Criteria for evaluation of organisation of the judiciary in preventing and combating corruption

1. Criteria for evaluation of organisation of the judiciary in preventing and combating corruption • Kiev, 8 February 2013 • Workshop on the implementation of the anticorruption legislation • TAIEX – JHA 49058

2. Context Integrity, independence and impartiality of the judiciary are essential prerequisites for the effective protection of human rights and economic development and for ensuring that there was no discrimination in the administration of justice, (Res. ECOSOC 2006/23)

3. UN Bangalore Principles of Judicial Conduct (2002) • Preamble: • Universal Declaration of Human Rights - principle that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, established by the law, in the determination of rights and obligations and of any criminal charge • importance of a competent, independent and impartial judiciary to the protection of human rights - implementation of all the other rights ultimately depends upon the proper administration of justice • A competent, independent and impartial judiciary is likewise essential if the courts are to fulfil their role in upholding constitutionalism and the rule of law

4. UN Bangalore Principles of Judicial Conduct (2002) Principles Independence Impartiality Integrity Propriety Equality Competence and Diligence Implementation (effective resources)

5. UN Bangalore Principles of Judicial Conduct (2002) Integrity Integrity is essential to the proper discharge of the judicial office Application 3.1. A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. 3.2. The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.

6. Council of Europe Rec. (2010)12 Standard-setting activity of CoE Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities (Adopted by the Committee of Ministers on 17 November 2010) Art. 6 ECHR Diverse experiences and legal systems Common core-values of democracy and rule of law 8 chapters – 74 paragraphs

7. Council of Europe Rec. (2010)12 – Key features General aspects Judicial independence as a fundamental right; its purpose is to guarantee every person the right to have their case decided in a fair trial, on legal grounds only and without any improper influence. The level at which judicial independence should be safeguarded is the constitutional or highest possible legal level in member States with more specific rules provided at the legislative level.

8. Council of Europe Rec. (2010)12 – Key features External independence Judicial decisions should be reasoned and made public. Decisions of judges should not be subject to any revision other than appellate or re-opening proceedings as provided for by law. Judicial matters are of public interest.

9. Council of Europe Rec. (2010)12 – Key features External independence Link between independence of judges and the principle of equality of citizens before the law. Independence of the judiciary as a whole is not a prerogative or privilege, but it is granted in the interest of the rule of law and of persons seeking and expecting impartial justice. As judges operate in the society, they should maintain appropriate working relationships with institutions and public authorities involved in the management and administration of the courts as well as professionals to facilitate an effective and efficient administration of justice.

10. Council of Europe Rec. (2010)12 – Key features • Internal independence • Independence of each individual judge in the exercise of adjudicating functions, without any restriction, improper influence, pressures, threats or interferences, from any authority, including authorities internal to the judiciary, in the decision-making. • The allocation of cases within a court should follow objective pre-established criteria, as well as the withdrawal of a case. • Freedom to form and join professional organisations whose objectives are to safeguard independence of judges, protect their interests and promote the rule of law is to be ensured.

11. Council of Europe Rec. (2010)12 – Key features • Independence, efficiency and resources • Efficiency as the delivery of quality decisions within a reasonable time. • Adequate allocation of resources, facilities and equipment to the courts to enable them to function in accordance with the standards of the fair trial

12. Council of Europe Rec. (2010)12 – Key features • Independence, efficiency and resources • Allocation of a sufficient number of judges and appropriately qualified and experienced professional staff • Use of electronic case management systems and information communication technologies • Consultation of Councils for the Judiciary or other independent authorities with responsibility for the administration of courts, the courts themselves and/or judges’ professional organisations when the judicial system’s budget is being prepared • Provision of appropriate means to fulfil judicial functions efficiently in cases involving foreign or international elements

13. Council of Europe Rec. (2010)12 – Key features Councils for the Judiciary Where existing, Councils for the Judiciary are governing bodies that have proved to be essential in safeguarding the independence of the judiciary The establishment of such Councils at the constitutional or highest possible legal level, is recommended - not less than half the members of such Councils should be judges elected by their peers and with full respect for pluralism inside the judiciary Opinion n. 10 CCJE

14. Council of Europe Rec. (2010)12 – Key features Status Selection and career of judges - decisions on selection and career based on objective criteria pre-established by law or by the competent authorities, having regard to merit, qualifications, skills, capacity, and respect to human dignity - independence of the executive and legislative powers - right to challenge the procedure Tenure - security of tenure (guaranteed tenure until a mandatory retirement age) and irremovability (consent of the judge to a new appointment or to transfer, except in cases of disciplinary sanctions or reform of the organisation) Remuneration - commensurate with profession and responsibilities

15. Council of Europe Rec. (2010)12 – Key features • Duties and responsibilities • Protection of the rights and freedoms of all persons equally, respecting their dignity in the conduct of court proceedings • Management of each case with due diligence and within a reasonable time • Reasoning of judgements • Regular training • Specific rules on civil, criminal and disciplinary liability • Any reference to the concept of immunity, general or functional, deliberately avoided in the text of the Recommendation • Promotion of codes of judicial ethics, as a means to uphold justice and strengthen public confidence in the judiciary.

16. Council of Europe Rec. (2000)19 on Public Prosecutors • Recommendation 2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system (Adopted by the Committee of Ministers on 6 October 2000) • Functions of the public prosecutor • Safeguards provided to public prosecutors for carrying out their functions • Relationship between public prosecutors and the executive and legislative powers • Relationship between public prosecutors and court judge • Relationship between public prosecutors and the police • International co-operation

17. Critical issues • Reforms including a strong ethical component • Independence of judges and autonomy of prosecutors t be assured through legislative provisions preventing undue political influence on work and career development of judges and prosecutors • Independence counterbalanced by accountability . • Issue of immunity vis-à-vis judicial independence Forms of functional limitation of liability might be needed but criminal liability for offences committed outside judicial office (e.g. accept bribes) is not to be limited • Need of effectiveness of disciplinary liability In case of misbehaviour

18. Critical issues • Credible track record as regards final court judgements in high level corruption cases • Awareness of complexity of financial crime cases and allocation of appropriate and specialised resources • In depth audit review of the anti-corruption framework (institutional and legal) which allows identifying the main weaknesses and how to address them • Avoid both political influence on the judiciary and self-protection and cronyism of high judicial councils • Involvement of the civil society

19. Evidence: Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L 196 of 2 August 2003, p. 45 In absentia judgments: Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial Confiscation: Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders Convictions: Council Framework Decision 2008/675/JHA of 14 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings THANK YOU FOR YOUR ATTENTION! Questions? Gualtiero MICHELINI Corte d’Appello di Roma gualtiero.michelini@giustizia.it