CONFERENCE. Training to Leadership: going to the concrete problems

Transcription

1 CONFERENCE Training to Leadership: going to the concrete problems José Miguel García Moreno Head of International Relations Spanish General Council for the Judiciary

2 TRAINING TO LEADERSHIP IN THE JUDICIARY I. Leadership and Independence

3 Topic one: Leadership and Independence 1) The independence of the Judiciary as a whole and that of the individual judges lie at the heart of the rule of law. Without it the Judiciary cannot fulfil its functions. Independence is directly linked to accountability. A Judiciary that claims independence, but refuses to be accountable to society will not gain the trust of society, and will not be granted the independence it strives at. 2) Judicial independence must be earned. The Judiciary achieves legitimacy and the respect of its citizens by excellent performance, resulting in impartial, well-reasoned, decisions. An independent and accountable Judiciary is open to justified criticism and learns from its mistakes.

4 Topic one: Leadership and Independence 3) Both objective and subjective independence of the Judiciary are important, where objective independence stands for formal safeguards, whilst subjective independence reflects the perceptions in society, including those of the judges themselves. Councils for the Judiciary should not focus solely on formal safeguards, but also on improving performance and informing the public about the functions and the functioning of the Judiciary. Each judge has a role to play in this respect. 4) Security of tenure and irremovability are key elements of the independence of judges. Thus, judges should have guaranteed tenure until a mandatory retirement age where that exists. Irremovability of judges should be an express element of the independence enshrined at the highest internal level.

5 Topic one: Leadership and Independence 5) The principle of irremovability can extend to the appointment or assignment of a judge to a different office or location without his/her consent (i.e. a judge may not be transferred to a different post or switched to other functions without his/her consent). There are reasonable exceptions to this general rule when a mandatory transfer of a judge to other duties, court or location has been ordered under specific circumstances as determined by law or otherwise established in a general, abstract manner, including a disciplinary sanction or in cases where a judge has been determined as unable to perform the judicial functions at the current post (including leadership functions) in an adequate, independent and impartial manner.

6 Topic one: Leadership and Independence 6) Without prejudice to their independence, judges and the Judiciary should maintain constructive working relations with institutions and public authorities involved in the management and administration of the courts, as well as professionals whose tasks are related to the work of judges in order to facilitate an effective and efficient administration of justice. 7) The ENCJ believes that the model of a Council for the Judiciary still provides the best approach to a self-governing independent and accountable Judiciary. However, an autonomous Council for the Judiciary that guarantees the independence of the Judiciary does not imply that judges must be selfgoverning. The management of the administrative organisation of the Judiciary should not necessarily be entirely in the hands of judges.

7 Topic one: Leadership and Independence Q1 The issues posed by the situation of a Spanish family judge who invoking the principle of judicial independence and conscientious objection decides not to authorise the adoption by a gay married female couple of the little orphan nephew of one of the members of the couple. Is this position acceptable? Could it lead to some liability for the conscientious objector family judge?

8 TRAINING TO LEADERSHIP IN THE JUDICIARY II. Leadership and Accountability

9 Topic two: Leadership and Accountability 1) Judges should be guided by ethical principles of professional conduct, which include duties and responsibilities the breach of which may be sanctioned by disciplinary measures. Judges should not be liable to civil or disciplinary liability in respect of their interpretation of the law, their assessment of facts or their weighing of evidence in determining a case, save for cases of malice or gross negligence. 2) Any disciplinary measures and procedures should be regulated by law. Disciplinary procedures established to provide for the accountability of the Judiciary must not be allowed to become a means of intimidating judges. 3) Guidelines and/or a code of conduct/ethics should be drawn up by judges or a Council for the Judiciary. Lay members may be asked to contribute by advising or guiding on the content of such a code or guidelines.

