Annexes to COM(2019)198 - 2019 EU Justice Scoreboard

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2019)198 - 2019 EU Justice Scoreboard.
document COM(2019)198 EN
date April 26, 2019
agreement reached by the parties becomes enforceable in court. For each of these 12 indicators, one point was given for each area of law. DK: each court has an ambassador responsible for promoting the use of mediation. Administrative courts have the possibility to propose to the parties to turn to med iation. IE: administrative cases are subsumed within the category civil and commercial cases. EL: ADR exists in the area of public procurement procedure before Administrative Courts of appeal. ES: ADR is mandatory in labour law cases. LT: a secretary at the National Courts Administration coordinates the judicial mediation processes in courts. PT: for civil/commercial disputes, court fees are refunded only in case of justices for peace. SK: the Slovak legal order does not support the use of ADR for administrative purposes. SE: judges have procedural discretion on ADR. Indeed, seeking friendly settlements is a mandatory task for the judge unless it is inappropriate.

3.2.2. Resources

Sufficient resources, including the necessary investments into physical and technical infrastructure, and well-qualified, trained and adequately remunerated personnel of all categories, are necessary for the good functioning of the justice system. Without adequate facilities, tools or personnel with the required qualifications, skills and access to continuous training, the quality of proceedings and decisions is put at sta ke.

Financial

resources

The figures below show the actual government expenditure on operation of the justice system (excluding prisons), both per inhabitant (Figure 28) and as a share of gross domestic product (GDP) (Figure 29), the criteria for determining the financial resources (Figure 30), and, finally, the main categories of expenditure on law courts (Figure 31) (88).

87 88

2018 data collected in cooperation with the group of contact persons on national justice systems.

General government total (actual) expenditure on the administration, operation or support of administrative, civil and criminal law courts and the judicial system, including enforcement of fines and legal settlements imposed by the courts and operation of parole probation systems, and legal aid as well as legal representation and advice on behalf of government or on behalf of others provided by government in cash or in services, excluding prison administrations (National Accounts Data, Classification of the Functions of Government

Figure 28: General

(source: Eurostat)

government total expenditure on law courts

(*) (in EUR per inhabitant)

in

in rirrr i 11 mi 11 i 11 mi 11111111 1111111111111111111 ii 11 ii 11

ïÜitit

LU DE UK IE 5E AT NL BE IT SI Fl E5 FR DK PT MT PL LV EL CZ EE HR HU BG RO 5K LT CY

2010 2015 2016 2017

(*) Member States are ordered according to the expenditure in 2017 (from highest to lowest). 2017 data for ES, FR, HR, NL and SK are provisional.

Figure 29: General govern ment total expenditure on law courts ( J (as a percentage of GDP) (source: Eurostat)

in ii inrnn

iiiiiiii ii ii in in

(*) Member States are ordered according to the expenditure in 2017 (from highest to lowest). 2017 data for ES, FR, HR, NL and SK are provisional.

Figure 30 shows which state power (judiciary, legislature or executive) sets the criteria on determining financial resources for the judiciary, and the type of criteria used.

Figure 30: Criteria for

determining financial resources for the judiciary

(*) (89)

(*) DK: number of incoming and resolved cases at courts of 1st instance courts are taken into account. DE: only for the Supreme Federal Court’s budget — as regards courts of 1st and 2nd instance. Judicial systems vary between the federal states. EE: number of incoming and resolved cases for courts of 1st and 2nd instance courts. FR: number of incoming and resolved cases for courts of all instances. The number of resolved cases based on an evaluation of the costs for courts is taken into account. IT: the Ministry of Justice defines criteria for civil and criminal courts, while the Council for the Judiciary (CPGA) defines criteria for administrative courts. HU: law states that the salaries of judges must be determined in the act on the central budget in such a way that the amount must not be lower than it had been in the previous year. NL: the number of resolved cases based on an evaluation of the costs for courts is taken into account. FI: The number of resolved cases based on an evaluation of the costs for courts is taken into account.

Figure 31 shows, for the first time, the main economic categories comprising government expenditure on law courts: 1) wages and salaries of judges and court staff, including social contributions (‘compensation of employees’ (90)), 2) operating costs for goods and services consumed by the law courts such as building rentals, office consumables, energy and legal aid (‘intermediate consumption’ (91)), 3) investment in fixed assets, such as court buildings and software (‘gross fixed capital formation’ (92)), and 4) other expenditure.

92

Data collected through an updated questionnaire drawn up by the Commission in close association with the ENCJ. Responses from Member States without Councils for the Judiciary were obtained through cooperation with the Network of the Presidents of the Supreme Judicial Courts of the EU.

Compensation of employees consists of wages and salaries in cash or in kind (D.11) and employer's actual and imputed social contributions (D.121 and D.122). See: https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Glossary:Compensation_of_employees.

Intermediate consumption is a national accounts concept which measures the value of the goods and services consumed as inputs by a process of production. It excludes fixed assets whose consumption is recorded as consumption of fixed capital. The goods and services may be either transformed or used up by the production process.

See https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Glossary:Intermediate_consumption.

Gross fixed capital formation, abbreviated as GFCF, consists of resident producers’ investments, deducting disposals, in fixed assets during a given period. It also includes certain additions to the value of non-produced assets realized by producers or institutional units. Fixed assets are tangible or intangible assets produced as outputs from production processes that are used repeatedly, or continuously, for more than one year. See https://ec.europa.eu/eurostat/statistics-

89

90

9

Figure 31: General

expenditure) (source: Eurostat)

government total expenditure on law courts

(in 2017,

as a percentage of

– Human resources –

Adequate human resources are essential for the quality of a justice system. Diversity among judges, including gender balance, adds complementary knowledge, skills and experience and reflects the reality of society.

Figure 32: Number of judges (*) (per 100 000 inhabitants) (source: CEPEJ study)

(*) This category consists of judges working full-time, under the CEPEJ methodology. It does not include the Rechtspfleger/court clerks that exist in some Member States. AT: Data on administrative justice is introduced for 2016 cycle for the first time. EL: the total number of professional judges includes different categories over the years shown above, which partly explains their variation. Since 2016, data on number of professional judges includes all the ranks for criminal and political justice as well as administrative judges. IT: The regional administrative courts, regional audit commissions, local tax commissions and military courts are not taken into consideration. UK: weighted average of the three jurisdictions. Data for 2010 contains 2012 data for UK (NI). LU: numbers have been revised following an improved methodology.

Figure 33: Proportion

(source: CEPEJ study)

of female professional judges at 1 and 2 instance courts in

1st and 2nd

2017

(*) EL:

data for

2016.

Figure 34: Proportion of female professional judges at Supreme Courts in 2017 and 2018 (*) (source: European Commission (93))

2017 «2018

(*) The Member States are in the same order as in Figure 33

2018

European Institute for Gender Equality, Gender Statistics Database, available at:

93

data.

Figure 35: Number of lawyers (*) (per 100 000 inhabitants) (source: CEPEJ study)

(*) Under CEPEJ methodology a lawyer is a person qualified and authorised according to national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters (Recommendation Rec (2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer). DE: no distinction is made between different groups of lawyers in Germany, such as between solicitors and barristers. FI: since 2015, the number of lawyers provided includes both the number of lawyers working in the private sector and the number of lawyers working in the public sector. UK: data for 2010 and 2014.

Training

Judicial training is important in contributing to the quality of judicial decisions and the justice service delivered to citizens. The data set out below cover judicial training in a broad range of areas, including communication with parties and the press and on judicial skills.

Figure 36: Judges participating in continuous training activities in EU law or in the law of another Member State (*) (as a percentage of total number of judges) (source: European

Commission (94))

(*) Values for some Member States have been reduced for presentation purposes (SI=257%). In several Member States the ratio of participants exceeds 100 %, meaning that some participants attended more than one training activity. DK: including court staff. IT: The regional administrative courts, regional audit commissions, local tax commissions and military courts are not taken into consideration. AT: including prosecutors. UK: Data are for 2016.

Figure 37: Share of continuous training of judges on various types of skills (*) (as a percentage of total number of judges receiving these types of training) (source: European Commission (95))

(*) The table shows the distribution of judges participating in continuous training activities (i.e. those taking place after the initial training period to become a judge) in each of the four identified areas as a percentage of the total number of judges trained in these types of training. Legal training activities are not taken into account. Judicial training authorities in EL, CY, LU and MT did not provide specific training activities on the selected skills. DK: including court staff. AT: including prosecutors. UK data are for England and Wales.

Figure 38: Availability

Commission (96))

of training for judges on communication

(*) (source: European

(*) Maximum possible: 12 points. Member States were given 1 point if they have initial training and 1 point if they have continuous training (maximum of 2 points for each type of training). DK: no training is offered on communicating with people who are visually or hearing impaired because the state offers a visually or hearing impaired people support in form of tools or an assistant in the courtroom, e.g. a deaf interpreter.

