209 • 134 (2017) 3-4 Original Scientific Article UDC: 347.964:061.1EU 341:347.9:005.962 THE ROLE OF THE COUNCILS FOR THE JUDICIARY FOR AN EFFECTIVE JUDICIAL SYSTEM* Primož Rataj, Master of Laws, Teaching Assistant, Faculty of Law, University of Ljubljana Grega Strban, Doctor of legal sciences, Full professor, Faculty of Law, University of Ljubljana 1. INTRODUCTION One of the conditions for the effective rule of law principle, a cornerstone of every modern democratic state, perhaps even the most important one, is an independent and impartial judiciary. Independence and impartiality need to be ensured for the judiciary to fulfil its role in relation to the parties of courts’ proceedings, society and other branches of power. To achieve these two quali- ties, appointment, responsibility, and dismissal of judges on the one hand, and determination of the scope of their rights and obligations on the other, need to * This contribution presents one of the results of the project JUST/2015/JACC/AG/ QUAL/8484 – “Supreme Courts as guarantee for effectiveness of judicial systems in Euro- pean Union”, ongoing from June 2016, coordinated by the Supreme Court of the Republic of Latvia, in cooperation with the Supreme Court of Lithuania, the Supreme Court of Spain, the Curia of Hungary, and the Faculty of Law (University of Antwerp) and the Faculty of Law (University of Ljubljana). The project has been produced with the financial support of the European Commission. The contents of this publication are the sole responsibility of the authors and can in no way be taken to reflect the views of the European Commission. The authors would like to thank all the Supreme Courts that have kindly responded to the questionnaire prepared under this project. Independence of the judicial authority is solemnly declared and protected in the Con- stitutions of the European Union Member States. In France for instance, the President of the Republic is the guarantor of the independence of the judicial authority and is assisted by the High Council of the Judiciary. See Article 64 of French Constitution of 4th October 1958. Another example is Italy, where the Judiciary is a branch that is autonomous and independent of all other powers. See Article 104 of Italian Constitution. 210 • 134 (2017) 3-4 Primož Rataj, Grega Strban be provided for in a manner, which is separated from the influence of (daily) politics. It is presumed that this also leads to a higher level of professional competence and quality of judiciary in general. One of the existing paths1 to achieve this goal, is the creation of a special body named the Council for the Judiciary,2 which exists in a number of the European Union (EU) Member Sta- tes (hereinafter the Member States). While their names in the Member States vary,3 the term Council will be used hereinafter to avoid confusion. It is usually a sui generis body with a constitutional foundation4 that places it beyond the reach of the ordinary legislator, with the intent to enable it to execute the assi- gned tasks in complete independence.5 The Councils differ significantly in their composition (of judges or also other members who are appointed or elected by various institutions) and their com- petences, roles and influence. This is due to the peculiarities of legal and po- litical sphere and level of development of a national system, its tradition, and other deeply rooted structural and cultural factors, which make every Council unique.6 Its role can be very different and can range from being an auxiliary one, to being a supervisory or even an intermediary one connecting the dif- ferent branches of power, namely the judicial, legislative, and executive power 1 In Europe, there are broadly five models of court administration in use. They are the Ministry of Justice model, the Judicial Council model, the courts service model, hybrid models and the socialist model. For more information about each of them see M. Bobek and D. Kosař, 2013, p. 7–9, and D. Kosař, 2016, p. 131–133. 2 This wording is already being used by the European Network of Councils for the Judiciary. 3 The High Council of Justice in Belgium, the National Judicial Council in Croatia and Hungary, the Council for administration of Courts in Estonia, the Danish Court Administration in Denmark, the High Council of the Judiciary in France and Italy, the National Council of the Judiciary in Poland, the Supreme Judicial Council in Bulgaria and Portugal, the Supreme Judicial Council of Civil and Criminal Justice in Greece, the Superior Council of Magistracy in Romania, the Judicial Council in Latvia, Lithuania, Scotland, Slovakia, and Slovenia, the General Council of the Judicial Power in Spain, Judges Council in Northern Ireland, England and Wales, and the Commission for the Administration of Justice in Malta. 4 The Council is not a constitutionally regulated body in Denmark, England and Wales, Latvia, the Netherlands, Northern Ireland, Scotland, and UK. In some EU Mem- ber States there are also two Councils, the other being for administrative courts. This is the case in Greece (Supreme Judicial Council of the Administrative Justice that is constitutionally regulated) and Italy (the Council of Administrative Justice that is not constitutionally regulated). These latter two Councils are not taken into account in this contribution. 5 See Report of the ENCJ Working group ‘Mission and vision – developing a strategy for the Council’, 2006, p. 14. 6 W. Voermans and P. Albers, 2003, p. 70. 211 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System (which can be reflected also in its composition).7 The Councils strive to achie- ve responsibility, quality and efficiency of the judiciary, while at the same time safeguarding the independence of judges and judiciary in its entirety, which can only be achieved if the Council itself enjoys independent status.8 In this respect, they significantly influence the functioning of the courts of all levels, including also the Supreme courts of the Member States. Due to the fact that Councils differ greatly among the Member States, the purpose of this contribu- tion is to outline the differences among them while simultaneously attempting to provide arguments to select their better or best practices in relation to the functioning of (Supreme) courts. 2. METHODOLOGY This research builds on the functional method of comparative law, which al- lows the discovery of similarities and differences among the Member States concerning the role of the Councils for an effective judicial system. An indivi- dual presentation of each Member State’s national legislation is avoided given the limited size of the contribution. Nevertheless, national legislation is singled out to illustrate the Member States’ practices. The starting point of this research was the preparation of a questionnaire con- cerning Supreme Courts and Councils for the Judiciary, which was then sent to national experts. While the respondents were answering the questionnaires, our activities included desk research with which it was attempted to establish the state of the art of the existing research regarding the research topic, speci- fically the role of the Councils for an effective judicial system. The responses of national respondents were received in November 2016 and subsequently analysed (e.g. empirical research). Where possible, the information provided by the respondents was cross-checked with national legislation and academic literature. In total, questionnaires from 20 Member States were received. Out of these 20 Member States, only in 129 EU Member States a special Council for 7 Slovenian Council, for instance, is a sui generis body that cannot be included in any of the three branches. It performs a participatory role in the process of appointment of judges and therefore connects the judicial and legislative power. See L. Šturm and others, 2010, p. 923; and M. Končina Peternel, 2015, p. 6. 8 Some Member States are taking important steps towards strengthening the indepen- dence of the judiciary by establishing the Council as an authoritative independent institu- tion. An example is the legislative proposal for Act on the Judicial Council in Slovenia, avail- able at: (last visited March 2017). 9 Estonia, Hungary, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Ro- mania, Slovakia, Slovenia, and Spain. 212 • 134 (2017) 3-4 Primož Rataj, Grega Strban the Judiciary exists.10 This is methodologically important as more information about them was received and used for the preparation of this contribution. Ba- sic information regarding the Councils for the Judiciary was also obtained via Constitutional provisions of other EU Member States and the European Net- work of Councils for the Judiciary.11 Even though it was not possible to obtain relevant detailed information from all the EU Member States, it is argued that a representative sample was compiled that allows relevant conclusions. The information gathered by the surveys and theoretical framework was after- ward compared to validate or falsify the theoretical framework or supplement it. Theoretical and empirical research were thus combined to increase the va- lidity of research findings, which is often referred to as “triangulation” as a research method in the social sciences. 3. THE COMPOSITION OF COUNCILS FOR THE JUDICIARY 3.1. An Overview When determining the position of the Council towards other State powers and the competences the Council has (or could have), the composition of the Council is fundamentally important. The compositions vary greatly between the Member States, which lead us to believe that the roles of the Councils are therefore different in every Member State. For instance, differences exist in the total number of members12 composing Councils. The number can be as low as 4 in the Netherlands13 or as high as 44 in Belgium with varying amounts in between in some other EU Member Sta- 10 The Council for the Judiciary does not exist in Austria, Cyprus, Czech Republic, Finland, Germany, Ireland, Luxembourg, and Sweden. 11 The other Member States with an existing Council are Belgium, Bulgaria, Croatia, Denmark, France, Greece, Malta, and the UK. In the UK, there are three Councils, one for Northern Ireland, one for Scotland, and one for England and Wales. 12 This observation should be placed a broader context. The number of members is influenced by a variety of factors, such as the size of a Member State and the nature of its pursued goals in the composition of the Council (e.g. professionalism; the principle of checks and balances between different branches of government; public participation for greater transparency and control; representation of citizens from different parts of the Member State; etc.). More important than the total number is the ratio between different groups of members (e.g. judge versus non-judge members) and the required majority for adoption of decisions. 13 According to Article 84 of the Dutch Judicial Organisation Act, the Council should consist of between 3 and 5 members. It is up to the Council to choose the actual number. Currently there are 4 members. See ENCJ Factsheet on the Netherlands. 213 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System tes. There are 10 members of the Council in Malta, 11 in Croatia,14 Denmark, Northern Ireland, Slovenia,15 and Estonia,16 15 in Greece, Latvia, and Hungary, 16 in Scotland, 17 in Portugal,17 18 in Slovakia,18 19 in Romania,19 21 in Spain, 22 in France, 23 in Lithuania, 25 in Bulgaria and Poland,20 27 in Italy and 29 in England and Wales. The Councils can be composed only of judges (as is the case in Hungary,21 Lithuania, Northern Ireland, and Scotland) or of judges and other members. Other members in Slovenia22 and Italy23 consist of law professors, attorneys or other lawyers elected by the Parliament. Other non-judge members can also be prosecutors, like in Romania, Bulgaria, and France. A unique approach exists in Latvia, where all non-judge members are members by their function.24 14 See Article 124 of the Constitution of the Republic of Croatia, Official Gazette of the Republic of Croatia No. 56/90 with amendments (Croatian Constitution). 15 See Article 131 of the Constitution of Republic of Slovenia, Official Gazette of the Republic of Slovenia No. 33/91-I with amendments (Slovenian Constitution). 16 See Article 40 of Estonian Courts Act from 19 June 2002. 17 See Article 218 of the Constitution of the Portuguese Republic of 2 April 1976 with amendments (Portuguese Constitution). 18 See Article 141a of the Constitution of the Slovak Republic of 3 September 1992 with amendments (Constitution of Slovakia). 19 See Article 133 of the Constitution of Romania, Official Gazette of Romania, Part I, No. 233 of 21 November 1991 with amendments (Romanian Constitution). 20 See Article 187 of the Constitution of the Republic of Poland of 2 April 1997 with amendments (Polish Constitution). 21 The President of the Curia is an ex officio member, while other 14 judge members are elected in a secret ballot by a majority vote at the meeting of delegated judges. Despite the fact that the National Judicial Council in Hungary is composed only of judges, there are several non-judges who are also entitled to attend the meetings of the Council. It means that meetings (including a closed meeting) of the Council can be attended by the President of the National Office for the Judiciary, the Minister of Justice, the Prosecutor General, the President of the Hungarian Bar Association, the President of the Hungarian Chamber of Notaries Public and any ad-hoc experts and the representatives of any civil society organisations and other interest groups invited. The aforementioned persons are given consultation rights at the meetings. 22 Composition of judges, attorneys, law professors or other lawyers should reduce or exclude the influence of politics and other powerful groups of society on the Council. It should also essentially limit the judicial branch of government from its strict self-gover- nance. See Article 131 of the Slovenian Constitution and M. Avbelj et al., 2011, p. 1296. 23 An interesting fact about Italy is that the President of Italy presides over the Council and is, along with the President of the Supreme Court of Cassation and the Prosecutor General of the Supreme Court of Cassation, member of the Council by the virtue of his office. See Article 87 of the Italian Constitution. The President presides over the proceed- ings of the Council also in Romania. See Article 133 of the Romanian Constitution. 24 For detailed information see section 3.3. 214 • 134 (2017) 3-4 Primož Rataj, Grega Strban It is argued that the composition of the Council, where all the members are judges, presents a challenge in that the outside perspectives might be overlo- oked in the functioning of the Council. Arguments in the direction of lack of democratic legitimacy, self-protection, and self-government of judges are often mentioned as a vice in this respect.25 On the other hand, the mixed composi- tion provides a better balance between the State powers (as other non-judge members are elected or appointed by a non-judicial body), therefore making it more constitutionally appropriate (with respect to checks and balances of State powers). This applies in the cases where other non-judge members are elected or appointed by the legislative or the executive power. In some Member States though, other non-judge members are not elected or appointed by these two powers. For instance, this might apply to prosecution members that could be elected by the prosecutors.26 Nevertheless, in both cases the result of mixed composition is that some members of the Council are not judges, therefore, li- miting the judges’ power in the Council. Perspective of other members, usually elected on an outstanding merit27 (among legal experts) may be an added value in the functioning of the Council, either by providing a different perspective or perhaps even ensuring better independence of members of the Councils ove- rall – especially in those Member States where the President of the Council is the President of the Supreme Court and other judge members may view them as an authoritative person.28 This influence seems present to a lesser extent on other non-judge members, such as professors, notaries, advocates, etc. The composition of the Council can also be entirely different than the one described above. In Estonia, other members of the Council also include mem- bers of the Parliament, a sworn advocate appointed by the Board of the Bar Association, the Chief Public Prosecutor (or a public prosecutor appointed by them) and the Chancellor of Justice (or a representative appointed by them), while the Minister of Justice is a participant with the right to speak. Mem- 25 Nevertheless, it has to be highlighted that without self-governance, in principle, there is no judicial independence. Self-governance in this sense can also be viewed as a virtue. However, that does not mean that only judges may be members of the Council. 26 In Bulgaria, for instance, where the prosecutors elect four members of the Council among its ranks. 27 Members ought to be selected on the basis of their competence, experience, under- standing of judicial life, capacity for discussion and culture of independence. See point 21 of Opinion No. 10 of CCJE on the Council for the Judiciary at the service of society. 28 So called “internal” independence (among other colleagues within the judiciary) can be compromised in this respect. For classification of different types of influences on the independence see M. Adams, 2010, p. 245–246. 