“COMPARATIVE EU LAW STUDY ON COURTS INSPECTION SERVICE AND DISCIPLINARY LIABILITY”

SUMMARY

I. INTRODUCTIONII. DATA ANALYSIS

1) INSPECTION SERVICEa. Competent body for Court inspectionsb. Organic position of the Inspection Service within the legal systemc. The appointment of inspectorsd. Organization of the Inspection Service

2) DISCIPLINARY LIABILITYa. Entitlement to the exercise of disciplinary actionsb. Powers to impose sanctionsc. Classification of disciplinary offencesd. Criteria for determining the severity of a sanctione. Treatment of complaints without meritf. Handling of complaints regarding the contents of judicial decisionsg. Breaches of standards of conducth. Disciplinary sanctions record

3) THE PRINCIPLE OF INDEPENDENCE: AN INTERNAL PERSPECTIVEIII. CONCLUSIONS

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I. INTRODUCTION

a. Definition of the project and its objectives

According to the objectives of the Twinning Light Project: “RO-2007-IB-JH-24-TWL, ‘Fostering the efficiency of the Romanian Judicial Inspection’”, the analysis of the legal and procedural framework of the organization and functioning of the Romanian judicial inspection service will include aspects of Comparative Law.

The following points are to be taken into account:

i. Procedures for the recruitment of judicial inspectors. ii. Functioning of the inspection service (organization, methods, main objectives

and limits of the inspection activity). iii. Methodology used by the inspection service in order to carry out its inquiries. iv. The system or disciplinary sanctions catalogue, as well as the applicable

sanctions system.

This study will therefore analyze how the EU countries deal with the inspection of Courts and the disciplinary proceedings in relation to the main European standards in this matter. The main goal is to try to highlight the common points and underline the differences taking into account how these countries respect the principle of Judicial Independence.

b. Sources of information

The data and information that allowed us to elaborate the present study have been taken from the following sources:

Questionnaires delivered among European countries and filled in by Judges or Prosecutors from: Belgium, Bulgaria, the Czech Republic, Denmark, England and Wales, France, Germany, Hungary, Italy, Latvia, Malta, Poland, Portugal, Slovenia and Spain.

Working papers and conclusions from the Meeting of the Inspection Services of the European Union organized in Madrid on 5-6 of June 2008 by the Spanish General Council of the Judiciary.

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Results achieved in the framework of the PHARE TWINNING PROJECT BG-04-IB-JH-04: “Improvement of the Magistrates’ Legal Status and Strengthening the Capacity of the Supreme Judicial Council”, implemented in Bulgaria from 2005 to 2007.

Reports and conclusions drawn up in the framework of the TWINNING PROJECT BG/2007/IB/JH/07 “Strengthening the Public Management of the Judiciary and Court Administration” implemented in Bulgaria from 2009 to 2010.

Reports and conclusions on the Principles of Independence of the International Association of Judges. Justice in the World Judicial Magazine.

Opinions issued by the Consultative Council of European Judges (CCEJ) to the attention of the Committee of Ministers of the Council of Europe, especially regarding Opinions 1, 3 and 10.

United Nations "Basic Principles on the Independence of the Judiciary" (1985); Recommendation No. R (94) 12 of the Committee of Ministers of the Council of

Europe on the Independence, Efficiency and Role of Judges; European Charter on the Statute for Judges (1998) Results of the International Conference on “Judicial Inspection as Guarantor of

the Independence of the Judiciary”, held in Bucharest on the 10th and 11th of May 2010.

« Les yeux bandés…Le visage voilé. Réflexions sur l’Institution d’un Conseil de la Justice”. Groupement des Magistrats Luxembourgeois, Luxembourg 2010 ».

II. DATA ANALYSIS

1) INSPECTION SERVICE

a. Competent Body for Court Inspections

A first approach to the topic of this study recommends making a clear distinction between those countries where there is no Court Inspection Service in place and those that have developed mechanisms for carrying out Court Inspections. This study will therefore focus on the latter and on the differences between both cases.

Countries that do not have an Inspection Service in place: the Czech Republic, England and Wales, Hungary, Latvia, Malta and Denmark. However, this does not mean that they lack control or supervision. In some of these countries, such as Denmark, the courts are entitled to examine how they are managed and, as for administrative matters, they are in the same position as any other

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administrative body. All courts are ruled by the Court Administration, which is an independent body, separated from the Ministry of Justice, with its own Chief Executive Officers and Board, the majority of which are judges. The Chairman of the Board is a Supreme Court judge. In England and Wales, likewise, the only inspection systems are linked to the Courts (where civil servants are appointed to the provincial Courts), and not to the judiciary body as such.

EU countries that have Court Inspection services are: Germany, Slovenia, Italy, France, Belgium, Portugal, Bulgaria and Spain.

b. Organic position of the Inspection Service within the legal system

Those countries whose legal systems foresee Court Inspections can be classified into three different groups, depending on the authority to which the inspection body is due to report.

Countries where the process is conducted by the Minister of Justice. Countries where there is a Council for the Judiciary in charge of Court

Inspections. Countries where there is a mixed system.

1. Inspection Services reporting to the Minister of Justice

France, Germany and Italy are within this group. The importance and specific weight of these countries within the EU judiciary system is unquestionable.

As for France, the L'inspection générale des services judiciaires (General Inspectorate for Judicial Systems, IGSJ) exercises a permanent mission on the Courts Inspection. This mission corresponds to the Inspector General, a Senior Judge attached to the Minister of Justice, assisted by other Inspectors General.

In the case of Germany, each Court has established its own Inspection Service where the Chief Inspector is always the President of the Court. In each Länder there are three different Court levels. The President of the High Court is in charge of inspecting the Lower Courts. There is an exception regarding High Courts at the lowest level (such as Hamburg or Berlin), for which inspections are dealt with by the President of the Superior Court. The Minister of Justice, whether at Federal or Länder level, has full competence, depending on the nature of the court.

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In Italy, there is a Central Inspection Office which reports to the Ministry of Justice.

2. Inspection Services reporting to the Council for the Judiciary

The following countries belong to this group: Belgium, Bulgaria, Portugal and Spain.

Belgium: a preliminary remark must be made, namely, that from a disciplinary point of view there is no specific body competent for inspecting courts. However, the High Council of Justice, composed of Judges and court members, plays an important role in Belgian institutions, as it is charge of organizing the selection of judges, exercising external control over the operations of the judicial system, and making recommendations and delivering opinions. Its recommendations are independent from any disciplinary proceedings undertaken against judges. Usually, the recommendations of the High Council of Justice are addressed to the Minister of Justice to improve the service of Justice in the inspected Court. A permanent staff, all of them civil servants, is hired by The High Council of Justice.

Bulgaria: the Bulgarian Inspection Service is foreseen in the Constitution. Under article 132a (1) Bulgarian Constitution (BGC), an inspection shall be established to the Supreme Judicial Council, which shall be composed of a Chief Inspector and ten Inspectors. The peculiarity of the system is that it is the National Assembly that is in charge of making the appointments, whereas it is the Inspection Service that functionally reports to the Supreme Judicial Council, as will be explained later.

Portugal: In Portugal the Magistrates inspections are carried out solely and exclusively under the aegis of the Superior Council of the Magistracy, which is the management and disciplinary body regulating the Judges.

Spain: the Inspection Service is embodied within the structure of the General Council for the Judiciary.

3. Mixed system

This group is represented by Slovenia. Under the Slovenian legal system, the inspection of courts covers both courts’ administration matters and the disciplinary liability of Judges. With regard to the inspection of courts’ administrative matters (which consists in the monitoring, organization and analysis of the Judges performance, and in providing and regulating the conditions for the exercise of the judicial authority, the timeliness of the procedural acts and judicial decision-making in accordance to the Law, as well as the

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Court Rules and other regulations), the Inspection is made both by the Courts and the Minister of Justice. The performance of these matters in Courts of First Instance is monitored by the President of the High Court, whereas in Courts of all instances, it is carried out by the President of the Supreme Court of the Republic of Slovenia. The President of the Supreme Court of the Republic of Slovenia has the obligation to report to the Minister of Justice over the Courts work. For example, the Minister of Justice may exercise supervision by requiring the submission of any data regarding the operations of the Court and the decisions and work of the Court’s President, or the submission of written explanations and reports on the organization and supervision of the Court’s work or the implementation of particular tasks of the Court administration. However, it is important to bear in mind that Judges benefit from an independent status that give them full competence and rights in the exercise of their tasks, which impedes the Minister of Justice to interfere in their judicial decisions and responsibilities. With regard to the inspection of the disciplinary liability of Judges, the only competent bodies are the disciplinary bodies that are appointed and dismissed by the Court itself.

c. The appointment of Inspectors

1. The Inspectors’ professional profile

Four groups can be established depending on the inspectors’ professional profile:

Countries where only Magistrates are allowed to inspect Courts: Belgium, France (with nuances as the changing nature of the tasks entrusted to the Inspector General, in particular increased interdepartmental thematic missions and his or her participation in major projects aiming at the Judicial modernization, led the department to diversify the profile of the recruits, and the appointment of a Tax Inspector in the IGSJ), Germany and Italy.

Countries where only jurists directly linked to the management of Courts can perform inspection tasks: Portugal and Spain, where these positions are occupied by Judges and Court Clerks.

Countries where inspection is bestowed to professions not linked to the judiciary Administration: Bulgaria. In this country, under article 142 (1) of the Judicial System Act (JSA), lawyers with high-standards of professionalism and ethics are elected to the positions of Inspector General and of Inspectors. Article 142 (4) of the JSA foresees that, under the Constitution, five out of the ten foreseen positions are to be covered by Magistrates.

Special mention is to be made of the Slovenian case. Indeed, given that in Slovenia there are two competent bodies for Court inspections, a distinction

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needs to be made between recruitment within the Judicial Body and within the Executive. Judicial body.- Disciplinary Courts are appointed and dismissed by the Plenary Session of the Supreme Court at the proposal of the Judicial Council. The Slovenian legal system regulates two different recruitment procedures: one for the Disciplinary Court of First instance and another one for the Disciplinary Court of Second Instance. The Disciplinary Court of First Instance consists of eight Judges (two Judges of the Supreme Court, two High Court Judges, two District Judges and two County Judges). One of the Supreme Court judges shall be the President of the Disciplinary Court of First Instance, and the other one shall be the Deputy thereto. The Disciplinary Court of Second Instance consists of five Judges of the Supreme Court. Minister of Justice.- This is a political institution. The supervision over the work of the Courts forms part of the Ministry’s tasks and competences. In this regard, the procedure for recruiting the inspectors is irrelevant. For the Minister of Justice there are no professional background requirements, but they are usually graduated lawyers.

2. Procedures for inspector’s appointment

There are great differences at this level:

Countries with a high degree of discretionary power for appointment

France. The Inspector General is appointed by Decree of the President of the Republic, without prior referral of the SCM. In contrast, the Presidential Decree appointing Assistant General Inspectors and the Inspectors consists of a mere opinion of the latter. The selection process is conducted by the SCM, and the prosecutors are required to have a minimum experience of 10 years. The procedure is quite simple: an application form is submitted to the Inspector General who can summon the applicant for an interview and decide whether he or she fulfils the requirements for the position or not.

Italy. The Minister of Justice is totally free to appoint or dismiss inspectors.

Countries with a low degree of discretionary power for appointment

Belgium. The members of the National Council of Discipline are elected by their colleagues. They have to be Magistrates with at least ten years of experience.

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Countries with medium degree of discretionary power for appointment

Bulgaria. BGC establishes that the Chief Inspector and the Inspectors shall be elected by the National Assembly by a majority of two-thirds of the Members.