3.2.3. Assessment tools

Monitoring and evaluation of court activities help to detect shortcomings and needs, and therefore help the justice system increase its quality. Regular evaluation could improve the justice system’s responsiveness to current and future challenges. Adequate ICT tools could provide real-time case

2017 data collected in cooperation with the European Judicial Training Network and CEPEJ. ‘Judgecraft’ includes activities such as conducting hearings, writing decisions or rhetoric.

95

management systems and could help to provide nationwide standardised court statistics. In addition, they could be used for the management of backlogs and automated early-warning systems. Surveys are essential to assess how justice systems operate from the perspective of legal professionals and court users. An adequate follow-up of surveys is a prerequisite to improve the quality of justice systems.

Figure 39: Availability of monitoring and evaluation of court activities (*) (source: CEPEJ study (97))

¥¥¥

llllllllll lllllllllllllllllll ■■■■■■■■■■■■■llllllllll ■■■■■■■■■■■■■■■llllllllll

lllllllllllllllll llllllllll ■■■■■■■■■■■■■■■■■llllllllll

PT SI SK ES FR LV LT HU AT PL   RO DK EE EL HR IT CY MT NL Fl BG CZ SE DE LU BE IE UK

■ Annual activity report                                                          ■ Number of postponed cases

■ Age of cases                                                                              Performance and quality indicators Regular evaluation system ■ Specialised court staff for quality Other elements

( *) The evaluation system refers to the performance of court systems, using indicators and targets. In 2018, all Member States reported having a system that allows them to monitor the number of incoming cases and delivered decisions, as well as the length of proceedings making these categories superfluous for the above figure. Similarly, the more in-depth work on quality standards has superseded their use as an evaluation ca tegory. Data on ‘other elements’ include e.g. clearance rate (AT, FR), number of appealed cases and enforcement procedures (ES), number of cases according to types of disputes (SK), outcome of the case, e.g. full or partial satisfaction (SK), final convictions and suspended cases (RO) and number of court sessions (PL).

Figure 40: Availability of ICT for case management and court activity statistics

(0 = available in 0 % of courts, 4 = available in 100 % of courts (98)) (source: CEPEJ study)

97 98

2017 data.

2017 data. Equipment rate from 100 % (device completely deployed) to 0 % (device non-existing) indicates the functional presence in courts of the device covered by the graph, according to the following scale: 100 % = 4 points if applicable to all matters / 1.33 points per specific matter; 50-99 % = 3 points if applicable to all matters / 1 point per specific matter; 10-49 % = 2 points if applicable to all matters / 0.66 point per specific matter; 1-9 % = 1 point if applicable to all matters / 0.33 points per specific matter. Matter relates to the type

Figure 41: Topics of surveys conducted among court users or legal professionals (*) (source: European Commission (99))

(*) Member States were given one point per survey topic indicated regardless of whether the survey was conducted at national, regional or court level. ‘Other topics’ include: physical accessibility (MT); usability of the online portal with court information (DK); access to court ingformation (PT), and availibility of readibility of forms and instructions to complete them (PL). This category also covers surveys among court staff, e.g. integrity of judges (HU), level of knowledge and personal culture of court service employees (PL) and property profile of the judiciary (AT), and qualitative aspects, such as satisfaction (AT), quality of sentencing (MT), loyalty towards the courts (PT) and conception of appropriate punishment (FI).

Figure 42: Follow-up of surveys conducted among court users or legal professionals (*) (source: European Commission (100))

(*) Member States were given one point per type of follow-up. The category ‘other specific follow-up’ included: guideline and framework for new online portal (DK), guideline for policy and operational direction, (MT), improve general perceptions about justice system (PT), and publication of informative tools for general public. IE: data refer to the probate survey conducted in 2016.

2017

data collected in cooperation with the group of contact persons on national justice systems.

99

3.2.4. Standards

Standards can drive up the quality of justice systems. For the first time, based on data gathered by the Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe) and the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC), the 2019 EU Justice Scoreboard presents an overview of the practices used at the highest and lower courts that contribute to the quality of judgments (Figure 43).

Following the examination of standard measures on timing and information to parties in the previous edition, the 2019 EU Justice Scoreboard focuses on timing, backlogs and timeframes as a management tool in the judiciary (101). Figure 44 presents an overview of which Member States use standard measures on time limits, timeframes and backlogs. Time limits are quantitative deadlines, e.g. maximum number of days between the registration of a case until the first hearing. Backlogs are cases older than an identified period of time. Timeframes are measurable targets/practices e.g. specifying a pre-defined share of cases to be completed within a certain time period. Figure 45 presents which bodies set, monitor and follow-up on backlog standards, and Figure 46 shows in more detail certain aspects related to timeframes.

– Quality of judgments –

High quality judicial decisions are generally perceived as those that are clearly drafted, structured and that strike a proper balance between clear reasoning and conciseness, thus being easily understood and enforceable. The wording and structure of judicial decisions may also have an impact on how well they can be processed by software programmes, in particular Natural Language Processing (NLP) applications. This end result can only be achieved through the combination of a complex and multifaceted set of elements, such as the high quality professional training of judges, the adoption of good pratices regarding drafting and the monitoring of the quality of the decisions, in the respect of the independence of the judiciary. The Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe) developed a questionnaire that was replied to by the Supreme Administrative Courts, and by the Supreme Courts (members of the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC). Without entering into the merits of individual decisions, Figure 43 presents the standards adopted by the Member States regarding selected indicators considered to contribute to the overall quality of judgments.

In the EU Justice Scoreboard, the standards on time limits and timeframes go beyond the requirements stemming from the right to a hearing within a reasonable time as enshrined in Article 47 of the Charter of

101

Figure 43: Standards applied to improve the quality of judgments

(source: European Commission with ACA-Europe and NPSJC)

highest courts

(*)

( *) For each Member State, left column presents the practices in Supreme Courts, right column presents the

practices in Supreme Administrative Courts (column marked with letter “A”). The Member States appear in the

alphabetical order of their geographical names in the original language. Member States were given one point per indicator of the quality of judgments. Training includes the legal training of judges on the structure of written

decisions (0.25 points), legal training of Supreme Courts’ judges on the style of reasoning of written judgments, legal training of lower courts’ judges on the style of reasoning of written decisions (0.25 points) and training on the drafting of judgments (university, judges’ school or on the job) (0.25 points). An obligation to use clear and simple

language is considered to exist whether required by law, regulation or professional practice (1 point). The obligation of conciseness is considered to be applicable whether based on law, court regulations or practices (1 point). The assessment of the quality of judgments refers to the existence of an internal mechanism at the level of the Supreme Court to assess the global quality of its own decisions (1 point). IT, Corte Suprema di Cassazione: although a procedural tool for clarification of judgments does not exist, in some situations, certain aspects of the case may still be clarified at the stage of the execution of the decision before a competent judge. DK and RO: no data. Participating courts: BE: Cour de Cassation (Supreme Court) Ond ConSeil d’Etüt (Council of Stüte) BG: BhpXOeeH

Kacauuonen chd (Supreme Court) and Bhpxoeen aÖMUHuempamueen chd (Supreme Administrative Court). CZ: Nejvyssi soud (Supreme Court) and Nejvyssi sprdvní soud (Supreme Administrative Court) DE:

Bundesverwaltungsgericht (Fed era l Ad min istrative Court). EE: Riikohus (Supreme Court). IE: Chúirt Uachtarach (Supreme Court). EL : Zvflfovfoo TTjq EniKpaTSiaq (Council Of State). ES: Tribunal Supremo (Supreme Court). FR:

Cour de Cassation (Supreme Court) and Conseil d’Etat (Counc of State). HR: Vrhovni sud (Supreme Court) and

Visoki upravni (Su p reme Ad min istrative Court). IT: Corte Suprema di Cassazione (Supreme Court) and Consiglio

de Stato (Councl of State). CY: Avcbmw AiKamrjpw (Supreme Court). LV: Augstākā tiesa (Supreme Court). LT:

Vyriausiasis Ad min istr a cin is Teismas (Supreme Administrative Court). LU: Cour de Cassation (Supreme Court). HU: Kúria (Supreme Court). MT: Court of Appeal. NL: Hoge Raad (Supreme Court) and Raad van State (Councl of State). AT: Oberster Gerichtsh of (Su p reme Court) and Verwaltungsgerichtshof (Supreme Administrative Court).

PL: Sqd Najwyższy (Supreme Court) and Naczelny Sqd Administracyjny (Supreme Administrative Court). PT:

Supremo Tribunal Administrativo (Supreme Administrative Court). SI: VrhoVnO SOdiSCe (Supreme CoUH). SK: NqjVySSl SÜd (Supreme C0Urt). FI: Korkein hallinto-oikeus (Supreme Administrative Court). SE: Högsta domstolen (Supreme Court) and Högsta fö rva ltn in gsd o msto len (Sup reme Ad min istrative Court). UK: Supreme Court.

in

Figure 44: Standards on timing (*) (source: European Commission (102))

(*) Member States were given 1 point if standards are defined, regardless of the area (civil/commercial, administrative, or other).

