-
-
Independence and
effectiveness of the judiciary as a condition for European Union
membership
Table of contents:
Introduction
The role of judge associations in Member States
and Candidate Countries
Efficient Courts
Malfunctioning courts and ineffictive
enforcement of judgements can be
seen as trade obstacles
Summary proceeding systems:
Unburden courts
Quick and simple way of receiving enforceable
titles
The Lugano Convention and the Brussels
Convention:
Cross-border enforcement of judgements
Ways of securing claims:
Mortgages
Pledges
The Impact of the EC Law in the National
Legal System
The EU membership strengthens the role of the
courts
The Swedish experience:
Constitutional reforms as a result of the
membership
Increased rights to judicial review
Human Rights
The Candidate Countries have recognised the
competence of the European Court of Human Rights
The European Convention on Human Rights is now
applicable in the Candidate Countries and has supremacy over
national law
A judgement against Romania on restitution of
private property and the role of the Prosecutor General
A judgement against Bulgaria on the rules of
procedure in pre-trial detention cases
Securing the independence of the judiciary
through organisational reforms
Central Courts Administration separated from the
Ministry of Justice
Independent body for nominating judges for
appointments
Preparing new entrants in the judge career
Conclusion
A wide range of measures is needed to ensure a
well functioning judiciary
Independence and
effectiveness of the judiciary as a condition for European Union
membership
Introduction
The author of this article is an official in the
European Commission and has a background as a Swedish Judge. He is
dealing with Justice and Home Affairs issues in the Romania team in
the Enlargement service. Some parts of the article were presented
at a seminar 4 – 5 December 1999 in Bucharest. The subject of the
seminar was the role of judge associations in strengthening the
independence of the judiciary and speeding up the European
accession process. The seminar was organised by the Open Society
Foundation – Romania and the participants were judges from
different Candidate Countries. They were all active in judge
associations in different functions.
In the Member States there are judge
associations with the task of defending the interests in general of
judges. There are also traditional trade unions for judges and
lawyers dealing mainly with salary negotiations and questions
concerning working conditions. The role of the Swedish judge
association for example is to a large extent to comment on new law
proposals, which can have an impact on the functioning of the
judiciary. The situation in the Candidate Countries is different
since trade unions for judges are not permitted. Judge associations
as general interest organisations have, in the absence of trade
unions, a more important role than similar organisations have in
the Member States. These organisations should develop strategies
for the European integration process and point out what reforms are
needed on the way to a membership in the European Union.
There are also demands on reforms to make the
functioning of the courts in the Candidate Countries to be in line
with the European Human Rights Convention. The obligation to be in
line with the Human Rights Convention is something which the judges
in the Candidate Countries will have to be aware of already now
since all Candidate Countries have ratified the Convention and
accepted the competence of the Human Rights Court.
When you speak about the effectiveness of the
courts in relation to the EU membership, you can see ineffective
courts as a trade obstacle, which is contrary to the whole idea
behind the functioning of the internal market.
When you deal with the subject the independence
of the judiciary as a condition for membership you would normally
start with treating organisational questions. You can say it is
good to have a central courts administration which is independent
from the executive power but which also
restrict itself to give administrative support for example for
developing computer programmes and training activities. Other
important components of this subject arethe rules forappointment of judges and the
system for preparing the new entrants in the judge career.
The discussion in Sweden in this field has to a
great deal focused on that the role of the courts has been
strengthened with the membership in the European Union. The judges
are starting to be aware of this and at a seminar in Stockholm in
May 1998 on the independence of the courts, in which also judges
from Candidate Countries participated, the lecturers focused on the
right and obligation of the courts to set aside national law with
the use of EC Law and the Human Rights Convention. It’s not just
that the national judge in a pending case can replace national law
with EC Law but he can also accept to hear a case where the
national rules say there is no right to a judicial review. This
strengthened role of the courts will most likely make the judges
more aware of that they can also set aside national legislation with the use of the own national
constitution. In some countries there is a special constitutional
court to which such questions should be referred to (Romania has
this system) but nevertheless the sole fact that the judge has the
right to put the legislation in question demands an independent and
brave judiciary. Here judge associations have a role to inform and
make the judges aware of their strengthened independence.