10 Topic two: Leadership and Accountability 4) There is a need for a definition of disciplinary offences for which a judge may be removed from office and for disciplinary procedures to comply with the due process requirements, including the possibility of challenge, appeal or judicial review against the decision issued by the competent body in the area of judicial discipline. 5) There should be a separate body responsible for receiving complaints and the administration of them, independent of the Ministry of Justice and answerable only to the Judiciary. There should be a person or body responsible to the Judiciary who has power to investigate the complaint. The investigation should include the possibility of receiving written and/or oral evidence.

11 Topic two: Leadership and Accountability 6) The procedure should be in the control of a Judge, or a body of Judges, or a person directly answerable to the Judiciary. The decision making person or body should be regulated by law. The body should include a majority of Judges, and a Judge expert in the jurisdiction and senior to the Judge being investigated. The body in charge of judicial discipline could be the appropriate national Council for the Judiciary (or a specific committee or department within the Council for the Judiciary) or an independent national judicial discipline board or committee independent from the executive and legislature. 7) There should be a time limit for the bringing of a complaint which should only be extended in exceptional circumstances. There should be a time limit for the concluding of the investigation, the making of a decision, and the imposition of any sanction.

12 Topic two: Leadership and Accountability 8) A judge should only be suspended in the most serious and exceptional cases, and where it is necessary for the administration of Justice. A judge if suspended should remain on full salary during the investigation, unless the Judge causes significant delay or does not co-operate with the investigation or in other exceptional circumstances. A judge has the right to be legally represented or assisted by a person of his/her choosing if s/he so wishes. A judge acquitted of any allegations should be able to recover his/her legal costs reasonably incurred and where appropriate from the State.

13 Topic two: Leadership and Accountability 9) The Judge has the following rights in the context of the disciplinary proceeding: a) to be fully informed of the case against him/her b) to representation c) to costs upon acquittal d) to appear before any hearing and be heard, and call evidence either in writing or orally. e) to be informed promptly if a complaint is to be investigated. f) to be given a timetable for the investigation of the complaint, and the making of the decision. g) to be given reasons for any decision made. h) to appeal

14 Topic two: Leadership and Accountability 10) Any sanction should be clearly defined, authorised by law and proportionate in principle and application to the matter alleged. There should be a right of appeal by way of judicial review or cassation appeal, although this may not apply to decisions of the highest court or legislature 11) A judge has a right to a private life but should act with the highest degree of integrity in both his/her professional and private life. Conduct which is capable of bringing the Judiciary into disrepute should be capable of disciplinary action. Non-ethical conduct of a particular judge may be assessed in the context of the professional evaluation or promotion processes, and serious violations of ethical principles or guidelines may be assessed within a disciplinary procedure if the relevant violation constitutes a previously defined disciplinary offence.

15 Topic two: Leadership and Accountability Q2 The issues posed by the situation of X, a Spanish criminal judge practising in Catalonia, who, at the request of a Catalan nationalist party, gets involved together with other legal practitioners and academics- in the drafting of a Constitution for an independent Catalonia and participates in numerous political meetings where the draft is presented and discussed. In these meetings X is introduced to the audience as a judge sitting at the Provincial Court of Tarragona. Could this situation lead to any disciplinary liability for X?

16 TRAINING TO LEADERSHIP IN THE JUDICIARY III. Appointment and Evaluation of Leaders

17 Topic three: Appointment and Evaluation of Leaders 1) The ENCJ has identified two basic groups of systems as regards recruitment, selection, appointment and promotion of judges (including appointment of court leaders): a) Common Law jurisdictions and some Scandinavian Countries (Finland, Norway) b) Civil Law jurisdictions But also, some mixed systems. 2) Any system for the recruitment, selection and appointment of judges should be independent, fair, open, and transparent. Appointment to any judicial post should only be based on merit and capacity Candidates for judicial office should be of good character (no criminal record, good reputation, etc.). Diversity in the range of persons available for selection for appointment should be encouraged, avoiding all kinds of discrimination.

