1. Basic Rules for an Independent Judiciary in the Framework of Constitutional and International Provisions.

One of the fundamental conditions for what is called the "Rule of Law" is undoubtedly represented by the existence of a strong and independent Judiciary. In a State that is ruled by the law the Judiciary must be considered as one of the three powers, at the same level as the Legislative and the Executive Powers, and fully independent of these latter.

This principle has always been more or less enshrined in most of the Constitutions of the world; sometimes even in those countries where the judiciary was (or still is) not independent at all. That's why this main rule risks to remain just a theoretical one, if it is not surrounded-in the very text of the Constitution, or at least in the statutes governing the administration of justice-by some other principles, which can be drawn from the Constitutions of most of the Western European countries, as well as from the most important international documents concerning the matter of the independence of the Judiciary.

Let us see, first of all, what these international documents are.

I'll try to restate now these principles as follows.
  1. The Judiciary is an autonomous body. It is not subject to any of the other two powers of the State. Public prosecutors should enjoy the same guarantees provided for by the law concerning the judicial status.
  2. Judges and public prosecutors are only subject to the law.
  3. Judges and public prosecutors should be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect.
  4. Judges and public prosecutors should be selected through competitive examinations. The selection and each appointment of a judge or of a public prosecutor must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.
  5. No influence at all should be given to the executive or to the Legislative power in the process of selection of judges and public prosecutors.
  6. A High Council for the Judiciary should be established. The High Council for the Judiciary should be entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning judges and public prosecutors. This body should be composed of judges and public prosecutors, or at least have a majority representation of judges and public prosecutors.
  7. Judges and public prosecutors cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure.
  8. Disciplinary action should be carried out by independent bodies that include substantial judicial representation. Disciplinary action against judges and public prosecutors can only be taken when provided for by pre-existing law and in compliance with predetermined rules of procedure.
  9. Each judge and each public prosecutor has the right to be provided with an efficient system of initial and further judicial training; attendance to these two forms of training should be, for a certain period, compulsory for each judge or public prosecutor, or at least it should represent an essential condition for moving to a higher post. Judicial training should be provided by an independent institution, such as the French Ecole Nationale de la Magistrature, or by the independent body, that include substantial judicial representation.
  10. Judges and public prosecutors must be granted proper working conditions.
  11. Salaries of judges and of public prosecutors be fixed by statute (and not by an act of the executive power) and linked to the salaries of parliamentarians or of ministers. They should not be reduced for any reason.
  12. Judges and public prosecutors must be granted full freedom of association, both on national and international level. Activity in such association must be officially recognised as judicial work.
I must admit that none of the above mentioned instruments contains in itself all of the rules I've just enumerated, but it is nonetheless clear that those international documents must be read and interpreted as parts of a mosaic structure, a complex framework which is more and more felt as a "International Judicial Corpus Juris". Such a general framework has already some tangible applications at national level, here and there in Europe. At the end of this report I enclose some excerpts from the Italian constitution; this text-even though it has been drawn up more than half a century ago, at the end of a period of conflict and civil war-has nonetheless managed to safeguard the independence of the Judiciary during these last 50 years, by setting forth for a very long time many of the principles now stated in the "International Judicial Corpus Juris" I mentioned before.

2. Judicial Independence in Countries of Central and Eastern Europe.

If we look, from the above mentioned standpoint, at the legal evolution in the former communist countries we cannot refrain from remarking that the shift towards democratic regimes did not always bring within itself a full acceptance of Montesquieu's doctrine of the separation of powers. This is particularly true for many of the countries that were members of the former Soviet Union. In my capacity as an expert of the Council of Europe I've been given many times the chance to visit these countries, where I was suddenly confronted with problems and questions whose very existence I could never imagine. For example, one of the thorny questions I had to tackle many times is the following one: "How can you-in cases in which the State is defendant-sentence your own State to pay a certain amount of money to the plaintiff, when it is this very State which pays your own salary? Do you really feel yourself independent when you render such a decision? ".
The very fact that such a question is posed shows how far for many European judiciaries a situation of real independence can still be.