Efficient Courts
The idea of the internal market is to have an
area without trade obstacles where cross border trade functions
just as smoothly as if the seller and buyer are in one and the same
country.
For the proper functioning of the internal
market the seller must be in a position where he can recover his
claim against an obstructing buyer swiftly.
It is of course essential for trade exchange
already today that courts in the Candidate Countries function
efficiently. This will also have an impact on attracting foreign
investments. A plaintiff should not have to wait for several years
before he gets an enforceable title and there must also be an
efficient organisation for enforcement of judgements and other
enforceable titles.
In Romania there are two kinds first level
courts. Petty claims and minor criminal offences are handled by a
court of first instance. Those courts are in fact not just dealing
with petty claims but have a rather wide competence in civil cases.
Then there are tribunals in each county, which are the first level
for more severe criminal cases, for administrative cases and for
some commercial cases where the value of the dispute is
substantial. The tribunals are courts of appeals in relation to the
courts of first instance.
Perhaps there is a need of two kinds of first
level courts. If there is no summary proceeding system it is
understandable that there is a need of small claims courts. Summary
proceedings are quite essential for an efficiently functioning
court system. A summary proceeding is a written simplified and fast
procedure, often computerised, where you sort out the cases where
there are no real dispute but just a lack of payment ability of the
defendant. In most cases that is the reason for not paying for
delivered goods or a debt. The summary proceedings do not need to
be handled by the courts. Such procedures can also be handled by
the authorities dealing with enforcement.
For minor criminal offences where the punishment
is a fine there should also be a summary proceeding system handled
by the police authorities or the prosecutors. In most such cases
the defendant has no objection to the accusation or the amount of
the fine. If he has, the summary proceeding is closed and the case
goes to the courts.
In the preparation for accession the Candidate
Countries must make themselves able to accede to the Brussels
Convention on jurisdiction, recognition and enforcement of foreign
judgements in civil cases. To accede to the Brussels Convention is
an obligation which follows from the membership in the Union
(Article 293 of the EC Treaty).
As a preparation for this, the Candidate
Countries should accede to the Lugano Convention, a parallel
convention to the Brussels Convention with the same rules with few
exceptions. The Brussels Convention is open only for the Member
States and the Lugano Convention has as contracting parties, the
Member States on one side and other European countries on the other
side.
Sweden had at the accession since some time back
been a contracting party to the Lugano Convention. The accession to
the Brussels Convention was completed in 1998 after more than three
years of membership. In 1998 also, the enforcement law for the
accession to the Rome Convention came into force. The Rome
Convention deals with applicable law for contractual obligations.
It is also a Member State convention.
The advantage for a country with a participation
in the Brussels or Lugano Convention co-operation is that
judgements from that country will be recognised and enforced in the
other contracting countries. Another advantage is that citizens of
a participating country do not have to suffer from peculiar forum
rules in other countries. For example there is a French rule which
gives jurisdiction to the court where the plaintiff is domiciled.
Such a rule can not be applied against citizens in the contracting
parties of the Brussels or Lugano Convention.
There are serious doubts in the administrations
of the Member States if the functioning of the courts in the
Candidate Countries have reached a sufficient high quality. Romania
has made some contacts for getting support from some Member
States, which is necessary to start the Lugano Convention accession
procedure. Some other Candidate Countries have come a bit further
but the process is rather slow in general. Poland although is in an
advanced stage and has got an approval for accession from all
Member States.
With the Amsterdam Treaty with the transfer of
several Justice and Home Affairs sectors from the third pillar to
the first pillar, the Community has got competence to issue
legislation on judicial co-operation in civil matters. A proposal
for a Council Regulation on inclusion of matrimonial cases in the
civil co-operation has recently been presented. There is also a
proposal for a Council Regulation for a total review of the
Brussels Convention and there are also ongoing discussions for
preparing a proposal for a Regulation on the applicable law on
non-contractual obligations.
There are concerns on the effectiveness of the
system for enforcement of judgements in Romania. The legislation is
to a part inadequate as well as the enforcement organisation. To
have an efficient enforcement you have to secure your claim
with a security or mortgage in real estate (immoveables) or a
pledge in moveable assets.