18 Topic three: Appointment and Evaluation of Leaders 3) Any promotion process, including appointment of court leaders and appointment of holders of high judicial offices (such as justices of Supreme Courts) should be independent, fair, open and transparent. 4) These tasks should be placed in the hands of a body independent of government in which a relevant number of members of the judiciary are directly involved. The body in charge of judicial selection and appointment, including the appointment of court leaders, could be the national Council for the Judiciary -if any-; or an independent national judicial appointments board or committee. The involvement of the Government or the Head of State in the appointments process is acceptable if it merely implies the recognition of decisions taken by the competent body in the context of the independent selection process

19 Topic three: Appointment and Evaluation of Leaders 5) As regards the evaluation of judges (including leaders of courts), the ENCJ has identified two basic types of systems of evaluation of professional performance of members of the judiciary among European countries: formal and informal systems of evaluation. 6) All systems of evaluation share the common premise that the professionalism of the judge represents both the main source of legitimacy of the judicial function and a strong guarantee of its independence.

20 Topic three: Appointment and Evaluation of Leaders 7) The following are some of the potential aims of the systems of evaluation of professional performance: a)to improve the efficiency of the judicial systems. b)to safeguard the professional quality of judges, in order to improve the service provided by the judicial systems to the public. c) Skill development of judges, including continuing training if this appears to be necessary in view of the outcome of the evaluation. d) To prevent problems and malfunctions of the judicial systems. e) To improve the motivation and satisfaction of judges in the development of their professional activities. f)to improve management and leadership abilities within the judiciary and, indirectly, judicial accountability and public confidence in the judicial systems.

21 Topic three: Appointment and Evaluation of Leaders 8) Mechanisms of evaluation of professional performance of judges should ensure that judges are fully prepared and competent. 9) Any method of evaluating professional performance on basis of the quality of judicial decisions should not interfere with the independence of the judiciary either as a whole or on an individual basis. 10) The quantity of the work done by a judge can be one of the criteria utilised in the evaluation of judicial performance. The rate of success of appeals against decision should be used cautiously as one of the various criteria for the evaluation of professional performance, since it does necessarily reflect the quality of the decisions subject to appeal.

22 Topic three: Appointment and Evaluation of Leaders 11) The procedures for the evaluation of professional performance of judges or (where relevant) prosecutors or court leaders, ought to be placed in the hands of a body or bodies independent of government in which a relevant number of members of the judiciary are directly involved. The body in charge of evaluation of professional performance of judges could be the appropriate national Council for the Judiciary (or a specific committee or department within the Council for the Judiciary), independent national or regional evaluation boards or committees, or the heads of the appropriate courts (or prosecution offices) or even the head of the judiciary. The Ministry of Justice as a body of the executive branch of power should not directly deal with the evaluation of professional performance of individual judges or court leaders as a unique body of evaluation.

23 Topic three: Appointment and Evaluation of Leaders 12) The process of evaluation of the professional performance of judges, including court leaders, must be conducted according to the same criteria and with the same guarantees as those provided for in the initial selection and appointment process of judges: it should be independent of political influence, fair in its assessment procedures, open to all members of the judiciary and transparent in terms of public scrutiny. The process should be based on the judge s or court leader s professional performance, only using sources of reliable information. 13) In case of a formal mechanism or system of evaluation of professional performance there is a need for a specific, formal procedure, whose basic rules should be established by primary legislation.

24 Topic three: Appointment and Evaluation of Leaders 14) Any judge or court leader subject to the evaluation of professional performance is entitled to know the outcome of the evaluation, especially if the decision on the evaluation entails negative consequences for the judge in terms of professional career, economic benefits, or the imposition of specific obligations. That implies the need for an independent complaints or challenge process.