Figure 45 focuses on standards on backlogs, which consist of delay reducing measures to improve the pace of definition in litigation. The figure shows the competences of the different powers of the Member States to set, monitor and follow-up standards on backlogs. Figure 46 focuses on timeframes, which can be an effective management tool in the judiciary since they can help to detect potential issues on efficiency and assist in identifying solutions (e.g. additional human or financial resources, reorganisation of court management process, temporary assistance to a court).

Figure 45: Setting and monitoring of standards on backlogs (*) (source: European Commission (103))

(*) The ‘executive’ encompasses institutions under direct or indirect control by the government. ‘Other’ refers to the National Office for the Judiciary in HU, headed by its president elected by qualified majority of the Parliament from among judges for a period of nine years. The ‘judiciary’ includes bodies such as court presidents, Councils for the Judiciary, judges’ bodies. HU: The National Office for the Judiciary is involved in setting, monitoring and follow-up of standards on backlogs.

2018

data collected in cooperation with the group of contact persons on national justice systems.

102

Figure 46: Timeframes: definition, automatic monitoring

European Commission (104))

follow-up

(*) (source:

Illlllll__

lllllllllll

lllllllllllllll

■■■■■lllllllllll

llllllllllllllllllll

BE LV HU NL ES IT AT RO SE BG EE LT SI DK FR Fl CY CZ DE IE PT EL HR LU MT PL SK UK Possible follow-up measure: report from judge

Possible follow-up measure: reorganisation of the court management process Possible follow-up measure: temporary assistance by special judges

■ Possible follow-up measure: additional resources

■ Continuous, real time monitoring of timeframes

■ Definition of standards on timeframes

3.2.5. Sum mary on the quality of justice systems

Easy access, sufficient resources, effective assessment tools and appropriate standards and practices are the factors that contribute to a high quality of justice systems. Citizens and business expect high-quality decisions from an effective justice system ( ). T he 2019 EU Justice Scoreboard develops its comparative examination of these factors.

Accessibility

This edition looks at elements contributing to a citizen-friendly justice syste m:

• Almost all Member States provide access to some online information about their judicial system, including a centralised web portal with online forms and interactive education on legal rights (Figure 20). Differences appear on the content of the information and how adequate

these are with people’s needs. For example, as to the possibility to calculate legal aid through

online simulation, an improved number of Member States (13) enable people to find out whether they are eligible for legal aid. While information for non-native speakers is available in the majority of Member States, this is not always the case with targeted information for children and visually or hearing impaired people.

• The availability of legal aid and the level of court fees have a major impact on access to justice, in particular for people in poverty. Figure 21 shows that in some Member States,

consumers whose income is below the Eurostat poverty threshold would not receive legal aid. Compared to last year, though, two of such Member States have made legal aid more reachable. At the same time, over the years, legal aid has become less accessible in some Member States. The level of court fees (Figure 22) has remained largely stable since 2016 although in several Member States, the court fees have raised as a proportion of the claim,

104 105

2018 data collected in cooperation with the group of contact persons on national justice systems.

The use of Artificial Intelligence in justice systems has become a topical issue. In April 2018, the Commission adopted a Communication on Artificial Intelligence for Europe (COM(2018)237 final); it highlighted the importance of investments in key application areas such as public administration, including justice. In the coming years the EU Justice Scoreboard could give an overview of the situation in the Member States. Figures 26 and 43 (arrangements for online publication of judgments, and practices for the quality of judgments) already present data related to factors that are crucial for the development of a robust “Legal tech”

and

especially for low value claims, im putable to the increase of the minimum court fee applicable. The difficulty in benefiting from legal aid in combination with partly significant levels of court fees in some Member States could have a dissuasive effect for people in poverty to access justice.

• The availability of electronic means during the judicial procedure contributes to easier access to just ice and the reduction of delays and costs. F igure 23 shows that in more than half of the Member States, electronic submission of claims is not in place or is possible only to a limited extent and that not all Member States allow following the progress of court proceedings online.

• Most Member States have standards on how to inform the parties about the progress of their case, the court ti metable or potential delays (Figure 24). Compared to previous years, a few Member States have considerably improved these standards. The differences between Member States relate mainly to the methods used. While some Member States have a system with automated e-Mail or SMS notification providing information about delays, timetables or general case progress, others simply give online access to the information about the case, and some also leave it at the discretion of the courts.

• Compared to previous years, online access to court judgments (Figure 25) has improved especially as to the publication of judgments of the highest insta nce: 19 Member States publish all civil/commercial and administrative judgments. For the first time, the EU Justice Scoreboard presents the publication of criminal judgments. They indicate that 19 Member States publish all crimi na l judg ments of the highest instance. The positive developments invite all Member States to further improve as decisions at the highest i nstance play an im portant role for the consistency of case law. As various arrangements for online publication (Figure 26) could facilitate searches for relevant case-law, ta gg in g jud g ments with keywords and greater use of the European Case Law identifier (ECLI) could be further developed.

• The number of Member States promoting the voluntary use of alternative dispute resolution methods (ADR) (Figure 27) for private disputes continues to grow compared to previous years. This is mainly achieved by introducing more incentives for the use of ADR across different areas of law. Administrative disputes have also been taken into consideration and less than half of the Member States allow ADR in the field.

Resources

High quality justice systems in Member States require sufficient levels of financial and human resources, including the necessary investments into physical and technical infrastructure, appropriate initial and continuous training, as well as diversity among judges, including gender balance. The 2019 EU J usti ce Sc ore boa rd shows the f oll owing :

• In terms of financial resources, data show that, overall, in 2017, general government total expenditure on law courts remained mostly stable in Member States, with significant differences in actual amounts, both in EUR per inhabitant and as a percentage of GDP between Member States persisting (Figures 28 and 29). However, fewer Member States increased their expenditure in 2017 compared to 2016. Member States mostly use historical or actual cost for determining financial resources for the judiciary, while few rely on the actual workload or court requests (Figure 30).

• For the first time, based on data gathered by the Eurostat, the 2019 EU J u sti ce Sc ore boa rd also presents the breakdown of total expenditure into different categories. Figure 31 reveals significant differences in spending patterns among Member States. On the one hand, while the wages and salaries of judges and court staff (including social contributions) represent the biggest share in most Member States, investment into fixed assets such as court buildings and software is very low, and even absent in some cases. The expenditure on operating costs (e.g.

• Women represent a large majority among judges. In first and second instance courts they prevail in the majority of Member States (Figure 33). This is then reversed, though, in Supreme Courts where women represent less than fifty percent of judges in most Member States (Figure 34). However, the proportion of female judges at Supreme Courts has grown since 2010 in m ost M e mber States.

• On the training of judges, while most Member States provide continuos training in EU law, the law of another Member State and on judgecraft fewer offer training on I T skills, court

management and judicial ethics (Figure 37). On the training on communicating with vulnerable group of parties, there appear to be improvements at the benefit of children, persons visually or hearing impaired and victims of gender based violence (Figure 38), less so with respect to asylum seekers. Less than half of Member States provide trainings on awareness raising and ability to deal with fake news and social media issues.

Assessment tools

• Monitoring and evaluation of court activities (Figure 39) exists in all Member States. It generally includes different performance and quality indicators and regular reporting. Almost all Member States monitor the number and length of court cases and have regular evaluation systems. Compared to previous years, several Member States have extended monitoring to more specific elements and some involved more specialised court staff for quality.

• Many Member States have yet to implement ICT case management systems to their full potential, and no improvements have been achieved compared to previous years (Figure 40).

These systems serve various purposes, including generating statistics, and are to be implemented consistently across the whole justice system. Some Member States have early-warning systems to detect malfunctions or non-compliance with case processing standards, which enables the finding of timely solutions. In some Member States, it is still not possible to ensure nationwide data collection across all justice areas.

• The use of surveys among court users and legal professionals (Figure 41) has decreased, with a rising number of Member States opting not to conduct any surveys. Accessibility, customer service, court hearing and judgment, as well as general trust in the justice system remained key survey topics, but only a few Member States inquired about the satisfaction of groups with special needs and the awarness of rights. Almost all Member States who used surveys also ensured follow-up (Figure 42), while the extent of the follow up continued to vary greatly. Results generally were made public and fed into reports, while in most of the Member States the survey results allowed to identify the need to amend legislation.

Standards

Standards can drive up the quality of justice systems. This edition continues to examine in more detail certain standards aiming to improve the timing of proceedings and the information provided to the parties. For the first time, the 2019 EU Justice Scoreboard also includes data on the standards regarding the quality of judgments.