There are two kinds of mortgage systems; one
which you can call the North European system and another you can
call the South European system. In the south system you register
changes of ownership to real estate at a notary and there you also
register mortgages in the real estate. In the North European system
you make these registrations at a court and nowadays these
registrations including the procedure for processing applications
for registrations are normally computerised in the Member States.
Romania had until recently both systems; in Transylvania, which has
Austrian/Hungarian traditions, there was the North European system
and in the south part of the country there was the notary system.
Now a system for registrations at courts has been chosen for the
whole country.
A reform of the cadastre system in
Romania has started. Unclear ownership cases have to be solved, new
mapping is needed and the information needs to be converted into
electronic form. The information in the cadastre register
will be transferred to the land book offices at the courts where
registrations of ownership and mortgages will be done. For these
registrations there will also be an automatized system. However, it
will probably take several decades to complete this
automatization.
There is also a need to have a registration of
pledged movable assets. In Sweden, where these kind of
registrations also are computerised, the registrations are made in
one court for the whole country. The pledged assets consist of
movable assets in companies, machines, stock etc and it is mainly
bank loans, which are secured in this way.
The Impact of the EC Law in the National
Legal System
The application of the EC Law is mainly left to
the national courts and authorities. The Treaty rules and
Regulations are directly applicable while directives normally can
be applied first after they have been transposed into national
legislation. The EC rules can also have direct effect; they give in
such cases, rights and obligations to individuals, which have to be
respected by the national courts. As a main rule, national
procedural rules should be applied also on claims based on EC
Law.
The fact is that the accession will strengthen
the role of the judges and give them new powers. The national judge
will be able to set aside national law and to apply EC Law instead.
The impact of EC law can be rather far reaching and sometimes you
can not use national procedural rules if they would be an obstacle
for the full impact of the EC law. Sometimes a judge can be obliged
to create a national procedural rule, for example to permit a
judicial review in a case where there is no right to this according
to national law.
The experience of a country that has recently
adhered to the European Union is of course of relevance for the
Candidate Countries. Some examples from Sweden on what legislative
measures were undertaken before and after the accession and what
problems the courts faced can therefore bee of interest.
First it was necessary to change the
constitution in order to transfer decision power to the European
Communities. This was made with the reservation that this transfer
is valid as long as the communities have a protection of human
rights equivalent to that in the Swedish constitution. This was
rather ridiculous since the bill of rights in the Swedish
constitution is weak. The constitution is from 1974 and it is said
that the old constitution from 1809 had a better protection of
basic rights. The wording of this reservation was a quotation from
the judgement of the German Constitutional Court where this court
decided that the national constitution was no obstacle for the
ratification of the Maastricht Treaty.
There was also an article in the accession law
saying that the EC legislation shall apply in Sweden with the
effect that follows from the EC Law. Sweden has a dualistic
approach to international conventions. They must be transferred by
a legislative measure into the Swedish legal system. Romania is an
example of a state with a monistic system where international
conventions are directly applicable when the are ratified.
According to the Swedish constitution, a judge
can not easily set aside a national law with the motivation that it
is not compatible with the constitution. This can only be done if
the law in question is obviously unconstitutional. As regards
compatibility with the constitution, there is a judicial preview
instead of a judicial review. All legislation of importance is
before it is presented to the Parliament, examined by the
Legislative Council, which in Sweden consists of judges from the
Supreme Court and the Supreme Administrative Court.
The so-called obvious requisite is not
applicable when national legislation is compared with EC
Law. A judge can set aside national legislation even if it
is not obvious that it is incompatible with EC law. This means for
example that national legislation can be tested against the bill of
rights in the European Convention on Human Rights since this bill
of rights is considered to be a part of the EC Law. The Human
Rights Court does not bother about the Swedish obvious requisite.
If national legislation is found to be contrary to the Human Rights
Convention, irrespective of if this finding is obvious or not, the
Human Rights Court will conclude that there is a breach of the
Convention. As a result of this impact of European Law in the
Swedish legal system, the obvious requisite has to a part lost its
meaning and there is now a proposal to completely abandon this
obvious requisite in the Swedish constitution.
The right to judicial review has also been
discussed a lot in Sweden. By tradition there have been
restrictions in the right to appeal to a court on administrative
decisions. We have administrative courts dealing with such appeals
so in the majority of cases there is such a right to appeal. But in
some cases it has been considered that there must be room for
political considerations. Some time back it was also considered
that when you asked an administrative authority for a benefit, a
contribution or permission to exercise a certain occupation like a
taxi business, you should not have a right to a court review of the
decision in such a case. This has been changed in different steps
since the Swedish system has been found not to be compatible with
EC Law and the Human Rights Convention.