25 Topic three: Appointment and Evaluation of Leaders Q3 The issues posed by the appointment by the Plenary of the Spanish Council for the Judiciary of Y, a senior judge sitting at a first instance criminal court in Logroño (the capital of the autonomous region of La Rioja), for the position of Chairman of the High Regional Court. This appointment is a promotion for judge Y and it is arguable whether it is consistent with the principles laid down in the internal regulation adopted by the General Council for the Judiciary regarding promotions and appointments of holders of high judicial offices (justices of the Supreme Court and Chairpersons of Provincial Courts and High Regional Courts, among others). According to this regulation every decision for appointment of holders of high judicial offices should be reasoned and the previous experience sitting in a panel of judges should be taken into account for the appointment of Chairpersons of collegiate courts.

26 Topic three: Appointment and Evaluation of Leaders X has no previous experience of sitting in a panel of judges but has shown high managerial and leadership capabilities as the senior judge of the first instance courts in Logroño. Y s direct competitor is Z, a more senior female judge with experience sitting in a panel of judges at La Rioja Provincial Court but with no proved managerial or leadership capabilities. Can the decision made by the Plenary of the Council for the Judiciary regarding the appointment of the Chairperson of the High Regional Court of La Rioja be successfully challenged before the competent court (the Administrative Division of the Supreme Court)?

27 TRAINING TO LEADERSHIP IN THE JUDICIARY VI. Resources Allocation

28 Topic four: Resources Allocation 1) Councils for the Judiciary, where they exist, or other independent authorities with responsibility for the administration of courts, the courts themselves and/or judges professional organisations should be consulted when the judicial systems budget is being prepared. Although the funding of courts is a part of the state budget presented to Parliament by the Ministry of Finance of Justice, such funding should not be subject to political fluctuations. 2) Decisions on the allocation of funds to courts must be taken with the strictest respect for the principle of judicial independence and the Judiciary should have an opportunity to express its views about the proposed budget to parliament, possibly through the Council for the Judiciary.

29 Topic four: Resources Allocation 3) The authorities responsible for the organisation of the judicial system must provide judges with the conditions and facilities to enable them to attain efficiency. 4) The allocation of cases within a court should follow objective, preestablished criteria in order to safeguard the right to an independent and impartial judge. It should not be influenced by the wishes of a party to the case or anyone otherwise interested in the outcome of the case. Allocation of cases within a court should be done on a basis that is compatible with Article 6 ECHR. There should be an established method of allocation of cases. The method of allocation should be made available to the public. This method of allocation may be governed by statute, regulation or judicial or administrative practice.

30 Topic four: Resources Allocation 5) The method for the allocation of cases should ensure the fair and time efficient administration of Justice, and the enhancing of public confidence. 6) The principles and criteria to be considered in the methodology for allocating cases should be objective and include: a) The right to a fair trial; b) The independence of the Judiciary; c) The legality of the procedure; d) The nature and complexity of the case; e) The competence, experience and specialism of the Judge; f) The availability and/or workload of the Judge; g) The impartiality of the Judge; h) The public perception of the independence and impartiality of the allocation.

31 Topic four: Resources Allocation 7) The method of allocation should be applied uniformly according to already mentioned criteria; differences in the application of the principles and criteria may be required due to the nature of the jurisdiction, the size of the Court, the level of the Court and the judicial district where the case is heard. The reasoning for any derogation from the established method of allocation should be recorded. The method for the allocation of cases should comply with the principles and criteria set out herein whether the Judge is sitting alone or as part of a panel. When Judges sit as a panel it is the combined composition of the panel that should comply with the principles and criteria

32 Topic four: Resources Allocation 8) Allocation should be the responsibility of the President, Senior Judge of the Court or a Court Board, but the practical arrangements for the allocation of cases can be delegated to either another judge or a civil servant authorised for the purpose of the allocation of cases. 9) The parties to a case are entitled to be informed about the allocation of the case at a time prior to the start of the hearing/consideration of the case that is reasonable taking into account the nature and complexity of the case, and the time by which the party has to exercise any right to challenge the allocation of the case to the specific Judge/Judges.

33 TRAINING TO LEADERSHIP IN THE JUDICIARY