Under articles 44, 45 and 4 of the JSA nominations for the positions of Inspector General and Inspectors are submitted to the National Assembly no earlier than three months and no later than two months after the expiry of the term of office of the Inspector General and the Inspectors. Nominations for the positions of the Inspector General and Inspectors are examined by a specialized Standing Commission of the National Assembly. The specialized Standing Commission conducts a hearing of the nominated candidates meeting the requirements of the Law and submits to the National Assembly a report summarizing the outcomes thereof. The National Assembly separately elects the Inspector General and the Inspectors by a majority of two-thirds of its members.

It must be stressed that according to article 42 of the JSA, the requirements for all inspectors (10) are to have at least 12 years of practice in the sphere of Law. As for 5 of them there are special requirements for 5 years practice as a Judge, Prosecutor or Investigator at district level.

The Ministry of Justice has prepared an amendment of the JSA regarding these requirements in order to increase the period of required experience for Judges or Prosecutors for all ten Inspectors.

Portugal. Inspectors have to be Judges or Judicial Clerks and must have broad experience –Appellate Court level– as a rule and very good assessment. The recruitment procedure is made on professional background and experience grounds.

Spain. Like in Portugal, Inspectors are selected among Judicial Clerks and Judges with seniority. A CV is submitted to the General Council for the Judiciary along with an application form and, later, an interview is held with each candidate, whereby the Council gives a reasoned decision.

d. Organization of the Inspection Service

1.- Goals of the Inspection Service

BulgariaAccording the JSA, the Inspection shall:

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1. Check the organisation of Administrative Business in Courts, Prosecution Offices and Investigation Bodies,2. Check the arrangements made for the institution and court’s progress, prosecution and investigation case files, as well as the disposal thereof within the established time limits,3. Analyse and summarise the cases that have been disposed of by virtue of an effective judicial Act, as well as the files and cases assigned to the Prosecutors and Investigating Magistrates,4. In the presence of contradictory jurisprudence, the existence of which has been found in the course of business under paragraph 3, it shall alert the competent bodies of the need to request interpretative judgements or interpretative decrees,5. In presence of violations in the discharge of business under items 1 - 3, it shall alert the administrative Head of the Body concerned and the Supreme Judicial Council,6. Make proposals for the imposition of disciplinary sanctions on Judges, Prosecutors and Investigating Magistrates and on the administrative heads of Judicial System Bodies,7. File tip-offs, proposals and reports with other State Bodies, including the competent judicial system bodies,8. Prepare and submit to the Supreme Judicial Council an annual programme and a report on its business,9. Discuss the draft budget for the Judiciary proposed by the Minister of Justice with regard to the budgetary account of the Inspectorate and submit it to the Supreme Judicial Council,10. Provide on an annual basis public information and reports about its business and publish them on the Website of the Supreme Judicial Council.

France THE IGSJ has three main functions:

• Evaluation of the functioning of the Courts and services • Thematic Missions on public policy or other topics Administrative investigation missions on the individual behaviour of the

staff

ItalyThe General Inspection (GI) is a Department of the Ministry of Justice in charge to carry out systematic monitoring of the regularity of the performance and efficiency of the judicial offices, as well as to check or verify the staff’s (officials and Judges) behaviour.

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PortugalInspections of Courts are held for the purpose of “achieving the perfect knowledge of the situation, needs and deficiencies in the services provided by the Courts in order to take the necessary measures or to propose to the Minister of Justice actions within the executive province”.

The Portuguese system of inspections, with a view to assess the merits of Judges, is governed under the following basic principle: "The inspection services cannot interfere with the independence of Judges, particularly in statements referring to the substance and content of judgments, but should investigate the need to implement measures that lead to improved services and provide Judges with all the elements for self-awareness, as well as to the correctness of the procedures aiming to get more improved and evener judicial services by showing more accurate procedural and administrative practices, advisable to obtain a faster administration of justice.”

SpainThe Inspection Service:

Complies information on the current situation of the Courts. Supports and helps improve the management of Courts and Tribunals. Monitors the activities of Courts and Tribunals.

An inspection will examine whatever may be necessary for appraising how the Court is run and the extent to which judicial staff comply with their duties, considering in particular the need for a quick and efficient handling and treatment of the different issues.

No interpretation or application of Acts undertaken by Judges or Courts, when administering justice, may be subject to any approval, criticism or correction, during or as a result of the inspection activities.

2.- Coordination.

Bulgaria

Under article 54 (2) of the JSA, the Inspectorate shall adopt resolutions by a majority of more than half of its members. On the other hand, under article 56 (3), the Inspector General shall fix by order the procedure of inspection.

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There is no contradiction between article 54 (2) and article 56 (3) of the JSA. The second article refers only to procedure. The Inspector General has an obligation to issue the order for inspections. Most of the inspections (planned or thematic) are in the Annual programme [article 54 (2).8]. All inspectors approve this Programme every year by majority votes. The Inspectorate (all the inspectors) can only take a decision by majority. These decisions are the final and approved ones. In practice, there are some cases in which a negative vote against proposals for disciplinary sanctions are to be taken into account and, thus, the Inspector General has the obligation to consider these decisions.

It seems that the Ministry of Justice has prepared an amendment on the JSA regarding article 54 (2). It does not constitute the last decision, of course, but the idea is to ignore this article. In this case the last word will be given to the Inspector General. The philosophy of the establishment of this Body will be changed substantially.

France

The Assistant General Inspectors and the Inspectors support the Inspector General in the exercise of his or her missions, and are placed under his or her hierarchical and functional authority, even if the Assistant General Inspectors, who are the direct Deputies of the Inspector General, benefit from a broad designation of jurisdiction.

If, in accordance with these principles, the reports of the IGSJ are signed by the Inspector General, they however include the work of all the members of the inspection. In other words, the Inspectors’ reports are directly passed on to the Inspector General to the Minister of Justice.

ItalyThe GI is composed of 21 judge inspectors (President, Vice and 19 judges with a rank not lower than Appeal court judge), 36 inspectors "leaders" and 56 Inspectors "officials."

PortugalIn order to facilitate the coordination between the Inspection Service and its staff of Inspectors by the President of the CSM and other competent bodies, an Inspector (Judge) is appointed coordinator inspector among the judicial inspectors every three years.

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SpainThe Inspection Service is conducted by a Head of Service and the service headquarters is formed by Inspection Units and Specialized Sections.

Inspection Units- There are 14 Units organized according to each branch of Law. Each unit is formed, as a general rule, by a Judge Inspector and a Clerk Inspector.

Specialized Sections- There are two sections: Reports and Organization and Management.

o The Reports Unit deals with receiving and processing reports, complaints and claims against the running of the Justice Administration, in general, and the actions of Judges, in particular. Such complaints, reports and claims will be processed as Preliminary Information, and will be subject to a Proposal Report by the Head of the Inspection Service and submitted to the Disciplinary Committee of the General Council for the Judiciary (GCJ), which may decide to reject the complaint or proceed to a Supplementary Investigation or Disciplinary Actions.

o The Organization and Management Section carries out tasks assigned by the Head of the Service and, in particular, those given to the Inspection Service that involve assessing the jurisdictional performances of Judges and Magistrates.

It is to the Head of Service to develop coordination tasks.

3.- Types of inspections:

BulgariaThe Inspection shall act through ordinary inspections or following tip-offs.

FranceThere are two types of inspections:

Ordinary ones, which are previously planned by the General Inspector and examine both the Court and the staff Office.

Extraordinary ones, i.e. they are produced after a relevant action has occurred in a Court.

ItalyThe activities of the GI may be ordinary or extraordinary. Ordinary activities are regularly scheduled every three years. Such activities are assigned to a team of

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inspectors led by a Judge and composed of a variable number of “leader” Inspectors and Officials, according to the volume and importance of the office under control.

Special activities may include an inspection ordered by the President of the GI before the end of the three-year period. They aim to assess all the activities of the Body or to check a particular sector of the court activities.

In both cases, the special inspection can be set in motion for various reasons: on the office’s own motion, at the request of the Courts in charge of controlling lower level Courts --such as the President of the Court of Appeal or the Attorney General--, or at the request of citizens who have raised a complaint.

A special inspection may consist of an "administrative inquiry" ordered by the Minister, and may be useful for the Supreme Judicial Council, its goal being the disciplinary control of employees or Judges

PortugalThe inspections, depending on their purpose, may be on Courts or on Judges. Depending on their purpose, and in accordance with the amendment on the Regulation of the Judicial Inspection (3180/2008), the inspection on courts will be a summary visit, while the inspection on Judges can be ordinary or extraordinary.

The summary visit on Courts aims to collect and transmit complete information to the CSM on how the inspected Courts worked during the period covered by the inspection, particularly regarding the completion of timetables, levels of organization and efficiency, procedural motion, real backlog and workload distribution, pointing out the deficiencies and weaknesses and proposals for measures aimed at improving the Court’s functioning;

The ordinary inspection on Judges aims to inform about how judicial duties are fulfilled and the merits of the Judges. As a result, a proposal is submitted to the CSM for appropriate classification.

Extraordinary inspections on Judges may be set in motion ex officio by the CSM when the Judge’s work has been classified as “Good” and two years after the last classification, or at the own Judge's request, once three years have elapsed since the last ordinary inspection was done.

SpainTypes of visits

Ordinary Inspection Visits Appraisal Visits

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Extraordinary Visits

4. Frequency of inspections:

BulgariaOrdinary inspections are envisaged in the Annual Inspection Programme.

FranceThere is no periodicity.

ItalyEach Court is inspected every three years according to an Annual Work Programme approved by the President of the GI.

PortugalThe inspections, either on Courts or on Judges, are to be held every four years as a rule.

As an exception, an inspection on a Judge can be done after completion of a year in office.

SpainInspections are scheduled on a quarterly-basis. Each unit must submit to the Head of the Inspection a proposal for the inspections to be quarterly carried out, and must be approved by the Plenary Session of the GCJ. To this end, the proposal has to be submitted one or two months before the corresponding quarter period starts, depending on the cases.

5. Inspection procedure:

BulgariaInspections are carried out by the Inspector General or by an inspector assisted by experts. The Inspector General fixes by order the procedure of inspection.Inspections foreseen in the Annual Programme are carried out by teams designated by a draw of lots that include an inspecting officer, as well as the experts that will assist him or her or her. The draw of lots is carried out by the Inspector General in presence of all inspectors, immediately after the Annual Programme has been elaborated.

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For the inspections triggered by tip-offs, the inspecting Officer and two experts are designated on the basis of AN electronic distribution pursuant to the random selection principle in the order of receipt of such tip-offs.

Inspections are assigned at the order of the Inspector General. That order sets out:1. The judicial system body, the Judge, Prosecutor or investigating Magistrate to be inspected, the objectives and the time set for the completion of the inspection,2. The name of the inspecting Officer,3. The names of the experts who will assist him or her,4. The time set for drafting the Act that lays out the outcomes of the inspection.The Act laying out the outcomes of the inspection contains the findings from the inspection and, where necessary, recommendations and a deadline for their implementation.The Act laying out the outcomes of the inspection will be passed on to the inspected Magistrate, as well as to the concerned administrative head of the judicial system body. Each of them may file objections and submit them to the Inspector General within a period of 7 days.The Administrative Head has to inform the Inspector General of the implementation of recommendations, if any, within the time specified in the act laying out the outcomes of the inspection.The Administrative Heads of the judicial system bodies must provide assistance to the Inspector General and the Inspectors in the discharge of their powers, and provide them access to the materials required to this effect.The Inspector General must ensure the general organisational and methodological guidance of Inspection business by means of:1. Representing the Inspectorate and designating a replacement during his or her absence,2. Disposing of the funds on the budgetary account of the Inspectorate,3. Controlling the business of the inspectors,4. Making arrangements for the publication of a Bulletin with the outcomes of inspections to be published on the Supreme Judicial Council Website,5. Entering and terminating labour contracts with experts and members of the Inspectorate administrative staff,6. Making arrangements for improving the qualifications of the inspectors and of the Inspectorate administration.The Inspector General shall take part in the Supreme Judicial Council sessions, but cannot participate in the voting process.

