Pr

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

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Context
Integrity, independence and impartiality of the
judiciary are essential prerequisites for the
effective protection of human rights and economic
development and for ensuring that there was no
discrimination in the administration of justice,
(Res. ECOSOC 2006/23)
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UN Bangalore Principles of Judicial Conduct (2002)

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

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UN Bangalore Principles of Judicial Conduct
(2002) Principles

• Independence
• Impartiality
• Integrity
• Propriety
• Equality
• Competence and Diligence
• Implementation (effective resources)

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UN Bangalore Principles of Judicial Conduct
(2002) Integrity
Integrity is essential to the proper discharge of
the judicial office Application 3.1. A judge
shall ensure that his or her conduct is above
reproach in the view of a reasonable
observer. 3.2. The behaviour and conduct of a
judge must reaffirm the peoples faith in the
integrity of the judiciary. Justice must not
merely be done but must also be seen to be done.
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Council of Europe Rec. (2010)12
Standard-setting activity of CoE Recommendation
CM/Rec(2010)12 of the Committee of Ministers to
member states on judges independence, efficiency
and responsibilities (Adopted by the Committee of
Ministers on 17 November 2010) Art. 6
ECHR Diverse experiences and legal
systems Common core-values of democracy and rule
of law 8 chapters 74 paragraphs
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Council of Europe Rec. (2010)12 Key features
General aspects Judicial independence as a
fundamental right its purpose is to guarantee
every person the right to have their case decided
in a fair trial, on legal grounds only and
without any improper influence. The level at
which judicial independence should be safeguarded
is the constitutional or highest possible legal
level in member States with more specific rules
provided at the legislative level.
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Council of Europe Rec. (2010)12 Key features
External independence Judicial decisions should
be reasoned and made public. Decisions of judges
should not be subject to any revision other than
appellate or re-opening proceedings as provided
for by law. Judicial matters are of public
interest.
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Council of Europe Rec. (2010)12 Key features
External independence Link between independence
of judges and the principle of equality of
citizens before the law. Independence of the
judiciary as a whole is not a prerogative or
privilege, but it is granted in the interest of
the rule of law and of persons seeking and
expecting impartial justice. As judges operate
in the society, they should maintain appropriate
working relationships with institutions and
public authorities involved in the management and
administration of the courts as well as
professionals to facilitate an effective and
efficient administration of justice.
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Council of Europe Rec. (2010)12 Key features

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

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Council of Europe Rec. (2010)12 Key features

• Independence, efficiency and resources
• Efficiency as the delivery of quality decisions
  within a reasonable time.
• Adequate allocation of resources, facilities and
  equipment to the courts to enable them to
  function in accordance with the standards of the
  fair trial

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Council of Europe Rec. (2010)12 Key features

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

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Council of Europe Rec. (2010)12 Key features
Councils for the Judiciary Where existing,
Councils for the Judiciary are governing bodies
that have proved to be essential in safeguarding
the independence of the judiciary The
establishment of such Councils at the
constitutional or highest possible legal level,
is recommended - not less than half the members
of such Councils should be judges elected by
their peers and with full respect for pluralism
inside the judiciary Opinion n. 10 CCJE
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Council of Europe Rec. (2010)12 Key features
Status Selection and career of judges -
decisions on selection and career based on
objective criteria pre-established by law or by
the competent authorities, having regard to
merit, qualifications, skills, capacity, and
respect to human dignity - independence of the
executive and legislative powers - right to
challenge the procedure Tenure - security of
tenure (guaranteed tenure until a mandatory
retirement age) and irremovability (consent of
the judge to a new appointment or to transfer,
except in cases of disciplinary sanctions or
reform of the organisation) Remuneration -
commensurate with profession and responsibilities
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Council of Europe Rec. (2010)12 Key features

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

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Council of Europe Rec. (2000)19 on Public
Prosecutors

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

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Critical issues

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

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Critical issues

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

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