There is a famous case decided in the end by the
Supreme Administrative Court, which delivered its judgement in
November 1997. The party was a farmer who had applied for some
contributions that farmers can be entitled to according to an EC
Regulation. The farmers can for example get contributions if they
grow certain crops for which the surplus is not so big. They can
also get contributions for not growing anything at all. The
objective of those rules is to diminish the surplus of agricultural
products within the Union.
The farmer’s application for the contribution
was rejected by a regional authority since the application had been
submitted after the prescribed time limit.
He appealed against this decision to the Central
Agricultural Authority, which had the same opinion that the
application was made too late. According to the Swedish law at that
time, the decision of this central authority could not be appealed
against. This was also indicated in the decision.
The farmer appealed nevertheless to the
administrative court of first instance in the town where the
Central Agricultural Authority is located. This Court found that
the lack of right to appeal was contrary to both EC Law and the
Human Rights Convention. However, there was no indication
whatsoever in the legislation which court should deal with the
matter and the administrative court found that it was under such
circumstances too far reaching to point out a court. – There is
another kind of remedy for an individual who has suffered damages
as a result of an infringement of EC Law of a Member State. The
individual has the possibility to start an action for damages
against the state before a national court .
Then the farmer made an appeal to the
administrative court of appeal, which also found that the lack of
right to appeal was contrary to EC Law. However, it went a step
further and also indicated a court to deal with the matter - the
administrative district court in the region where the regional
authority, which had made the first decision, was located.
This district court said the application for the
contribution was made too late.
Then the case came to a new administrative court
of appeal, which said there was no right to make an appeal to the
administrative courts.
The Supreme Administrative Court then got the
case. It said that the right to apply for a contribution was a
civil right and when it comes to decide upon civil rights or
obligations every individual has a right according to Article 6 in
the Human Rights Convention to have his case reviewed by a court.
The EC Court has said in a case concerning a similar contribution
to a farmer that there is a right to have the case examined by a
court. This right, the EC Court said, is based on a common
constitutional tradition of the Member States and it is inscribed
in Article 6 in the Human Rights Convention – that there is a right
to have such civil rights and obligations reviewed by an
independent and impartial court. The Supreme Court said the
district administrative court in the district where the application
first had been examined was competent.
Human Rights
It is a task for judge associations in the
Candidate Countries to take a leading role in making the judges
aware of that they can apply the Human Rights Convention. If the
convention starts to be applied it will have big consequences since
there is actually a lot to do before the legislation in the
Candidate Countries will be compatible with the convention. It is
an ethical issue. A judge in a democratic society should not
be obliged to apply undemocratic legislation - the leftovers from
the Communist time.
There are now some judgements from the Human
Rights Court against Candidate Countries. As examples, two cases
can be mentioned - one against Romania from 28 October 1999
and another against Bulgaria from 25 March 1999. One should bear in
mind that only circumstances occurred after the recognition of the
Human Rights Court’s competence can be taken into consideration. In
the case of Romania it is circumstances occurred from 1994 and
onwards that can be held against this state.
In the case against Romania the right of the
Prosecutor General to make an appeal in civil procedures where he
has not been a party was put into question. The case before the
Romanian courts concerned restitution of private property. The
Human Rights Court found that the Romanian Supreme Court had made
an infringement of the principle on legal certainty by allowing the
appeal of the Prosecutor General in a case where there was a final
judgement. It constituted a breach of the principle of the right to
a fair trial laid down in Article 6 § 1 of the convention. The
parties in the case had not made an appeal and the time limit for
making an appeal had elapsed. The judgement of the Romanian Supreme
Court had been delivered before the law was changed. The change
restricted the right to appeal of the Prosecutor General to six
months after a final judgement has been delivered. This change is
although not a full remedy. The right for the Prosecutor General to
make appeals in cases where he has not been a party exists in all
Candidate Countries and is derived from the legal system of the
Soviet Union. In Slovenia although the Prosecutor General can just
ask for a declaratory judgement, which will clarify the legal issue
without having an impact on previously established rights and
obligations of the parties in the case.
The Romanian Supreme Court had declared that the
courts did not have any jurisdiction whatsoever in civil disputes
on recovery of possession in such cases as the present where the
confiscation was done during the communist time through a
legislative measure. The Human Rights Court found that this
declaration constituted a deprivation of the right to property
vested in the plaintiff by a final judgement. The deprivation made
through the Supreme Court’s judgement was not justified in the
public interest. This was also a breach of Article 6 § 1 of the
convention and of the right of property according to Article1 to
Protocol No 1 to the convention.
The Bulgarian case concerned the procedural
rules for deciding pre-trial detention. The applicant had not been
brought before a judge within the time limit that follows from the
case law of the Human Rights Court. The pre-trial detention had
been decided by an investigator (a policeman) and a prosecutor.
According to the case law of the Court the suspected should be
brought before a judge within three days from the first arrest.
When the case finally came to a court, this court just examined if
the accusation could be referred under a serious crime. It did not
examine the strength of the proof (if there was a probable cause)
and a risk that the suspected should abscond or if the other
special conditions for pre-trial detention were fulfilled. The
proceedings before this court took place without the attendance in
person of the suspected and the prosecutor had submitted documents
to the court, which were not communicated with the suspected.
All the above-mentioned circumstances were found
to be breaches of Article 5 of the convention, which contains the
rules on the right to liberty and security.
Central Court Administration separated from
the Ministry of Justice - an independent body which makes
nominations for judge appointments -preparing entrants in the judge
career.
Some Member States have separated the central
administration of the courts from the Ministry of Justice and
established an independent authority for such tasks. This may
improve the independence of the courts but it is also important
that such an independent central administration performs its
activities with delicacy and refrains from interfering in the
juridicial role of the courts. However, it is useful to have a
central administration which deals with for example in-service
training of judges and other staff of the courts and with
developing computerised case management systems and legal data
bases.
A high quality in-service training of court
staff requires a professional and specialised team working in close
collaboration with the courts. The ad hoc solutions practised now
in the Candidate Countries where different training institutions or
NGO:s are engaged for separate activities without an overall
training strategy or long term planning have to be abandoned at
least in a long perspective.
Hungary established in 1998 an independent body
separated from the Ministry of Justice, the National Judiciary
Council, which deals with central administration of the courts and
with training of the judiciary.
In Romania, the National Institute for the
Magistracy (NIM) was founded in 1992 with the aim of providing
training for magistrates, especially new entrants. However, NIM has
had a dormant existence until last year when the school started to
get the means with Phare funds support to function as the main
entrance to the judge and prosecutor careers. It has now
approximately 100 students who after receiving their law degrees
follow a one-year education at the NIM. The theoretical parts of
the education are mixed with court practice periods. The aim is
that this initial training shall be extended to two years and that
the NIM shall be the sole way to enter the judge career. NIM will
also organise training for law clerks and in-service training for
judges.
The preparation of new entrants to the judge
career can be done in different ways. In several Member States the
judge career starts with a trainee period in courts and other
juridicial bodies. This period is followed by different steps where
the person in question serves in different functions in the court
organisation, i.e. associate judge in a court of appeal and legal
secretary in the Supreme Court, before the nomination to a
permanent post. There are tests and evaluations in the different
phases to ensure that only the most appropriate persons remain as
eligible for the permanent posts.
The independence of the judiciary is depending
on a well thought-out system for nomination and appointments of
judges. It is important to have a system which is impartial and
independent where political and other irrelevant considerations do
not get any nourishment. In Romania the nomination of judges are
made by the Superior Council of the Magistrature, which is composed
by four Supreme Court judges, three prosecutors from the General
Prosecutor’s office, six judges from courts of appeal and two
prosecutors attached to the Court of Appeal in Bucharest. The
President of Romania appoints the judges after receiving the
proposals from the Superior Council.
Conclusion
The different aspects of the subject treated in
this article are just illustrations of what improvements are
needed. A wide range of measures is needed to ensure a well
functioning judiciary. Also in the Member States there is a need
for continuous reforms. The initiatives taken recently in Romania
on a complete reform of the Civil Procedure Code and the Penal
Procedure Code deserve indeed encouragement.