215 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System bers of the Parliament are also members of the Council in Latvia, Poland29 and Croatia,30 while the President of Poland is entitled to appoint one individual to this function and one member seat is reserved for the Minister of Justice.31 Participation of politicians (MPs for example) can be viewed as positive due to the argument of democratic legitimacy of the Council. On the other hand, this participation might be a risk to the independence of the Council.32 Whe- never political influence would be present in the process of voting, this would (perhaps) be in contrast to the use of the strictly internal professional crite- ria.33 The political influence (in the Council) also does not seem to be required when the Council provides opinions or proposals and other State powers (that are politically influenced) actually adopt the more significant decisions (such as election of judges). If that is the case, strictly internal professional criteria are used in one institution (the Council) and the political influence is present in another institution (Parliament for instance) participating in the process of adopting decisions, therefore ensuring a system of checks and balances in this way. When determining the political influence on the functioning of the Council, ratio between judge and non-judge members is important as well as the majority required for the adoption of a decision (usually set by a statute or rules of procedure). Important differences can be observed in this respect between the Member States. For instance, in the Member States where the composition of the Council in- cludes judges and other members, judges represent the majority of its mem- bers. This is the case in Denmark, Estonia and Slovenia (6 out of 11), Croatia 29 Four members from deputies of lower house Sejm and 2 amongst the members of the upper house Senate. 30 Two out of eleven members of the Council are members of the Parliament, one of whom is from ranks of the opposition. 31 The presence of the Minister of Justice as a member of the Council unavoidably en- tails the risk of the executive power affecting debates and decisions made by the judicial order and may effectively constrain their sincerity. See ENCJ Project team, Councils for the Judiciary Report 2010-2011, p. 13. 32 Consultative Council of European judges (CCJE) warns that prospective members of the Council should not be active politicians, MPs, the executive or the administration. See Point 23 of Opinion No. 10 of CCJE on the Council for the Judiciary at the service of society. 33 Functioning of the Council shall allow no concession at all to the interplay of par- liamentary majorities and pressure from the executive power and be free from any subor- dination to political party consideration to safeguard the values and fundamental prin- ciples of justice. See point 19 of Opinion No. 10 of CCJE on the Council for the Judiciary at the service of society. 216 • 134 (2017) 3-4 Primož Rataj, Grega Strban (7 out of 11),34 Latvia (9 out of 15),35 Romania (10 out of 19),36 Spain (13 out of 21), Poland (17 out of 25) and England and Wales (28 out of 29). Number of judges and other members of the Council is the same in Belgium (22 out of 44),37 Malta (5 out of 10), the Netherlands (2 out of 4) and Slovakia (9 out of 18), while the judges do not have a majority in the composition of the Council in Bulgaria (8 out of 25), France (7 out of 22),38 Portugal (8 out of 17)39 and Italy (13 out of 27).40 To strengthen the independence of the judiciary, it seems appropriate for the Council to be composed of a majority of judges when the composition is mixed.41 34 Remaining members are two university professors of law and two members of Par- liament, one of whom is a member of the opposition. 35 Six judges are elected by the conference and one judge by the plenum of the Supreme Court. Chief Justice of the Supreme Court and President of the Constitutional Court are members ex officio. Non-judge ex officio members are the Minister of Justice, Chairper- son of the Judicial Committee of the Parliament, Prosecutor General, Chairman of the Council of Sworn Advocates, Chairman of the Council of Sworn Notaries and Chairman of the Council of Sworn Bailiffs. 36 Nine judges and the President of the High Court of Cassation and Justice. Other members are the Minister of Justice, the Public Prosecutor General, five prosecutors and two representatives of the civil society (appointed by the Senate) who are specialists in law and enjoy a good professional and moral reputation. See Article 133 of the Romanian Constitution. 37 The High Council of Justice is composed of a Dutch- and French-speaking board. Each college comprises an equal number of members and is constituted with equal repre- sentation, on the one hand of judges and officers of the public prosecutor’s office elected directly by their peers and, on the other hand, of other members appointed by the Senate by a two-thirds majority of the votes cast. See Article 151 of the Belgian Constitution. In total, there are 22 judges and 22 non-judges (8 lawyers, 6 university or board of higher education professors and 8 members of the civil society). 38 The section with jurisdiction over judges comprises of five judges and the Chief President of the Cour de Cassation. 39 Along with the President of the Supreme Court of Justice who is chair by virtue of his or her function, and seven judges, nine other members are elected by the National Assembly or appointed by the President of Portugal. See Article 218 of the Portuguese Constitution. 40 Two-thirds of the members should be elected by all the ordinary magistrates amongst themselves and one third should be elected by the Parliament from among uni- versity professors of law and lawyers with fifteen years of practice or more. The latter can also be appointed as Cassation councillors for their outstanding merit following a proposal by the Council. See Articles 104 and 106 of the Constitution of Italy, Official Ga- zette No. 298 of 27 December 1947 with amendments (Italian Constitution). Even though judges do not have a majority in the Italian Council, it is important that judges and pros- ecutors count as magistrates and these two groups together do have the constitutional two-thirds majority. 41 See also paragraphs one and four of the Resolution on Self-Governance for the Judi- ciary: Balancing Independence and Accountability of the General Assembly of the Euro- 217 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System The composition of judges in the Council generally consists of judge members elected from courts that differ either by region or hierarchy. This is the case in Hungary, Italy, Latvia, Lithuania,42 Poland,43 Portugal,44 Slovenia,45 and Spain.46 This is of utmost importance and a strength considering that representatives of all courts can participate in sessions of the Council and present the issues that arise in the functioning of their court (which can be totally different between the courts themselves). 3.2. Supreme Court Judges as Members of the Council for the Judiciary The preceding paragraphs clearly outline the fact that the Councils’ judge members are representing the courts of different tiers. It seems especially im- portant that judges of the highest courts in the Member States are members of the Council. The connection between the Council as guarantor for the inde- pendence of the judiciary and the highest court (generally Supreme Court) is a necessity to achieve a central involvement of the Supreme Court representa- tives in all matters related to the administration of the judiciary, appointment, promotion, transfer and dismissal of judges, disciplinary proceedings against judges, resolving various disputes and so forth.47 They can also convey to the pean Network of Councils for the Judiciary, met in Budapest in May 2008. 42 Three members must be from each of the Supreme Court, the Court of Appeals, the Supreme Administrative Court, one from each regional court, one from all regional administrative courts and one from all district courts located in the territory of each re- gional court. Members from the Supreme Court are selected by the judges of the Supreme Court, members of the Court of Appeals are elected by the judges of the Court of Appeals, etc. In addition, there are some ex officio members (Presidents of the Supreme Court, Court of Appeals and Supreme Administrative Court). 43 Fifteen judges must be chosen from amongst the judges of the Supreme Court, com- mon courts, administrative courts and military courts. See Article 187 of the Polish Con- stitution. 44 See Article 218 of the Portuguese Constitution. 45 A member spot is reserved for elected representative judge of each of the following hierarchical tiers of courts: the Supreme court, Higher courts, District courts and Local courts. Two additional judges are elected by all the judges from aforementioned courts. See Article 22 of Courts Act, Official Gazette of the Republic of Slovenia, No. 94/07 with subsequent changes and modifications. 46 Twelve of the twenty elected members by the Parliament must be judges from courts of different levels. See Sec. 122 of the Spanish Constitution. 47 See point 51 of Opinion No. 19 of CCJE on the Role of Court Presidents adopted in November 2016. 218 • 134 (2017) 3-4 Primož Rataj, Grega Strban Council the challenges arising in the functioning of the Supreme Court or co- urts in general, therefore influencing the Councils’ functioning.48 As a result, mandatory participation of members of the supreme judicial body or bodies in the Council can be observed in several Member States. By virtue of their position, the President of the Supreme Court (in some Member States also called Chief Justice) is a member of the Council in Bulgaria, England and Wales, Estonia,49 Greece, Hungary,50 Italy,51 Latvia, Lithuania, Malta, Northern Ireland, Poland, Portugal,52 Romania, Scotland, and Spain, and President of the Supreme Administrative Court is a member of the Council in Lithuania and Poland. The President of the Supreme Court is not merely a member, but the chair of the Council in England and Wales, Estonia,53 France, Greece, Latvia, Portugal, Scotland, and Spain.54 Interestingly, in Lithuania, the President of the Supre- me Court used to be the chair of the Council by virtue of their office, but the Constitutional Court declared such a provision as unconstitutional.55 A diffe- rent provision exists in Croatia, where the presidents of the courts may not be 48 This was stressed by the Italian respondent. The Latvian respondent clearly outlined that practical experience, competences and involvement in numerous working groups are reasons why Supreme Court judges as members provide strong input in the decision- making process of the Council. Due to the Supreme Court having detailed background information on the functioning of the judiciary in Latvia and other countries, it can con- tribute to the analytical work and international cooperation of the Council. 49 See Article 40 of Estonian Courts Act. 50 In Hungary it is called the President of Curia. 51 President of the Supreme Court of Cassation. 52 See Article 218 of Portuguese Constitution. 53 See Article 40 of Estonian Courts Act. The Council sessions are convened by the Chief Justice of the Supreme Court or by the Minister of Justice. The person who con- venes a session also determines its agenda. 54 See Sec. 122 para. 3 of the Spanish Constitution. 55 The Constitutional Court of Lithuania declared on 9 May 2006 (See Judgment in the Case No. 13/04-21/04-43/04) that the Lithuanian Constitution forbids legal regula- tion that a certain judge could become the head of the Council ex officio. The Court found such a rule incompatible with the principle of self-governance of the judiciary as one of the state powers entrenched in the Constitution, as well as with the constitutional prin- ciple of a state under the rule of law. The constitutional imperatives (decentralisation of the self-governing judicial power, independence of the judge, the equal status of all judges who administer justice, non-subordination of the judge to any other judge or president of any other court while administering justice, etc. imply a democratic procedure for the formation of the Council. The procedure for the election must be organised and executed so that there would be no preconditions created to doubt the democracy of this election, inter alia, the fact whether during an election of the Council some judges were not treated unequally to others (see points 32 and 33 of the judgment). Interestingly, despite this ruling, current president of the Lithuanian Council is nevertheless the President of the Supreme Court, not by ex officio, but through the election within the Council. 219 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System elected to the Council.56 Similarly, Poland banned court presidents from mem- bership of the Council in 2007 and the Slovak Parliament adopted the same incompatibility rule in 2011.57 Such a provision formally prevents the accu- mulation of power in the hands of a handful of persons.58 A valid reason for it lies in the fact that judges who should be independent from political control may nevertheless become dependent on other forces, such as court presidents (or senior judges) in a judicial hierarchy, with just as much potential to distort individual decision-making as more conventional political influence.59 If the same person is a court president and also a member of the Council (who plays an important role in the career of a judge), the independence of other indivi- dual judges, who are members of the Council, is more likely to be threatened. As to the other justices of Supreme Court being members of the Council in the respective Member States, several different paths are possible.60 The Member States can be bound to select a certain number of members of the Council among Supreme Court judges or they retain some flexibility and have a certain extent of freedom in choosing judges as members of the Council. The former applies to Estonia,61 Italy,62 Latvia,63 Lithuania, Poland,64 Romania,65 and Slo- venia.66 The latter applies to Slovakia67 and Spain. Although there is no legal provision that representatives from the Supreme Court must be members of 56 See Article 124 of the Croatian Constitution. 57 See D. Kosař, 2016, p. 401. 58 See also M. Bobek and D. Kosař, 2013, p. 12. They warn that the Council model in Europe shields the judiciary from external influence, but it pays little attention to the possible improper pressures on individual judges exercised by senior judges and court presidents. 59 T. Ginsburg, N. Garoupa, 2009, p. 110. 60 An example is Hungary where the President of the Curia is the only judge from the highest court. 61 Two out of eleven members of the Council are Supreme Court justices, one of the two being the Chief Justice of the Supreme Court. 62 Four judges of the Supreme Court are members of the Council, one of them being the Chairperson of the Supreme Court by virtue of his or her office. 63 Along with the President of the Supreme Court, at least one Supreme Court judge is elected among the plenum of the Supreme Court. 64 Together with the President of the Supreme Court, two other Supreme Court jus- tices are members of the Council. 65 Two representatives of the Supreme Court are members of the Council. 66 One of the member judges is elected exclusively by the Supreme Court judges among themselves. 67 Respondent of the Slovakia stressed that obligatory membership of the Supreme Court representatives should be enacted, therefore proposing an improvement to the ex- isting system. 220 • 134 (2017) 3-4 Primož Rataj, Grega Strban the Council, in practice, in the two latter Member States, there are normally several members. If this was any different, it would cause a complicated situa- tion for the Supreme Court.68 3.3. Selection Process of the Members of the Council for the Judiciary One of the more important constitutional questions concerning Councils and their independence regards the influence of the parliament or the government (especially the Ministry of Justice) or any other public body on its composition and functioning.69 Influence concerning the composition of Councils can be seen through the selection process of members of the Council. It can be ob- served that in this respect differences exist between the Member States. While some members of the Council are members by virtue of their function (as explained above), others can become members in a variety of ways. Judges are elected by the representatives of courts (e.g. by their peers) in Bel- gium, Estonia,70 Hungary,71 Italy,72 Latvia,73 Lithuania,74 Poland,75 Portugal,76 68 In Lithuania, for instance, the Constitutional Court held that judges from the high- est courts (Supreme, Supreme Administrative and Court of Appeals) must make more than half of the members of the Council. Such a requirement clearly demonstrates that the representation of judges of the highest court(s) in the Council is a necessity. 69 It might be relevant in this respect that the CCJE commends a system that entrusts appointments of non-judge members to non-political authorities (so that they are not ap- pointed by the executive branch of government). See point 32 of Opinion No. 10 of CCJE on the Council for the Judiciary at the service of society. 70 They are selected by all the judges (en banc) of the largest judicial representative body. See Articles 38 and 40 of Estonian Courts Act. 71 The judge members are elected in a secret ballot by a majority vote at the meeting of delegated judges. 72 Two thirds of the members of the Council are elected by all the ordinary judges belonging to the various categories. See Article 104 of the Italian Constitution. 73 Six out of nine judges are elected by the conference of judges where they represent first and second court instances and judges of the land registers (also from regions). 