Judge – Court of Turin
Member of the SATURN Group of the CEPEJ
Secretary-General of the International Association of Judges
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.
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.
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).