• Based on data gathered by ACA-Europe and NPSJC, Figure 43 shows that the standards regarding the quality of judgments differ considerably among Member States, and, in some Member States, even between the courts considered. However, most Member states provide some kind of professional training for judges on the structure, style of reasoning and drafting of judg ments.

In most Member States, the structure and reasoning of decisions include predetermined elements. In addition, in some Member States, court users have access to mechanisms to obtain clarifications regarding court decisions, an interesting practice to improve citizen-friendly

Supreme Courts that deploy instruments of self-assessment of the quality of their decisions are a minority, although such practice, while respecting the independence of the judiciary, could allow improvements.

Most Member States use standards on timing. However, certain Member States facing particular challenges on efficiency are currently not using such standards. Standards on backlogs are still not as widespread as those fixing time limits (e.g. fixed time from the registration of a case until the first hearing) and time frames (e.g. specifying a pre-defined share of cases to be completed within a certain time) (Figure 44).

Standards on backlogs are a useful tool that can contribute to better case management and improved efficiency. Figure 45 shows that backlogs are mostly set solely by the judiciary or in cooperation with the executive. The monitoring and follow-up is mainly under the responsibility of the judiciary, while, in some Member States, the executive also plays a role on the monitoring and follow-up phases.

While most Member States have standards on timeframes (Figure 46), only a few have continuous monitoring mechanisms on the predefined timeframes. The 2019 EU Justice Scoreboard shows that the majority of Member States deploy additional resources on follow-up measures, which, however, differ in their scope. The most common follow-up measure is the reorganisation of the court management process, while the possibility of temporary assistance by special judges is only foreseen by few Member States.


3.3. Independence

Judicial independence is a requirement stemming from the principle of effective judicial protection referred to in Article 19 TEU, and from the right to an effective remedy before a court or tribunal enshrined in the Charter of Fundamental Rights of the EU (Article 47) (106). It guarantees the fairness, predictability and certainty of the legal system, which are vital elements for the rule of law and for an attractive investment environment. The perceived independence of the judiciary is a growth-enhancing factor, as a perceived lack of independence can deter investments. In addition to indicators on perceived judicial independence from various sources, the Scoreboard presents a number of indicators on how justice systems are organised to protect judicial independence in certain types of situations where independence could be at risk. Reflecting the input from the European Network of Councils for the Judiciary (ENCJ), the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC) and the Association of the Councils of State and Supreme Administrative Jurisdictions of the EU (ACA-Europe), the 2019 EU Justice Scoreboard shows new or updated indicators in relation to legal safeguards on the disciplinary proceedings regarding judges and the appointment of judges-members of the Councils for the Judiciary, and on the organisation of the prosecution services.

3.3.1. Perceived judicial independence

Figure 47: Perceived independence of courts and judges among the general public

(source: Eurobarometer (107) — light colours: 2016, 2017 and 2018, dark colours: 2019)

(*)

J I I ■ .                   I I I I I I I I I 1 I I I


40* 30% 20% 10%

i ii ii r 11 i ii iuiii

I h k I I I I            II inn I

1111111

1111111111

11111111111

111111111111 ii

i 1111111111 mi ii

r r 111111111111111 ii i ii i

i 111111111111111 1111111

DK Fl AT SE IE DE NL LU UK BE CY FR EL MT EE CZ LT LV HU PT RO SI PL IT ES BG SK HR ■ Very good             ■ Fairly good                Fairly bad             «Very bad             ■ Don't know

( *) Member States are ordered first by the percentage of respondents who stated that the independence of courts and judges is very good or fairly good (total good); if some Member States have the same percentage of total good, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is fairly bad or very bad (total bad); if some Member States have the same percentage of total good and total bad, then they are ordered by the percentage of respo n dents who stated that the independence of courts and judges is very good; if some Member States have the same percentage of total good, total bad and of very good, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is very bad.

Figure 48 shows the main reasons given by respondents for the perceived lack of independence of courts and judges. Respondents among the general public, who rated the independence of the

106 107

See http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN.

Eurobarometer survey FL474, conducted between 9 and 11 January 2019. Replies to the question: ‘From what you know, how would you rate the justice system in (our country) in terms of the independence of courts and judges? Would you say it is very good, fairly good, fairly bad or very bad?’, see:

justice system as being ‘fairly bad’ or ‘very bad’, could choose between three reasons to explain

rating. The Member States are

listed in the same order

as in Figure 47.

Figure 48: Main reasons among the general public for the perceived lack of independence (share of all respondents — higher value means more influence) (source: Eurobarometer (108))

Figure 49: Perceived independence of courts and judges among companies (*) (source: Eurobarometer (109) — light colours: 2016, 2017 and 2018, dark colours: 2019)

.FF

40* 30% 20%

10%

MIMI             M II M M II M I

11II TI I III         I

I I I I I I I III         Mill

III         I I I I I I I

II      III III

llllllll I I I I II                  III

I I I I I I I I I I I I II                  III

I llllll I I I I I I I II                    I

I  I II I I I I I I I I I I I I                    I

II  II M I I I I TPM Ml                    I

DK LU Fl AT IE NL DE RO SE BE UK MT LT FR EL CY LV CZ BG EE IT ES PT PL SI SK HU HR ■ Very good             ■ Fairly good                Fairly bad             ■ Very bad             ■ Don't know

( ) Member States a re ordered first by the percentage of respondents who stated that the independence of courts a nd judges is very good or fairly good (total good); if some Member States have the same percentage of total good, then they are ordered by the percentage of respondents who stated that the independence of courts and judges is fairly bad or very bad (total bad); if some Member States have the same percentage of tota l good and total bad, then they a re ordered by the percentage of respondents who stated that the independence of courts and jud ges is very good; if some Member States have the same percentage of total good, total bad and of very good, then they are ordered by the percentage of resp o nd ents who stated that the independence of courts and judges is very bad.

109

Eurobarometer survey FL474, replies to the question: ‘Could you tell me to what extent each of the following reasons explains your rating of the independence of the justice system in (our country): very much, somewhat, not really, not at all?’.

Eurobarometer survey FL475, conducted between 7 January and 16 January 2019. Replies to the question: ‘From what you know, how would you rate the justice system in (our country) in terms of the independence of courts and judges? Would you say it is very good, fairly good, fairly bad or very bad?’, see:

their

08

Figure 50 shows the main reasons given by respondents for the perceived lack of independence of courts and judges. Respondents among companies, who rated the independence of the justice system as being ‘fairly bad’ or ‘very bad’, could choose between three reasons to explain their rating. The Member States are listed in the same order as in Figure 49.

Figure 50: Main reasons among companies for the perceived lack of independence (rate of all respondents — higher value means more influence) (source: Eurobarometer (110))

Figure 51: WEF: businesses’ perception of judicial independence (perception — higher value means better perception) (source: World Economic Forum (111))

r n

111 111

ii ii ii ii ii ii ii ii ii ii ii ii ii

llffikrnr

I II I

MM

Fl NL LU DK IE UK BE SE AT EE DE FR PT CY CZ RO LT MT ES IT LV EL SI BG HU PL SK HR Survey conducted in:           2010-12 2015-16 2016-17 2017-18

110

111

Eurobarometer survey FL475; replies to the question: ‘Could you tell me to what extent each of the following

reasons

explains your rating of the independence of the justice system in (our country): very much, somewhat, not really, not at all?’.

The World Economic Forum (WEF) bases its indicator on survey answers to the question: ‘In your country, how independent is the judicial system from influences of the government, individuals, or companies? [1 = not independent at all; 7 = entirely independent]’. Responses to the survey came from a representative sample of businesses representing the main sectors of the economy (agriculture, manufacturing industry, non-manufacturing industry, and services) in all the Member States concerned. The survey is administered in a variety of formats, including face-to-face or telephone interviews with business executives, mailed paper

(112)

3.3.2. Structural independence

The guarantees of structural independence require rules, particularly as regards the composition of the court and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that court to external factors and its neutrality with respect to the interests before it

European standards have been developed, particularly by the Council of Europe, for example in the 2010 Council of Europe Recommendation on judges: independence, efficiency and responsibilities (113). The Scoreboard presents a number of indicators on how justice systems are organised to safeguard judicial independence.

For the first time, this edition of the Scoreboard includes indicators on bodies and authorities involved in disciplinary proceedings regarding judges (Figures 52 and 53), and, as last year, shows an indicator on the appointment of judges-members of the Councils for the Judiciary (Figure 54) (114). The 2019 EU Justice Scoreboard expands its overview of how prosecution services are managed and organised in the Member States (Figures 55, 56 and 57) (115). The figures present the national frameworks as they were in place in December 2018.