It happened also many times to me to be called by the Council of Europe to give legal advice upon bills and draft statutes in countries of Central and Eastern Europe. In this cases I've found myself very often confronted with the attempt-sometimes clearly shown in the legal texts-to create, or to preserve more or less evident forms of controls upon the judiciary, especially in the ticklish topics of judicial selection, career, transfer and disciplinary proceedings. Unfortunately, as a general rule, we must notice that the influence of the executive power in this part of Europe is still too strong.

Let me say that this situation cannot be blamed only on the lack of democratic traditions in many of the concerned countries: of course this is not true for a number of states which savoured independence and freedom before the communist regime. On the other hand, once again the Italian example shows that a former situation of dictatorship can result in a subsequent "democratic reaction", which brings about a full implementation of the independence of the judiciary. What I would rather like to point out as a negative factor is the influence that in this part of Europe has been exerted since the fall of the Berlin wall by the Common Law systems.

Please, do not get me wrong. Nobody can deny the importance of the role played by CEELI in this area: let us only think to the tremendous activity aiming at setting up judicial training centres, organising meetings, seminars and conferences, providing colleagues with any kind of legal assistance, and so on. But it is also undeniable that all this has resulted in a tendency to transplant legal institutions and, more generally, a certain kind of mentality into a legal environment that is completely different. Let me say it more clearly, maybe more bluntly. That the choice for the appointment of judges is made by the British Lord Chancellor, or by H.M. Government, or by the U.S. Government, or by the President of the United States does not raise concern in those systems. The same is true of the lack in those systems of any form of High Council for the Judiciary. But we must never forget that Anglo-Saxon systems-and, before that, Anglo-Saxon cultures-are historically based upon a deeply rooted, centuries-old respect towards the judiciary, up to the point that a High Council for the Judiciary could be seen there as a threat, rather than as a bastion of judicial independence.

This is absolutely not the case for the southern part of Europe, of which Italy is a conspicuous example, where legal institutions such as the High Council for the Judiciary had to be created (and have to be maintained) in order to protect the Judiciary against the ravenous appetites of the political body. Under this respect I think the situation of Central and Eastern European countries is much more similar to that of Southern Europe. That's why I welcome an initiative such as, for example, the Consultative Council of Judges, under the Council of Europe' auspices. The framework in which this new body is going to operate will surely allow a richer exchange of experiences and will also convince the more reluctant colleagues of the opportunity to accept the idea that the judiciary (and-as an Italian-when I utter this word I always have also in mind the members of the public prosecutors office) must be self-governed; that means that topics like judicial selection, training, career, transfers and discipline cannot be dealt with by any institution other than an independent body that includes a majority judicial representation.

3. A Few Remarks upon Some Recent Bills on Courts and on Judges in the Czech Republic.

Within the framework of the principles that I have previously tried to restate, I'd like now to deal with two bills, which have been recently drafted by the Government of the Czech Republic, together with a draft of amendment of the Constitution of the Czech Republic. These bills deal respectively with courts and judges. The first one, as well as the Constitutional Amendment, deals also (in its Section 2) with the body in charge of all administrative decisions concerning the judiciary, i.e. the High Council for the Judiciary, or-as it is referred to in its English translation-the "Supreme Judicial Board".
As far as this institution is concerned, I surely do appreciate the clear-cut distinction between the competencies of this Council (see § 36) and those of the Minister of Justice (see § 48). According to this bill, all functions which are vital for the safeguard of the independence of the judiciary are in the hands of the Council, whereas the Minister of Justice should mainly perform the role of the provider of organisation, as well as of material means and services concerning the administration of justice. Now, just because the role of this Council is much similar to that of its Western European counterparts, I cannot conceal my concern for the fact that, out of sixteen members of this body, only seven are judges elected by their colleagues (see also the proposed new Article 82, paragraph 2, of the Constitution). As I stated before, it is of paramount importance that the body to which the self-administration of the judiciary is entrusted be composed of a majority of judges: otherwise it would not be possible to speak of "self-administration"; the term "administration from outside" could be more suitable to describe this regrettable situation.