France

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The IGSJ can just be set in motion by the Minister of Justice. This hampers any direct implication of the Prime Minister or any other Minister, neither can the MSC or the Courts’ Presidents intervene. The IGSJ may not take the initiative.

In order to ensure a greater objectivity in the analysis, all missions are to be conducted by at least two members of the service, except in special circumstances. The inspectors cannot implement any coercive measure, and IGSJ members must "give notice without delay to the prosecutor of the Republic and transmit to the magistrate all the information, Minutes of Proceedings and acts" relating to offences which they had known during their investigations.

The investigation of the IGSJ is of an administrative in nature. It follows that the forms applicable in disciplinary cases are not applicable, including those related to issuing copies of documents of the files, or to authorizing the presence of the lawyer. However, and although it is not legally foreseen, the IGSJ has developed a methodology for administrative inquiry based on practical experience. Its investigations are carried out in strict compliance with essential ethical rules, in particular, loyalty, impartiality and confidentiality, and the respect of the constitutional principle of the independence of the jurisdictional activities.

The analysis of the elements obtained during the investigation must be exhaustive, rigorous and objective. The opinions delivered by the Inspectorate-General must be motivated, and any shortcoming must be identified, accurately described and qualified. In contrast, it does not belong to the General Inspectorate to pronounce on the convenience of pursuing disciplinary proceedings, which is the function of the Minister of Justice.

In addition, at the conclusion of a reasonable period of study of the file by the services of the Minister (about six months) the report is, unless otherwise ordered by the Minister of Justice, transmitted by the IGSJ to the DSJ in order to be recorded in the Magistrate’s personal file, and to acknowledge either the MSC or the Commission of Advancement should the situation of the person concerned require subsequent examination by the competent statutory bodies. At present, a procedure for the withdrawal of this information is still lacking. THE IGSJ proposes the establishment of a procedure for the withdrawal of these documents from the record of the Magistrate at the request of the person concerned.

ItalyThe activities of the GI are of an administrative nature and consist in a technical control. Therefore, the Inspection is not entitled to exercise powers of intervention

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regarding the activities of the inspected body, which are typically functions of the Government. On the other hand, if serious irregularities are detected during any ordinary or extraordinary inspection, the inspectors must immediately refer them to the Superior Court.

When the inspectors have to deal with urgent situations in relation to the management of public treasury, or irregular conduct of Judges and officials which cast features of disciplinary or criminal nature worth being studied, the Leader Inspector is entitled to report directly to the President of the GI to monitor the case.

At the end of the inspection, each inspection team draws up a report addressed to the GI. All reports are collected in a single "inspection report”, according to a pre-designed model, in order to achieve a homogeneous overview nationwide.

Inspection reports are reviewed by GI Judges with the purpose of transmitting all the information raised by the inspection teams to the Ministry of Justice, so he or she can take the necessary measures.

PortugalIn conducting such inspections, the inspector must, in all cases, use means of investigations and, when the Judge's merit is concerned, criteria for appraisal are set out in the regulation for inspections, although these criteria are not exhaustive.

Regarding the assessment of Judges, a classification will be proposed by the judicial inspector to the CSM once the inspection has finished. This report must be previously serviced to the inspected Judge so that he or she can exercise the right of pleading or seeking evidence.

The CSM will assign one of the following marks to the proposal: Very good, Good with distinction, Good, Sufficient or Poor.

If a Judge’s work is qualified as Poor, the Judge will be suspended and an inquiry to investigate the possible inability to remain in office can be deposed. As mentioned earlier, a mark Sufficient can be a reason for inspection.

If the concerned judge disagrees with the assigned mark, a complaint may be submitted before the Permanent Committee of the CSM. If dismissed, a final decision must be adopted by the CSM in Plenary Session.

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An appeal against that decision may be brought before a special section of the Supreme Court.

Spain

Ordinary Inspection Visits

Aims: comprehensive review of the judiciary body's activities verifying information at the GCJ. monitoring compliance with management standards, both qualitatively and

quantitatively. Diagnosis of the body's organization and operation. Improvement proposals,

overcoming dysfunctions.

Stages:

Preliminary stage

Selection of the bodies to be visited Approval of the plan for the trimester. Notice to the Presidents of the Superior Regional Courts of Justice where the

inspections will take place. Work schedule

First stage: preparation of the inspection.

Requesting information from the judicial body to be inspected. Notifying the body and other Administrations.

Compiling information kept at the GCJ. Analyzing the information. Possible drafting of a conclusion off-site report. Notifying Barrister and Solicitor Associations

Second stage: performing the inspection visit

Initial contact. First interviews. Analysing procedural activities. Quality and quantity.

o Work and activity load. Yardsticks.o Analysing the length of the proceedings.o Analysing procedural dysfunctions.

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o Analysing the principles of procedural immediacy and reasoning.o Analysing performance effectiveness.o Technical management of procedural activities.

Analysing the Judicial Office (Staff, work distribution, IT, facilities, book and dossier management, accounts, relations with defendants, judicial-office management).

Proceedings sampling (Selection, data-capture, analysis of the information obtained).

Interviews: with the head of the judicial body and the clerk, judicial-office staff, external agents.

Direct observation: procedural immediacy, relations with defendants, division of work within the office, the facility- and documentation-management situation, effective performance of the proceeding's technical management tasks.

Third stage: drafting reports

Essential contents: accurate information, monitoring compliance with standards, serving to help improve the Body.

The inspected judicial Body's situation. Analysis of and conclusions on procedural activities. Analysis of and conclusions on the judicial office. Conclusions and proposals. Action Plans. Appended documents.

Fourth stage: follow-up and assessment of results

Follow-ups Appraisal Visits Follow-up reports Development study.

Appraisal visits

Aims: To gather information on specific aspects of Courts’ running and proceedings.

Actions Verifying specific data. Investigating specific problems affecting one or more bodies.

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Diagnosing specific dysfunctions affecting one or more specific areas and drafting proposals to rectify them.

Extraordinary visits

Approved by the Standing Committee or Plenary Session of the GCJ, they aim at verifying the exceptional facts that prompted the visit and at drafting proposals regarding them.

2) DISCIPLINARY LIABILITY

a. Entitlement to the exercise of disciplinary action

Regarding this point, there are many differences too. The main difference lies in the powers conferred to the Minister of Justice to promote proceedings.

Countries where the Minister of Justice plays a role in disciplinary proceedings

Bulgaria, Czech Republic, Denmark, France, Latvia, Poland and Slovenia entitle the Minister of Justice to play a more or less relevant role in this ground.

Bulgaria.- A proposal for the imposition of a disciplinary sanction on a Magistrate can be made by: The respective administrative head, any higher-standing administrative head of Inspection at the Supreme Judicial Council, or not less than one-fifth of the Supreme Judicial Council members and the Minister of Justice.

Czech Republic.- The proposal can be lodged by the President of the Republic, the Minister of Justice or the President of the Supreme Court against a Judge of a Supreme Court or a Judge of any Lower Court, a President of the High Court against any judge of a High Court or lower court, a President of a Regional Court against any judge of the Regional and Lower courts, a President of the District Court against a Judge of his or her Court.

Denmark.- Besides the Minister of Justice, anybody who considers him or herself or helself subject to misconduct or negligence. The system is really open and an example was provided to show clearly how it functions: In a case that had been given much attention in the press, the delivery of the sentence was televised. A viewer found that a remark from the judge about the burden of deciding on this difficult case had been

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inappropriate and filed a complaint to the Special Court, which actually pronounced its disapproval of the remark.

France.- Originally, the initiative for prosecution was exclusively reserved for the Minister of Justice who, in the light of the facts brought to its knowledge, requested the General Inspection of Judicial Services to make inquiries. Then, it was up to the latter to decide whether to initiate disciplinary proceedings or not, depending on the results of these inquiries.

Due to the criticism against this monopoly of proceedings, the organic law n°2001-539 of 25 June 2001, relating to the status of the Magistrates and the Council of the Judiciary extended the right to complain to the first Presidents of the Courts of Appeal for the Judges and to the general attorneys via the Prosecutor-General of the Court of Cassation for prosecutors. Moreover, the constitutional reform (dated 23rd July 2008) provides that individuals may directly refer to the MSC.

Latvia.- The Minister of Justice is entitled to initiate disciplinary proceedings along with the Chief Justice of the Supreme Court, the Chief Judges of Regional Courts, the Chief Judges of District (city) courts and the Heads of Land Registry Offices of regional Courts. Their entitlement depends on the kind of position the concerned judge is appointed to and on the nature of the offence.

Poland.- A disciplinary agent is elected by the National Council of the Judiciary from the list of candidates lodged by assemblies of Appellate Court’s Judges, and is affiliated with the National Council of the Judiciary. A disciplinary agent is elected for a period of 4 years. Deputy disciplinary agents are elected: for all appellate courts by the Councils of Appellate Courts and for all regional Courts - by the Councils of Districts Courts, from the list of Judges of a particular Court. The deputy disciplinary agents are elected for 2 years.

The disciplinary agent initiates disciplinary proceedings in addition to the request of the Minister of Justice, on the request of the chairmen of Appellate or Regional Court, Councils of Appellate or Regional Courts, the National Council of the Judiciary and motu propio; after a preliminary investigation with regard to the circumstances needed for establishing elements of the offence and after explanation from a Judge, unless this explanation is impossible to obtain.

Slovenia.- Apart from the Minister of Justice, the initiative to introduce disciplinary proceedings may be put forward by the President of the Court where the Judge performs judicial service, the president of immediately Superior Court and the Judicial Council.

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Countries where the Minister of Justice is set aside

Belgium, Germany, Hungary, Italy, Portugal and Spain can be placed in this group.

Belgium.- Every citizen may introduce a claim against a Magistrate, but it is the Head of the Court who can start a case against one of the Magistrates of the Court. Sometimes, though, the complaint is addressed to the Minister of Justice who transmits it to the Head of Court.

Germany.- It is for the President of the Court to open a disciplinary proceeding. This President is entitled to delegate the investigation to other Judges. The preliminary enquiry can lead either to closing the proceedings or to submitting a formal claim for disciplinary punishment before the body in charge of the sanctions to be applied to Judges.

Hungary.- In the event of any allegation of professional misconduct, disciplinary proceedings shall be initiated by the NJC in the case of executives who fall within the appointment authority of the NJC, by the Chief Justice of the Supreme Court in the case of Supreme Court justices, by the President Judge of the High Court of Appeal in the case of Judges of the High Court of Appeal and by the President Judge of the County Court in the case of Local Court Judges and County Court Judges.

Italy.- Only a high level judge: the General Attorney of "Corte di Cassazione" ("Supreme Court of Cassation") is entitled to initiate disciplinary proceedings. This judge generally represents the public accusation in front of the highest level Ordinary Court in the State. The Ministry of Justice can force him or her to submit a request for a sanction to the body who's exclusively entitled to impose it, which is the Superior Council of the Judiciary.