The figures presented in the Scoreboard do not provide an assessment or present quantitative data on the effectiveness of the safeguards. They are not intended to reflect the complexity and details of the safeguards. Having more safeguards does not, in itself, ensure the effectiveness of a justice system. It should also be noted that implementing policies and practices to promote integrity and prevent corruption within the judiciary is also essential to guarantee judicial independence. Ultimately, the effective protection of judicial independence requires a culture of integrity and impartiality, shared by magistrates and respected by the wider society.

112

See Court of Justice of the European Union, judgment of 25 July 2018, LM, C-216/18 PPU, ECLI:EU:C:2018:586. para 66. See also paragraphs 46 and 47 of the Recommendation CM/Rec(2010)12 Judges: Independence, Efficiency and Responsibility (adopted by the Committee of Ministers of the Council of Europe on 17 November 2010) and Explanatory Memorandum, which provide that the authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.

See Recommendation CM/Rec(2010)12 Judges: Independence, Efficiency and Responsibility, adopted by the Committee of Ministers of the Council of Europe on 17 November 2010 and Explanatory Memorandum (hereinafter: ‘the Recommendation CM/Rec(2010)12’).

The figures are based on the responses to an updated questionnaire drawn up by the Commission in close association with the ENCJ. Responses to the updated questionnaire from Member States that have no Councils for the Judiciary, are not ENCJ members, or their ENCJ membership has been suspended (CZ, DE, EE, CY, LU, AT, PL and FI) were obtained through cooperation with the Network of the Presidents of the Supreme Judicial Courts of the EU.

The figures are based on responses to an updated questionnaire drawn up by the Commission in close

3

4

115

Safeguards on disciplinary proceedings

regarding judges

Disciplinary proceedings regarding judges are among the most sensitive situations in relation to judicial independence. According to the Court of Justice of the European Union, “the requirement of independence also means that the disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of it being used as a system of political control of the content of judicial decisions.” (116) The set of guarantees identified by the Court of Justice as essential for safeguarding the independence of the judiciary include rules which define both conduct amounting to disciplinary offences and the penalties actually applicable, rules which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and rules which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions (117). The Court of Justice held that “Article 267 TFEU gives national courts the widest discretion in referring matters to the Court (…) at whatever stage of the proceedings they consider appropriate” (118). The Court added that any national rule inhibiting this discretion “in order to avoid being (…) exposed to disciplinary penalties” is “detrimental to the prerogatives granted to national courts and tribunals by Article 267 TFEU and, consequently, to the effectiveness of the cooperation between the Court and the national court (…) established by the preliminary ruling mechanism” (119). The Court later stated that “not being exposed to disciplinary sanctions for (…) sending request for a preliminary ruling to the Court (…) constitutes a guarantee essential to judicial independence” (120).

According to the Council of Europe standards, disciplinary proceedings regarding judges may follow where they fail to carry out their duties in an efficient and proper manner (121). The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in case of malice and gross negligence (122). Moreover, disciplinary proceedings should be conducted by an independent authority as a court with all the guarantees of a fair trial. The judge under disciplinary proceeding should have the right to challenge the decision and the sanction. Disciplinary sanctions should be proportionate (123).

Figure 52 presents an overview of the authorities that decide on disciplinary sanctions regarding ordinary judges, which can be either (a) regular independent authorities such as courts (Supreme Court, Administrative Court or Court President) or Councils for the judiciary, or (b) other authorities whose members are specifically appointed by the Council for the Judiciary, by judges or by the executive to decide in disciplinary proceedings regarding judges.

119

121 122

See Court of Justice of the European Union, judgment of 25 July 2018, LM, C-216/18 PPU, ECLI:EU:C:2018:586, para 67.

See Court of Justice of the European Union, judgment of 25 July 2018, LM, C-216/18 PPU, ECLI:EU:C:2018:586, para 67.

See Court of Justice of the European Union, judgment of 5 July 2016, Ognyanov, C-614/14, ECLI:EU:C:2016:514, para. 17.

See Court of Justice of the European Union, judgment of 5 July 2016, Ognyanov, C-614/14, ECLI:EU:C:2016:514, para. 25.

See Court of Justice of the European Union, order of 12 February 2019, RH, C-8/19, ECLI:EU:C:2019:110, para. 47.

Para 69 of the Recommendation CM/Rec(2010)12.

Para 66 of the Recommendation CM/Rec(2010)12.

6

7

8

20

Figure 52: Authority deciding on disciplinary sanctions regarding judges (*) (124)

(*) BG: Lighter disciplinary sanctions may be imposed by the Court President. CZ: Disciplinary cases are examined by disciplinary chambers of the Supreme Administrative Court. The members are proposed by the President of the Court among a list of judges and they are chosen by sortition. DK: The Court of Indictment and Revision whose members are proposed by several actors (judiciary, law firm and public organisation) and appointed by the Ministry of Justice following the recommendation of the Judicial Appointments Council (independent body) decides. DE: Disciplinary measures can be applied in formal disciplinary proceedings (Section 63 German Judiciary Act) by service courts (‘Dienstgerichte der Länder’ concerning federal state judges, and ‘Dienstgericht des Bundes’ concerning federal judges), which are special panels in regular courts. The members of these panels are appointed by the judges (‘Präsidium’) of the particular court (higher regional court or regional court, or the Federal Court of Justice). Less severe disciplinary measures, such as reprimand, can be issued in a disciplinary ruling (Section 64 German Judiciary Act) by either a court president or the ministry of justice (both at the level of federal states and at federal level). EE: disciplinary cases are examined by the Disciplinary Chamber of Judges appointed by the Supreme Court and by the General Assembly of all Estonian judges. IE: Judges are not subject to a disciplinary body or disciplinary regime apart from the procedure under the Constitution under which a judge may be removed from office for stated misbehaviour or incapacity upon resolutions passed by both Houses of Parliament (the Oireachtas) calling for his/her removal. EL: The disciplinary authority over judges is exercised, in the first and second instance, by councils composed of regular judges of higher rank chosen by lot. Disciplinary authority over high ranking judges is exercised by the Supreme Disciplinary Council. LV: Disciplinary cases are examined by the Judicial Disciplinary Committee whose members are appointed by the general meeting of judges. ES: Disciplinary decisions regarding minor disciplinary offences are made by the governance chamber of the respective Court of the district where the disciplined judge sits (High Court of Justice, National Court and Supreme Court). LT: At first instance, the Judicial Court of Honour, whose members and chairperson (judge, elected by the Council for the Judiciary) are laid out in the Ruling of the Council for the Judiciary, decides. It is composed of six judges selected and appointed by the Council for the Judiciary, two members appointed by the President of the Republic and two members appointed by the Speaker of the Seimas. At second instance, the Supreme Court decides. HU: Disciplinary cases are examined by the Service Tribunal appointed by the Council for the Judiciary. MT: The Commission for the Administration of Justice decides. PL: The Minister of Justice selects disciplinary judges after a non-binding consultation with the National Council for the Judiciary. SI: The disciplinary court is appointed by the Council for the Judiciary among members of the Council itself and among judges proposed by the Supreme Court. SK: Disciplinary panels are appointed by the Council for the Judiciary. For the President and Vice President of the Supreme Court, the Constitutional Court is competent for disciplinary proceedings. SE: A permanent judge may be removed from office only if he has committed a serious crime or repeatedly neglected his duties and thereby shown himself manifestly unfit to hold the office. Should the decision to remove the judge from office have been made by another authority than a court (in practice by the National Disciplinary Offence Board), the judge concerned may call upon a court to review that decision. UK (EN&WL): The Lord Chief Justice has the power, with the agreement of Lord Chancellor, to give a judge formal advice, a formal warning or a reprimand, or to suspend them from office in certain circumstances. UK (NI): Disciplinary cases are decided by Lord Chief Justice and Judicial Appointments Ombudsman.

Figure 53 presents an overview of the investigative bodies, which carry out the formal investigation during disciplinary proceedings regarding judges. It does not concern preliminary enquiries to decide whether or not to initiate a formal disciplinary proceeding. The investigation phase is a particularly sensitive step within disciplinary proceedings, which could affect judicial independence. The investigative power can be exercised either (a) by regular independent authorities such as Court Presidents or Councils for the Judiciary, or (b) by other investigators who are specifically appointed -by the Council of the Judiciary, by judges or by other authorities-for conducting investigations in disciplinary proceedings regarding judges.