74 All candidates are being nominated and elected during the general meeting of judg- es by the representatives of relevant courts. They are elected for four years and after the term expires, a new general meeting of judges is convened to elect new members of the Council. 75 The Supreme Court judges are appointed by the general assembly of judges of the Supreme Court from among the judges of that Court – see Article 11 of the Act on Na- tional Council of the Judiciary of 12 May 2011. Other judge members are appointed by the general assembly of judges of the Supreme Administrative Court together with the representatives of assemblies of courts of different tiers – see Articles 12 and 13 of the Act on National Council of the Judiciary. 76 The members are elected by their peers in accordance with the principle of propor- tional representation by a secret ballot. 221 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System Romania, Slovakia, and Slovenia. An exception to this can be observed in Spa- in where judges (along with other members) are elected by the Congress of Deputies and the Senate.77 The authority to elect other members lies with the Parliament in Belgium,78 Croatia, Estonia, France, Italy, Poland, Portugal, Romania,79 Slovenia, and Slo- vakia.80 There are also some Member States where the competence to appoint a member of the Council lies with the executive branch, namely with the Presi- dent (e.g. in France,81 Poland,82 Portugal,83 and Slovakia), the King (in Spain)84 or the Government (in Slovakia).85 In Estonia, a special office or association has the right to appoint a member.86 A unique approach exists in Latvia, whe- re all non-judge members are members by virtue of their function. Ex officio member from the executive power is the Minister of Justice and from the le- gislative power the Chair of the Legal Affairs Committee of the Parliament. Other non-judge members by virtue of their function are the Prosecutor Ge- neral and the Chairs of the Council of Sworn Advocates, the Council of Sworn Notaries and of the Council of Sworn Bailiffs. 77 Selection requires three fifths of every chamber, so the candidates should not be politically influenced. This has been subject of public debate in Spain for many years though. 78 Members other than judges and public prosecution officers are appointed by the Senate by a two-thirds majority of the votes cast. 79 Two representatives of the civil society, specialists in law, who enjoy a good profes- sional and moral reputation are elected by the Senate. Senate also validates the members who were elected in the general meetings of magistrates. 80 For an overview of all Member States see p. 10 of Member States’ responses to the questionnaire on Judicial independence in 2015. 81 President of the Republic, National Assembly and the Senate each appoint two prominent citizens who are not members of either the Parliament or the Judiciary. See Article 65 of the French Constitution. 82 One member is appointed by the President of the Republic of Poland. 83 Seven out of seventeen members are elected by the National Assembly and two are appointed by the President of Portugal. 84 Twenty out of twenty-one members of the Council are appointed by the King for a five-year period. Four are nominated by the Congress and four by the Senate, elected in both cases by three-fifths of their members amongst lawyers and other jurists of acknowl- edged competence with more than fifteen years of professional practice. See Sec. 122 of the Spanish Constitution. 85 Three members are appointed by the President, three by the Government and three by the National Council, while the judges elect nine members of the Council. Each can- didate is required to be of impeccable character with a university qualification in law and at least 15 years of professional practice. 86 Representatives as members can be appointed also by the Bar association, the Pros- ecutor’s office and the Chancellor of Justice. 222 • 134 (2017) 3-4 Primož Rataj, Grega Strban 4. COMPETENCES OF THE COUNCILS FOR THE JUDICIARY 4.1. Cooperation in the Process of Election or Appointment of Judges Fundamentally, the Councils are bodies designed to take appointment and promotion of judges away from the political process,87 while attempting to en- sure some level of their accountability. They lie somewhere in between the diametrical extremes of letting judges appoint their own successors and the alternative of complete political control of judges’ appointments, discipline and promotion. The first model of judicial self-selection arguably errs too far on the side of independence, while pure political control may make judges too accountable in the sense that they will consider the preferences of their political principals in the course of deciding specific cases. The Council, as an intermediate body between politically influenced branches of government and judges, therefore provides a potential to enhance both accountability and independence.88 This fundamental role of the Council can be best seen through their com- petences in a specific Member State. While the competences and powers of all members of the Council are reportedly equal89 (for instance) in Hungary, Latvia, Lithuania, Poland, and Romania, the competences of the Council itself differ significantly among the Member States. The most widely recognised competence of the Councils is their involvement in the process of election or appointment of judges.90 This can be achieved 87 The underlying rationale for the creation of Councils was the need to insulate the judiciary from the executive power. See Autheman V., Elena S., 2004, p. 2. 88 N. Garoupa, T. Ginsburg, 2008, p. 7. 89 This does not refer to duties or operational powers of the Chair, such as conven- ing sessions, determining agenda, etc. This also does not refer to specific functions that an individual member has as a member of the Council, for instance being a member of a disciplinary or a standing committee. Such internal commissions in the Council are present in many Member States. Equal status of judicial and non-judicial members of the Council is also recommended in the ENCJ Report 2015-2016, Standards VI: Non-judicial Members in Judicial Governance, p. 12. 90 According to Article 9 of the Universal Charter of the Judge, adopted on 17 No- vember 1999, the selection of judges should be carried out by an independent body that includes substantial judicial representation. See also Venice Commission Opinion No. 403/2006 of 22nd June 2007, p. 5. 223 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System either by assessing and proposing candidates (Belgium,91 Croatia,92 Poland,93 Romania,94 Slovenia,95 and Slovakia96), providing opinion on the candidates (France,97 Lithuania,98 Malta,99 and Estonia100) or even consenting in the asses- 91 See Article 151 of the Belgian Constitution. 92 The Council autonomously decides, in conformity with the Constitution and the law, on the appointment, promotion, transfer, dismissal and disciplinary accountability of judges and presiding judges, except in the case of the Chief Justice of the Supreme Court. These decisions are made in an impartial manner on the basis of the criteria set forth by law. See Article 124 of the Croatian Constitution. 93 For competences see Article 3 of Act on National Council of the Judiciary of 12 May 2011 with amendments. 94 See Article 134 of the Romanian Constitution. 95 For competences see Article 28 of Slovenian Courts Act, Official Gazette of the Re- public of Slovenia No. 94/07 with amendments. 96 In relation to the administration of the Supreme Court, the Council is authorized to submit to the President of Slovakia the proposal for appointment and dismissal of the President and the Vice-President of the Supreme Court. See Sec. 27a of Act on the Judicial Council of the Slovakia No. 185/2002 Coll. of 11 April 2002. 97 The Council makes recommendations for the appointment of judges to the Cour de Cassation, the Chief presidents of Courts of Appeal and the Presidents of the Tribunaux de grande instance. Other judges are appointed with the consultation of the Council. See Article 65 of the French Constitution. 98 In Lithuania, the opinion of the Council is not an opinion in its common sense. Without a consent (positive opinion) of the Council, judge (including a Supreme Court judge and even its President) cannot be appointed, promoted, transferred or dismissed from office. This opinion is given to the President of the Republic. The same applies for the appointment and removal from office of Chairpersons and Deputy Chairpersons of courts or their divisions. The Council’s consent is not necessary only if a judge from an ordinary court is appointed as a judge of the Constitutional Court or as a Minister of the Government or is dismissed from office by the Parliament in an impeachment procedure. The latter is applicable for dismissal from office of judge of the Supreme Court and the Court of Appeals if they grossly violate the Constitution or breach judge’s oath, or when they are found to have committed a crime. The Council’s approval is not necessary in the impeachment procedure, because the Constitutional Court plays a significant role in this procedure and, therefore, acts as a counterbalance to political powers. The Council also forms the Examination Commission of candidates to judicial office and approves the regulations concerning its procedure. 99 Advice on appointment is delivered upon the request of the Prime Minister. See ENCJ Factsheet on Malta. 100 The Council and all the judges of the Supreme Court provide an opinion to the Chief Justice of the Supreme Court on the candidates for a vacant position of a justice of the Supreme Court. A justice of the Supreme Court can then be appointed to office by the Parliament on the proposal by the Chief Justice. See Article 55 of the Estonian Courts Act. 224 • 134 (2017) 3-4 Primož Rataj, Grega Strban sment of applications for a position of a judge (Hungary).101 There are no com- petences in the selection and appointment of judges in England and Wales,102 Northern Ireland,103 and Scotland.104 These three UK Councils also lack any competence regarding the assessment, promotion, transfer and dismissal of judges or court presidents. Interestingly, the Spanish Council also has an influence on the composition of the Constitutional Court. It nominates two out of the twelve Constituti- onal Court Justices, which are appointed by the King.105 In a broader sense, the influence of the Council extends also to the sphere of the prosecution in 101 The Council has the right to exercise consent in the assessment of applications for a judge’s position where the President of the National Office for the Judiciary or the President of the Curia wishes to award a position to the applicant in the second or third position in the rankings. It also determines the principles to be applied when assessing applications and then annually publishes its opinion on the relevant practice regarding the assessment of the applications for a judge’s position and court leader’s positions. 102 The Council does have a specific statutory responsibility for appointment of three members of the Judicial Appointments Commission under the Constitutional Reform Act 2005. Apart from this role, the Judges’ Council is not concerned in the selection, ap- pointment or promotion of judges or in the assessment of judicial activities. Its primary function is to be a body broadly representative of the judiciary as a whole which will inform and advise the Lord Chief Justice on matters occasionally requested. See ENCJ Factsheet on England and Wales. 103 The Council also does not have any competences regarding the promotion of judg- es. Its competences are to represent the judiciary in Northern Ireland on a wide range of issues and to advise the Lord Chief Justice as Head of the Judiciary. In essence, the Coun- cil serves the judiciary. See ENCJ Factsheet on Northern Ireland. 104 The objectives of the Council are to preserve the independence of the judiciary, to protect and promote the due administration of justice, to promote the professional and pastoral interests of the judiciary, to provide guidance to the judiciary on questions of ethics and other matters of relevance for the administration of justice, to facilitate com- munication between the various branches of the judiciary and, where appropriate, collect and collate their views, to provide information and advice to the Lord President so that they may be aware of the views of the judiciary and to deal with all the matters of concern to the judiciary. See ENCJ Factsheet on Scotland. 105 See Sec. 159 of the Spanish Constitution. 225 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System Belgium,106 France, 107 Italy,108 Latvia,109 Romania,110 and Spain.111 This corre- lates to the Councils’ composition where members are also prosecutors (in Belgium, France, Italy, and Romania).112 The cooperation of the Council in the process of the appointment of judges strengthens the principle of division of powers, as judges are, as a last step, elected or appointed by the legislative (through the national Parliaments)113 or the executive authority (by the President).114 If the competence to elect a judge was in the absolute domain of the Council, this would necessarily mean that its composition would need to be different, likely one where judges would not hold the majority, so that the element of democratic legitimacy115 would be ensured and that critique of self-appointment of judges would be avoided.116 Since the path towards the election of a judge should present a fundamental 106 Main competences of the Council in Belgium include admission to the profession of a prosecutor, presentation of candidates to be nominated as a prosecutor or as chief prosecutor. It also draws up the general profile of chief prosecutors. See ENCJ Factsheet on Belgium. 107 The formation of the Council with jurisdiction over public prosecutors has the task to issue a simple “favourable” or “unfavourable” opinion on the proposed appointments by the Minister of Justice who is not bound by this opinion. See ENCJ Factsheet on France. 108 According to the Italian Constitution, the Council is responsible for recruitment, assignment, transfer, promotion and disciplinary measures concerning magistrates (e.g. judges and public prosecutors). See Article 105 of the Italian Constitution. 109 The Council issues a recommendation to the Parliament on appointment to the post of the Prosecutor General every 5 years. 110 The Council ensures the observance of the competence criteria in the magistrate’s career and offers consultative advice on the proposal of the Minister of Justice for the ap- pointment into and release from the leading positions within the Prosecutor’s Office by the High Court of Cassation and Justice. See ENCJ Factsheet on Romania. 111 The State’s Public Prosecutor is appointed by the King on the Government’s pro- posal after consultation with the Council. See Sec. 124 of the Spanish Constitution. 112 See p. 10 of the Member States’ responses to the questionnaire on Judicial indepen- dence in 2015. 113 An example of this option exists in Slovenia. See Article 130 of the Slovenian Con- stitution. 114 Judges are appointed by the President of the Republic on the proposal of the Coun- cil in Lithuania (see Article 112 of the Lithuanian Constitution), Poland (see Article 179 of the Polish Constitution), Romania (see Article134 of the Romanian Constitution) and Slovakia (see Article 145 of the Slovak Constitution). 115 The argument of democratic legitimacy that results in representative judiciary can lead to negative outcomes. Such an outcome historically occurred in Belgium at the end of the 20th century where the end result was highly politicised judiciary with judges who were not necessarily appointed on the basis of their expertise. See M. Adams, 2010, p. 240. 116 I. Kaučič, 2002, p. 1255. This is the case even when the election of judges would be done by the majority of judges by using strictly internal professional criteria. 226 • 134 (2017) 3-4 Primož Rataj, Grega Strban guarantee for the independence of the judiciary, it is therefore logical that con- stant tensions and search for a proper balance117 with the political (legislative and executive) powers might exist.118 4.2. Cooperation in the Process of Appointing Court Presidents Not only that the Council participates in the process of appointment of judges, but it can also have the competence to elect court presidents. This is the case in Estonia,119 Italy, Romania,120 and Slovenia.121 The Council proposes nominees for the position of a court president in Belgium,122 Romania,123 Slovakia,124 117 The tensions between the judiciary and the other two powers of the State should not necessarily be seen as a threat to the judiciary or its independence, but as a sign that the judiciary is fulfilling its constitutional duty of holding other powers to account on behalf of the society as a whole. See point 9 of Opinion No. 18 of CCJE on the position of the judiciary and its relation with the other powers of state in a modern democracy. 118 I. Kaučič, 2002, p. 1255. An example of this is observed in Slovenia where a judge is elected by the Parliament and its vote is required also for the appointment as a Supreme Court justice. The necessity of such a vote for appointment as a Supreme Court justice is now being questioned, since it is not the constitutional requirement, but has been es- tablished by the legislator. See. Article 21 of Judicial Service Act, Official Gazette of the Republic of Slovenia No. 94/07 with amendments. 119 This applies to Chairpersons of circuit, administrative and county courts – see Ar- ticles 12, 20 and 24 of Estonian Court Act. 120 This applies to court presidents of courts of first and second instance. 