Portugal.- It is always for the Supreme Council for the Magistracy to initiate a disciplinary procedure on the basis of complaints addressed by citizens, Civil Judicial Servants or the Inspection Service if irregularities have been detected when inspecting the Courts.

Spain.- Disciplinary proceedings will be conducted ex officio at all stages, and shall commence following a proposal made:

by the Board of Governance or the President of a Superior Court of Justice, by the Disciplinary Commission or the Plenary Session of the Council General of

the Judiciary,

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or on its own initiative based on a petition stating the grounds for such request made by another body, or following a complaint lodged. The Public Prosecutor may also lodge a complaint.

Any complaint on the functioning of the Judicial system, in general, or on any actions carried out by Judges or Magistrates, in particular, will be the object within the term of one month of a report by the Head of the Inspection Services of the Council General of the Judiciary which will decide on whether to file the proceedings, open an inquest or directly file for disciplinary proceedings.

Common Law System countries

Special mention must be made of Malta, England and Wales, owing to their peculiarities in contrast with civil law systems.

England and Wales.- The responsibility falls on the Office for Judicial Complaints (OJC). This body supports the Lord Chancellor and the Lord Chief Justice in their joint responsibility with a view to ensuring that all judicial disciplinary issues are dealt with consistently, fairly and efficiently. Any member of the public may make a complaint to the OJC.

The office will investigate allegations of personal misconduct by a Judge such as inappropriate remarks made in Court, rude or offensive conduct towards someone in Court or unacceptable delays in judgments releasing. If a complaint is accepted by the OJC, it will consider the issues raised and the quality of the evidence provided. If satisfied that the complaint requires further investigation, it will then send the Judge a copy of the complaint and ask for his or her comments. Further evidence may be called for, and the OJC may also listen to the tape recording of the hearing and/or obtain information from other people who were present. In some cases a Senior Judge may be asked to carry out an investigation on the case.

Malta.- A judge cannot be sanctioned in Malta. he or she can appear before the Commission for the Administration of Justice which is a Commission constituted from the President of Malta, the Chief Justice, the Attorney General, the President of the Chamber of Advocates, two Judges, two Magistrates and a representative from both political parties, the Government and the Opposition. This has not much power at all. It can only draw the attention of the Judge or Magistrate in the case of no-respect of the Code of Ethics. If there is a wrong doing, misbehaviour or insanity then it can recommend his or her impeachment, and this would need two thirds majority votes in the Parliament. This case has never occurred yet in the History of Malta.

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b. Empowerment for imposing sanctions

A distinction can be made regarding those systems where this capacity belongs to courts of justice and those where special administrative bodies are entitled.

Countries where disciplinary matters are dealt with by Courts.

The following countries can be grouped under this title: Belgium, Germany, Hungary Latvia, Poland and Slovenia.

Belgium.- The Head of the Court is able to sanction the Magistrates only for light penalties.

The “Conseil National de Discipline” – “National Council of Discipline” is a specific body able to deal with the case of the Magistrates facing major penalties but the National Council of Discipline may only suggest a penalty.

Magistrates of a superior level will render the final decision on disciplinary liability. For example, in the case of the Deputy King’s Prosecutor of Brussels, the Attorney General of Brussels would render the decision. In the same way, the Court of Appeal will sanction a judge of the Court of First Instance.

It must be taken into account that the current system may be modified in a very near future. The Belgian Minister of Justice intends to create a new specific Court to deal with disciplinary liability of the Magistrates. At the same time, the High Council of Justice is claiming to deal with such cases.

Czech Republic.- Independent body, it is the disciplinary panel existing within the Supreme Administrative court.

The disciplinary panel for judges is composed of 6 people, the Chairman of the Panel is the Judge of the Supreme Administrative Court, then there is a Judge of the Supreme Court, then another Judge from the Courts, one Public Prosecutor, one attorney and one representative from the Faculties of Law. In case of draw the result is not guilty.

Germany.- The competence depends on the type of sanction. For imposing Admonition (the softest) the competence belongs to the President of the Court where the judge sits. For more serious punishments the competence is assigned to special Courts (Courts referred to the Judges’ position). In each Länder, these courts are formed by three Judges (the President of the Länder’s Second Degree Court, a

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permanent member and a non-permanent member). Their decisions can be Appealed before another specialized Disciplinary Court formed by 5 judges (the President of the Superior Court, 2 permanent members Judges from that Court and 2 non-permanent members belonging to the same branch of law Courts). Regarding the Supreme Federal Courts there is a special section in charge to deal with disciplinary issues. Its structure corresponds to the described above as for the disciplinary Appellate Court in the Länders.Hungary.- County courts and High Courts of Appeal shall operate disciplinary Tribunals in the first instance, and the Supreme Court shall operate disciplinary Tribunals in the first and second instances.

The president Judge and the seven Members of the disciplinary tribunal shall be elected for six years by the plenary session of Judges of the competent county Court and High Court of Appeal and by the full Council of the Supreme Court.

Candidates for the president judge and members of the disciplinary tribunal must have at least five years of experience as judges, they must not have been penalized by a disciplinary action and must not have been implicated in disciplinary proceedings. The members of the National Justice Council as well as the president judges authorized to initiate disciplinary proceedings and their deputies may not be elected for these offices.

Latvia.- A decision sanctioning a judge may be issued only by a Judicial Disciplinary Board. There is no difference depending on the seriousness of the offence.

The composition of the Judicial Disciplinary Board shall be the Chief Justice of the Supreme Court and his or her deputy, three judges of the Supreme Court, two Chief Judges of regional courts, two Chief Judges of district (city) courts and two Heads of Land Registry Offices. The members of the Judicial Disciplinary Board (with the exception of the Chief Justice of the Supreme Court) shall be elected by secret ballot for four years at a gathering of Judges.

The Chairperson of the Judicial Disciplinary Board shall be the Chief Justice of the Supreme Court. The Judicial Disciplinary Board, among its own members, shall elect the Vice-Chairperson of the Judicial Disciplinary Board.

The Minister of Justice and the Prosecutor General, or any person authorized by them, as well as a person authorized by the Board of the Latvian Society of Judges, may participate in the sittings of the Judicial Disciplinary Board in an advisory capacity.

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The Judicial Disciplinary Board shall act in accordance with by-laws approved by the Judicial Disciplinary Board.

Poland.- The disciplinary courts are: in first instance - Appellate Courts, in second instance – the Supreme Court.

In general, territorial jurisdiction is given to a disciplinary court, in the district of which the judge is serving his or her office. However, if the case concerns a judge of Appellate Court or a Judge of Regional Court, territorial jurisdiction will be given to another court selected by the First Chairman of the Supreme Court, after a motion of the disciplinary agent.

Disciplinary courts are sitting in panels of three judges. All judges of the particular court are allowed to sit in the disciplinary Court, with the exception of a Chairman of the Court, Vice-Chairmen and a disciplinary agent.

Judges sitting in the disciplinary court are selected by random, from the list of all judges serving office in a particular court. Nevertheless, in the panel of judges there must always be at least one criminal court`s judge. The Chair of the panel is a criminal court`s judge, with largest judicial experience.

Slovenia.- To issue a decision sanctioning a judge there are some conditions which must be fulfilled. First, there can be no sanction without proper disciplinary proceedings and, second, a decision must be made by a special disciplinary organ – The Disciplinary Court of First instance or the Disciplinary Court of Second Instance. Both disciplinary bodies are appointed and dismissed by the Plenary Session of the Supreme Court at the proposal of the Judicial Council. The Slovenian system does not foresee different bodies depending on how serious the disciplinary offence is. The difference between both disciplinary bodies remains in the fact that the disciplinary court of second instance rules on Appeals against resolutions by the disciplinary court of first instance. Different bodies are therefore created to assure the right to Appeal and not to distinguish between different kinds of offences.

Countries where disciplinary liability is declared by special administrative bodies

It can be mentioned within this group: Bulgaria, England and Wales, France, Italy, Portugal and Spain.

Bulgaria.- A disciplinary sanction shall be imposed by:

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1. The administrative head, as regards to the sanctions under Article 308, paragraph 1, items 1 and 2 (soft sanctions) served on a judge, prosecutor or an investigating magistrate2. The Supreme Judicial Council, as regards to the sanctions:a) Under Article 308, paragraph 1, items 2, 4, and 6 (serious sanctions) served on a judge, Prosecutor or an investigating magistrate,b) Served on an administrative head or a deputy of an administrative head;c) SG No. 103/2009, effective 29.12.2009) under Article 308(3) of an elected member of the Supreme Judicial Council.

The resolution of the Supreme Judicial Council may be appealed before the Supreme Administrative Court. It must be noted that the resolution of the Administrative Head cannot be directly challenged and this is because its resolution must be upheld by the Supreme Judicial Council so that the judicial remedy is sought regarding the upholding decision and not as for the Administrative Head’s decision which is more a proposal than an actual resolution.

England and Wales.- The Lord Chancellor (Minister of Justice) and the Lord Chief Justice.

If the Lord Chancellor and the Lord Chief Justice uphold the complaint, they will consider what action, if any, is appropriate. The Lord Chancellor and the Lord Chief Justice have the power to agree to advice, warn or remove a judge for misconduct. In some cases where the Lord Chancellor and the Lord Chief Justice decide to take formal disciplinary actions against a judicial office holder, the judicial office holder has a right to request that his or her case be referred to a 'review body'. Where a case has been referred to a review body, the Lord Chancellor and the Lord Chief Justice must accept any findings of fact made by the review body and cannot impose a sanction on the judicial office holder that is more severe than that recommended by the review body. Each review body consists of 4 members (2 judicial office holders and 2 lay).

Judicial Review applications are possible but highly improbable. They would be heard by a Judge of the Administrative Court, which is part of the High Court, with a possible Appeal to the Court of Appeal. A further Appeal to the Supreme Court is highly unlikely as it would not raise an issue of law of 'general public importance' and leave would not, therefore, be given for any such Appeal.

France.- It must be made a distinction between the procedure for judges and for prosecutors.

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a. Procedure applicable to judges: the Magistracy Superior Council. Its decisions have the authority of res judicata. The challenges are carried out before the Council of State, a judge of cassation.

b. Procedure applicable to public prosecutors: the Minister of Justice. The disciplinary board of judges does not make binding decisions. It gives a reasoned opinion on the sanctions to be taken. The Minister of Justice is not bound, but the practice shows that he or she has always followed the proposal of the MSC. If he or she wishes to follow the sanction, he or she submits to the MSC a draft enumerating the reasons of his or her decision. After hearing the observations of the interested magistrate, the MSC shall deliver an opinion which is filed in the record of the concerned magistrate. The minister's decision on disciplinary matters acting for the public prosecutors may be the subject of an Appeal for abuse of power before the State Council and, thus, compromise the legality of the decisions taken by the Minister of Justice.

Italy.- Only the Superior Council of the Judiciary can impose a disciplinary sanction. There is no distinction according the seriousness of the offence so regardless to its gravity the competence belongs to the Council.

Its decision is subject to judicial review before the High Court of Cassation.

Portugal.- The CSM in Plenary session is the only body entitled to impose disciplinary punishments on Judges.

Spain.- The following bodies are competent for imposing sanctions:a) Warning sanctions may be passed by the President of the Supreme Court, the President of the State Court and of the Superior Courts of Justice to the Judges and Magistrates who are below them.b) In the case of fine or warning and fine for minor infractions, the Boards of Governance of the Superior Court, of the State Court and of the Supreme Courts of Justice with regard to the judges and magistrates under them.c) Sanctions for major offences are passed by the Disciplinary Commission of the Council General of the Judiciary.d) Sanctions for very serious offences are imposed by a Plenary Session of the Council General of the Judiciary following a proposal of the Disciplinary Commission.

