Former Communist countries in Central and Eastern Europe have experienced the challenge of moving from a system in which judges served the political interests of the regime, to an order based on the rule of law. While progress has been made in many areas, I have observed that the independence of judges is still not fully protected in some of the countries I have visited. Political and economic pressure still appear sometimes to influence the courts.
This problem is serious and must be addressed. Persons seeking to influence judges in any manner should be subject to sanctions by law. The corruption of one judge may tarnish the system as a whole – corrupt judges must be prosecuted.
Political interventions and corruption undermine the credibility of the whole justice system and threaten the right to a fair trial as defined in the European Convention on Human Rights: “…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal” (Article 6 § 1). These flaws should be tackled with priority and in a systematic manner.
The independence and integrity of the judiciary should be protected by law. Indeed, most European countries have inscribed the principle of the separation of powers between the executive, the legislature and the judiciary in the Constitution.
This principle needs to be underpinned through a number of measures, for example:
• There should be a system for the appointment of the judiciary which is protected from party politics. Neither the government nor its administration should recruit judges.
• Judges should not have to fear dismissal after inopportune decisions and should therefore have a security of tenure until a mandatory retirement age or expiry of a fixed term of office. Disciplinary actions against judges should be regulated by precise rules and managed through procedures inside the court system.
• Judges should be appropriately remunerated commensurate with their responsibilities and have adequate pension provision. This may also serve to reduce the risk of corruption.
The credibility of the judiciary depends certainly also on the conduct of the judges themselves. They have to decide the cases before them impartially, on the basis of the facts and in accordance with the law. Judges need to have the trust of the entire society and this presupposes a strong sense of impartiality when adjudicating between parties.
There must therefore be no actual prejudice on the part of the judge or tribunal. And where a party has a legitimate doubt as to the impartiality of the judge, this should be taken seriously. Justice must not only be done, but be seen to be done:
• The distribution of cases should not be influenced by the wishes of any party.
• Cases should not be withdrawn from a judge without very good reason.
• Decisions of judges should not be the subject of any revision outside the appeals procedure.
To protect the reputation of the judiciary it is also necessary to safeguard genuine competence. Judges should be individuals of integrity and ability with appropriate qualifications. Naturally, the transition countries faced some problems in this regards. However, even other countries need to ensure the continuing training of judges. Other factors which are essential to ensure competence:
• Appointments or promotions must be based on objective criteria such as merit, qualification, integrity and efficiency.
• There must be no discrimination on any grounds when appointing judges.
• The training of judges on the jurisprudence of the European Court of Human Rights is necessary to ensure that problems are solved at the domestic level.
Another key factor is that the judicial system functions in an efficient manner - justice delayed is justice denied. The Strasbourg Court is inundated with applications concerning lengthy judicial proceedings. This is a problem which affects the whole continent, although some countries are particularly plagued and have attempted to resolve this problem with domestic remedies for excessive length of judicial proceedings. An efficient judiciary demands:
• Proper working conditions. In practice this means that there should be a sufficient number of judges recruited.
• Judges need adequate support staff and equipment.
• Judges need to be safe. States need to ensure the safety of judges by including the presence of security guards on Court premises or providing police protection where necessary.
Several of these recommendations could be addressed to all Member States of the Council of Europe. It is in the nature of these problems that further measures to safeguard the independence, impartiality, competence and efficiency of judges are relevant everywhere.
Though politicians should keep their hands off the judiciary they should give high priority to not only respecting, but also protecting its integrity. Member States need to take appropriate action to ensure that public confidence in the judiciary is high. Judges must inspire confidence.
Thomas Hammarberg