the Independence of the Judiciary,
endorsed by the United Nations General Assembly in November 1985;
Having regard to
the opinions of the Consultative Council of European Judges (CCJE), to the work
of the European Commission for the Efficiency of Justice (CEPEJ) and to the
European Charter on the Statute for Judges prepared within the framework of
multilateral meetings of the Council of Europe;
Noting that, in
the exercise of their judicial functions, the judges’ role is essential in
ensuring the protection of human rights and fundamental freedoms;
Wishing to promote
the independence of judges, which is an inherent element of the rule of law,
and indispensable to judges’ impartiality and to the functioning of the
judicial system;
Underlining that
the independence of the judiciary secures for every person the right to a fair
trial and therefore is not a privilege for judges, but a guarantee of respect
for human rights and fundamental freedoms, allowing every person to have confidence
in the justice system;
Aware of the need
to guarantee the position and powers of judges in order to achieve an efficient
and fair legal system and encourage them to commit themselves actively to the
functioning of the judicial system;
Conscious of the
need to ensure the proper exercise of judicial responsibilities, duties and
powers aimed at protecting the interests of all persons;
Wishing to learn
from the diverse experiences in member states with regard to the organisation
of judicial institutions in accordance with the rule of law;
Having regard to
the diversity of legal systems, constitutional positions and approaches to the
separation of powers;
Noting that
nothing in this recommendation is intended to lessen guarantees of independence
conferred on judges by the constitutions or legal systems of member states;
Noting that the
constitutions or legal systems of some member states have established a
council, to be referred to in this recommendation as a “council for the
judiciary”;
Wishing to promote
relations among judicial authorities and individual judges of different member
states in order to foster the development of a common judicial culture;
Considering that
Recommendation Rec(94)12 of the Committee of Ministers on the independence,
efficiency and role of judges needs to be substantially updated in order to
reinforce all measures necessary to promote judges’ independence and
efficiency, guarantee and make more
effective their responsibility and strengthen the role of individual judges and
the judiciary generally,
Recommends that
governments of member states take measures to ensure that the provisions
contained in the appendix to the present recommendation, which replaces the
above-mentioned Recommendation Rec(94)12, are applied in their legislation,
policies and practices and that judges are enabled to perform their functions
in accordance with these provisions.
Appendix to Recommendation CM/Rec(2010)12
Chapter I – General aspects
Scope of the recommendation
1. This recommendation is applicable to all
persons exercising judicial functions, including those dealing with
constitutional matters.
2. The provisions laid down in this
recommendation also apply to non-professional judges, except where it is clear from the context that they only apply to
professional judges.
Judicial independence and the level at which it should be safeguarded
3. The purpose of independence, as laid down in
Article 6 of the Convention, is to guarantee every person the fundamental
right to have their case decided in a fair trial, on legal grounds only and
without any improper influence.
4. The independence of individual judges is
safeguarded by the independence of the judiciary as a whole. As such, it is a
fundamental aspect of the rule of law.
5.
Judges
should have unfettered freedom to decide cases impartially, in accordance with
the law and their interpretation of the facts.
6.
Judges
should have sufficient powers and be able to exercise them in order to carry
out their duties and maintain their authority and the dignity of the court. All
persons connected with a case, including public bodies or their
representatives, should be subject to the authority of the judge.
7.
The
independence of the judge and of the judiciary should be enshrined in the
constitution or at the highest possible legal level in member states, with more
specific rules provided at the legislative level.
8.
Where
judges consider that their independence is threatened, they should be able to
have recourse to a council for the judiciary or another independent authority,
or they should have effective means of remedy.
9.
A case
should not be withdrawn from a particular judge without valid reasons. A
decision to withdraw a case from a judge should be taken on the basis of
objective, pre-established criteria and following a transparent procedure by an
authority within the judiciary.
10.
Only
judges themselves should decide on their own competence in individual cases as
defined by law.
Chapter II
− External independence
11.
The
external independence of judges is not a prerogative or privilege granted in
judges’ own interest but in the interest of the rule of law and of persons
seeking and expecting impartial justice. The independence of judges should be
regarded as a guarantee of freedom, respect for human rights and impartial
application of the law. Judges’ impartiality and independence are essential to
guarantee the equality of parties before the courts.
12.
Without
prejudice to their independence, judges and the judiciary should
maintain constructive working relations with institutions and public
authorities involved in the management and administration of the courts, as
well as professionals whose tasks are related to the work of judges in order to
facilitate an effective and efficient administration of justice.
13.
All
necessary measures should be taken to respect, protect and promote the
independence and impartiality of judges.
14.
The
law should provide for sanctions against persons seeking to influence judges in
an improper manner.
15.
Judgments
should be reasoned and pronounced publicly. Judges should not otherwise be
obliged to justify the reasons for their judgments.
16.
Decisions
of judges should not be subject to any revision other than appellate or
re-opening proceedings, as provided for by law.
17.
With
the exception of decisions on amnesty, pardon or similar measures, the
executive and legislative powers should not take decisions which invalidate
judicial decisions.
18.