Nevertheless, the bodies mentioned in the aforementioned rules may impose lesser sanctions to those vested in them when, on examination of a file initially submitted to them, they find that the findings merit a lesser sanction.

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Disciplinary liability resolutions can be challenged via administrative Appeals and the decisions solving the latter can be appealed before the Supreme Court.

c. Classification of disciplinary offences

Classification of disciplinary offences is not the general rule. Among all the assessed countries just Slovenia and Spain know this system.

Slovenia.- In classifying disciplinary offences, the Slovenian system is very accurate. Judicial Service Act lists several acts that entail a breach of judicial duties or irregular performance of judicial service, some of them representing a serious breach of discipline, while others a “not serious” breach of discipline. We can say that the system knows two different disciplinary offences according to their seriousness – serious and petty disciplinary offences.

Spain.- In Spain there is a clear classification of offences according their seriousness. They can be petty, serious and very serious. Each class comprises a list of definition of the offences so that an offence is committed just when the facts fit the legal description.

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d. Criteria for determining the severity of the sanction

Every country’s system follows some criteria in order to determine the severity of the sanction to impose. In this sense the differences are not very important.

However, is worth making an initial remark regarding the Slovenian and the Spanish systems. For determining the severity of the sanction, proportionality must be observed since sanctions imposed must take into account that a fair correlation exists between the nature of the breach and the sanction imposed. When a sanction can be imposed between a bottom and a top level, the chosen degree must be properly reasoned in the decision. But those margins are not wide since each type of offence can just be sanctioned with some classes of sanctions. In Slovenia the disciplinary court determines the severity of the sanction in relation to the seriousness of the disciplinary offence. The Judicial Service Act provides some measurements and criteria for this determination, but they are quite lax.

In order to show the current system in other countries, it can be underlined the following:

Bulgaria.- There are six disciplinary sanctions. The Judicial System Act, article 309, lies down graduation criteria: the gravity of the offence, the form of guilt, the surrounding circumstances and the conduct of the offender shall be taken into consideration.

Czech Republic.- It is only up to the panel of judges and individual circumstances of the case. There is no Appeal against the resolution issued on disciplinary liability. This is a deep controversial point which is at the moment pending of decision in the Constitutional Court due to possible unconstitutionality of the law what, according the European Court of Human Rights' jurisprudence, seems to be.

Denmark.- The sanction must be in proportion to the seriousness of the offence and may vary can end by, according the Special Court's expression of disapproval, either a fine or –ultimately – a removal.

England and Wales.- The seriousness of the offence is a matter for the Lord Chancellor and the Lord Chief Justice to decide according to the particular circumstances and to decide the sanction accordingly. Unification of criteria would be theoretically possible through Judicial Review but these legal remedies are rarely used.

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France.- The French Disciplinary Law does not follow a hierarchy of facts: they are punishable or are not, it follows a hierarchy of sanctions. There are eight disciplinary sanctions:

a) Reprimand with registration in the file; b) Displacement of office ; c) Withdrawal of certain functions; d) Prohibition of being appointed to the functions of single judge for a maximum

period of five years;e) Downgrading; f) Temporary exclusion of functions for a maximum period of one year, with total

or partial loss of treatment; g) Demotion;h) Retirement of office or the admission to cease its functions where the

magistrate has no right to a retirement pension; or revocation with or without suspension of pension rights.

Due to the generality of these texts, the MSC has established a stable jurisprudence about the distinction between jurisdictional act and disciplinary offence. The content of the disciplinary is refined progressively over the decisions and inputs of the Council of State, which in his or her capacity as a judge of Appeal, contributes to the preparation of this concept. However, the renewal every four years of the members of MSC can raise questions relating to the sustainability of this jurisprudence.

Germany.- The system foresees a gradation of sanctions but not of offences (for judges on active duty: admonition, fine, earnings reduction, downgrading and dismissal). Decision making process is governed by the principle of discretion so that the competent body has to assess on the seriousness of the infringement considering the extent the infringement has hurt society’s confidence and the own judge’s personality. At first, no problems have been detected about unity of criteria. If those appeared they could be solved by the Court referred to the judges’ position at the Supreme Court when deciding recourses for unification on law interpretation.

Hungary.- The following disciplinary penalties may be imposed against a judge for professional misconduct: a) reprimand; b) censure; c) demotion by one salary grade; d) discharge from executive office; e) motion for dismissal from judge's office.The disciplinary penalty imposed shall be consistent with the gravity and consequences of the infringement, and the degree of the offence.

Italy.- Italian Disciplinary Law foresees a kind of codification (for every single kind of violation, a specific sanction). The seriousness of the offence is valuated only to justify the specific sanction adopted. There is a main distinction between disciplinary

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violations related to judicial activities and disciplinary violation not related to professional duties. Then there are six general types of sanctions (from the simple “warning” to the “dismissal from the judicial order”). They are applied on the basis of every single violation, as mentioned above. According article 12 RDL 109/2006 on Discipline for illegal behaviour of magistrates, it is stated when sanctions of reprimand, loss of length of service, disqualification for directive position, suspension or removal are applicable.

Portugal.- In Portugal there is a catalogue of sanctions: dismissal, compulsory retirement, compulsory transfer, suspension, fine, reprimand with or without recording. The SCM chooses the specific sanction according to the circumstances of the case. As the Supreme Court rules on those cases, its jurisprudence sets guidelines for the measurement of proportion.

e. Treatment of complaints without merit

As a general rule, complaints of this nature can be dismissed without further proceeding.

However, there are some nuances worth underlining.

Bulgaria.- Regarding complaints may be two phases: preliminary investigation or Inspection. Where the preliminary investigation established beyond any doubt that the complaint either does not fall within the scope of the Inspection’s powers or is groundless, a reasoned position shall be drawn up and dispatched to the claimant.However, the Bulgarian system does not allow the disciplinary body to reject without further proceeding a complaint without merit. The disciplinary panel has an obligation to open the case, to make a decision and to make a proposal in the session of the SJC. The SJC's decision is not final as it can be appealed to the High Administrative Court which decision is final. France.- As the entitlement for the public to complain did not yet come into force, there is no experience on this matter, but the power for dismissing that sort of complaints is foreseeable to exist.

Hungary.- The disciplinary board of the disciplinary tribunal shall decide whether to initiate disciplinary proceedings, refuse to hold disciplinary proceedings, or order a preliminary examination.

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If a judge commits a lesser offence and the misconduct in question did not result in detrimental consequences or resulted in moderate damage, disciplinary proceedings may not be initiated. Then, a warning to the judge is issued instead of initiating disciplinary proceedings. The concerned judge is entitled to refuse the warning and ask for a disciplinary proceeding to be opened. In such a case, disciplinary proceedings are to be opened.

Poland.- If a disciplinary agent finds no grounds for initiating disciplinary proceedings after the request from the relevant body, he or she will issue a decision, which declines the initiation of the investigation. The decision is delivered to the body which lodged the motion to examine the disciplinary case, to the competent appellate or regional courts’ councils and to the accused. Within a period of 7 days from the moment of delivery of the decision mentioned above a body which lodges a motion to examine the disciplinary case and the competent court's council have a right to lodge an Appeal to the disciplinary court. The Appeal shall be examined within a period of 2 weeks.

Portugal.- When a complaint has been lodged, an inspector analyses it and appraises if it has merits or not. If considered without merit, a proposal for rejecting is issued to the Vice-President of the SCM, who can either dismiss the complaint or send it to the Standing Commission for decision.

Slovenia.- The Judicial Service Act states that the proposal for disciplinary sanctioning is lodged and submitted by the disciplinary prosecutor who is a judge of the Supreme Court. If the disciplinary prosecutor fails to introduce proceedings, he or she shall be obliged to inform the initiator of the grounds for such (the president of the court where the judge performs judicial service, the president of the immediately superior court, the Judicial Council or the Minister of Justice). If the initiator persists with the initiation, the disciplinary court of first instance shall make a final ruling on the introduction of proceedings. It can be concluded that if the initiator persists with the initiation, even if it is without merit, the introduction of proceedings is not up to the disciplinary prosecutor but is up to disciplinary court of first instance.

Spain.- Any complaint against the functioning of the Judicial system in general, or against any actions carried out by Judges or Magistrates in particular, will be the object of a report to be submitted within the term of one month by the Head of the Inspection Services of the Council General of the Judiciary, which will decide on whether to file the proceedings, open an inquest or directly file for disciplinary proceedings. On this report’s basis, a reasoned decision shall be issued by the Board of

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Governance or the Disciplinary Commission, depending on the classification of the offence, as to whether opening proceedings.

f. Handling of complaints regarding the contents of judicial decisions

Regarding this point, all checked systems are unanimous. This kind of complaints can be rejected without further proceeding. The present situation in France requires, nevertheless, a deeper analysis.

Bulgaria.- the Inspection shall inspect the activity of the judiciary bodies without affecting the independence of judges, court assessors, prosecutors and investigating magistrates while performing their duties.

If the proposal for disciplinary liability concerns the substance of the judicial decision, the disciplinary body rejects the proposal.

Czech Republic.- Such proceedings would be kept or discontinued.

England and Wales.- Lord Chief Justice cannot consider any complaint about a judicial decision or the way in which a case has been handled. Examples of judicial decisions include the length or type of sentence, whether a claim can proceed to trial, whether or not a claimant succeeds in their claim, what costs should be awarded and what evidence should be heard. The usual way to challenge this type of decision is to Appeal. So the system does not allow for opening a disciplinary proceeding on grounds of the content of the judicial decision so that such complaints can be rejected without further proceeding.

France.- Due to the generality of the legal description of disciplinary offences, the MSC has established a stable jurisprudence about the distinction between jurisdictional act and disciplinary offence. The latter will certainly evolve with the organic law on the adoption of the constitutional reform.

The traditional jurisprudence of MSC

-.Principle

According to the jurisprudence convergent of the higher Council acting in disciplinary matters and of the Council of State, it cannot be brought any assessment on the

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judicial acts of judges. This principle is stated, not in the interest of judges, but in that of litigants, who must have an independent and serene judiciary system.Then, "the CSM, acting as a board for discipline of judges, may not issue any assessment on the judges’ judicial acts, which are covered by their own powers and cannot be criticized but by using the remedies provided by the law in favour of the parties to the dispute".

-. Exception:

This jurisprudence has, however, an exception after the case Bidalou, since "such a principle has a limit when it appears from the res iudicata principle that a judge has, in such a gross and systematically way, exceeded its jurisdiction or ignored the framework of his or her power that he or she has not fulfilled, despite appearances, but an act abroad to any jurisdictional activity".

The reformulation of its jurisprudence

-. A first attempt censured by the Constitutional Council

In addition to the malfunctions identified, the case of Outreau contributed to offer to the public the idea that the severe mental disorders observed revealed a form of absence of responsibility of the magistrates.

In a first place, the Executive’s project provided that a disciplinary offence came from the fact of having deliberately violated the guiding principles of the criminal and civil procedure. The Executive has, subsequently, stated that: "constitutes, inter alia, a breach of the duties of its state, the serious breach and deliberate, by a magistrate, of one or several rules of procedure of the essential guarantees constituting the rights of the parties, committed in the framework of an instance terminated by a final judicial decision” Despite the differences between assemblies, the National Assembly supporting the Executive’s project being the Senate less favourable, the text finally adopted by the Parliament has included most of the initial draft as defined by the Executive.

