Chair : Giovanni Tulumello (IT)
1)Anne Gosset (LUX),
2) Jordanka Marinova (BG),
3) Rositsa Draganova BG),
4) Bernard Mc Closkey (UK),
5) Ana Carla Duarte (P),
6) Pedro Marchao-Marques (P),
7) Susanna Gamauf-Boigner (A),
8) Gianmario Palliggiano (IT),
9) Maria Laura Maddalena (IT).
Topics : paragraphs 39-73 of the Recommendation.
paragraph 53 : “The principal rules of the system of remuneration for professional judges should be laid down by law” : very general.
link between remuneration, independence and impartiality (Bernard Mc Closkey) ;
link between remuneration and budget (resources, paragraph 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.”) : books, pc, update, training and other kind of support (Anne Gosset) ;
risk of underpayment : job not attractive (for the best lawyer) ; the remuneration - according to the paragraph 54 of the recommendation : “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 exist as a safeguard against a reduction in remuneration aimed specifically at judges.” – should be sufficient to shield the judges from inducements aimed at influencing their decisions.
In Portugal, there were recently reductions in remuneration aimed specifically at judges, and this is against the paragraph 54, last part.
In Austria, which is a Federate State, the remuneration is sometimes very different from a part to the other of the country.
Necessity to have a remuneration higher than the civil servants (Ana Carla Duarte).
Problems of the extra-remuneration :
d.1.) paragraph 55 (“Systems making judges’ core remuneration dependent on performance should be avoided as they could create difficulties for the administration of justice”) ; we all agree with the critical opinion of Annika Sandstrom in the plenary : systems making judges’core remuneration dependent on performance create difficult not for the administration of justice, but for the independence of the judges.
Italy : art. Art. 16 of code of the administrative process provides for extraordinary measures for the reduction of the caseload.
“Misure straordinarie per la riduzione dell’arretrato e per l’incentivazione della produttività
1. Con decreto del Presidente del Consiglio dei Ministri, d’intesa con il Ministro dell’economia e delle finanze, su proposta del presidente del Consiglio di presidenza della giustizia amministrativa previa delibera dello stesso Consiglio, sono adottate, nei limiti dei fondi disponibili nel relativo bilancio ed effettivamente non utilizzati, misure straordinarie per la riduzione dell’arretrato e per l’incentivazione della produttività”.
d.2.) problem of the extra job (advisor of the government ; teachers, etc), with extra payment : problem of the impartiality when they go back to the court.
In Portugal it is possible to work as a teachers in the University, but without get money.
2) COURT’S ADMINISTRATION
Paragraph 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”
“Councils for the Judiciary, where existing ….”
First question : Where ? Portugal, Bulgaria, Italy : yes ; Luxembourg, UK, A : no.
“May be consulted when the judicial system’s budget is being prepared”.
This is not mandatory : in the recommendation, and in the practical.
Paragraph 41 :
“Judges should be encouraged to be involved in court’s administration”.
Purpose of this rule : not to give additional work to the judges, but to increase the efficiency of the courts (a sort o self-administration, an administration made by people working in the organisation, and knowing the real problems).
We found two possible meanings of paragraph 41 :
administration in the administrative sense (to buy books for the library : IT ; to have connection with medias : BG) ;
administration of the jurisdiction : to find similar – or serial – cases, and to organize hearings with many cases (often old cases) having the same object, in order to judge in few time many cases (people going to the archives to look for these similar o serial cases)
This second meaning has a strong link with the rule of the decision : if the judges (like in Italy, and in Luxembourg) decide in chambers, or if they work alone, as single judge.
In some countries (UK, A) there are already some experience in this sense.
In Italy too, but without a rule.
Link between assessment and career : see paragraphs 42, 44 and 58.
Paragraph 58 : “Where judicial authorities establish systems for the assessment of judges, such systems should be based on objective criteria”.
We all think that it will be very important to specify the content compatible with the independence of the judges.
That’s because at the moment there are many different situations : in AT, and also in IT, the criteria assessment is above all the quantity, but in Bulgaria – and in part also in Portugal, if I well understood) there is also a control on the quality (e.g. the numbers of the judgments confirmed in second instance : risk of a jurisprudence who doesn’t develop, because the judge is afraid).
And more, the criteria of quantity are not appropriate, when there are special chambers, or in all the cases of special matters (in those cases, the quantity is not a good indication).
May be the recommendation didn’t specify the nature of the criteria because of these difference : but it is necessary to specify, at least, that some criteria are not compatible with the special work of the judge, with the protection of his/her independence.
4) DUTIES AND RESPONSIBILITIES
Paragraph 62 : “Judges should manage each case with due diligence and within a reasonable time”.
4.1. Link with effective remedies.
4.2. The time is important in the justice’s administrations, and there is not an opposition between quality (“due diligence”) and a reasonable time.
Paragraph 63 : “Judges should give clear reasons for their judgments in language which is readily understandable”.
Standard : it depends on the questions of the parties.
Art. 3 italian administrative process code :
“Art. 3 Dovere di motivazione e sinteticità degli atti
1. Ogni provvedimento decisorio del giudice è motivato.
2. Il giudice e le parti redigono gli atti in maniera chiara e sintetica”.
The judge, and the parties, have to write their papers in a way which is clear and synthetic.
Paragraph 64 : “Judges should, in appropriate cases, encourage parties to reach amicable settlements”.
There are many difference in Europe.
In general, this rule imply the presence of the parties : and it is not mandatory in all the systems.
In Italy it is mandatory, at beginning, to look for an amicable settlement, but only on the civil process, and not in the administrative.
In Portugal it is mandatory also in the administrative process, but only when judge applies civil rules.
5) ETHICS OF JUDGES
We note that there are only rules concerning the professional activity of the judges, and not concerning his/her private life (relationships with layers, parties, etc.).
There is a lack in the recommendation : the appearance is also important.