If
commenting on judges’ decisions, the executive and legislative powers should
avoid criticism that would undermine the independence of or public confidence
in the judiciary. They should also avoid actions which may call into question
their willingness to abide by judges’ decisions, other than stating their
intention to appeal.
19.
Judicial
proceedings and matters concerning the administration of justice are of public
interest. The right to information about judicial matters should, however, be
exercised having regard to the limits imposed by judicial independence. The
establishment of courts’ spokespersons or press and communication services
under the responsibility of the courts or under councils for the judiciary or
other independent authorities is encouraged. Judges should exercise restraint
in their relations with the media.
20.
Judges,
who are part of the society they serve, cannot effectively administer justice
without public confidence. They should inform themselves of society’s
expectations of the judicial system and of complaints about its functioning.
Permanent mechanisms to obtain such feedback set up by councils for the
judiciary or other independent authorities would contribute to this.
21.
Judges
may engage in activities outside their official functions. To avoid actual or
perceived conflicts of interest, their participation should be restricted to
activities compatible with their impartiality and independence.
Chapter III − Internal independence
22.
The
principle of judicial independence means the independence of each individual
judge in the exercise of adjudicating functions. In their decision making
judges should be independent and impartial and able to act without any
restriction, improper influence, pressure, threat or interference, direct or
indirect, from any authority, including authorities internal to the judiciary.
Hierarchical judicial organisation should not undermine individual
independence.
23.
Superior
courts should not address instructions to judges about the way they should
decide individual cases, except in
preliminary rulings or when deciding on legal remedies according to the law.
24.
The
allocation of cases within a court should follow objective pre-established
criteria in order to safeguard the right to an independent and impartial judge.
It should not be influenced by the wishes of a party to the case or anyone
otherwise interested in the outcome of the case.
25.
Judges
should be free to form and join professional organisations whose objectives are
to safeguard their independence, protect their interests and promote the rule
of law.
Chapter IV − Councils for
the judiciary
26.
Councils
for the judiciary are independent bodies, established by law or under the
constitution, that seek to safeguard the independence of the judiciary and of
individual judges and thereby to promote the efficient functioning of the
judicial system.
27.
Not
less than half the members of such councils should be judges chosen by their
peers from all levels of the judiciary and with respect for pluralism inside
the judiciary.
28.
Councils
for the judiciary should demonstrate the highest degree of transparency towards
judges and society by developing pre-established procedures and reasoned
decisions.
29.
In
exercising their functions, councils for the judiciary should not interfere
with the independence of individual judges.
Chapter V − Independence, efficiency and
resources
30.
The
efficiency of judges and of judicial systems is a necessary condition for the
protection of every person’s rights, compliance with the requirements of
Article 6 of the Convention, legal certainty and public confidence in the
rule of law.
31.
Efficiency
is the delivery of quality decisions within a reasonable time following fair
consideration of the issues. Individual judges are obliged to ensure the
efficient management of cases for which they are responsible, including the
enforcement of decisions the execution of which falls within their
jurisdiction.
32.
The authorities responsible for the
organisation and functioning of the judicial system are obliged to provide
judges with conditions enabling them to fulfil their mission and should achieve
efficiency while protecting and respecting judges’ independence and
impartiality.
Resources
33.
Each
state should allocate adequate resources, facilities and equipment to the
courts to enable them to function in accordance with the standards laid down in
Article 6 of the Convention and to enable judges to work efficiently.
34.
Judges
should be provided with the information they require to enable them to take
pertinent procedural decisions where such decisions have financial implications.
The power of a judge to make a decision in a particular case should not be
solely limited by a requirement to make the most efficient use of resources.
35.
A
sufficient number of judges and appropriately qualified support staff should be
allocated to the courts.
36.
To
prevent and reduce excessive workload in the courts, measures consistent with
judicial independence should be taken to assign non-judicial tasks to other
suitably qualified persons.
37.
The
use of electronic case management systems and information communication
technologies should be promoted by both authorities and judges, and their
generalised use in courts should be similarly encouraged.
38.
All
necessary measures should be taken to ensure the safety of judges. These
measures may involve protection of the courts and of judges who may become, or
are victims of, threats or acts of violence.
Alternative
dispute resolution
39.
Alternative
dispute resolution mechanisms should be promoted.
Courts’
administration
40.
Councils
for the judiciary, where existing, or other independent authorities with
responsibility for the administration of courts, the courts themselves and/or
judges’ professional organisations may be consulted when the judicial system’s
budget is being prepared.
41.
Judges
should be encouraged to be involved in courts’ administration.
Assessment
42.
With a
view to contributing to the efficiency of the administration of justice and
continuing improvement of its quality, member states may introduce systems for
the assessment of judges by judicial authorities, in accordance with
paragraph 58.
International
dimension
43.
States
should provide courts with the appropriate means to enable judges to fulfil
their functions efficiently in cases involving foreign or international
elements and to support international co-operation and relations between
judges.
Chapter VI - Status of the judge
Selection and
career
44.
Decisions
concerning the selection and career of judges should be based on objective
criteria pre‑established by law or by the competent authorities. Such
decisions should be based on merit, having regard to the qualifications, skills
and capacity required to adjudicate cases by applying the law while respecting
human dignity.