124

Data collected through an updated questionnaire drawn up by the Commission in close association with the ENCJ. Responses to the updated questionnaire from Member States that have no Councils for the Judiciary, are not ENCJ members, or their ENCJ membership has been suspended were obtained through cooperation

Figure 53: Investigator

125

()

in charge of formal disciplinary proceedings regarding judges

(*)

(*) BG: The relevant administrative head of the court or the Judge’s College to the Supreme Judicial Council of Bulgaria investigates. CZ: The minister of justice can also conduct some preliminary enquiries in order to prepare the motion to initiate disciplinary proceedings, normally consulting the president of the court where the concerned judge sits. DK: The Director of the Public Prosecution investigates. DE: There is no formal pre-investigatory phase. In disciplinary orders, concerning less severe disciplinary measures such as reprimand, the court president and the highest service authority (usually the ministry of justice, both at the level of federal states and at federal level) assess the facts. The highest service authority decides whether to launch a disciplinary proceeding before the court. Then the court carries out formal investigations. EE: The President of a court or the Chancellor of Justice (Ombudsman) can conduct an investigation. IE: The judges are not subject to a disciplinary body or disciplinary regime apart from the procedure under the Constitution under which a judge may be removed from office for stated misbehaviour or incapacity upon resolutions passed by both Houses of Parliament (the Oireachtas) calling for his/her removal. EL: Civil and Criminal Courts: The Judicial Inspection Body which is elected from among judges by lot. Administrative courts: The investigator is chosen by lot among the members of the Council of State. ES: The Promoter of disciplinary action is appointed by the General Council for the Judiciary; the Promoter is selected from a pool of judges of the Supreme Court and Magistrates with more than 25 years of legal experience, but exclusively exercises the functions of Promoter during his mandate. IT: The Prosecutor General at the Supreme Court (who is a member of the Council for the Judiciary) is entitled to conduct the investigation. CY: The Investigative judge, appointed by the Supreme Court, investigates. LV: The Judicial Disciplinary Committee investigates. HU: The Disciplinary Commissioner, appointed by the Service Tribunal (disciplinary court), investigates. LT: The Judicial Ethics and Discipline Commission, whose members and chairperson (elected by the Council for the Judiciary) are laid out in the Ruling of the Council for the Judiciary, is composed of four judges appointed by the Council for the Judiciary, two members appointed by the President of the Republic, and one member appointed by the Speaker of the Seimas, investigates. The chairperson of the Judicial Ethics and Discipline Commission has the right to delegate the court president in which the judge is working or the president of the higher court to carry out the investigation and present the results of the investigation. MT: The Commission for the Administration of Justice investigates. NL: The Prosecutor-General investigates. PL: The Minister of Justice appoints the Disciplinary Officer for ordinary court judges and his/her two deputies (they, in turn, can appoint their own deputies from among candidates proposed by judges, but under some circumstances can appoint deputies of their own choosing) to investigate. The Minister of Justice can take over any ongoing investigation by appointing an ad hoc Disciplinary Officer of the Minister of Justice. PT: The Council for the judiciary appoints the Judicial Inspection Body, which investigates. RO: The Judicial Inspection Body investigates. SI: The Judicial Council appoints a disciplinary prosecutor from among candidates proposed by the Supreme Court, to investigate. SK: The Disciplinary panel, appointed by the Council for the Judiciary, conducts the investigation. SE: The Parliamentary Ombudsmen and the Chancellor of Justice act as prosecutors in cases of serious malpractice. UK (EN&WL): Depending on the nature of the case and what stage of the disciplinary process the case is at, different authorities consider complaints at different stages of the disciplinary process: the Judicial Conduct and Investigations Office considers the papers in the first instance; nominated judges, selected by Lord Chief Justice, typically make decisions on the papers alone, but do have the discretion to interview parties; disciplinary panels, selected by Lord Chief Justice and Lord Chancellor, typically look at the papers and take evidence from the subject of the complaint in person; and investigating judges, selected by Lord Chief Justice, usually interview the subject of the complaint and might also interview other parties. It should be noted that not every complaint goes through all of these stages. UK (NI): Lord Chief Justice for Northern Ireland.

– Safeguards on the nomination of judges-members of the Councils for the Judiciary –

Councils for the judiciary are essential bodies for ensuring the independence of justice. It is for the Member States to organise their justice systems, including deciding on whether or not to establish a Council for the Judiciary. However, well established European standards, in particular the Recommendation CM/Rec(2010)12, recommend that ‘not less than half the members of [Councils for the Judiciary] should be judges chosen by their peers from all levels of the judiciary

125

Data collected through an updated questionnaire drawn up by the Commission in close association with the ENCJ. Responses to the updated questionnaire from Member States that have no Councils for the Judiciary, are not ENCJ members, or their ENCJ membership has been suspended were obtained through cooperation

and with respect for pluralism inside the judiciary’ (126). The figure below describes whether the judiciary is involved in the appointment of judges-members of the Councils for the Judiciary.

Figure 54: Appointment of judges-members of the Councils for the Judiciary: involvement of the judiciary (*) (127)

(*) The Member States appear in the alphabetical order of their geographical names in the original language. The figure presents the national frameworks as they were in place in December 2017. DK: judges-members of the Council are selected by judges. All members are formally appointed by the Minister of Justice. EL: judges-members are selected by lot. ES: judges-members are appointed by the Parliament — the Council communicates to the Parliament the list of candidates who have received the support of a judges’ association or of 25 judges. NL: judges-members are selected by the judiciary and are appointed on the proposal of the Council, based among others on the advice of a selection committee (consisting mainly of judges and court staff). All members of the Council are formally appointed by a Royal Decree, an administrative act, which does not leave any room for discretion to the executive. PL: Candidate judges-members are proposed by groups of at least 2 000 citizens or 25 judges. From among the candidates, the deputies’ clubs select up to nine candidates, from which a committee of the lower chamber of the Parliament (Sejm) establishes a final list of 15 candidates, who are appointed by the Sejm. RO: The campaign and election of judges-members are organised by the Superior Council of Magistracy. Once the final list of elected judges-members is confirmed, the Senate will validate it "en bloc". The Senate may refuse to validate the list only in case of infringement of the law in the procedure for the election of the members of the council and only if the infringement has had an influence over the result of the election. The Senate cannot exercise discretion over the choice of candidates UK: judges-members are selected by judges.

– Safeguards relating to the functioning of national prosecution services in the EU –

Public prosecution plays a major role in the criminal justice system as well as in cooperation in criminal matters. The proper functioning of the national prosecution service is important for fighting money laundering and corruption. According to the Court of Justice case-law, in the context of the Framework Decision on the European Arrest Warrant (128), the public prosecutor’s office can be considered a Member State judicial authority responsible for administering criminal justice whenever it can be distinguished from the executive, in accordance with the principle of the separation of powers which characterises the operation of the rule of law (129).

128 129

Recommendation CM/Rec(2010)12, para. 27; see also 2016 CoE action plan, C item (ii); Opinion no.10(2007) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society, para. 27; and ENCJ, Councils for the Judiciary Report 2010-11, para. 2.3.

Data collected through an updated questionnaire drawn up by the Commission in close association with the ENCJ.

OJ L 190, 18.7.2002, p. 1.

Court of Justice of the European Union, judgment of 10 November 2016, Openbaar Ministerie v Ruslanas Kovalkovas, Case C-477/16 PPU, paras 34 and 36, ECLI:EU:C:2016:861; judgment of 10 November 2016, Openbaar Ministerie v Halil Ibrahim Özçelik, C‑ 453/16 PPU, ECLI:EU:C:2016:860, paras. 32 and 34. See also Opinion No. 13(2018) Independence, accountability and ethics of prosecutors, adopted by the

26

27

The organisation of national prosecution services varies throughout the EU and there is no uniform model for all Member States. However, there is a widespread tendency to allocate for a more independent prosecutor’s office, rather than one subordinated or linked to the executive (130). Management powers over national prosecutors, together with procedures for appointment and dismissal of prosecutors may influence the extent of the independence of a prosecution service. Whatever the model of the national justice system or the legal tradition in which it is anchored, European standards require that Member States take effective measures to guarantee that public prosecutors are able to fulfil their professional duties and responsibilities under adequate legal and organisational conditions (131) and without unjustified interference (132). In particular, where the government gives instruction of a general nature, for example on crime policy, such instructions must be in writing and published in an adequate way (133). Where the government has the power to give instructions to prosecute a specific case, such instructions must carry with them adequate guarantees (134). According to the 2000 Recommendation of the Committee of Ministers of the Council of Europe, instructions not to prosecute should be prohibited (135). Interested parties (including victims) should be able to challenge a decision of a public prosecutor not to prosecute a case (136).

Figure 55 presents an overview of the distribution of the main management powers over national prosecutors between different authorities. The figure shows which authority, either the Prosecutor General; the Council for the Judiciary/Prosecutorial Council; the Minister of Justice/Government/President; or the Parliament, has the following management powers:

1) to issue general guidance regarding prosecution policy,

2) to give instructions regarding prosecution in individual cases,

3) to evaluate a prosecutor,

4) to promote a prosecutor,

5) to remove an individual case which was assigned to a prosecutor (transfer a case),

6) to decide on a disciplinary measure regarding a prosecutor, and

7) to transfer prosecutors without their consent.