Another major source of worries comes from the bill on judges and associate judges. As far as this second category of judges is concerned, I personally think that the law should strictly limit their number (which should therefore not be left to the will of the presidents of district courts: see § 10). Furthermore their functions and duties should be precisely specified by the law and limited to the ones that are typical of the Justices of the Peace (so called "small cases", misdemeanours, etc.). The proceeding for the selection and appointment of judges is not defined in a sufficiently clear way. § 8, for instance, should clarify whether or not the proposal of the "Supreme Justice Board" concerning the appointment of a judge is binding to the President of the Republic; the same applies, of course, to the proposed new Articles 62, letters f) and l), and 91a, letter a). Furthermore, it is not clear who (as well as under what circumstances and conditions) can apply to the "preparatory service" for those people who in the bill are referred to as "judicial pretenders" and who should be a sort of trainee or applicant judges. While a "professional justice examination" is provided for at the end of the "preparatory service", apparently no procedure of selection for the access to the service is sketched in the bill. Moreover, the bill does not sufficiently describe the training programme that applicant judges are supposed to follow during this rather long (three years) phase of "preparatory service".

But the most serious concern deals with what the Government bill on judges calls "temporary allocation and transfer of judges", set forth by §§ 13, Section (3) and 16, Section (1), which provide for the possibility to "temporarily allocate" or to (definitively) transfer a judge even against his/her consent as the effect of a "need to ensure an orderly course of justice". This threat to the independence of the judicial power must be seen in the light of the proposed modification of Article 82, paragraph 2, of the Czech Constitution, whereas the words "ensuing in particular from disciplinary liability" should be cancelled, according to the Government draft of Constitutional Act aiming at amending the Czech Constitution. The Explanatory Memorandum to the draft makes clear that the scope of the amendment is to eliminate from the Constitution any hint to the matter of disciplinary accountability, which could lead one to suppose that only in case of disciplinary sanctions a judge could be transferred against his/her will. The following scheme will make more intelligible the perverse aim of the proposed amendment:
Current text of Article 82, paragraph 2 of the Czech Constitution (*) 

(*) Text available at the following web site: 

Proposed text of Article 82, paragraph 2 of the Czech Constitution, as amended:
Article 82 [Judges] 

(1) . 

(2) A judge cannot be dismissed or transferred to another court against his or her will; exceptions, primarily in disciplinary responsibility, are stipulated by law. 

(3) .

 Article 82 [Judges] 

(1) . 

(2) A judge cannot be dismissed or transferred to another court against his or her will; exceptions are stipulated by law. 

(3) .


The draft is also related to Act No. 335/1991 Coll., on courts and judges as later amended, which enables, under conditions set out in § 40 paragraphs 4-7, to transfer a judge even without his/her consent or request to another court if there is "a change in organisation of courts or change in jurisdiction of courts by law or such exemptions were set out following to concrete legal amendments to organisation of courts (e.g. Act No. 17/1993 Coll., which amends Act No. 335/1993 Coll., on courts and judges in the wording of Act No. 264/1992 Coll.)" (see the Explanatory Memorandum to the draft of Constitutional Act).

Concluding on this point, it appears clear to me that all of the above mentioned provisions (the proposed one, as well as those already in force) constitute a blatant violation of the principle of inamovibility of judges. No "change in organisation of courts", no (real or alleged) "need to ensure an orderly course of justice" can ever justify such a breach of one of basic principles which ensure the independence of the judicial power. Furthermore, the Government bill on judges gives no more precise hint as what should be intended as an "orderly course of justice", so leaving an all too wide discretionary power to the body which is entitled to decide who, whether, when and where should be "temporarily allocated" or transferred. Under this point of view the assertion-in the Explanatory Memorandum-that "the principle will continue to be the constitutional guarantee that removing and transferring judges will only be possible exceptionally and based upon law" sounds much like a real mockery.