45.
There
should be no discrimination against judges or candidates for judicial office on
any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, disability, birth, sexual orientation or other status. A requirement
that a judge or a candidate for judicial office must be a national of the state
concerned should not be considered discriminatory.
46.
The
authority taking decisions on the selection and career of judges should be
independent of the executive and legislative powers. With a view to
guaranteeing its independence, at least half of the members of the authority
should be judges chosen by their peers.
47.
However,
where the constitutional or other legal provisions prescribe that the head of
state, the government or the legislative power take decisions concerning the
selection and career of judges, an independent and competent authority drawn in
substantial part from the judiciary (without prejudice to the rules applicable
to councils for the judiciary contained in Chapter IV) should be authorised
to make recommendations or express opinions which the relevant appointing
authority follows in practice.
48.
The
membership of the independent authorities referred to in paragraphs 46 and
47 should ensure the widest possible representation. Their procedures should be
transparent with reasons for decisions being made available to applicants on
request. An unsuccessful candidate should have the right to challenge the
decision, or at least the procedure under which the decision was made.
Tenure and irremovability
49.
Security
of tenure and irremovability are key elements of the independence of judges.
Accordingly, judges should have guaranteed tenure until a mandatory retirement
age, where such exists.
50.
The
terms of office of judges should be established by law. A permanent appointment
should only be terminated in cases of serious breaches of disciplinary or
criminal provisions established by law, or where the judge can no longer
perform judicial functions. Early retirement should be possible only at the request
of the judge concerned or on medical grounds.
51.
Where
recruitment is made for a probationary period or fixed term, the decision on
whether to confirm or renew such an appointment should only be taken in
accordance with paragraph 44 so as to ensure that the independence of the
judiciary is fully respected.
52.
A
judge should not receive a new appointment or be moved to another judicial
office without consenting to it, except in cases of disciplinary sanctions or
reform of the organisation of the judicial system.
Remuneration
53.
The
principal rules of the system of remuneration for professional judges should be
laid down by law.
54.
Judges’
remuneration should be commensurate with their profession and responsibilities,
and be sufficient to shield them from inducements aimed at influencing their
decisions. Guarantees should exist for maintaining a reasonable remuneration in
case of illness, maternity or paternity leave, as well as for the payment of a
retirement pension, which should be in a reasonable relationship to their level
of remuneration when working. Specific legal provisions should be introduced as
a safeguard against a reduction in remuneration aimed specifically at judges.
55.
Systems
making judges’ core remuneration dependent on performance should be avoided as
they could create difficulties for the independence of judges.
Training
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.
Assessment
58.
Where
judicial authorities establish systems for the assessment of judges, such
systems should be based on objective criteria. These should be published by the
competent judicial authority. The procedure should enable judges to express
their view on their own activities and on the assessment of these activities,
as well as to challenge assessments before an independent authority or a court.
Chapter VII − Duties and responsibilities
Duties
59.
Judges
should protect the rights and freedoms of all persons equally, respecting their
dignity in the conduct of court proceedings.
60.
Judges
should act independently and impartially in all cases, ensuring that a fair
hearing is given to all parties and, where necessary, explaining procedural
matters. Judges should act and be seen to act without any improper external
influence on the judicial proceedings.
61.
Judges
should adjudicate on cases which are referred to them. They should withdraw
from a case or decline to act where there are valid reasons defined by law, and
not otherwise.
62.
Judges
should manage each case with due diligence and within a reasonable time.
63.
Judges
should give clear reasons for their judgments in language which is clear and
comprehensible.
64.
Judges
should, in appropriate cases, encourage parties to reach amicable settlements.
65.
Judges
should regularly update and develop their proficiency.
Liability and
disciplinary proceedings
66.
The
interpretation of the law, assessment of facts or weighing of evidence carried
out by judges to determine cases should not give rise to civil or disciplinary
liability, except in cases of malice and gross negligence.
67.
Only
the state may seek to establish the civil liability of a judge through court
action in the event that it has had to award compensation.
68.
The
interpretation of the law, assessment of facts or weighing of evidence carried
out by judges to determine cases should not give rise to criminal liability,
except in cases of malice.
69.
Disciplinary
proceedings may follow where judges fail to carry out their duties in an efficient and proper
manner. Such proceedings should be conducted by an independent authority or a
court with all the guarantees of a fair trial and provide the judge with the
right to challenge the decision and sanction. Disciplinary sanctions should be
proportionate.
70.
Judges
should not be personally accountable where their decision is overruled or modified
on appeal.
71. When not exercising judicial functions, judges
are liable under civil, criminal and administrative law in the same way as any
other citizen.
Chapter VIII − Ethics of judges
72.
Judges
should be guided in their activities by ethical principles of professional
conduct. These principles not only include duties that may be sanctioned by
disciplinary measures, but offer guidance to judges on how to conduct themselves.
73.
These
principles should be laid down in codes of judicial ethics which should inspire
public confidence in judges and the judiciary. Judges should play a leading
role in the development of such codes.
74.
Judges
should be able to seek advice on ethics from a body within the judiciary.