121 This does not apply to the President of the Supreme Court. See Article 28 of Slove- nian Courts Act. 122 It nominates the candidates to the King for the positions of the first president of the Supreme Court, the first presidents of the appeal courts and the presidents of the lower courts. 123 The assignment of the President of the High Court of Cassation and Justice is done by the Romanian President at the proposal of the Council (judges section). The assign- ment of President and Vice-president positions in Courts of Appeal, second jurisdiction and specialized jurisdiction and first instance court is made only through open competi- tion or organized exam, held anytime necessary by the Superior Council of Magistrates through the National Institute of Magistrates. See points 1.2 and 4.1 of Romanian re- sponse to the questionnaire for the preparation of the CCJE Opinion No. 19 on the role of court presidents. 124 See Article 141a of the Slovak Constitution. 227 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System and Spain,125 while in Hungary,126 Latvia,127 Lithuania,128 the Netherlands,129 and Poland130 it expresses its opinion on their appointment and dismissal. Appointment of presidents of courts is more of an internal matter of the judi- ciary (for instance in Italy131 and Portugal)132 and it seems plausible that other State powers are not necessarily involved in this process.133 However, to en- sure the proper checks and balances, their involvement might be required if 125 The President of the Supreme Court is appointed by the King on the proposal of the Council. See Sec. 123 of the Spanish Constitution. 126 A preliminary opinion can be expressed regarding nominees for the President of the National Office for Judiciary and the President of the Curia on the basis of a personal interview. The Council can also initiate the deprival of office of the President of the Na- tional Office for the Judiciary. 127 The Council hears the candidates and provides its opinion on them for the posi- tion of the judge of the Constitutional Court to the Parliament and for the position of the Chief Justice of the Supreme Court to its plenary session. The Council also coordinates the appointment and pre-term removal of the Chair of a district or regional court (with the Minister of Justice who decides on it). The Council also submits proposal to the Par- liament for the dismissal of the Chief Justice of the Supreme Court from their office due to their will or an appointment in another office. 128 In Lithuania, an opinion of the Council is not an opinion in its common sense. Without a consent (positive opinion) of the Council a judge, as a general rule, cannot be appointed, promoted, transferred or dismissed from office. This opinion is therefore mandatory. 129 The Council gives a recommendation for the appointment of the presidents of the courts of first instance and courts of appeal to the Minister of Justice. The presidents of the courts are appointed by Royal Decree, upon recommendation of the Minister of Jus- tice. See point 1.2 of Answers from the Netherlands to the questionnaire for the prepara- tion of the CCJE Opinion No. 19 on the role of court presidents. 130 Opinion can be expressed regarding appointment and dismissal of presidents and deputy presidents of common and military courts. See Article 3 of Act on the National Council of the Judiciary. 131 The Council decides on the appointment of all judges and court presidents. 132 In Portugal, the Council decides on appointment of judges and court presidents of all instances. This does not apply to the president of the Supreme Court who is chosen by the Supreme Court. 133 This does not apply for Latvia where the selection procedure for the presidents of courts is very much in control of the executive power. A selection committee consists of Ministry of Justice and Court Administration (which is under the Ministry of Justice) officials. The committee choses the best candidate and submits a proposal to the Minister of Justice. If the Minister agrees to nominate the judge as a president of the court, the rel- evant documents are sent to the Council for approval. If it is not received, new selection procedure occurs. See point 1.4 of Latvian response to the questionnaire for the prepara- tion of the CCJE Opinion No. 19 on the role of court presidents. 228 • 134 (2017) 3-4 Primož Rataj, Grega Strban the concerned president is the president of the Supreme Court.134 The election of Supreme Court presidents is usually different from the election of presi- dents of courts of first and second instances. As the head of the judicial branch, they might be elected by the legislative power on the proposal of the executive power, e.g. by the Head of State (in Croatia and Hungary).135 In Slovenia, for instance, the president of the Supreme Court is elected by the Parliament on the proposal of the Minister of Justice and after obtaining opinions of the Su- preme Court and the Council.136 In Estonia, the Chief Justice of the Supreme Court is appointed by the Parliament on the proposal of the President of the Republic.137 A different situation exists in Latvia where the Parliament con- firms the President of the Supreme Court on the proposal of the plenary sessi- on of the Supreme Court, while the Council hears the candidates for the office and provides an opinion to the plenary session of the Supreme Court. The proposal similarly comes from the Supreme Court to the Head of State that adopts the final decision in Poland138 or to the Minister of Justice who makes a formal appointment in Denmark.139 4.3. Assessment, Promotion, Transfer of Judges and the Standards of Professional Ethics The Councils have many competences affecting the career of a judge. Along with their role in the process of judges’ appointment, they can, in some Mem- ber States, assess the judges’ work (as in Italy, Portugal, Romania,140 Slovenia,141 134 There are also doubts whether such a solution (e.g. that Parliament elects the Presi- dent of the Supreme Court) within the system of checks and balances is adequate. It is possible to find a different solution, where the Council proposes a nominee and they are approved by the President of the Republic. Recently, on several occasions this has been the subject of a debate in Slovenia. 135 The Parliament decides with the consultative opinion of the Council. See response of Hungary to the questionnaire on Judicial independence 2015. 136 See Articles 28 and 62a of Slovenian Judicial Service Act. 137 See Article 27 of Estonian Courts Act. 138 See Poland’s response to the questionnaire on Judicial independence in 2015. 139 See point 4.1 of Denmark’s response to the questionnaire for the preparation of the CCJE Opinion No. 19 on the role of court presidents. 140 For Italy and Romania, see responses to the questionnaire on Judicial indepen- dence in 2015. 141 The Council itself does not evaluate the work of judges in Slovenia, however, it can request from the personnel council to prepare an evaluation of the judge. The Council cannot change the evaluation of the personnel council and it (mostly) serves as grounds for determination of a promotion. See Articles 31, 33, 34, 34.a, and 52 of Judicial Service Act and Article 28 of Courts Act. 229 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System and Spain) or approve the description of assessment of the judges’ activities (in Lithuania)142 and even adopt criteria (in Slovenia) or procedure (in Latvia)143 for the assessment of quality of work of judges. Connected to these is the competence to advise (in Lithuania) or decide on the promotion (in Croatia, Estonia, France, Italy, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, and Spain)144 and the transfer of jud- ges (in Croatia,145 Estonia,146 France,147 Hungary, Italy, Latvia,148 Lithuania,149 Portugal,150 Romania,151 Slovakia, Slovenia,152 and Spain).153 The Council in Latvia154 may also determine the court where a judge will serve following the appointment by the competent body or determine which judge will fill a va- cant post or substitute for a judge that is temporarily absent. 142 In Lithuania, the Council approves the description of assessment of the judges’ activities. This document sets criteria and procedure for the assessment. The Council also appoints four out of seven members of Permanent Assessment Commission, elects its Chair and can hear judges’ complaints regarding the results of assessment. 143 The Council can determine the content and procedure for assessing judges’ profes- sional knowledge and sample the documents necessary for assessment. 144 See responses of the Member States to the questionnaire on Judicial independence in 2015. 145 Transfer of a judge is possible due to organisational reasons. 146 For Estonia see Figure 50 of the 2016 EU Justice Scoreboard. 147 This is possible due to disciplinary reasons. 148 This can be done for transfers of judges within the same court instance on the ba- sis of recommendation of the Minister of Justice and a positive statement of the Judicial Qualification Committee. For transfers of judges to a court of a lower or a higher tier, the Council submits its proposal to the Parliament. 149 This is possible due to organisational reasons for a temporary period when there is an urgent need to ensure the proper functioning of the court, when judge is ill or on maternity leave or when there is an increased workload. Permanent transfer is possible when the Council identifies the essential difference of workload in courts and there is no judge who wishes to be transferred. 150 The transfer is possible due to organisational or disciplinary reasons. 151 It is possible for disciplinary reasons. 152 This is possible due to disciplinary or organisational reasons if the court where the judge performs judicial service closes, if the volume of work at the court (where the judge performs judicial service) decreases significantly for an extended period, if the organisa- tion of the courts is changed or if it is so required to eliminate backlogs in the court’s work. See Slovenian response to the questionnaire on Judicial independence in 2015. 153 The transfer is possible due to disciplinary reasons. 154 This is true for all the court levels. The Council may instruct a judge of the same or lower tier or a judge Emeritus to fill a vacant post or substitute a temporary absent judge for up to two years. 230 • 134 (2017) 3-4 Primož Rataj, Grega Strban In some Member States, the Councils also have powers concerning profes- sional ethics of judges. For instance, the Scottish155 and Polish Councils can adopt the principles of professional ethics of judges and these are approved by the Council in Slovakia. In Spain, the Council can reportedly adopt standards of professional ethics, and in Slovenia even a code of professional ethics of judges. The Council has adopted a code of conduct also in Malta, Belgium (in 2012)156 and in Hungary (in 2014).157 Such a code is not adopted by the Co- uncil, but it is approved by it in Romania.158 The Council in France formulates and publishes a repository of ethical obligations for magistrates.159 Moreover, the Councils in Hungary, Poland and Romania ensure observance of judicial ethics, while in Slovenia160 and Lithuania161 the Council can appoint members of a special commission for ethics and integrity. The Councils in Bul- garia, the Netherlands162 and Portugal have a role to promote judicial ethics. In England and Wales, the Council hears reports of a special committee on any points of principle that may need to be dealt with in an ethics guide.163 It fol- lows from the 2016 EU Justice Scoreboard that adoption of ethical standards is also a competence of the Council in Estonia.164 There is no specific role of the Council in the field of judicial ethics in Greece, Italy165 and Northern Ireland. 155 The Statement of Principles of Judicial Ethics for the Scottish Judiciary is kept un- der review by the Council and its Judicial Conduct Committee. The last revisions were implemented in May 2013. See ENCJ Factsheet on Scotland. 156 It is called Guide for the Magistrates, Principles, Values and Qualities. This guide was inspired by the guidelines issued by the ENCJ. The Council promotes judicial ethics through its legal competences in training, advices and proposals and through the exter- nal control on the judiciary. See ENCJ Factsheet on Belgium. 157 See ENCJ Factsheet on Hungary. 158 The Council approves the Code of judicial ethics and deontology. See ENCJ Fact- sheet on Romania. 159 See ENCJ Factsheet on France. 160 In Slovenia, one member of the Council for the Judiciary is also a member of the Commission for ethics and integrity. 161 Members of the Judicial Ethics and Discipline Commission are elected and ap- pointed by a secret ballot within the Council, which also adopts regulations concern- ing the commission, hears its reports and may withdraw commission’s members on the grounds laid down by the law. 162 Strengthening awareness of integrity is a key objective of the Council. A special working group of the judiciary and policy advisors of the Council is currently working on integrity issues, such as a handbook, amendment of the Code of conduct for the judiciary and opening the debate on accessory functions. See ENCJ Factsheet on the Netherlands. 163 See ENCJ Factsheet on England and Wales. 164 See Figure 50 of the 2016 EU Justice Scoreboard. 165 See ENCJ Factsheet on Italy. 231 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System 4.4. Investigative and Disciplinary Competences In some Member States, the Councils have certain investigative and discipli- nary competences. The Council in Portugal has the competence to order inve- stigations, inquiries and inspection to court’s services and it adopts an annual inspection plan. In Poland, the Council can visit the court or its organizational unit, make inspections at the court or the inspections of the career of a judge or a trainee judge, whose individual matter is to be addressed by the Council.166 In Hungary, the Council can perform checks related to the property decla- rations of judges. The Lithuanian Council has a right to receive information required for performing its functions from state institutions and can investi- gate administrative activities of all courts of Lithuania, including the Supreme Court. The Hungarian Council has a right of access to documents related to the operation of the National Office for the Judiciary and it can request data and information from its President. The Council can require a report of the national courts administration on its activities in Estonia167 and Lithuania168 or on exercising the court’s administrative tasks from court presidents in Slo- venia. In Slovenia, it can also give the court presidents binding instructions about the implementation of proposals, given by the Ministry of Justice after the inspection, and order a court president to carry out an official oversight of the work of an individual judge.169 The Councils may not only investigate administrative matters, but may also be involved in disciplinary measures against judges. Disciplinary power over judges by the Council is established in Bulgaria, Croatia,170 Estonia, France,171 Italy,172 Malta, Portugal,173 Romania,174 and Spain. The Council is the body that 166 Such inspections shall not interfere with areas in which judges and trainee judges are independent. See Article 5 of Polish Act on the National Council of the Judiciary. 167 The Council deliberates in advance the review to be presented to the Parliament by the Chief Justice of the Supreme Court concerning courts administration, administra- tion of justice and the uniform application of law. 168 The Council can also adopt the regulations on administration in courts and resolve other issues of administration. 169 See Article 79.b of Slovenian Judicial Service Act. 170 See Article 123 of the Croatian Constitution. The Council conducts disciplinary proceedings and decides on the disciplinary liability of judges. It can also decide on the dismissal of judges. See ENCJ Factsheet on Croatia. 171 It is the disciplinary tribunal for judges that is presided over by the Chief President of the Cour de cassation. See Article 65 of the French Constitution. 172 The Minister of Justice has the power to originate disciplinary action. See Articles 105 and 107 of the Italian Constitution. 173 For Bulgaria, Estonia and Portugal see Figure 50 of the 2016 EU Justice Scoreboard. See also the ENCJ Factsheet on Romania. 174 See Article 134 of the Romanian Constitution. 232 • 134 (2017) 3-4 Primož Rataj, Grega Strban appoints members of the disciplinary bodies in Lithuania,175 Poland176 and Slo- vakia177 The Council is the body that proposes a disciplinary action against a judge to the competent body in Lithuania.178 The Councils in Belgium, En- gland and Wales, Greece, Hungary, Latvia,179 the Netherlands, Northern Ire- land, Slovenia, and Scotland do not have disciplinary competences. It is valua- ble to mention that it is necessary to ensure an independent appeal in the cases where Councils take part in disciplinary matters.180 Disciplinary proceedings may lead to a judge being dismissed from his or her office. The Council plays a role in this process, where it is its competence to decide on the dismissal of a judge from office (in Bulgaria, Croatia181 and Italy182), propose that to the competent body (to the Parliament in Slovenia183 or the President in Slovakia)184 or to give consent for dismissal (in Lithuania). However, in Slovenia, for instance, the Parliament may only dismiss a judge if he or she violates the Constitution or seriously violates the law.185 These cases are extremely rare. It is more common that the Staff Council establishes a judge 175 The Council participates in the formation of the Judicial Ethics and Discipline Commission, where it appoints four out of its seven members. See ENCJ Factsheet on Lithuania. 