However, this act has been censured by the Constitutional Council. In effect, "whereas the independence of the judicial authority, guaranteed by article 64 of the Constitution, and the principle of the separation of powers, proclaimed by the article 16 of the Declaration of 1789, do not prohibit the legislator to extend the organic disciplinary responsibility of judges to their jurisdictional activity in providing that a deliberate and grave violation of a rule of procedure constitutes an essential guarantee

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of rights of the parties; whereas, however, these same principles are impeding the commitment of disciplinary proceedings when this violation has not previously been stated by a definitive judicial decision".

Therefore, the Council states the need to use the ways of challenging the judicial procedural decisions and thus obtain a final decision before engaging the responsibility of the magistrate.

.- A second approach included in the bill on the implementation of article 65 of the Constitution

The draft of organic law on the application of article 65 of the Constitution is in way of study before Parliament. The text has been transmitted by the National Assembly in the Senate on 24 February 2010, for a second reading.

Article 14 bis of this text provides that "constitutes one of the breaches of the duties of their condition the serious and deliberate breach by a magistrate of a rule of procedure, which constitutes an essential guarantee of the rights of the parties, determined by a final judicial decision”.

This article meets the needs posed by the Constitutional Council at its above- mentioned decision dated March 1st 200. If the text came into force, it would pass the monitoring of constitutionality. The scope of application of this article is, without doubt, wider than that of the jurisprudence Bidalou. It should be noted that in the decision Burgaud the CSM has reconsidered the principles under the provisions of article 43 of the statute of the judiciary. Thus, the remedies against judges are therefore led to multiply. This movement will also be strengthened by the direct litigant’s referral provided for in this same organic law to articles 18 and 25.

The judicial acts which are within the only conscience of the magistrate and its power of judging fall beyond the disciplinary scope. The jurisprudence of the Council of State, acting as a judge of cassation, regarding sanctions imposed by the Council of the judiciary, appears to exclude the possibility of challenging a judicial decision in its content.

The MSC recalls this limit: "expected that the Council may not cover [...] any assessment on the judicial acts of judges, which are reflected in their power and cannot be criticized, but in the exercise of recourses provided by law”.

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The cases of abuse and the misuse of power have nevertheless been retained by the Council of the Judiciary. In fact, when it follows from the res iudicata principle that a judge has gross and systematically exceeded its jurisdiction or ignored the framework of its competence, the act performed does not constitute, despite the appearances, but an act alien to the jurisdictional activity, and is therefore likely to call for the adoption of disciplinary measures

Germany.- Opening disciplinary proceedings on the judicial decision content is not allowed. The judicial decision content is out of bounds for the Inspection, so it can be straightforwardly dismissed.

Italy.- As a general rule, these complaints can be rejected without proceeding. The General Attorney will simply leave out any request concerning a disciplinary proceeding to CSM.

There is an exception in the case of manifest violation of the law caused by ignorance or inexcusable negligence.

Latvia.- Judges are independent on their judicial decisions. So, it’s up to the person entitled to initiate a disciplinary matter to reject a complaint without further proceeding. The argument would be – “judges are independent regarding their decisions, so there are no reasons to initiate disciplinary proceeding”.

Portugal.- these kinds of complaints are rejected, since the substance of the judicial decisions can only be challenged through the judicial remedies foreseen in the procedural laws.

Slovenia.- According to the law, judges may not be brought before a disciplinary court for opinions they expressed when deciding in court. The question whether judicial decisions are lawful or not is not to be decided in disciplinary proceedings. However, if the initiator persists with initiation, even in this case, the introduction of proceedings is not up to the disciplinary prosecutor but up to disciplinary court of first instance.

Spain.- This kind of complaints are usually directly rejected after a report is made by the Inspection Service stating that the question falls within what belongs to judicial powers.

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g. Breaching of standards of conduct

In the conclusions of this Study, the different treatment approaches given to breaches of standards of conduct will be summarized. It can be stated that in every country the breach of standards of conduct has relevance, although its intensity varies considerably.

Belgium.- A judge or a prosecutor who breaches his or her ethical obligation may face disciplinary sanction.

Although there is code of conduct as such, all magistrates must respect ethical obligations, such as being beyond suspicion in his or her personal life. The jurisprudence of the national council of discipline delivers guidelines to that respect.

Bulgaria.- There is a Code of Ethics whose breach entails disciplinary liability. Until 2009 the Code of Ethics was adopted by the Judicial Associations and the SJC granted its approval. Since 2009 it is only for the SJC to enact the Code of Ethics what it is considered an important threat since, having breaches of ethical rules disciplinary consequences, the SJC is enabled to create new disciplinary offences by means of mere ordinance amending the Code of Ethics for magistrates (article 30 JSA).

Czech Republic.- There is an ethical code of the judges. The disciplinary proceedings can be brought only when the judge breaches his or her duties set by the law.

Denmark.- The professional ethical obligations of judges are stated by the Special Court in its decisions. There is no written “ethical standard”.

England and Wales.- On being appointed to judicial office, all Judges agree to adhere to a strict code of conduct and it is the responsibility of the Lord Chief Justice and the Lord Chancellor to see that there was compliance with that strict Code of Conduct.

France.- Article 18 of the organic law of 5 March 2007 has entrusted the Higher Council of the judiciary the task of preparing and make public a compendium of ethical obligations of magistrates. The compilation entails a catalogue of positive deontological obligations for magistrates. It will be made public on 3 June 2010. The deontological reform becomes a permanent mission of MSC, but this collection will not be a code. Its normative scope is therefore uncertain.

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Germany.- There is no formal Code of Ethics for judges but they must behave consistently with democracy and its principles. In this sense they must try to be people who society can rely on.

Hungary.- There is no law governing the ethics of judges. However, the National Association of Judges passed a Code of Ethics in 2005. It includes the most important principles of ethics and guidelines of attitude that promote the implementation of constitutional and statutory provisions concerning judgeship and it offers guidelines for all judges of the Hungarian judiciary. The Code emphasizes the connection of the constitutional requirements of judicial independence and the responsibility the judiciary has in respect of society. It declares the will on behalf of the judiciary that the high expectations of society govern their work. Therefore, as a kind of self-regulation, the Code formulates the most important ethical principles and guidelines of attitude in the awareness that judges will adhere to them out of inner conviction and based on the judicial oath they made at their appointment.

Italy.- It depends on the specific type or violation. If a judge uses her professional authority to obtain personal or economical benefit, for instance, he or she will be punished “at least” with censorship; if he or she is condemned for penal crimes intentionally committed, punished with more than 1 year of imprisonment, he or she is dismissed, and so on.

Latvia.- There is a Judicial Code of Ethics in Latvia that is not law but that is obligatory for all judges. The consequence when the judges breach their professional ethical obligations is initiating a disciplinary matter since Section 1 of the Judicial Disciplinary Liability Law establishes that a judge may be subjected to disciplinary liability for: 3) dishonourable actions or gross violation of the norms of the Judges Code of Ethics;

Portugal.- There is no ethic code but there are rules of conduct foreseen in the statutory law for judges, which can entail disciplinary liability.

Slovenia.- A breach (wilfully or by negligence) of professional ethical obligations means at the same time a breach of the judicial duties prescribed by law and the court rules or an irregular performance of judicial service. The principal acts that entail a breach of judicial duties or irregular performance of judicial service are listed in the Judicial Service Act. Listed acts can represent the basis for initiating a discipline proceeding and, consequently, a discipline sanction.

A breach of professional ethical obligations is also reflected in the assessment of judicial service, which is crucial for any kind of promotion, and, moreover, a negative

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assessment can signify that a judge is unsuitable for judicial service, which must therefore result in the termination of his/her judicial office.

Spain.- There is no Code of Ethics. Until 1985, when the new Act on the Judiciary came into force, there used to be a disciplinary rule which considered disciplinary offence any misconduct entailing irregular moral behaviour or vices endangering Judiciary’s public image or decency of judicial office. This provision was overruled and since that moment private life was set aside from disciplinary liability. However, several infringements are commonly listed among ethical duties. For instance, regarding professional exclusivity it is sanctioned the breach of the rules on incompatibility; as for the ethical duty of impartiality, it is sanctioned the failure of self denial; other examples could be enter decisions which entail a clear procedural abuse or misrepresent the effective workload with regard to the benchmarking systems established by the General Council General for the Judiciary, hinder Inspection activities, disrespect to his or her superiors in the judicial hierarchy when it is not considered a major infraction, Disregard or dismiss other equal or lower Courts, or act in a derogatory manner with regard to citizens, institutions, clerks, coroners or other individuals working in the administration of justice, or to the Public Prosecutor, attorneys and barristers, labour counsellors and officers of the Judicial Police, congratulate or reproach public authorities, officers or local bodies for any event invoking or availing him or herself of his or her office as a judge or abuse of authority to secure preferential treatment by authorities, officers or professionals

h. Disciplinary sanction records

The general rule is that disciplinary decisions are recorded in the concerned judge’s personal file. Differences are found regarding erasing those records after a period of time has elapsed.

Countries where records are deleted

Belgium.- Light penalties are erased for the future after 3 years (article 427 bis Judicial Code). Major penalties may be erased on request after a period of 6 years since the decision.

Bulgaria.- A disciplinary sanction, with the exception of relief from office or of dismissal is deleted one year after having been served. A disciplinary sanction, with the exception of disciplinary relief from office or dismissal, may also be deleted prior to the expiry of the aforementioned term, but no earlier than 6 months following its

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imposition, by the body which has imposed it, provided the individual on whom it has been served has not committed any other offence.

Early deletion of a disciplinary sanction occurs at the initiative of the administrative head or of the bodies or the persons that have made a proposal for its imposition. Deletion acts ex nunc.

Czech Republic.- Following 5 years after the sentence, the law says that he or she is looked upon as he or she committed no offence.Germany.- Sanctions are recorded in the judge’s personal file. The records can be erased after a period of time has elapsed. For instance in Lower Saxony: admonition (2 years), fine (3 years), downgrading (7 years)

Hungary.- If a judge has been sanctioned by a disciplinary penalty, this shall be indicated in his or her personal records on file.

The disciplinary penalty imposed on a judge by final decision shall remain in force,

a) For one year in the case of censure,b) For two years in the case of demotion by one salary grade or discharge from executive office,c) For three years in the case of dismissal from judge's office.

A judge under the effect of a disciplinary penalty

a) May not be promoted to a higher position,b) May not be appointed to an executive office,c) May not be transferred to a higher salary grade,d) May not be granted a title corresponding to a higher judicial office,e) May not receive premiums or incentives.

A judge, under the effect of a disciplinary penalty, may, at his or her request, be relieved from the applicable legal consequences by the disciplinary tribunal of the first instance once half of the period referred to in Subsection (1) has passed, provided that the judge in question has not been implicated in other disciplinary proceedings.

Latvia.- The sanctions are recorded and can be erased after only one year, and even less depending on the case.

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Poland.- The copy of a final disciplinary court’s sentence, imposing disciplinary penalty, shall be attached to personal files of a judge. After a period of five years from the moment when it became final, Minister of Justice shall order removal of the sentence from the files, on condition that during this period the judge has not been charged within other disciplinary proceedings. In such case, only one, simultaneous removal is permissible.

The National Council of the Judiciary, the First Chairman of the Supreme Court and Minster of Justice may put forward the motion of re-opening of proceedings.

Portugal.- The sanctions are recorded in the judge's personal file.

Spain.- Disciplinary sanctions are recorded in the personal file of the offender, describing the circumstances leading to such proceedings.

Entries of warnings made are cancelled after six months reckoned from the date in which such decision became final if during that time the offender has not been involved in any disciplinary proceedings which finalized with a sanction.