4. A Few Suggestions Concerning the Matter of Disciplinary Violations.

The matter of disciplinary responsibility is a very delicate one. It cannot be resolved with a provision like the one provided for by § 43 Section (1) of the bill on judges drafted by the Czech Government: "A disciplinary offence is a breach of obligations by a judge caused by him/her, behaviour or acting of the judge by which s/he threatens trust in independent and impartial decision making of courts or lowers seriousness and respectability of the function of judge." My opinion (reflecting the point of view of most colleagues in my country) is that the best solution would be that of having a clear-cut set of cases and violations provided for by the law. This could help judges to know how they have to behave in certain situations.
I'll cite here some examples taken by two Italian bills concerning this matter:

One of the most famous bills was the one proposed by the Government in 1983 (D.D.L. No 251/S, presented on 20 October 1983), whose articles 3 and 4 described as follows the main disciplinary violations: "

    1. the violation of impartiality towards the parties;
    2. the patent violation of correctness towards the parties, their attorneys, civil servants or witnesses;
    3. the violation of judicial secrets;
    4. the violation of the obligation of keeping one's domicile in the same town in which the court is;
    5. not disqualifying him/herself from hearing a case, when conflict of interest arises;
    6. professional negligence;
    7. issuing summary or urgent decisions in patent violation of law;
    8. persistent and unjustified violation of procedural rules;
    9. recurrent delays in issuing the decisions or any other act relating to the exercise of the judicial functions;
    10. having one's work done by another person;
    11. interfering without any ground in the jurisdictional activity of a colleague;
    12. any other behaviour that represents a serious breach of official duties;
    13. repeated and grave abuse of the office of a judge in order to gain advantages for him/herself or for other persons;
    14. having been condemned for certain criminal offences;
    15. having in public agreed or disagreed with colleagues' decisions, in order to interfere with their activities;
    16. being engaged in activities not consistent with the judiciary function;
    17. being engaged in extra-judicial activities without the authorisation of the High Council for the Judiciary;
    18. any other behaviour which can compromise the confidence in the impartiality or in the correctness of the judiciary."
In more recent times the Government submitted to the Parliament a new bill (D.D.L. No 1247/S, presented on 11 September 1996). It distinguishes between behaviour inside and outside the courtroom. In the first category we can find (see article 2): "
    1. violations of the duty of impartiality (e.g., not disqualifying him/herself from hearing a case when there is conflict of interest);
    2. violations of the duty of correctness in the relations with the parties, their solicitors, witnesses, colleagues (e.g., interfering with the activities of another judge);
    3. violations of the law due to gross negligence, or not giving a written opinion when required by the law, or giving an opinion in which the judge does not specify the facts that induced him/her to take that decision;
    4. recurrent and unjustified delays in issuing decisions or any other act related to the exercise of judicial functions; any other consistent gross disregard of the duty of activity;
    5. violations of judicial secrets, or any other breach of discretion;
    6. neglect by the chief justices to report to the High Council for the Judiciary violations committed by 'lower ranking' colleagues."



      As for the judge's conduct outside courtroom we can find the following prohibitions (see article 3): "

    8. exploiting his/her position as a judge in order to obtain unjustified advantages;
    9. having friendly relationships to a defendant in a criminal proceeding treated by that judge, or to a person condemned for having committed gross criminal violations;
    10. being engaged in extra-judicial activities without the authorisation of the High Council for the Judiciary;
    11. having in public agreed or disagreed with colleagues' decisions, in order to interfere with his/her activity;
    12. any other public behaviour that could jeopardise the credibility of the judiciary."


5. Excerpts from the Italian Constitution (Provisions Concerning the Judiciary)

Title IV 
The Judiciary 
Section I 
Jurisdictional Organisation
Titolo IV 
La Magistratura 
Sezione I 
Ordinamento giurisdizionale
Article 101 [Judicial Power]  
  1. Justice is rendered in the name of the people.
  2. Judges are subject only to the law. 
Articolo 101 
  1. La giustizia è amministrata in nome del popolo. 
  2. I giudici sono soggetti soltanto alla legge.
Article 102 [Judges]  
  1. The duties of the judiciary are carried out by permanent judges appointed and governed according to the provisions laid down in the statutes concerning the Judiciary. 
  2. No special judges may be appointed, but specialised sections may be set up and attached to the normal judicial organs for dealing with specific matters, and properly qualified citizens who are not members of the judiciary may participate in them. 
  3. The law lays down the reasons and the manner in which private persons participate directly in the administration of Justice. 
Articolo 102 
  1. La funzione giurisdizionale è esercitata da magistrati ordinari istituiti e regolati dalle norme sull'ordinamento giudiziario. 
  2. Non possono essere istituiti giudici straordinari o giudici speciali. Possono soltanto istituirsi presso gli organi giudiziari ordinari sezioni specializzate per determinate materie, anche con la partecipazione di cittadini idonei estranei alla magistratura. 
  3. La legge regola i casi e le forme della partecipazione diretta del popolo all'amministrazione della giustizia.
Article 103 [Council of State, Court of Accounts, Military Tribunals]  
  1. The Council of State and other jurisdictions concerned with administrative justice safeguard the legitimate interests of the citizens against public administration; in particular matters, provided for by law, they decide also upon subjective rights. 
  2. The Court of Accounts has jurisdiction over matters of public accounts and such other questions as are specified by law. 
  3. Military Tribunals in wartime have jurisdiction as authorised by law. In peacetime their jurisdiction is limited to military offences committed by members of the Army. 
Articolo 103 
  1. Il Consiglio di Stato e gli altri organi di giustizia amministrativa hanno giurisdizione per la tutela nei confronti della pubblica amministrazione degli interessi legittimi e, in particolari materie indicate dalla legge, anche dei diritti soggettivi. 
  2. La Corte dei conti ha giurisdizione nelle materie di contabilità pubblica e nelle altre specificate dalla legge. 
  3. I tribunali militari in tempo di guerra hanno la giurisdizione stabilita dalla legge. In tempo di pace hanno giurisdizione soltanto per i reati militari commessi da appartenenti alle Forze armate. 
Article 104 [Independent Judiciary] 
  1. The Judiciary is an autonomous body. It is not subject to any other power of the State. 
  2. The President of the Republic is Chairman of the High Council for the Judiciary. 
  3. The Chief Justice of the Supreme Court of Cassation and the Chief Public Prosecutor of the same Court are ipso jure members of it. 
  4. As for the other members, two-thirds of them are elected by all regular judges of different categories, and one-third by Parliament in joint session, selection being made among professors of law faculties and lawyers of at least fifteen years standing. 
  5. The Council elects an Assistant Chairman from among the members elected by Parliament. 
  6. The elected members hold office for four years and are not immediately re-eligible. 
  7. While they are in office they may not be registered on the Rolls of the legal profession, nor be members either of Parliament or of a Regional Council. 
Articolo 104  
  1. La magistratura costituisce un ordine autonomo e indipendente da ogni altro potere. 
  2. Il Consiglio superiore della magistratura è presieduto dal Presidente della Repubblica. 
  3. Ne fanno parte di diritto il primo presidente e il procuratore generale della Corte di cassazione. 
  4. Gli altri componenti sono eletti per due terzi da tutti i magistrati ordinari tra gli appartenenti alle varie categorie, e per un terzo dal Parlamento in seduta comune tra professori ordinari di università in materie giuridiche ed avvocati dopo quindici anni di esercizio. 
  5. Il Consiglio elegge un vicepresidente fra i componenti designati dal Parlamento. 
  6. I membri elettivi del Consiglio durano in carica quattro anni e non sono immediatamente rieleggibili. 
  7. Non possono, finché sono in carica, essere iscritti negli albi professionali, né far parte del Parlamento o di un Consiglio regionale.
Article 105 [High Council for the Judiciary] 

According to the provisions of the statutes governing the Judiciary, the High Council for the Judiciary is entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning Judges and Public Prosecutors.