176 The Council appoints the disciplinary commissioner for matters regarding judges and trainee judges. 177 The Council elects or recalls members of the disciplinary panel and chairpersons of disciplinary senates. 178 It is not only the Council that has a right to propose disciplinary action in Lithu- ania. This can also be done by the President of the Court where the judge works and the President of every higher court. Moreover, in principle every citizen can ask for a disci- plinary action against a judge. 179 In Latvia, it is the competence of the Judicial Disciplinary Committee and Disci- plinary Court. See ENCJ Factsheet on Latvia. 180 See for instance the case of Mr Ramos Nunes de Carvalho e Sá v. Portugal, ECLI:C E:ECHR:2016:0621JUD005539113, decided on 21 June 2016 where the European Court of Human Rights decided that domestic authorities had failed to secure the guarantees of a public hearing, thus hindering the applicant’s ability to defend his case and call a witness and failing to ensure the safeguards of a fair hearing. 181 If the Council so decides due to the perpetration of grave infringement of disci- pline. See Article 123 of the Croatian Constitution. 182 Judges may not be dismissed or suspended from office or assigned to other courts or functions unless by a decision of the Council, taken either for the reasons and with the guarantees of defence established by the provisions concerning the organisation of Judiciary or with the consent of the judges themselves. See Article 107 of the Italian Con- stitution. 183 See Article 28 of Slovenian Courts Act. 184 See Article 147 of the Slovak Constitution. 185 Article 132 of the Slovenian Constitution. 233 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System as incompetent to perform judicial service and his or her service ceases when such an assessment is confirmed by the Council.186 In Estonia, the Council merely provides an opinion regarding the dismissal of a judge. Interestingly, in Hungary, the Council plays a role also in cases of resignation of judges.187 4.5. Competences in Training of Judges or Their Qualification Additional competence of the Councils in some Member States relates to the quality of judicial service, which can be improved through organizing the tra- ining of judges. This is not very common as many of the Councils (e.g. in Bulgaria,188 England and Wales, Estonia, Greece, Italy,189 Latvia, Lithuania, Malta, Northern Ireland, Portugal, Scotland, Slovakia,190 and Slovenia) do not have a direct191 role in judicial educational or training activities. The opposite can be said about Spain and some other Member States. In Spain, there is a judicial training service within the Council. This department orga- nizes seminars with the participation of judges of the Supreme Court and of lower courts to share knowledge, in particular when new legislation is passed. 186 Article 33 of Slovenian Judicial Service Act. 187 It can approve a notice period shorter than three months and relieve the judge from their work related duties for the notice period in full or in part. In the case of a judge retir- ing or reaching the upper age limit, it makes a decision concerning the relief of the judge of his or her duties during the notice period (in line with Hungarian Act on the Legal Status and Remuneration of Judges). 188 The responsibility for the organization of the judicial training goes to the National Institute of Justice. It is headed by a management board that includes five representatives of the Council. The Council also coordinates the curriculums of the National Institute of Justice. 189 The training was organized until 2013, when a special body (e.g. School of the ju- diciary) started to operate. At this stage, the Council can merely give guidelines and they are being considered when the School of the judiciary draws up its annual program of training courses. 190 Nevertheless, the Council determines the subject matter to be included in the judg- es’ education in agreement with the Minister of Justice. Moreover, it elects five members of the Board of the Academy and proposes members of the pedagogical staff of the Acad- emy, as well as the members of the examination committees for the professional judicial exam and the prosecutor exam. See ENCJ Factsheet on Slovakia. 191 The Council may have an indirect role though. For instance, one member of the Slovenian Council is a member of a special Council that provides professional assis- tance for the implementation of tasks of Slovenian Centre for Judicial Training (Center za izobraževanje v pravosodju), which enables them to influence the content of training. Moreover, the Commission for Ethics and Integrity (a special commission of the Council for the Judiciary in Slovenia) has, as an umbrella body, the duty of care (in collaboration with Centre for Judicial Training) for the training of judges in the field of ethics. See Ar- ticles 74a and 28d of Slovenian Courts Act. 234 • 134 (2017) 3-4 Primož Rataj, Grega Strban In Denmark, the Council (e.g. Danish Court Administration) is responsible for the training of all court staff, including the judges and deputy judges. Each year, an extensive training catalogue is published, and a large number of tra- ining activities are organised.192 In the Netherlands, the Council coordinates the training activities of the lower courts only and is a part owner of the body in charge of developing and organizing the judicial training.193 Moreover, the competence of the Council for training of judges and prosecution officers exist in Belgium.194 The Council has the role to participate in the training and per- sonal development of judges and other judicial personnel also in Croatia.195 In Romania, the Council coordinates the activity of the National Institute of Magistracy and approves annually the Programme of Professional training for judges and prosecutors.196 An educational or a training role in a broader sense exists in Poland, Lithuania and Hungary. In Poland, the Council can express its opinion on the program of training as part of the judges’ training period, the scope and manner of conducting the judges’ training period entry contests and judges’ exams, it can express opinion on annual schedules of training and professional education of judges, trainee judges and court officers, and it names or expresses opini- ons on the appointment of members of an educational or training body.197 In Lithuania, the Council adopts rules on judges’ training organization, approves training program, annual training plans and requirements for lecturers. The Council in Lithuania also has a say on the training budget and has a training committee, which consists of certain number of the Council members. Mo- reover, the Council in Lithuania can adopt regulations on organising the tra- ining of judges, the training programmes, the annual plans for improving the qualifications and qualification requirements to the lecturers. In Hungary, the Council can form an opinion on the rules pertaining to the training system of judges and to the performance of the training obligation.198 192 See ENCJ Factsheet on Denmark. 193 Judicial training is developed and organized by the SSR (National Judicial Training Centre). The Council is a part owner of SSR (2/3 Council and 1/3 Prosecutor General’s Office) and therefore responsible for the organization and supervision of SSR. See ENCJ Factsheet on the Netherlands. 194 See Article 151 of the Belgian Constitution. 195 See Article 123 of the Croatian Constitution. 196 See ENCJ Factsheet on Romania. 197 The Council can name three members of the Board and express opinion on the appointment of Director of the National School of Judiciary and Public Prosecution. See Article 3 of the Polish Act on the National Council of the Judiciary. 198 The training of judges and judicial employees is organised by the President of the National Office for the Judiciary. 235 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System Competences of the Council concerning the training of judges can be seen as an opportunity towards an independent and professionally competent judici- ary. This is supported by the fact that it has already been established that the body responsible for supervising the quality of the training programme should be independent from the executive and legislative power and with at least half of its members being judges.199 4.6. Protection of Independence of Judges To safeguard the independence of the judiciary and the judges individually, the Council is one of the bodies that could have the task of their protection. This can be achieved in various ways. For instance, if a judge is adjudicating in a significant legal case that is also covered thoroughly by the media, they can find themselves under pressure from the general public, political parties or other actors. It is a fact that individual judges, who have been under scrutiny, often hesitate to defend themselves (particularly in the case of a pending trial) to preserve their independence and to demonstrate that they remain imparti- al.200 In such a case, the Council could protect an individual judge by issuing public statement(s) in their support or inform the public with truthful facts that are often lopsided in the media and put additional stress on a judge and their independence when adjudicating a case. If the judiciaries do not provide information and answers, others members of the society (who could be less informed) might do it for them instead.201 The protective role of the Council may as well be very different. For instance, in Croatia, a judge may not be remanded in custody or detention without the prior consent of the Council for an initiated criminal prosecution for a cri- minal offence perpetrated in the performance of his or her judicial duty.202 In Latvia, there is a system of administrative immunities for judges that is under scrutiny.203 In Slovenia, the judges can appeal to the Council when they consi- der their independence is being under attack from within the judiciary.204 199 See paragraph 3 of point 2 of the European Charter on the Statute for judges. 200 See point 53 of Opinion No. 18 of CCJE on the position of the judiciary and its rela- tion with other powers of state in a modern democracy. 201 J. Thomas, 2008, p. 8. 202 See Article 122 of the Croatian Constitution. 203 See points 41 to 45 of Interim Compliance Report on Latvia, adopted by GRECO in 2016, available at: (last visited March 2017). 204 See Article 12 of Slovenian Courts Act. 236 • 134 (2017) 3-4 Primož Rataj, Grega Strban 4.7. The Functioning of the Courts The Councils indisputably play a significant role in the functioning of the co- urts by having numerous competences related to the judges’ careers. But they also play a role in the functioning of the courts in a broader sense. The Council in Italy can establish criteria that each court – in defining its own organizatio- nal plan – must follow in the assignment of the judges to the chambers and the distribution of cases. The Council can also (for instance) influence the number of judges in courts by giving advice (to the President of the Republic in Lithuania) or proposal (to the Parliament in Latvia)205 or even by determining or changing the number of judges in courts in Estonia. Furthermore, it can approve model structures of courts, a model list of positions and job descriptions in Lithuania and approve the regulations for forming the chambers of judges and the distribution of ca- ses to judges in Lithuania, Portugal,206 and Spain for instance. The Council can also have various other competences related to the functio- ning of the courts. For instance, in Estonia, it can grant approval for the deter- mination of the territorial jurisdiction of courts, approve the determination of the number of lay judges, the amount of remuneration paid to them in coun- ty courts207 and consent to the increase of the maximum age of a judge.208 In Poland, the Council can consider applications for the retirement of judges or their return to judicial post from retirement. 4.8. Competences Regarding the Financing of the Courts Majority of the Councils do not have any competences with respect to the financing of the courts. This is the case in Belgium, Croatia, France, Italy, Por- 205 The Council submits proposal to the Parliament on the total number of judges in district and regional regular and administrative courts and on the number of the Su- preme Court judges. The determination of the number of judges in district and regional courts is done on the basis of recommendation of the Minister of Justice, and for the de- termination of the total number of judges of the Supreme Court the Council decides on the basis of recommendation of the Chief Justice of the Supreme Court. 206 The Council can suspend or reduce case allocation of judges tasked with other functions of recognised interest for courts’ jurisdiction or involved in other situations where the adoption of such measures is justified. On an annual basis and with the sup- port of the Ministry of Justice, it can also establish the maximum number of cases to be allocated to each judge, as well as the maximum term for the respective procedural acts, whose time limit is not fixed by the law. 207 See Article 14 of Estonian Courts Act. 208 Ibidem. See Article 99. 237 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System tugal, Romania, and Spain. The Councils in some other Member States do, however, have some competences related to the financing of courts. This seems reasonable considering that the Council is an intermediary body between the judicial and the executive or legislative power of a Member State (that adopt the State budget). It follows from this that the Council participates in the pro- cess of determination of the financing of courts for a fiscal year in one way or another. For instance, it can form an opinion on the proposed budget of the courts (in Latvia,209 the Netherlands,210 Poland, Slovenia,211 and Slovakia) and on the report regarding the implementation of the budget (in Hungary). In Lithuania, it can consider and approve proposal on draft investment pro- grammes for courts and proposal for budgets of courts and submit them to the Government. In Estonia, it can provide a preliminary opinion on the principle of the formation and amendment of annual budgets of courts.212 Involvement of the Council in the preparation of the budget allocated to courts exists also in Denmark.213 This coordinative role in preparing requests for court funding is desirable and considered as a strength if an independent body – like the Council – represents all the courts in a Member State.214 The ENCJ Report 2015–2016215 similarly recommends that to ensure and strengthen the separa- tion of powers, the Council (or a body on which the judiciary is represented) should be closely involved and fully informed at all stages in the budgetary process and should have an opportunity to express its views about the propo- sed budget to the Parliament. 209 This advice of the Council to the Supreme Court on formal proposal on the budget allocated to courts is mandatory. See Latvian response to the questionnaire on Judicial independence in 2015. 210 The Council provides a mandatory opinion to the formal proposal on the annual budget for the whole judiciary to the Ministry of Security and Justice which proposes it to Parliament. 211 See Article 28 of Slovenian Courts Act. 212 The Minister of Justice approves the budget of courts of the first instance or courts of appeal within two months after the state budget is passed as an Act, considering the opinion formulated by the Council. See Article 43 of Estonian Courts Act. 213 The Danish Court Administration plays an active role in the negotiations of the budget to be allocated to the judiciary. This happens through the channels of the Ministry of Justice. 214 See also point 11 of Opinion No. 2 of CCJE on the funding and management of courts with reference to the efficiency of the judiciary and to Article 6 of the European Convention on Human Rights. 215 See ENCJ Report 2015-2016, Funding of the Judiciary, p. 3. 238 • 134 (2017) 3-4 Primož Rataj, Grega Strban The Councils in the Netherlands216 and Denmark217 also allocate the respective budgets to the courts. 4.9. Competences Concerning Legislative Acts Regarding the Judiciary The Councils, as the institutional bodies ensuring the independence of the ju- diciaries and the judges, often have a say in numerous areas that affect the courts or judges. One of such areas is the legislation that concerns the judici- ary. To this end the Council can form opinions on draft legislations concer- ning the judiciary (in Belgium,218 Bulgaria, Croatia,219 Denmark,220 France,221 Italy, Latvia,222 Lithuania,223 the Netherlands,224 Poland, Portugal, Romania, 216 The Council is fully accountable to the Minister with regard to the way this budget is spent. The budget covers all costs and activities of the Council, the courts under its re- sponsibility and also the salaries of judges. The Council allocates the budget to the courts and supervises their financial administration. The courts are accountable to the Council pertaining to the way their budgets are spent. See ENCJ Factsheet on the Netherlands and the response of the Netherlands to the questionnaire on Judicial independence in 2015. 217 The total budget for the judiciary is part of the annual Finance Act. The Ministry of Justice delegates the budget (appropriations) to the Danish Court Administration, which in turn allocates the budget to the courts. Ultimately, the economic responsibility for the judiciary lies with the board of governors of the Danish Court Administration. The board has the possibility to address the Parliament directly with a budget proposal should they find that the appropriations are insufficient. See ENCJ Factsheet on Denmark. 218 The Council delivers recommendations, opinions and advice on proposed legisla- tion regarding the general functioning and organization of the judiciary. See ENCJ Fact- sheet on Belgium. 219 This is done at the request of the Ministry of Justice. See ENCJ Factsheet on Croatia. 220 The Danish Court Administration regularly takes part in legislative preparatory work and hearings. It also provides advice on legal matters and policy proposals that af- fect (directly or indirectly) the judiciary. See ENCJ Factsheet on Denmark. 221 Requests for an opinion are formulated by the President of the Republic. See ENCJ Factsheet on France. 222 The Council has the possibility to express an opinion to the legislator on issues which affect the functioning of the courts. 223 In Lithuania, the Ministry of Justice, the Government or the Parliament as a gen- eral rule asks the opinion of the Council on every piece of draft legislation related to the work of courts (e.g. proposed amendments to procedural code) or status of the judiciary (e.g. proposed amendments to Law on Courts). 224 One of the Council’s main duties is providing advice to the Government and to the Parliament on bills and policy proposals that affect the judiciary. This only involves proposals that have a direct impact on the organisation of the judiciary, as well as on the introduction or amendment of (new) legal proceedings. The Council’s advice is ratified following consultation with the courts. The Council can provide legislative advice both on request and on a non-solicited basis. 239 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System Scotland,225 Slovakia,226 Slovenia, and Spain) and present proposals in this regard (e.g. in Hungary,227 Poland, and Portugal).228 The Councils in Greece, Northern Ireland and England and Wales do not comment on the merits of the proposed government policy. Moreover, the Council may make an application to the Constitutional Tribu- nal regarding the constitutional conformity of normative acts to the extent that they relate to the independence of courts and judges in Latvia,229 Poland230 and Slovakia.231 Consultation with the Council on all draft legislation, likely to have an impact on the judiciary before its deliberation in Parliament, is an opportunity that professional and representative voice during the legislative procedure is heard from amongst the judges themselves. It is important to note that the Council may not only react when the current position of the functioning of the judiciary is concerned, but may express its opinion on the regulation of the judiciary in the future (de lege ferenda).232 225 The Lord President has a statutory responsibility for representing the views of the Scottish Judiciary to the Scottish Parliament and the Ministers and may consult and be advised in that regard by the Council. 226 The Council can express an opinion on proposals of generally binding legal regu- lations setting out the organization of the judiciary, proceedings before courts and the status of judges. See ENCJ Factsheet on Slovakia. 227 The Council can make a proposal to the President of the National Office for the Ju- diciary on initiating legislation affecting the courts or form an opinion on the regulations and recommendations issued by the President of the National Office for the Judiciary. 228 The Portuguese Council can issue an opinion on legal acts related to the judiciary and, in general, study and proposes to the Ministry of Justice the legislative measures to improve the efficiency of the judiciary. See ENCJ Factsheet on Portugal. 229 This has actually happened recently in Latvia where the Council instituted pro- ceedings before the Constitutional Court concerning judges’ and public prosecutors’ salaries. More information is available at: (last visited March 2017). 230 See Article 186 of the Polish Constitution. 231 See Article 141a of the Slovak Constitution. 232 Slovenian Council can adopt a principled position on the situation in the judiciary (see Article 28a of Slovenian Courts Act). Such a document can, for instance, serve also as grounds for an initiation of a legislative change. 240 • 134 (2017) 3-4 Primož Rataj, Grega Strban As a concluding note of this section, it needs to be stressed that the Councils in some Member States have certain additional specific competences to the ones mentioned above.233 5. INFLUENCE ON THE ADMINISTRATION OF THE COUNCIL FOR THE JUDICIARY AND THE SUPREME COURT 5.1. Influence of the Council for the Judiciary on the Administration of the Supreme Court One of the aims of our research was to determine how the Supreme Court and the Council influence each other in their mutual relations. A specific area of our focus was the influence of the Council on the administration of the Supreme Court and vice versa (for this see the following subsection). Throu- gh our research and the information provided by the respondents it has been established that generally, the Council influences the administration of the Supreme Court in the sense that it has the competence to participate in the process of appointment or release of Supreme Court justices, their promotion and transfer, evaluation of judges, and disciplinary proceedings against them. These possibilities of its participation have already been discussed above. What might be interesting in this respect, is that the competences of the Councils in relation to Supreme Courts may be much narrower than in the relation to other courts. For instance, the competence of the Council in Poland in disci- plinary proceedings concerning judges of the Supreme Court is considerably limited.234 233 For instance, Lithuanian Council (and this is assumed for other Councils as well) can cooperate with other national, international and foreign institutions and organisa- tions concerning the issues of court autonomy, administration and other issues relevant to the activities of the courts. The Council can (for instance) also convene meetings of the judges, like General Meetings of Judges in Lithuania or convocation of Judges’ confer- ence in Latvia (while setting issues to be included in the agenda). The Council can award honorary titles in Hungary or propose them in Latvia. In Latvia, it has the competence to approve procedure for using judges’ robe and insignia and it approves a sample of judge’s identification card. The Councils also have various other specific competences and there are too many to mention all of them. Additionally, the members of the Council can also discuss other issues at the initiative of the competent person or a body or decide on other issues or powers prescribed by law. 234 The Council is not entitled to request that disciplinary proceedings be initiated against a Supreme Court judge. It does also not participate in the election of the Supreme Court disciplinary commissioner and their deputy (who are elected by the Board of the Supreme Court for a four-year term). 241 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System Apart from these participative roles, the Councils reportedly do not direc- tly affect the administration of the Supreme Court in Latvia, Portugal and Romania,235 for instance. In Slovenia, the Council is responsible for the mat- ters concerning judges and the Supreme Court236 is responsible for the ad- ministration (operational procedures and management) in courts. Therefore, their functions are generally separated.237 A slightly different situation exists in Hungary where the Council does not have the task of the central administra- tion of courts, but it does supervise the competent body for it.238 The reason for such a state is of a historical nature. In many EU Member States, including those where the Councils originated (e.g. France, Italy, Spain, and Portugal), the improvement of administrative management was not the rationale for their creation. Therefore, in these countries, there have been no significant demands for transfer of these powers to the Council.239 5.2. Involvement of the Supreme Courts in Administering the Work of the Councils for the Judiciary In our research, the reverse influence was also examined, e.g. the influence or involvement of the Supreme Courts in administering the work of the Co- uncils. It was established that, as a rule, the Supreme Court is not directly in- volved, apart from having Supreme Court justices as members or chairs, in 235 This is because the Council has been primarily formed to deal with the court ad- ministration of first and second instance courts (but not the Supreme Court as this is an independent constitutional institution). 236 The concrete administrative decisions are in the power of the President of the Su- preme Court and its Secretary General. For other courts, this is the responsibility of court presidents which may delegate some matters to court directors. 237 Nevertheless, the Slovenian Council does have some competences related to the ad- ministration of the Supreme Court. It gives consent to the policy of detection and control of risks of corruption and exposure of the courts to them, that is adopted by the President of the Supreme Court who monitors its implementation and may propose amendments (Articles 28 and 60č of Courts Act); it hears annual reports and analyses the effectiveness and efficiency of the work of judges (Articles 60a and 60b of Courts Act); it discusses the annual programs of the courts and their realization with the President of the Supreme Court, other court presidents and the Minister of Justice (Article 71a of Courts Act); and it participates in the judicial budgetary committee dedicated to the coordination of pro- posed financial plans of the courts and the human resources plans of the courts (Article 75 of Courts Act). 238 The competent body is the President of the National Office for the Judiciary. 239 V. Autheman, S. Elena, 2004, p. 3. 242 • 134 (2017) 3-4 Primož Rataj, Grega Strban administering the work of the Council. This applies to Estonia,240 Hungary,241 Italy,242 Lithuania,243 Poland, Romania, Slovakia,244 Spain, and Slovenia. Intere- stingly, in the latter, the budget for the functioning of the Council is given to the Supreme Court, which may in this way exercise substantial influence on the functioning of the Slovenian Council.245 However, a new legislative Act on the Judicial Council of Slovenia was proposed and the Council should become an independent budgetary user in the near future. An exception to the rule that the Supreme Court is not directly involved in administering the work of the Council (that applies to other Member States) exists in Latvia. The work of their Council is ensured by the administration of the Supreme Court (in the beginning of 2017, a Secretariat was established, which is a new division at the Supreme Court).246 6. COUNCIL FOR THE JUDICIARY AS PROVIDER OF THE INFORMATION TO THE SOCIETY In light of the required transparency of State bodies and the courts of law, one might wonder how more transparency could be achieved regarding the functi- oning of the Council.247 Transparency is above all a precondition for the confi- dence of the citizens in the functioning of the justice system and the guarantee 240 The Ministry of Justice officials are responsible for administrating the work of the Council as the Council does not have its own officials. See Article 40 of Estonian Courts Act. 241 Administrative and operational support regarding the filing system, the organiza- tion of meetings and the general operation of the Council is provided by the permanent office of the Council. The Curia is not involved. 242 Equipment and administrative staff of the Council is provided by the Ministry of Justice. 243 The responsible body for providing services to the Council is the National Courts’ Administration. 244 Currently it is not, but the Supreme Court closely cooperates with the Council. 245 The current situation in Slovenia is that the Supreme Court provides full infor- mation technology support to the Council (e.g. e-register, computer support) which (in addition to the financial aspect) further binds the Council and its work to the Supreme Court. This is far from trivial and the Supreme Court can have a very strong impact on the Council’s work in this manner. 246 More information is available on the website of the Latvian Supreme Court: (last visited on March 2017). 247 Transparency and reasoning of the decision of the Council is stressed in the fourth chapter of the Recommendation CM/Rec (2010)12 and explanatory memorandum. 243 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System from the danger of political influence. In some Member States, the Councils may publish summaries of their meetings (in Hungary and Slovakia), their audio recordings or press releases (in Slovakia). This may include the Council’s decisions (in Slovenia)248 or opinions on the selection of judges or candidates for judges (in Slovakia). In Lithuania and Latvia, one can find agenda of the Council meetings (which are usually open), minutes of them and decisions of the Council on a general website of the courts (with supporting material). A press release is also issued and (sometimes) a press conference organized as a follow-up to the adoption of major decisions or events of the Council. To provide greater transparency, the Council meetings may be open to all judges as well (in Hungary). The Council does not always have a role in providing information to the so- ciety. This can be left to the Ministry of Justice, the respective courts of law or their special press units (like in Estonia).249 Nevertheless, the Council might also have a press or a communication office. This is the case in Spain250 and the Netherlands.251 Another way of providing information to the society by the Council is through publication of a review of the previous court activities. This is done for the previous year in Lithuania252 and Hungary, while in Poland it is done for each quarter of the year.253 Furthermore, the Council in Hungary also holds press conferences about its duties and operations.254 248 Slovenian Council publishes decisions for each term of office, decisions connected to ethics and integrity, and to the provision concerning incompatibility with the function of a judge. It also issues explanations regarding the promotion of judges and warnings, opinions and explanations of the Council in other matters. 249 The Council has, however, adopted Recommendations for the Courts’ Media Rela- tions. 250 Their members are active on the social networks and they provide wide informa- tion through their website, available at: (last visited March 2017). 251 It is responsible for liaising with the media and for setting national policies on behalf of the Judiciary. The department is also responsible for press communications and for providing information to the public. The Judiciary maintains a series of press guide- lines, which indicate what journalists, district courts and courts of appeal can expect and how the courts should provide information to the media before, during and after court cases. The media, for their part, are expected to comply with internal rules regarding court sessions. 252 It is published before 31 March on the website of the National Courts Administra- tion. 253 National Council of the Judiciary Quarterly, published since 2008, where current problems of the judiciary are also discussed. 254 Press conference can be organised by the President of the Council, vice-president or the delegated spokesperson and its members have the right to give information to the society about its operation. 244 • 134 (2017) 3-4 Primož Rataj, Grega Strban The Council can also provide information to the society concerning the judi- ciary by issuing opinions on draft legislation concerning the judiciary and jud- ges or by issuing statements on current events and developments concerning judiciary (e.g. in Poland). In Lithuania and Portugal,255 it can also publish sta- tements and comments on topical issues, while in Romania it publishes info- -letters and guides concerning judiciary. A substantial part of communication with the public can also be based on the inquiries from press or individuals as is the case in Slovenia.256 The Council in Latvia can even approve guidelines on communication of the court system, therefore determining the manner in which the information is communicated to the media. Interestingly, in Italy, the Council follows a spe- cific communication strategy with press releases, interviews given to the press and other media, by allowing the presence of journalists in public sessions of the general assembly, through visits to schools and universities or through me- etings organized with other institutions with a strong communicative impact. It is important to stress that when providing information to the society, a pro- per balance between the secrecy of judicial inquiries on the one hand and fre- edom of expression (regarding the right to inform and to be informed) on the other hand needs to be maintained. Therefore, in some cases, information cannot be provided due to judicial secrecy. 7. FUNCTIONING OF THE COUNCILS FOR THE JUDICIARY Some paragraphs ought to be devoted also to the functioning of the Coun- cil. The starting point of functioning (in a broader sense) is the term of the office that members are elected or appointed for. It can be observed that it is different among the Member States. It lasts one year in Greece, three years in Northern Ireland, England and Wales, four years in Belgium, Croatia,257 Denmark, France, Italy,258 Latvia,259 Lithuania, Malta and Poland,260 and five 255 The Council, whenever necessary, exercises its right to reply to the media whenever they transmit untruthful news or need additional information or clarification. 256 The statutory basis for these inquiries are Public Information Access Act (Official Gazette of the Republic of Slovenia No. 51/06 with amendments) and Media Act (Official Gazette of the Republic of Slovenia Nno. 110/06 with amendments). 257 See Article 124 of the Croatian Constitution. 258 See Article 104 of the Italian Constitution. 259 See Article 89 of Law on Judicial Power. 260 See Article 187 of the Polish Constitution. 245 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System years in Slovakia261 and Spain.262 The term of office in Hungary, the Netherlan- ds and Romania263 is six years. In Slovenia, the term is also six years, but it is unequally distributed, so that half of the Council members is replaced every three years.264 Such a provision ensures the preservation of the continuity of the Council’s activities.265 The other point regarding terms of the office is whether a member can be elec- ted for several terms, perhaps even consecutively. It is important to note that the same person cannot hold the office of being a member of the Council for two consecutive terms in Belgium, Bulgaria, France, Hungary, Italy,266 Roma- nia, Slovenia,267 and Spain268 or for more than two terms in Croatia,269 Latvia, Poland, and Slovakia.270 A different approach exists in Bulgaria271 and Portugal272 where the term of office is different for different groups of members. The same applies also for the possibility of its renewal in Portugal.273 Once the members of the Council are elected, there is a need for the deter- mination of its chair or president. In several member States, for instance in Estonia, Latvia, Portugal, and Spain, the chair is the President of the Supreme Court. More often though, it is selected internally among its members. This is 261 See Article 141a of the Slovak Constitution. 262 See Sec. 122 of the Spanish Constitution. 263 See Article 133 of the Romanian Constitution. 264 See Article 18 of the Slovenian Courts Act. 265 According to point 35 of Opinion No. 10 on the Council for the Judiciary at the service of society, not all Members of the Council should be replaced at the same time. 266 They cannot be immediately re-elected. See Article 104 of the Italian Constitution. 267 See Article 18 of Slovenian Courts Act. 268 This does not apply for the Council’s President in Spain. 269 See Article 124 of the Croatian Constitution. 270 The same person may be elected or appointed as the Chair or as a member of the Council for a maximum of two consecutive terms. See Article 141a of the Slovak Consti- tution. 271 Elected members have a term of office of five years and the ex officio members (e.g. the President of the Supreme Court of Cassation, the President of the Supreme Adminis- trative Court and the Prosecutor General) have a term of seven years. See ENCJ Factsheet on Bulgaria. 272 Term of office for members appointed by the President of the Republic is five years, for those appointed by the Parliament four years and for the elected judicial members three years. See ENCJ Factsheet on Portugal. 273 Ibidem. There are limits only for judicial members who cannot be members for more than two terms of office. 246 • 134 (2017) 3-4 Primož Rataj, Grega Strban done in Croatia,274 Lithuania,275 Poland,276 Romania,277 Slovenia,278 and Slova- kia.279 An interesting solution exists in Belgium280 and Hungary,281 where the presidential position is filled by Council’s members on rotational basis. An important element of the functioning of the Council concerns the type of function that the members are elected or appointed for. They can be elected or appointed for performing an honorary function (in England and Wales, Fran- ce, Greece, Hungary, Latvia, Lithuania, Malta, Northern Ireland, Poland,282 Slovenia,283 and Slovakia),284 part- (in Croatia285 and Scotland)286 or even full- -time function (in Bulgaria, Italy, the Netherlands, and Romania).287 In Portu- gal, it is up to the respective member to decide, but it possible to have a full-ti- 274 See Article 124 of the Croatian Constitution. 275 The President of the Council is elected for two years. 276 A chair and two deputy chairpersons are chosen from amongst the members of the Council. See Article 187 of the Polish Constitution. 277 The President of the Council is elected among the judge members for one years’ term of office which cannot be renewed. See Article 133 of the Romanian Constitution. 278 See Article 131 of the Slovenian Constitution. 279 The Chair is elected and recalled among and by the members of the Council. 280 The Presidency is exercised in turn by each member of the Bureau for one year. See ENCJ Factsheet on Belgium. 281 The members rotate every six months in the following manner: the first to fill the position is the judge with the longest judicial service, followed by the other members in descending order of the length of their judicial service. 282 The members of the Council usually meet once a month for a whole week, so the judges remain full-time judges. 283 The members gather in meetings every 2-3 weeks. 284 See ENCJ Factsheets on France, Hungary, Latvia, Lithuania, Poland, Slovenia, and Slovakia. 285 E.g. in Croatia. Judges that are members of the Council have their work obligations as judges reduced by half. The president of the Council has their working obligations re- duced by three quarters. The members gather in meetings one or two weeks apart. 286 The Council meets twice each year and on-going work is realized via a committee structure with members performing these duties on a part-time basis. All the members are serving judges. See ENCJ Factsheet on Scotland. 287 See ENCJ Factsheet on Italy, the Netherlands and Romania. 247 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System me function.288 In other Member States, only some members have a full-time position. This applies to Belgium,289 Denmark,290 Slovakia,291 and Spain.292 This element has an enormous influence on the Council’s functioning. If the function of a member is honorary, the members of the Council (may) only discuss and adopt decisions, while office staff prepares the majority of agenda and its documents.293 If the function is part- or full-time, then members of the Council have sufficient time to prepare themselves for the sessions, and they can prepare or at the very least review the documents related to the agenda of each session. It is plausible that a part- or even full-time function presents an opportunity towards a more effective work, but poses a threat on the other hand concerning the continuity of the work of the members. It seems that a balance between the two could be achieved by a part-time function as a mem- ber of the Council, while simultaneously preserving court practice or other non-judicial function (of non-judges).294 The type of function is of significant importance also to the members of the Council who are court presidents. In this case, they combine three functions – being a judge, president of a court and a member of the Council. While the opening section of this article discussed the composition of the Co- uncil, a reference to it needs to be made here. The regulation of the functioning and the competences of the Council essentially depends on its composition. Nevertheless, another point of significant influence has to be highlighted here. The functioning of the Council also largely depends on the provisions concer- ning the quorum for adopting decisions and the majority required for it. For 288 Only judge members were in a full-time position in 2015. See ENCJ Factsheet on Portugal. 289 Only four members of the bureau are in a full-time position. See ENCJ Factsheet on Belgium. 290 The only person with a full-time position is the Director General appointed by the board of governors and responsible for the day-to-day management of the Danish Court Administration. See ENCJ Factsheet on Denmark. 291 Only the President of the Council is a full-time member. Other members of the Council fully keep their original functions and are not entitled to remuneration as mem- bers of the Council. See ENCJ Factsheet on Slovakia. 292 Only six members (president and five other members) have a full-time position according to the last amendment introduced by the Organic Law on the Judiciary of June 2013. These members are the ones who make up the Standing Committee. See ENCJ Fact- sheet on Spain. 293 Interestingly, in Romania, the works for sessions are prepared with the support of an administrative staff of 260 persons. See Report of ENCJ Working Group Mission and Vision III, 2006-2007, p. 31. 294 See also point 34 of Opinion No. 10 of CCJE on the Council for the Judiciary at the service of society. 248 • 134 (2017) 3-4 Primož Rataj, Grega Strban instance, Estonian and Lithuanian Councils have a quorum if more than half of its members are present, while the Hungarian Council requires at least two- -thirds of its members present. In Estonia, the Council adopts decisions by a majority vote of the members present, while in Slovenia, the Council adopts decisions with the majority of all of its members, unless an Act or Rules of Pro- cedure of the Council determines otherwise.295 This is the case, for instance, when more significant decisions are adopted.296 The Council in Slovenia then decides with a qualified two-thirds majority of all members of the Council. Such a majority is required in order not to give the judges in the Council the possibility to make a decision by themselves. Despite the fact that judges have a majority in the Council, such a condition means that significant decisions are not adopted unless there are (with the intent to reach consensus) sufficient votes among the judge and non-judge members. Additional reference needs to be made towards having adequate human and financial resources for the functioning of the Council. It seems necessary to emphasize the importance of a quality administrative and technical support for the work of the Council. Its constitutional foundation and nature of its tasks require an in-depth and responsible approach to work. Professional and strong administrative support system of the Council is, therefore, one of the key conditions for the effective fulfilment of the mission that these bodies have in modern democratic societies. If this is not guaranteed, the Council will cle- arly have difficulty in effectively performing its function.297 Because the Coun- cil is an independent body, it is of utmost importance that it is also financed in a way that enables it to function properly.298 Therefore, it should have the appropriate means to operate as well as the power and the capacity to nego- 295 See Article 23 of Rules of procedure of the Council in Slovenia, available at: (last visited March 2017). 296 See Article 28 of Slovenian Courts Act. Such cases are proposals for election of judges, their appointments or promotions, etc. 297 J. P. Gilligan, Address to the Working Group of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, Sarajevo, 2 November 2010, p. 11. 298 In Poland and Portugal, the Council has its budget as a separate part of the State budget, making it financially independent body. 249 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System tiate299 and organise its budget effectively.300 When the Council has budgetary powers, it is only logical that it should then be accountable for the use of the funds to the Parliament (which adopts the budget)301 or another supervisory body, such as the Court of Audit (e.g. in Slovenia). 8. CONCLUDING THOUGHTS The Council for the Judiciary is an intermediary institution between the judi- cial and other (political) State powers. Its role is to safeguard the independence of the judiciary and judges. This is achieved by participating in the process of election or appointment and dismissal of judges and court presidents, asses- sment of their work, their promotion, transferral, training and in the case of disciplinary proceedings against them. The Councils in the EU Member States have additional other various compe- tences concerning the adoption of standards of professional ethics of judges, protection of judges and (in a broader sense) also competences regarding the functioning of the courts, their financing, participating in the process of adop- ting legislative acts regarding the judiciary and perhaps even having the func- tion of providing the information concerning judiciary to the society. The Councils’ roles in the Member States differ for each of these competen- ces, which is the result of the application of the three constitutional principles of democracy, separation of powers and independence of the judiciary. The Member States tended to find different solutions when attempting to find the optimal balance between these principles. The Council itself as an institution was originally created to ensure the principle of separation of powers. This principle is flexible, and its content and mechanisms are of different types. This applies especially to the relations between the legislative and the execu- tive power. The idea that is nevertheless common to all Member States is one where the judicial power should be functionally separated from the other two powers. This applies fundamentally to the performance of the judicial functi- on, but not so absolutely to the election or appointment of judges. In the latter 299 An example can be seen in Slovenian legislative proposal of Act on Judicial Council where one of the goals is to determine the Council as a directly financed budgetary body that proposes its budget itself. Currently, Slovenian Council is financed through a joint budget for courts where coordination and distribution of funds is in the competence of the Supreme Court. See Proposal of Act on Judicial Council (predlog Zakona o sodnem svetu), first discussion, EVA 2015-2030-0019, p. 7–8. 300 See also point 37 of Opinion No. 10 of the CCJE on the Council for the Judiciary at the service of society. 301 Ibidem, point 94. 250 • 134 (2017) 3-4 Primož Rataj, Grega Strban process, the principle of separation of powers needs to be understood in a way that the judicial power cannot be entirely excluded (e.g. some form of their participation needs to be ensured).302 Here lies the reason that the Councils’ powers in the process of election or appointment of judges are more restricted than when adopting decisions on judges’ careers. The restriction can be seen in the fact that the legislative or the executive authority appoints a judge (and has the final say) or that one of the democratic institutions (e.g. the President) or its members (e.g. MPs) are members of the Council. It could even be both. What is evaluated as the best solution though, is that the Council operates by strictly internal professional criteria, selects the candidates and proposes them to the democratically elected institution that elects or appoints them. If the Parliament has the final say, then the powers might be balanced if the President of a Member State is a member of the Co- uncil. The opposite is also possible, however, since the Parliament is a collegial body, it is better if it elects the non-judge members among the ranks of out- standing jurists and not among MPs (since this would cause several members of the parliament to be members of the Council and endanger its independent role). This also necessarily requires that the composition of the Council does not include only judges to avoid the self-government of judges. In the case the composition is mixed, safeguarding mechanisms need to be established to prevent potential abuses by a handful of members. It is important to determine which group has the majority in the Council, the quorum and the (qualified) majority of votes required for adopting decisions. On the other hand, these various mechanisms for the election or appointment of a judge might not be necessary once a judge is already performing his or her function and decisions are taken concerning his or her career (e.g. assessment, promotion, transfer). The principle of independence of the judiciary might then prevail over the principle of democracy, and the Council could have the final say on these issues. Nevertheless, the element of democracy can still be respected if the legislative or the executive power elects or appoints members of the Council (or has their members in the Council which would likely be overly democratic and insufficiently independent). These various discussed competences of the Council in the Member States are mere reflections of the differently perceived and executed constitutional principles. It follows from this that these differing solutions will likely persist for as long as the optimal balance between these perceived principles will remain different. Since one of the areas of our interest was to determine whether the Coun- cils have a direct influence on the administration of the Supreme Courts, it is 302 See S. Nerad, 2016, p. 393. 251 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System concluded that in many Member States they do not. The reason can be found in the fact that the first Councils were not created for this purpose and these powers have subsequently not been transferred onto them. Nevertheless, in many EU Member States, the Councils are still developing303 and only time will tell if changes will occur in the future. Lastly, if the Council is to perform its functions effectively, it needs to have adequate financial and human resources. The latter include having sufficient office staff, but also the answer to the question whether the members have honorary or professional (part- or full-time) function. If the function is hono- rary, one can find themselves overwhelmed with performing their work and preparing, attending and voting as a member of an important constitutionally founded body of a significant importance for the independence and impar- tiality of the judiciary. Therefore, it is beneficial (or even necessary) that the members of the Council perform their function professionally. LITERATURE Maurice Adams: Pride and prejudice in the judiciary – judicial independence and the Belgian High Council of Justice. Tydskrif vir die Suid-Afrikaanse Reg, Vol. 2010, Issue 2, January 2010, p. 236–253. Violaine Autheman, Sandra Elena: Global best practices: Judicial Councils – Lessons Learned from Europe and Latin America, IFES Rule of Law White Paper Series, April 2004. Matej Avbelj, Samo Bardutzky and others: Komentar Ustave Republike Slo- venije: dopolnitev – A. Kranj: Fakulteta za državne in evropske študije, 2011. Michal Bobek, David Kosař: Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe. European Legal Studies, College of Europe, Bruges, July 2013. Lauranne Claus, Stefan Rutten, Patricia Popelier, Bernard Hubeau, Primož Rataj, Grega Strban: Best practice guide for managing Supreme Courts. Supreme Court of Latvia, 2017. European Commission: The 2016 EU Justice Scoreboard. Communication from the Commission to the European Parliament, the Council, the Eu- ropean Central Bank, the European Economic and Social Committee and the Committee of the Regions, COM (2016) 199 final. European Network of Councils for the Judiciary: Factsheets of members. 303 Especially in the Member States in Eastern Europe, the Councils are still embry- onic institutions, which need to be reformed and strengthened to become more account- able. See V. Autheman, S. Elena, 2004, p. 3. 252 • 134 (2017) 3-4 Primož Rataj, Grega Strban European Network of Councils for the Judiciary: Funding of the Judiciary, Re- port 2015-2016. European Network of Councils for the Judiciary: Funding of the Judiciary, Annex II containing preparatory work, questionnaire and replies, Report 2015-2016. European Network of Councils for the Judiciary: Responses of Member States to a questionnaire on Judicial independence in 2015. European Network of Councils for the Judiciary Project Team: Councils for the Judiciary Report 2010-2011. European Network of Councils for the Judiciary: Standards VI: Non-judicial Members in Judicial Governance, Report 2015-2016. European Network of Councils for the Judiciary, Working Group Mission and Vision: Developing a strategy for the Council. Report, 5 May 2006. European Network of Councils for the Judiciary, Working Group Mission and Vision: Rules and other relevant matters of the councils. Final Report, Bar- celona, 2–3 June 2005. European Network of Councils for the Judiciary, Working Group Mission and Vision III: If you can’t recognize failure you can’t correct it. Report on Managing and assessing the performance of a Council or Judicial System, 2006-2007. Nuno Garoupa, Tom Ginsburg: The Comparative Law and Economics of Judi- cial Councils. Law and Economics Working Papers, University of Illinois College of Law, Year 2008, Paper 96. Paul Gilligan: Address to the Working Group of the High Judicial and Pros- ecutorial Council of Bosnia and Herzegovina, Sarajevo, 2 November, 2010. Tom Ginsburg, Nuno Garoupa: Guarding the guardians: Judicial Councils and Judicial Independence, American Journal of Comparative Law, Vol. 57, 2009, p. 103–134. Igor Kaučič: Predsednik republike in sodstvo, Podjetje in delo, 2002, Vol. 28, Issue 6-7, p. 1249–1259. Mateja Končina Peternel: Kakšne pristojnosti (naj) ima Sodni svet, Pravna praksa, Vol. 2015, Issue 7-8, p. 6–7. David Kosař: Perils of judicial self-government in transnational societies: holding the least accountable branch to account, Comparative constitu- tional law and policy. New York: Cambridge University Press, 2016. Sebastian Nerad: Predlaganje in imenovanje sodnikov, in: Igor Kaučič (ed.): Ustavni položaj predsednika republike. Maribor: Inštitut za lokalno samo- upravno in javna naročila, 2016, p. 389–404. 253 • 134 (2017) 3-4 The Role of the Councils for the Judiciary for an Effective Judicial System Opinion No. 2 of the Consultative Council of European Judges for the atten- tion of the Committee of Ministers of the Council of Europe on the fund- ing and management of courts with reference to the efficiency of the ju- diciary and to article 6 of the European Convention on Human Rights, Strasbourg, 23 November 2001. Opinion No. 10 of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society, Strasbourg, 21–23 November 2007. Opinion No. 18 of the Consultative Council of European Judges on ‘The posi- tion of the judiciary and its relation with the other powers of state in mod- ern democracy’, London, 16 October 2016. Opinion No. 19 of the Consultative Council of European Judges on ’The role of Court Presidents’, Strasbourg, 10 November 2016. Opinion of the Venice Commission no. 403/2006 on Judicial Appointments, Venice, 22 June 2007. Predlog Zakona o sodnem svetu (ZSodS), prva obravnava, EVA 2015-2030- 0019. Lovro Šturm (ed.): Komentar Ustave Republike Slovenije. Fakulteta za državne in evropske študije, Kranj 2010. John Thomas: Networks of the judiciary and the development of the common judicial area, New Journal of European Criminal Law, Vol. 2, Issue 1, 2011, p. 5–8. John Thomas: Some perspectives on Councils for the Judiciary, Frankfurt Symposium: 7–8 November 2008. Wim Voermans, Pim Albers: Councils for the Judiciary in EU Countries, Re- port, Leiden/The Hague, February 2003. 255 • 134 (2017) 3-4 Izvirni znanstveni članek UDK: 347.964:061.1EU 341:347.9:005.962 VLOGA SODNIH SVETOV ZA ZAGOTOVITEV UČINKOVITEGA SODNEGA SISTEMA* Primož Rataj, magister prava, asistent, Pravna fakulteta, Univerza v Ljubljani Grega Strban, univerzitetni diplomirani pravnik, doktor pravnih znanosti, redni profesor, Pravna fakulteta, Univerza v Ljubljani Prispevek temelji na funkcionalni metodi primerjalnega prava, ki omogoča ugotovitev razlik in podobnosti pravne ureditve vlog sodnega sveta v državah članicah EU za učinkovit sistem sodstva. Izhodišče raziskave je bila priprava vprašalnika o vrhovnih sodiščih in sodnih svetih, ki je bil nato poslan nacio- nalnim strokovnjakom. Poleg rezultatov vprašalnikov, ki so bili prejeti od 20 držav članic EU (pri čemer sodni svet obstaja le v dvanajstih), prispevek te- melji tudi na znanstveni literaturi in pravnih virih, ki so služili za pridobitev sodobnih pravnih pogledov in potrditev prejetih rezultatov. Osnovne infor- macije o sodnih svetih so bile pridobljene tudi iz ustav preostalih držav članic in evropske mreže sodnih svetov, zaradi česar je mogoče trditi, da je nastal reprezentativen vzorec, ki omogoča relevantne zaključke. Prvo pomembno obravnavano vprašanje pri delovanju sodnega sveta je nje- gova sestava. Ta je v ureditvah držav članic različna. Razlike so razvidne v šte- vilu članov in poklicu, ki ga člani opravljajo. Najnižje število članov (štiri) je na Nizozemskem, najvišje pa v Belgiji (44), z vmesnimi rešitvami pri drugih državah članicah. Sodni svet je v Litvi, Združenem kraljestvu (v Severni Irski in na Škotskem) ter na Madžarskem sestavljen samo iz sodniških vrst, v dru- * Prispevek je eden od rezultatov projekta z naslovom Vrhovna sodišča kot garant za učinkovitost sodnih sistemov, ki ga sofinancira Evropska komisija in koordinira Vrhovno sodišče Republike Latvije, v sodelovanju z vrhovnimi sodišči Litve, Španije in Madžarske, ter pravnima fakultetama univerz v Antwerpnu in Ljubljani. Podatki in pogledi v tem prispevku so zgolj pogledi avtorjev in ne odražajo nujno pogle- dov Evropske unije. 256 • 134 (2017) 3-4 Primož Rataj, Grega Strban gih državah članicah pa so prisotni tudi drugi člani. Ti so v Sloveniji in Italiji lahko profesorji prava, odvetniki ali drugi pravniki. V nekaterih državah (na primer v Estoniji) so člani tudi iz vrst poslancev, tožilstva, ministrstva za pra- vosodja in odvetniškega združenja. Prednost mešane sestave je, da lahko svoje (širše) poglede predstavijo tudi posamezniki, ki niso sodniki, hkrati pa so ti z institucionalne ravni tudi bistveno bolj neodvisni od članov sodnikov. V tuji literaturi se namreč pogosto opozarja na notranjo odvisnost sodnikov v raz- merju do predsednikov sodišč ali starejših kolegov. To velja še bolj tedaj, ko je predsednik (zlasti vrhovnega sodišča) eden od članov sodnega sveta. Mešana sestava sodnega sveta tudi preprečuje samoupravljanje sodnikov in zagotavlja boljše ravnotežje moči med sodno, zakonodajno in izvršilno oblastjo (zlasti če so člani sodnega sveta tudi poslanci). To pa je mogoče (in morda celo bolje) doseči tako, da je sodni svet sestavljen brez neposrednega političnega vpliva, ta pa je prisoten v drugih institucijah (na primer parlamentu), ki imajo pomemb- no vlogo v postopku odločanja o izvolitvah sodnikov in drugih pristojnostih, pomembnih na področju sodstva. Hkrati je s tem mogoče lažje doseči, da so- dni svet deluje strogo po strokovnih merilih. Člani iz sodniških vrst so praviloma predstavniki vseh stopenj sodniškega odločanja in predstavljajo v večini držav članic večino članov sodnega sveta. Zanimivo je, da je član sodnega sveta v nekaterih državah članicah oseba zgolj na podlagi opravljanja določene funkcije. Ena od teh je položaj predsednika vrhovnega sodišča, ki je po funkciji član sodnega sveta v kar 14 državah čla- nicah. Poleg tega je predsednik vrhovnega sodišča celo predsednik sodnega sveta po funkciji v šestih državah članicah. Drugačna rešitev je prisotna na Hrvaškem, Poljskem in Slovaškem, kjer predsedniki sodišč ne morejo biti člani sodnega sveta. Te države so sprevidele, da obsežnega kroga pooblastil ni pri- merno zaupati le ozkemu krogu oseb. Preostale člane, ki ne prihajajo iz sodni- ških vrst, izvoli zakonodajna ali izvršilna veja oblasti, izjemoma (v Estoniji) pa odvetniško združenje in tožilstvo. Edinstven primer je Latvija, kjer so preostali člani sodnega sveta osebe na podlagi položaja, ki ga zasedajo. Poleg sestave sodnega sveta se ti v državah članicah EU razlikujejo tudi po pristojnostih, ki jih imajo. Njihova najbolj prepoznana pristojnost je njiho- va vpetost v postopku izvolitve oziroma imenovanja kandidatov na sodniško funkcijo. Ta se lahko odraža v obliki ocenjevanja in predlaganja kandidatov (na primer v Belgiji, Romuniji, Sloveniji, na Slovaškem, Poljskem in na Hrva- škem), predložitve mnenja o kandidatih (na primer v Franciji, Litvi in Estoniji) ali celo s soglašanjem o predlaganih kandidatih za funkcijo sodnika (na primer na Madžarskem). Poleg tega imajo sodni sveti v nekaterih državah članicah pristojnost predlagati kandidate za položaj predsednika sodišča (na primer v Belgiji, Španiji in na Slovaškem), podati mnenje (na primer v Latviji, Litvi, na 257 • 134 (2017) 3-4 Vloga sodnih svetov za zagotovitev učinkovitega sodnega sistema Madžarskem in na Poljskem) ali celo izvoliti predsednike sodišč (na primer v Estoniji, Italiji in Sloveniji). V Sloveniji to sicer ne velja za predsednika Vrhov- nega sodišča. Sodni sveti imajo tudi nekatere druge pristojnosti, ki so povezane s sodniško službo. V nekaterih državah članicah lahko ocenjujejo delo sodnikov (na pri- mer v Sloveniji, Španiji in na Portugalskem) ali ocene potrjujejo (na primer v Litvi), ponekod pa lahko celo določijo merila za ocenjevanje kakovosti dela sodnika (na primer v Sloveniji). S tem povezana pristojnost sodnih svetov se nanaša na svetovanje ali odločanje o napredovanju sodnikov, ponekod pa tudi na odločanje o njihovi premestitvi (na primer v Italiji, Latviji, na Portugal- skem, Hrvaškem in na Slovaškem). Sodni sveti imajo lahko pristojnosti tudi glede sodniške poklicne etike, pri čemer lahko sprejmejo njena načela (na pri- mer na Poljskem in Slovaškem), njene standarde (na primer v Španiji) ali celo kodeks poklicne sodniške etike (na primer v Sloveniji). S tem povezana je tudi pristojnost imenovanja članov posebnih komisij za etiko in integriteto (na pri- mer v Sloveniji in Litvi). V nekaterih državah članicah imajo sodni sveti tudi nekatere preiskovalne in disciplinske pristojnosti, ki jim lahko sledi razrešitev s sodniškega položaja. Po- nekod o tem odloča sodni svet (na primer v Italiji in na Hrvaškem), drugje pa je ta le predlagatelj pristojnemu organu (na primer v Latviji, Sloveniji in na Slovaškem) ali organ, ki o tem poda mnenje (na primer v Estoniji). Zanimivo je, da je v manjšem številu držav članic sodni svet neposredno pristojen tudi za izobraževanje sodnikov (na primer v Španiji, Litvi, na Madžarskem in na Poljskem), kar vodi v kakovostnejše opravljanje sodniške službe. Upoštevaje dejstvo, da je sodni svet organ, ki ima nalogo varovanja neodvisnosti in nepri- stranskosti sodstva, je lahko eden od načinov za dosego tega tudi javna pod- pora sodnikom, ki odločajo v medijsko odmevnih primerih. Tako lahko sodni svet zaščiti in odvrne pritisk od posameznega sodnika z javnimi nastopi svojih članov oziroma odgovorne osebe za stike z javnostjo. Sodniki se praviloma la- stnega branjenja izogibajo, da ne bi vzbudili dvomov v svojo nepristranskost, hkrati pa se dogaja, da ob odsotnosti odgovorov te rade priskrbijo manj obve- ščene osebe. Varovalna vloga je lahko tudi drugačna in se predhodno soglasje sodnega sveta zahteva za pripor sodnika v primeru začetka pregona za kaznivo dejanje, ki je storjeno ob opravljanju sodniške službe (na primer na Hrvaškem). Sodni sveti nekaterih držav članic pa imajo še širše pristojnosti. Te se lahko nanašajo na sodelovanje (s podajo mnenj ali pripravo predlogov) pri pripravi predlogov zakonodaje, ki se nanaša na pravice in obveznosti sodnikov oziro- ma na sodstvo. Še več, na Poljskem in Slovaškem lahko sodni svet ustavnemu sodišču predlaga presojo skladnosti normativnih pravnih aktov z ustavo, če se ti nanašajo na neodvisnost sodnikov in sodišč. Poleg tega lahko sodni sveti 258 • 134 (2017) 3-4 Primož Rataj, Grega Strban vplivajo na organizacijo sodišč prek svetovanja (na primer v Litvi), predlaga- nja (na primer v Latviji) ali določanja oziroma spreminjanja števila sodnikov nekaterih sodišč (na primer v Estoniji). V Litvi lahko sodni svet odobri struk- turno zasnovo sodišč, seznam položajev in opis služb. Za delovanje sodstva v najširšem pomenu ima sodni svet lahko tudi pristojnosti v postopku določa- nja financiranja sodišč. Tako lahko na primer oblikuje mnenje o predlaganem proračunu sodišč v Latviji, Sloveniji in na Slovaškem. Na Nizozemskem in Danskem pa sodni svet celo prejme proračunska sredstva za celotno sodstvo, ki jih potem nadalje razdeli posameznim sodiščem. Sodni sveti posameznih držav članic pa imajo še številne druge posebne pristojnosti, ki so preštevilne za omembo. Razlog za različne pristojnosti sodnih svetov v posameznih drža- vah članicah je mogoče najti v izpeljavi treh ustavnih načel demokratičnosti, delitve oblasti in neodvisnosti sodstva. Države članice so očitno našle ustrezno ravnotežje med njimi na drugačne načine, kar se odraža tudi v sestavi, delova- nju in pristojnostih sodnega sveta. Eden od ciljev raziskave je bilo tudi ugotoviti, kakšna sta vpliva sodnega sve- ta in vrhovnega sodišča v njunih medsebojnih razmerjih. Posebna pozornost je bila namenjena vplivu ene institucije na drugo z vidika administrativnega delovanja. Ugotovljeno je bilo, da poleg sodelovanja v postopku izvolitve so- dnikov, njihovega napredovanja itn., sodni svet praviloma nima neposrednega vpliva na administrativno delovanje vrhovnega sodišča. Razlog je zgodovinski, in sicer v dejstvu, da izvirno prvi sodni sveti (v Franciji, Španiji, Italiji in na Portugalskem) niso bili ustanovljeni za izboljšanje administrativnega delova- nja sodišč, te pristojnosti pa pozneje na njih niso bile prenesene. V obratnem razmerju pa tudi vrhovno sodišče praviloma neposredno ne vpliva na administrativno delovanje sodnega sveta. Izjema obstaja v Latviji, kjer stro- kovne službe vrhovnega sodišča opravljajo administrativno delo sodnega sveta. Pozornost je v prispevku namenjena tudi posredovanju informacij javnosti s strani sodnega sveta zaradi zahtev po njegovem transparentnem delovanju. Ta je prvi pogoj za vzpostavitev zaupanja državljanov v delovanje sodnega sistema in omejuje nevarnost političnega vpliva. V nekaterih državah članicah tako sodni svet objavlja povzetke srečanj svojih članov, zvočne posnetke ali izjave za javnost (na primer na Slovaškem). Ponekod so objavljene tudi odločitve (na primer v Sloveniji) oziroma njegova mnenja. Zanimivo je na primer, da sodna sveta v Litvi in na Madžarskem objavita povzetek aktivnosti sodišč za prejšnje leto, sodni svet na Poljskem pa za vsako tromesečje. Sklepno je pozornost namenjena tudi delovanju sodnega sveta. Primerjana so obdobja, za katera so člani izvoljeni, možnosti njihove ponovne izvolitve, iz- volitev predsednika sodnega sveta, kvorum in potrebna večina za sprejemanje 259 • 134 (2017) 3-4 Vloga sodnih svetov za zagotovitev učinkovitega sodnega sistema odločitev. Zlasti zadnja elementa sta povezana tudi s sestavo sodnega sveta. Kljub morebitni večinski zastopanosti članov iz sodniških vrst lahko zahteva po kvalificirani absolutni večini pri sprejemu pomembnejših odločitev pome- ni, da bodo morali člani aktivno opravljati svojo funkcijo in se bo (z namenom dosega soglasja) zahtevala odobritev tudi (nekaterih) članov zunaj sodniških vrst. Z delovanjem sodnega sveta je povezana tudi določitev, ali je funkcija čla- na častna ali pa jo ta opravlja poklicno (s krajšim ali polnim delovnim časom). Če je funkcija častna, je lahko član kmalu – poleg opravljanja lastnega poklica – preobremenjen še s pripravo, udeležbo in glasovanjem na sejah sodnega sve- ta. Lažje je opravljati funkcijo člana, če je ta poklicna, pri čemer se zdi najboljša vmesna rešitev s krajšim delovnim časom. Tako lahko člani iz sodniških vrst še naprej ostanejo vpeti v sodnih postopkih, preostali člani pa lahko ostanejo v stiku s poklicem, ki ga opravljajo. Nedvomno pa je opredelitev funkcije člana pomembno soodvisna od administrativnega osebja, ki ga ima sodni svet. Če je tega osebja manj in je funkcija članov sodnega sveta častna, je dvomljivo, da bo lahko sodni svet kot ustavno regulirana institucija velikega pomena za ne- odvisnost in nepristranskost sodstva učinkovito opravljal predvidene naloge.