Entry of the foregoing sanctions, except for removal, may be cancelled at the request of the offender after the Public Prosecutor has been heard once one, two or four years have elapsed after the sanction was imposed depending on whether the infraction was a petty, a serious or a very serious one and if during that time the offender has not been subject to any further disciplinary proceedings that ended with an imposed sanction.

Cancellation removes the record of any sanctions to all purposes.

Countries where records are indelible

Denmark.- A decision of the Special Court is recorded in the personal file of the judge in question, and is never deleted.

England and Wales.- The decision will be recorded in the Judge’s personal file. The record is permanent though, as time passes, its significance reduces.

France.- These sanctions are listed in the file in the symbol "disciplinary incidents ". They can be deleted at the result of an amnesty law. In reality, the periodic assessments of judges, who remain permanently in the dossier, may include these sanctions. Therefore, erasure by an act of amnesty remains sometimes theoretical.

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Italy.- It is permanently recorded in the Judge’s personal file.

Portugal.- Sanctions are recorded in the judge’s individual file and are not erased.

Slovenia.- The Judicial Service Act prescribes that all the information significant for the formulation of the assessment of judicial service shall be recorded in the personal file. Sanctioning a judge is surely a very significant decision for the formulation of the assessment, for this record stays permanently in the judge’s personal file.

III. THE PRINCIPLE OF INDEPENDENCE: AN INTERNAL PERSPECTIVE

The questionnaire on which this study was prepared focused on the judges’ perception and views on the principle of Independence in their respective countries. All the answers point out that every system knows its own mechanisms for guaranteeing independence, and all the questioned judges feel confident about the defence of their own independence.

Belgium.- There is a bad feeling about the excessive power given to the Head of the Courts. The system depends too much on the Courts’ Presidents and personal considerations may play a substantial role in his or her decision.

There is for the moment a few sensitive cases involving important fellows and no action was taken in due time against them probably due to this factor. Therefore, an external and independent body may be preferable.

Bulgaria.- The principle of judicial independence is deemed to provide sufficient guarantees on the defence of Magistrates

Czech Republic.- As the Ministry is not involved in the disciplinary proceedings, Czech judges feel sufficiently protected.

Denmark.- The guarantee for independence is clearly sufficient. Members of the Special Court are appointed for 10 years and can only be removed from the court by a court decision.

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England and Wales.- English Judges are completely sure that the independence of the judiciary system is satisfactorily guaranteed by their system. Before the Constitutional Reform Act 2005, it was the responsibility of the Lord Chancellor to protect the independence of the judiciary. One of the key objectives of the Constitutional Reform Act 2005 was to strengthen the principle of judicial independence throughout all areas of the justice system by securing the independence of the judiciary and maintaining a balance of separation of powers between the executive, legislature and judiciary. To achieve this there was much discussion between the Lord Chancellor and the Lord Chief Justice to explore how best reforms could deal with the judicial related functions of the Lord Chancellor. Proposals were agreed and incorporated in a document now commonly known as “The Concordat”. The Lord Chief Justice made a statement at the time approving and supporting these proposals on behalf of the judiciary and stated that the terms agreed were “a highly desirable package of measures designed to ensure the continuous independence of the judiciary.”

Section 4 of the Act places a positive obligation upon the Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the administration of justice, to uphold the continuing independence of the judiciary. This general duty is substantiated by the following particular requirements:

(a) The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.

(b) The Lord Chancellor must have regard to the need to defend judicial independence, the need for the judiciary to have the support necessary to enable them to exercise their functions, and finally the need for the public interest to be properly represented in decisions affecting matters relating to the judiciary or otherwise to the administration of justice. A statutory duty to respect the rule of law is included in the new Lord Chancellor’s Oath, which states:

“I… do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible. So help me God.”

France.- French judges consider that their independence is safeguarded by their statute, especially by the principle of immovability. As for the Prosecutors, the question is totally different: they do not have independence, in so far as their functioning is governed by the hierarchical principle.

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Germany.- German Judges generally believe that their independence is safeguarded. When they have to adopt measures that may threaten their independence, the competence is allocated to completely independent courts. Even admonition is not an exception, as the decision can be challenged and, on the other hand, it is considered as a preventive measure intended to prevent more serious procedures to be adopted. The courts referred to the judges’ position act according a pre-established objective plan for allocation of cases. The executive has no chance to interfere in those issues.

Hungary.- The Minister of Justice does not exercise any competence on the Courts. The National Council of Justice has full competences.

Italy.- Italian judges feel protected because: a) only a judge (the General Attorney) can submit a request for a sanction against them; b) the body in charge of evaluating this request (the Superior Council of Judiciary) is mainly composed by judges (2/3; 1/3 is designed by the Parliament among high experienced lawyers/professors); c) inspectors are judges; d) the Italian Constitution contains clear and solid rules that guarantee the judiciary’s autonomy from the executive, as a historical reaction against Fascism; e) Judicial review is foreseen before the Supreme Court against the final disciplinary decision.

Latvia.- Regarding inspecting judges from the executive, the system is considered sufficiently respectful to the Independence principle.

Slovenia.- In the Slovenian system, the Minister of Justice is not entitled to conduct the Inspection service. It is only entitled to put the initiative to introduce the disciplinary proceedings. Therefore, the independence principle is normatively sufficiently guaranteed. As already observed, in disciplinary matters, the Executive (Minister of Justice) has only the initiative right to introduce the disciplinary proceedings, otherwise he or she can’t interfere with this process. However, in matters related to courts’ administration, the Minister of Justice exercises his or her supervision over the work of courts only via the presidents of courts of higher instance by demanding the submission of data regarding the operation of the court and the submission of other written explanations and reports relating to the organisation and supervision of the courts work. The law itself is well-designed and appropriate.

Spain.- Generally speaking, the Spanish legal system offers sufficient guarantees for the protection and the safeguard of the principle of independence.

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III. CONCLUSIONS

1) INSPECTION SERVICE

a. Principle of Independence

The way in which the Inspection System is designed has a significant influence on the defence of the principle of Independence. Unsurprisingly, Opinion no 1 (2001) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on standards concerning the independence of the judiciary and the irrevocability of judges states in Conclusion 10 that the court inspection systems shall not serve to prejudice the independence of judges.

Thus, there are many countries where no Inspection Service has been established. Others have systems for inspecting Courts. Among this last group, there are countries where the Inspection Service reports to the Council for the Judiciary, and others where it reports to the Minister of Justice.

In this regard, the Opinion number 10 (2007) of the Consultative Council of European Judges (CCJE) on the Council for the Judiciary at the service of society must be borne in mind. Under point 10, the CCJE states that the Council for the Judiciary should promote the efficiency and quality of justice, in order to ensure that Article 6 of the European Convention on Human Rights is fully implemented, and to reinforce public confidence in the justice system. In this context, the Council for the Judiciary has the task to set up the necessary tools to evaluate the justice system, to report on the state of services, and to ask the relevant authorities to take the necessary steps to improve the administration of justice. Under point 42, the CCJE recommends that the Council for the Judiciary ensures that the following tasks, to be performed preferably by the Council itself, or in cooperation with other bodies, are fulfilled in an independent manner: administration and management of courts; evaluation of judges and disciplinary and ethical matters.

Regarding the administration and management of courts, the CCJE stresses under points 76, 78 and 79 of the aforementioned opinion that the Council for the Judiciary should have competence in this respect. It is important that the Council for the Judiciary can obtain from the courts relevant data and statistics. The Council for the Judiciary should supervise the organization of the inspection service so that inspection is compatible with judicial independence. This is particularly important where inspection services belong to the executive.

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It is worth analyzing those countries where the Inspection Service reports to the executive, especially France, Germany and Italy for their weight in the EU. In all these countries there seems to be a balance between the powers assigned to the executive and the guarantees for the fair exercise of those powers.

In Italy, as seen earlier, there is an internal feeling of safety among judges because the powers the Minister of Justice is able to set in motion are limited by a set of guarantees at different stages, especially at the moment of conducting disciplinary proceedings and deciding on them as well as when providing judicial review.

In Germany, the independence of the judicial system would seemingly be threatened at first glance. Ultimately, however, the relationship between the democratic legitimacy and independence brings a number of warranties for the rights of the Judiciary.

The management of all Supreme Federal Courts is determined in a differentiated manner by the competent federal ministry in Berlin (mainly by the Federal Minister of Justice in Berlin). The Parliament, with the help of electoral commissions, preserves its influence on the selection of high judges and high prosecutors. Regarding all principle matters (fundamental issues), attention is to be paid to the role of the federal regions, since, traditionally, the system of management of the judicial power focuses all the main authorities for managing the judicial power in the Ministries of Justice in the separate federal Länder. The Minister of Justice uses the judicial apparatus widely: the chairmen of courts of Appeal and district courts, their deputies as well as heads of prosecutors' offices at all levels. The cooperation and coordination of the system for supervisory authority has already established itself in the process of long-term practice.

The chairmen of these courts have numerous staff assistants, who assist them in their work. As far as these assistants perform judicial or prosecutorial work for the respective chairmen, they themselves belong to the respective profession. The chairmen have a supervisory authority in their judicial district for all professional groups. A higher-standing administrative head is the chairman of the respective Court of Appeal, yet the highest-ranking administrative head is the Minister of Justice. Due to the fact that all court chairmen are trying a reduced number of cases, they perform a dual function – that of judge and administrative head.

The Minister of Justice and the chairmen of the respective courts (respectively heads of the prosecutor’s offices) coordinate their activity at business meetings.

There is however a strictly regulated system of participation in decision-making as a guarantee for judicial independence:

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The distribution of all tasks in the court exclusively depends on the so-called Presidium, elected by all judges.

Another body, responsible for decision-making in the judicial system is the so-called Council for judicial appointments. This body is elected by the colleagues in each federal province, and controls the decisions of the Minister of Justice related to the appointments in the judicial power. The elected members of the Council have the right not to support the proposals of the Minister of Justice, concerning for example promotions. In case of conflict between the Minister and the Council, which takes place rarely, due to the reluctance of the Minister to participate in a political debate in increased media attention, the decision is taken by a conciliation commission

In all courts and prosecutor’s offices at regional, district and appellate level, there are committees integrated by elected judges or prosecutors, who take a stand on "all general and social issues" (these committees are called councils of judges, and in the prosecutor’s offices – councils on the issues of human resources). There are catalogues with strictly differentiated rules concerning the competences of these committees (hearing, participation in decision-making). In cases of contradiction, the questions are addressed to the so-called conciliation committee.

In some federal provinces there are formal rules for the participation of professional organizations in voting for decisions leading to changes in the status of judges and prosecutors on substantive issues.

Due to the independence of the judicial system, disciplinary powers exercise is more sensitive. It is worth reminding that the Administrative officer (a court chairman or a head of a prosecutor’s office) is entitled, as a disciplinary measure, to make "remarks", and this is the lowest disciplinary penalty. It may refer to the way of execution of the official duties. The decisions for making remarks are subject to Appeal. All other disciplinary measures against judges and prosecutors are decided by specialized courts.

Beside those counterbalance mechanisms, there is an ongoing discussion about the convenience of creating a Council for the Judiciary for the German Federal State and Councils for each Länder. This has been formally proposed by the most important German Association for Judges and Prosecutors (the Deutscher Richterbund –Federation of German Judges) on 25 March 2010. It reflects the opinion of a large representative group of German Judges. This Council would deal with the personal statute for judges, clerks and staff and disciplinary matters. It would include the personal Inspection as one of its more important tasks. The Council for the Judiciary

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would replace the Ministry of Justice. The main reasons pushing for the creation of Councils for the Judiciary is the European environment regarding this issue, since many European countries have this system which is thought more respectful with the principle of separation of powers. In fact, in 2009, the Council of Europe in plenary session requested Germany to enact a system of self-management for the Judiciary by means of Judicial Councils so that the Ministry of Justice cannot influence on the management of the judicial system. This system allegedly would improve the image of the German judicial system.

The French legal system also establishes a set of guarantees. However, regarding the protection of the principle of independence in France there are controversial opinions after the Constitutional amendment passed on 21 July 2008. Under this amendment, the composition of the Supreme Council of the Magistracy varies. The new wording have made minority judges in each panel of the SCM for the benefit of individuals nominated by the political power without any real guarantee of impartiality (7 judges, one lawyer, one member of State Council and 6 people appointed by the political power).

Authorized voices have claimed against this institutional regression. Among them, it is worth mentioning the opinion formally expressed by the European Association of Judges at its meeting held in Turku on May 23, 2008, on the project of constitutional amendment. At this meeting, the European Association of Judges adopted unanimously the following resolution :

1. The European Association of Judges takes notice of the modifications planned by the French government regarding the composition of the SCM, whereby there would be only a minority of judges on the authority in charge of their career and discipline, but a majority of representatives directly nominated by the executive and legislative powers.

2. The European Association of Judges recalls and emphasizes that, with regard to the competent authority in the field of the judges' selection, career and discipline, the European authorities have, for many years, established fundamental rules in order to preserve the independence and the impartiality of justice.

3. In this regard, the European Association of Judges refers to:

Recommendation R94-12 of the Council of Europe Ministers' committee, which requires that the competent authority should be independent from the government and the administration.

The European Charter on the Statute for Judges enacted by the Council of Europe in 1998, which requires the creation of an authority independent from

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the executive and legislative powers within which at least half of its members have been elected among the judges by their peers.

The Consultative Council of European Judges, which, in its opinion n°10 adopted in Strasbourg in October 2007 which requires the creation of an authority within which there is a substantial majority of judges elected by their peers.

4. The European Association of Judges also emphasizes that these standards have not been enacted for the benefit of judges or their corporate interest, but as the sole means of ensuring the necessary independence of Justice within a democratic society.

5. The European Association of Judges expresses its deep concern with regards to these developments in France. It Appeals to the French government to observe scrupulously the standards universally acknowledged of an independent judiciary, which is essential if citizens are to have full trust and confidence in the judicial system.

It is also interesting to pay attention to the current situation in Luxembourg. Luxembourg has no Council for the Judiciary. The main tasks regarding functioning of justice are tackled by the Ministry of Justice. However, there is an ongoing movement proposing a Council for the Judiciary to be enacted.

There is a Mediator of Justice (Mediator de la Justice) in Luxembourg who proposes a council formed by judges and high non judicial authorities, while the Association of Luxembourgian Magistrates (Groupement des Magistrats Luxembourgeois) thinks about a council completely shaped by magistrates elected by their peers. They consider necessary a Council for their system according the general accepted standards under the Opinions issued by the CCJE.

Regarding the Council’s competences, it would conduct the selective process for appointment of magistrates, their promotion, and appointments for non-judicial positions as well as deontology and discipline.

As for Romania, according the twinning team opinion, the placement of the Inspection System under the dependence of the Supreme Council for the Magistracy is consistent with the general standards reflected in the aforementioned opinions. Any legal amendment aimed to make it report to the Minister of Justice is deemed a serious threat for the principle of judicial independence in Romania.

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b. Inspectors’ professional background

Regarding the inspectors professional background, they are generally recruited among people with experience in court management (judges or clerks). Nevertheless there are cases where external legal professions are allowed to develop such functions, which seem incongruous with the required efficiency of the service since those professions lack of internal knowledge on the way the courts are actually run.

c. Procedures for appointments

As for appointment procedures, there are countries where there is a high degree of discretion, whereas others have strict rules governing these procedures.

All systems should be as transparent as possible, enhancing quality, merit and capacity of candidates.

From an organizational point of view, most systems possess a hierarchical structure.

2) DISCIPLINARY LIABILITY

a. Entitlement to exercise disciplinary actions

The main distinction can be made between countries where the Minister of Justice plays a role in promoting disciplinary proceedings and countries where the Minister of Justice is set aside.

The Opinion no. 3 of the CCJE on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality, tackles this issue under point 68. The CCJE considers that the procedures leading to the initiation of disciplinary action need great formalization. It proposes that countries envisage introducing a specific body or person with responsibility for receiving complaints, entitled to represent the judge concerned, and to decide whether or not there is a sufficient case against the judge to call for the initiation of disciplinary actions, in which case it would pass the matter on to the disciplinary authority.

In this sense, Romanian legal provisions seem well balanced.

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b. Powers to impose sanctions

Comparatively speaking, a distinction can be made between those systems where the power to impose sanctions belongs to the courts of justice, and those which entitle special administrative bodies. In Luxembourg, for instance, disciplinary issues are nowadays a province of the Minister of Justice, something which the Association of Luxembourgian Magistrates deems necessary to change.

Under Paragraph 71 of the aforementioned Opinion, disciplinary proceedings against any judge should only be determined by an independent authority (or “tribunal”), operating procedures that may guarantee the full defence of rights. It also considers that the body responsible for appointing this independent authority or tribunal can and should be an independent body (with substantial judicial representation chosen democratically by other judges) which, as the CCJE advocated under paragraph 46 of its first Opinion, should generally be responsible for appointing judges. This does not preclude the establishment of a disciplinary tribunal of persons other than judges (thus averting the risk of corporatism), always provided that such persons are not members of the legislature, government or administration.

The twinning team proposes to accommodate the system to the EU procedural standards, so that the accused judges’ enjoy all guarantees consistently with the provisions under article 6.1 to the European Convention on Human Rights, which entails that at least the following procedural guarantees must be observed:

As soon as the disciplinary procedure has been launched, the judge has the right to obtain the communication of its file and material of the preliminary investigation, if there has been such a process,

The charged judge may be assisted by a counsel,

The adversarial principle must also be respected. The accused judge is to be invited to provide his or her own explanations and means of defence on the facts which he or she is accused for,

The hearing must be public, the decision must be reasoned, keep proportion with the seriousness of the offence and be made publicly,

There must be judicial remedies against the disciplinary decisions. The challenges must be carried out before the highest national court.

Regarding decisions adopted on disciplinary matters by the Council of the Judiciary, Opinion 10 CCJE, paragraph 39, stresses that such decisions should contain an explanation of their grounds, have binding force, and be susceptible of being judicially

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reviewed. Indeed, the independence of the Council for the Judiciary does not mean that it is outside the law and exempt from judicial supervision.

On the other hand, under paragraph 63 Opinion 10 CCJE, the Minister of Justice or any other representative of the politic power cannot take part in the disciplinary body.

c. Classification of disciplinary offences

The classification of disciplinary offences is not the general rule. Among all the assessed countries, only Slovenia and Spain count on a classification system. In Luxembourg, the Association of Luxembourgian Magistrates regrets the way disciplinary infringements are defined due to a lack of precision. Under Law 7 March 1980, any deed, while exercising judicial functions or not, that may damage the image of the justice, compromise magistrates’ reputation, create scandal and damage good traditions and the service to the justice, as well as the breach of judicial duties, may be considered a disciplinary offence. In front of this open definition, the Association of Luxembourgian Magistrates proposes that a clear description of disciplinary offences be made that is consistent with the principle of legal certainty. A classification of offences according their seriousness should be made and connected to a corresponding classification of sanctions. This classification is linked to the application of the principle of proportion (Opinion 3 CCJE). The Association regrets that these ideas are not proposed either by the Minister of Justice or by the Mediator of Justice.

Although it refers more to sanctions than to offences, paragraph 74 of Opinion 3 CCJE endorses the need for each jurisdiction to identify the sanctions permissible under its own disciplinary system, and for such sanctions to be, both in principle and in application, proportionate.

In spite of the described international comparative benchmarks, the twinning team proposes that Romania creates such a system. The main reason is that proportion on the application of sanctions would be easier. For instance, if there are 6 types of sanctions, three groups of sanctions can be made where sanctions 1 and 2 would correlate with petty offences; sanctions 3 and 4 with serious offences and 5 and 6 with very serious offences.

This classification system would help reduce significantly the risk of treating similar cases differently, since petty offences would never be punished with sanctions between 3 and 6.

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d. Criteria for determining the severity of sanctions

Proportionate application of sanctions is, therefore, a general requirement. Every country’s system follows some criteria in order to determine the severity of the sanction that is to be imposed. In this sense, the differences are not very important. However, as has been said before, those countries whose legal system classifies offences into different degrees tend to reduce the margin of discretionary power from the beginning and to provide a certain degree of legal certainty.

Undoubtedly, unifying criteria is extremely important in order to establish a final judicial review system capable of fixing uniform criteria, hence avoiding contradictory practices.

e. Treatment of complaints without merit

Paragraph 67 of Opinion 3 CCJE considers that there must be a filter. Otherwise judges may find themselves constantly facing disciplinary proceedings brought at the instance of disappointed litigants. As a general rule, complaints of this nature can be dismissed without further proceeding.

However, a minimum procedural requirement is unavoidable. This does not mean that, as it happens in Romania, any complaint, regardless of its obvious inconsistency, may bring about the opening of a procedure which includes a visit to the court against which the complaint is addressed. A reasonable procedure should consist of an internal gathering of data, a report stating whether the complaint lacks merit or not, and its subsequent rejection or acceptance.

f. Handling of complaints regarding the contents of the judicial decision

All checked systems are unanimous on this issue. This kind of complaints can be rejected without further proceeding. However, in many systems it is possible to deal disciplinarily with serious and deliberate breaches of rules of procedure by magistrates, or with cases of absolute lack of reasoning, which seems consistent with paragraph 63 Opinion 10 CCJE: a judge who neglects his/her cases through indolence or who is blatantly incompetent when dealing with them should face disciplinary sanctions. However, under paragraph 69 Opinion 1 CCJE, court inspection systems, in countries where they exist, should not concern themselves with the merits or correctness of decisions.

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g. Breaching of standards of conduct

In some countries, the mere breach of the Code of Ethics constitutes a disciplinary offence. This collides with the principle of legal certainty. Indeed, as the CCJE declares under Opinion 3, paragraph 60, it is incorrect to correlate breaches of proper professional standards with misconduct giving rise potentially to disciplinary sanctions. Professional standards represent best practice, which all judges should aim to develop and towards which all judges should aspire. It would discourage the future development of such standards and misunderstand their purpose to equate them with misconduct justifying disciplinary proceedings. In order to justify disciplinary proceedings, misconduct must be serious and flagrant, in a way which cannot be posited simply because there has been a failure to observe professional standards.

As in Romania infringements of the Code of Ethics just entail aftermaths on the evaluation level, it seems appropriate even if the procedural guarantees are not clearly established in the legal system. Amendments should be made in order to provide clearer remedies, both regarding decisions on the violation of ethic rules and periodical evaluations which take into consideration the aforementioned declaration of violation of ethic rules.

h. Disciplinary sanctions record

In general, disciplinary decisions are recorded in the personal file of the concerned judge. Differences are found regarding the erasure of these records after a period of time has elapsed. Some countries consider the record indelible.

As a suitable rule to enhance legal certainty, the Twinning team proposes that recorded punishments be deleted after a period of time has elapsed, provided the concerned magistrate has not committed a new disciplinary offence.

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