Apart from these selected main management powers, the same or other authorities may have additional powers over national prosecution services (e.g. the power to solve conflicts of competence between Member States' public prosecution offices; to acquire data and information from lower prosecution offices). It should be noted that other authorities may have a role in the above listed management powers (e.g. a disciplinary court may decide on certain disciplinary measures).

131 132

133 134 135

CDL-AD(2010)040-e Report on European Standards as regards the Independence of the Judicial System: Part II — the Prosecution Service — Adopted by the Venice Commission — at its 85th plenary session (Venice, 17-18 December 2010), para. 26.

Recommendation Rec(2000)19 on the role of public prosecution in the criminal justice system, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000 (the 2000 Recommendation), para. 4.

The 2000 Recommendation, paras 11 and 13. See also Opinion No. 13(2018) Independence, accountability and ethics of prosecutors, adopted by the Consultative Council of European Prosecutors (CCPE), recommendations i and iii.

The 2000 Recommendation, para. 13, point c).

The 2000 Recommendation, para. 13, point d).

The 2000 Recommendation, para. 13, point f). See also Opinion No. 13(2018) Independence, accountability and ethics of prosecutors, adopted by the Consultative Council of European Prosecutors (CCPE), recommendation iv.

30

Figure 55 presents only a factual overview of certain aspects of the organisation of the prosecution services and does not assess their effective functioning, which requires a qualitative assessment taking into account the specific circumstances of each Member State.

The percentage represents the distribution of the seven management powers referred to above among the four possible authorities, without any weighting in terms of the importance of each point.

Figure 55: Distribution of main management powers over national prosecution services (*) (source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

(*) The Member States appear in the alphabetical order of their geographical names in the original language. The main management powers of the Prosecutor General are described in Figure 56. BE: Council for the Judiciary: power to decide on promotion of prosecutors. Minister of Justice: power to issue general guidance regarding prosecution policy on advice of the Board of prosecutors general and to give instructions regarding prosecution in individual cases (a right of positive injunction to prosecute is foreseen in art. 364 of the Code of Criminal Procedure and art. 151 (1) of the Constitution). BG: Council for the Judiciary (Prosecutor's college of the Supreme Judicial Council): powers to decide on a disciplinary measure regarding a prosecutor, on individual evaluation and on promotion of prosecutors. Minister of Justice may propose the appointment, promotion, demotion, transfer and release from office of judges, prosecutors and investigating magistrates. CZ: Minister of Justice: power to decide on the promotion of prosecutors; power to transfer prosecutors without their consent only in case of organisational changes based on the law. DK: Minister of Justice: powers to decide on disciplinary measures regarding prosecutors and to decide on promotion of prosecutors. DE: Minister of Justice: power to issue general guidance regarding prosecution policy and to give instructions regarding prosecution in individual cases. EE: Disciplinary proceedings shall be initiated at the request of an interested person or on their own initiative by the Minister of Justice against the Prosecutor General, chief state prosecutor or chief prosecutor. EL: Supreme Judicial Council: power to promote and transfer public prosecutors, effected by Presidential decree. Minister of Justice is exceptionally allowed to issue general information directives to prosecutors in relation to the application of the legal instruments adopted within the Council of the European Union concerning the judicial cooperation of the Member States in the fields of the prevention and combating of certain types of crimes. ES: Fiscal Council (Prosecutorial Council) has the power to review decisions made by the Prosecutor General in cases set in law. FR: Minister of Justice: power to issue general guidance regarding prosecution policy; power to decide on disciplinary measures regarding prosecutors on the opinion of the High Council for the Judiciary (Conseil Supérieur de la Magistrature) (Article 65 of the French Constitution and Articles 48, 58-1 and 59 of the Statutory Order). If the Minister intends to take a decision that is more serious than the one proposed by the High Council for the Judiciary, the Council must be consulted again (section 58 (1) of the Statutory Order). The President of the Republic issues a decree to promote a prosecutor on the opinion of the Council for the Judiciary. High Council for the Judiciary gives opinion on disciplinary measures, transfers of prosecutors without consent, and promotion of prosecutors. HR: State Attorneys Council: power to decide on disciplinary measures and to promote prosecutors. IT: Council for the Judiciary: powers to decide on a disciplinary measure regarding a prosecutor, to transfer prosecutors without their consent, to decide on individual evaluation of a prosecutor, and to promote a prosecutor. CY: Council for the Judiciary dismisses the Prosecutor General. LV: Council of the Prosecutor General: according to the Article 29, part 2 of the Law on Prosecution Office, the Council as a collegiate advisory institution reviews the main issues related to the organization and operation of the Prosecution Office and performs other functions provided in the law (e.g. develops and adopts statutes governing selection, traineeship and qualification examination of applicants to the Prosecutor’s position and statutes for evaluation of prosecutors’ professional performance). LT: Parliament (Seimas) sets the operational priorities of the Prosecution Service and conducts parliamentary scrutiny of non-procedural actions. LU: Minister of Justice may instruct prosecution services to prosecute in a case (but cannot instruct not to prosecute). However, there have not been any instructions since more than 20 years. There is no


and act as prosecutors before the inferior courts; the Attorney General acts as a prosecutor before the Superior Courts when the compilation of evidence before the Inferior Courts is concluded. NL: Attorney General's Council (College van procureursgeneraal): power to issue general guidance regarding prosecution policy. Minister of Justice: power to issue general guidance regarding prosecution policy and to decide on certain disciplinary measure on prosecutors; it may instruct prosecution services to prosecute or not to prosecute in a case, but needs to beforehand obtain a written reasoned opinion of the Attorney General's Council (College van procureurs-generaal) on the suggested instructions, and notification to Parliament is required. However, so far, there has only been one such case more than twenty years ago. The Head of the Public Prosecution Service within the district where the Public Prosecutor is working has the power to decide on disciplinary measures and on the evaluation of prosecutors. AT: Minister of Justice: power to issue general guidance regarding prosecution policy and to give instructions regarding prosecution in individual cases with the approval of an independent body (Weisungsrat) established at the General Prosecutors office. The powers of the Prosecutor General do not include direct management over the prosecution service as referred to in the chart. The other management powers shown in the chart are held either by the Superior Prosecutor or by the Independent Personnel Board (Personalkommission), consisting of four members, who must be public prosecutors (see comments under Figure 56). As regards the promotion of a prosecutor, it requires an application for a higher position and follows the rules applicable to an appointment as a prosecutor (i.e. proposal by the independent Personal Board (Personalkommission), appointment by the Federal President delegated to the Minister of Justice). The power to decide on a disciplinary measure regarding a prosecutor resides with the Disciplinary Courts, which also have the power to transfer a prosecutor as a sanction. PL: Prosecutor General is also the Minister of Justice. PT: Council for Judiciary: power to decide on a disciplinary measure regarding a prosecutor, to transfer prosecutors without their consent, to decide on individual evaluation of a prosecutor and on promotion of a prosecutor. Parliament can issue general guidance regarding prosecution policy. RO: Council for Judiciary: power to decide on a disciplinary measure regarding a prosecutor and to decide on promotion of a prosecutor (according to Article 40 par 2 letter i) of the Law no 317/2004, the Prosecutorial Section within the Superior Council of Magistracy (SCM) issues the promotion decision of the prosecutors, but the promotion is decided only after a competition (Article 43 of the Law no 303/2004)). Minister of Justice, according to the recently amended article 69 of Law no. 304/2004 on judicial organisation, may ask the General Public Prosecutor of the Public Prosecutor's Office next to the High Court of Cassation and Justice, or, as the case may be, the General Public Prosecutor of the National Anti-Corruption Public Prosecutor's Office, for information on the activity of the Public Prosecutor's Offices and may issue written guidelines about the steps to be taken in crime prevention and control. According to Article 40 par 2 letter h) of the Law no 317/2004 on SCM, the Prosecutorial Section within the SCM is competent to decide on complaints against the final decision of the evaluation committee (the rating). According to Article 39 par 3 of the Law no 303/2004 on the judges and prosecutors statute, the individual evaluation of the prosecutors is performed by special committees constituted on the decision of the SCM. SI: State Prosecutorial Council: powers to transfer prosecutors without their consent, to decide on individual evaluation of a prosecutor, to decide on promotion of a prosecutor. Moreover, the State Prosecutorial Council is responsible for the appointment and dismissal of the heads of district state prosecutor’s offices, performance assessment and promotion, transfers, secondments and participation in the appointment procedure of state prosecutors, providing opinions on the policy of prosecution, performance assessment and efficiency of functioning of the state prosecutor’s offices, the protection of self-dependence in the performance of state prosecutorial service and the performance of other matters in accordance with the State Prosecutor's Office Act. SK: The powers of the Prosecutorial Council (Prosecutors’ Board) do not include direct management over the prosecution service as referred to in the chart. The Prosecutors’ Board has other powers (e.g. decides on the objections of a prosecutor against the content of the evaluation, which the Head of the Public Service Office has not complied with, and expresses its opinion on the temporary assignment of a prosecutor to another Prosecution Office). SE: Government can issue general guidance regarding prosecution policy.