Articolo 105 

Spettano al Consiglio superiore della magistratura, secondo le norme dell'ordinamento giudiziario, le assunzioni, le assegnazioni ed i trasferimenti, le promozioni e i provvedimenti disciplinari nei riguardi dei magistrati. 

Article 106 [Qualification] 
  1. The selection of Judges and Public Prosecutors is made through a competitive examination. 
  2. Statutes concerning the Judiciary may provide for the possibility for honorary magistrates to be appointed, even by election, to perform all the duties attributed to individual Judges. 
  3. On the proposal of the High Council for the Judiciary, law professors and lawyers of at least fifteen years standing and registered in the special Rolls entitling them to practice in the senior courts may be appointed as Justices of the Supreme Court of Cassation for exceptional merits. 
Articolo 106 
  1. Le nomine dei magistrati hanno luogo per concorso.
  2. La legge sull'ordinamento giudiziario può ammettere la nomina, anche elettiva, di magistrati onorari per tutte le funzioni attribuite a giudici singoli. 
  3. Su designazione del Consiglio superiore della magistratura possono essere chiamati all'ufficio di consiglieri di cassazione, per meriti insigni, professori ordinari di università in materie giuridiche e avvocati che abbiano quindici anni d'esercizio e siano iscritti negli albi speciali per le giurisdizioni superiori. 
Article 107 [Disciplinary Measures]  
  1. Judges cannot be removed from office. They may not be dismissed or suspended from their duties, nor transferred to other courts or duties, save by a decision of the High Council for the Judiciary taken for reasons and with guarantees for their defence laid down by the statutes concerning the Judiciary or with their own consent. 
  2. The Minister of Justice is entitled to start disciplinary action. 
  3. Judges differ from one another only on account of their different functions. 
  4. The Public Prosecutor is safeguarded by the guarantees laid down in the statutes concerning the Judiciary. 
Articolo 107 
  1. I magistrati sono inamovibili. Non possono essere dispensati o sospesi dal servizio né destinati ad altre sedi o funzioni se non in seguito a decisione del Consiglio superiore della magistratura, adottata o per i motivi e con le garanzie di difesa stabilite dall'ordinamento giudiziario o con il loro consenso. 
  2. Il Ministro della giustizia ha facoltà di promuovere l'azione disciplinare. 
  3. I magistrati si distinguono fra loro soltanto per diversità di funzioni. 
  4. Il pubblico ministero gode delle garanzie stabilite nei suoi riguardi dalle norme sull'ordinamento giudiziario. 
Article 108 [Court Structure] 
  1. The provisions governing the Judiciary as well as every judicial office are established by statutes. 
  2. The law ensures the independence of the judges of special Courts, of Public Prosecutors attached to these Courts, as well as of other persons taking part in the administration of justice. 
Articolo 108 
  1. Le norme sull'ordinamento giudiziario e su ogni magistratura sono stabilite con legge. 
  2. La legge assicura l'indipendenza dei giudici delle giurisdizioni speciali, del pubblico ministero presso di esse, e degli estranei che partecipano all'amministrazione della giustizia. 
Article 109 [Judicial Police] 

The Judicial Police are at the direct disposal of the Judiciary. 

Articolo 109 

L'autorità giudiziaria dispone direttamente della polizia giudiziaria.

Article 110 [Minister of Justice] 

Without prejudice to the competence of the High Council for the Judiciary, the organization and operation of services concerning the administration of justice are entrusted to the Minister of Justice. 

Articolo 110 

Ferme le competenze del Consiglio superiore della magistratura, spettano al Ministro della giustizia l'organizzazione e il funzionamento dei servizi relativi alla giustizia. 


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