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.
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:
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]
(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.
| Article 82 [Judges]
(2) A judge cannot be dismissed or transferred to another court against his or her will; exceptions are stipulated by law.
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: "
As for the judge's conduct outside courtroom we can find the following prohibitions (see article 3): "
from the Italian Constitution (Provisions Concerning the Judiciary)
|Article 101 [Judicial Power]
|Article 102 [Judges]
|Article 103 [Council of State,
Court of Accounts, Military Tribunals]
|Article 104 [Independent Judiciary]
|Article 105 [High Council for
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.
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]
|Article 107 [Disciplinary Measures]
|Article 108 [Court Structure]
|Article 109 [Judicial Police]
The Judicial Police are at the direct disposal of the Judiciary.
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.
Ferme le competenze del Consiglio superiore della magistratura, spettano al Ministro della giustizia l'organizzazione e il funzionamento dei servizi relativi alla giustizia.