Figure 56 presents a factual overview of the main management powers of the Prosecutor General over prosecutors: 1) to issue general guidance regarding prosecution policy, 2) to give instructions regarding prosecution in individual cases, 3) to evaluate a prosecutor, 4) to promote a prosecutor, 5) to remove an individual case which was assigned to a prosecutor (transfer a case), 6) to decide on a disciplinary measure regarding a prosecutor, and 7) to transfer prosecutors without their consent. In addition to these powers, the Prosecutor General may have other powers, which are not shown in the figure (137).

For example, the Prosecutor General may play a role in bodies responsible for decisions regarding

37

Figure 56: Management powers of the Prosecutor General (*) (source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

Rnr^

min

MINIUM

MUI

■mi

MUM MUM

^^i


BE BG CZ DK DE EE IE EL ES FR HR IT CY LV LT LU HU MT NL AT PL PT RO SI SK Fl SE UK

Transfer without consent

Decision on disciplinary measures

Removal of an individual case assigned to a prosecutor

Promotion

■ Individual evaluation

■ Instructions in individual cases

■ General guidance on prosecution policy

( *) T he Member States appear in the a lph abetica l order of their geographical names in the original language. BE: As to the power to give instructions regarding prosecution in individua l cases, a right of injunction to prosecute upon the Prosecutor of the King is provided by art. 364 of the Code of Criminal Procedure. Articles 150 (2) and 138 (2) of the Code of Civil Procedure provide a general right to exercise authority upon the Prosecutor of the King. CZ: power to give instructions regard ing prosecution in ind ividual cases only within the Prosecutor General Office and towards high public prosecutor offices. EL: T he Public Prosecutor of the Supreme Court (i.e. General Prosecutor) has the right to address to all prosecutors of the country general directions and recommendations relating to the performance of their duties, without of course the addressees of its directives and reco mmend ati ons being bound by the formulation and the expression of their opinion. ES: T he Attorney General sets internal orders and instructions appropriate to the service and to the exercise of prosecuting functions, which may be general or related to specific matters. The general guidelines are essential in order to maintain the principle of unity of action and are fund a mentally defined through circulars, instructions and consultations. As to the transfer without co nsent just in cases of high worklo ad. IT: The Prosecutors General at the Court of Appeal have the powers to remove an individual case which was assigned to a territoria l prosecutor, in case of inaction; in addition to this, they have the power to acquire data and information from the prosecution offces of the district (or territorial) and to send to the Prosecutor General at the Court of Cassation, in order to verify the correct and uniform functioning of the prosecution offices and compli ance with the rules on due process. The Prosecutor General at the Court of Cassation is in charge by Law of the control over the National Anti-Mafia Directorate; moreover, he is in charge of resolving the conflicts of competence between two or more territorial prosecution offices. CY: The Attorney General has the power to decide on disciplinary measures regard ing prosecutors in case of minor disciplinary violations. In case of serious discipli nary offences, the Attorney General does not propose sanctions but recommends the initiation of disciplinary measures by the Public Service Commission. LT: As to the power to give instructions on individual cases, the Prosecutor General cannot instruct on which decision to make; as to the power to decide on promotion of prosecutors, the Prosecutor General decides on the conclusions of the Prosecutor Selection Commission or the Chief Prosecutor Selection Commission. LU: T he Prosecutor General has the power to instruct prosecution services to prosecute in a case (but cannot instruct not to prosecute). As to the promotion of a prosecutor, the state prosecutor / Prosecutor General, with a favourable opinion, suggests the promotion to the executive and the Head of State signs the nomination. AT: T he powers of the Prosecutor General do not include direct management over the prosecution service as referred to in the chart. Superior Prosecutors have the following powers: to issue general guidance regarding prosecution policy within their respective districts, to give instructions regard ing prosecution in ind ividual cases, to transfer prosecutors without their consent for organisational reasons (e.g. having to cope with excessive workload or long term sick leaves at one prosecution authority-only within his or her district and for a limited time). Head of the respective prosecution authority has the power to give instructions regarding prosecution in individual cases and to remove an individual case, which was assigned to a prosecutor (transfer a case). The Independent Personnel Body (Personalkommission), consisting of four members, who must be public prosecutors, has the power to evaluate a prosecutor. PL: The Prosecutor general is also the Minister of Justice. RO: The General Prosecutor has the power to transfer an individual case from a prosecution unit to another prosecution unit and to issue genera l guidance regarding prosecution policies (recommendations), in order to guarantee a unitary approach on criminal investigations. SI: Both the Prosecutor General and

the head of State Prosecutor’s Offices have the powers to issue general guidance on prosecution policy and to remove an


Figure 57 presents an overview of the authorities (Council for the Judiciary/Prosecutorial Council/Court, Ministry of Justice, Prosecutor General/prosecution service) dealing with the appointment and the dismissal of national prosecutors, and does not show the appointment and dismissal of Prosecutors General or other assimilated management positions. The figure shows the diversity of models of organisation of the prosecution service across Member States gathering around the executive power or the judiciary. The figure also shows the role of the Prosecutor General and Councils for the Judiciary/Prosecutorial Councils as important actors both in the appointment and in the dismissal of prosecutors.

Figure 57: Appointment and dismissal of national prosecutors (*) (source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

DISMISSING

PROPOSING DISMISSAL

APPOINTING

PROPOSING CANDIDATES

I III            I

III            III

II III            MM

BE BG CZ DK EE IE ES EL FR HR IT CY LV LT LU HU MT NL AT PL PT RO SI SK Fl SE DE UK Council for the judiciary/Prosecutorial Council/court/other independent body Minister of justice/Government/Head of State

Prosecutor General/senior prosecutor/a body within prosecution service Minister of justice on the opinion of the Council for the Judiciary/Prosecutorial Council/Prosecutor General/senior prosecutor

(*) BE: Proposal for appointment: Council for the Judiciary Decision on appointment: Head of State on advice of the Minister of Justice. Proposal for dismissal disciplinary court. Decision on dismiss a l: Hea d of State on ad vice of the Minister of Justice. BG:

Decision on appointment and dismissal: the Prosecutors’ Chamber of the Council for the Judiciary. CZ: Proposal for

appointment: Prosecutor General. Proposal for dismissal: Prosecutor General, Chief Public Prosecutors and Minister of justice. Decision on dismissal: Court. DK: Proposal for ap poin tme nt: Prosecutor General proposes the fi n a l candidates for the position of prosecutor trainees (fo r the duration of a p p roximately th ree years) to the Ministry of Justice who a p points the candida tes. If a prosecutor trainee passes the examination and subsequently the training, the candidate will become a prosecutor. EE: Proposa l for appointment: prosecutors competition committee fo r spec ia lised prosecutors, district prosecutors and ass ista nt p rosec uto rs; chief prosecutors for senior prosecutors. Decision on appointment and dismissal: Prosecutor General. IE: Proposal for appointment: a recruitment competition under a recruitment licence issued by the Commission on Public Service Appointments (CPSA) held normally by the Office of the Director of Public Prosecutions (or potentially by the Public Appointment Service). Decision on appointment: Director of Public Prosecutions. Proposal for dismissal: Office of the Director of Public Prosecutions, in accordance with terms and conditions set by the Minister of Finance, Public Expenditure & Reform. Decision on dismissal: Deputy Director of Public Prosecutions (Director of Public Prosecutions for prosecutors graded as principal offcers and upwards). ES: Proposal for appointment: National Prosecutor following a report fro m the Fiscal Council, after hearing the Superior Fiscal Council of the respective Autonomous Community in the case of posts in the Public Prosecutor's Offices territorial scope. Decision on appointment: the Government. Proposal for d ismissa l: Attorney General. Decision on dismissal: Mnister of Justice, after a favourable report form the Fiscal Council. EL: Proposal for appointment: Ministry of Justice annually issues a ministeria l decision concern ing the en tra nce ex a mination to the National School of Judges for cand id ate Public Prosecutors. The selection process -held by a five-member committee- currently consists of written and oral exercises. Once they enter the Greek National School of Judges, the successful candidates, start a 16-month course of study in both theory and practice. This training is followed by an exa mination used to rank them by order of merit. Depending on their rank, they will be appointed to the competent court. Decision on appointment: Candidates are appointed as Public Prosecutors by a Presidential decree. Proposal for dismissal: Mnister of Justice. Decision on dismissal: a co u rt judgment by Disciplinary Councils provided for in Article 91 § 2 of the Constitution and are composed of profession a ls judges. FR: Proposal for appointment: Minister of Justice on non- binding advice of the Council of the Judiciary. Decision on appointment: President of the Republic. