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        • 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.

 
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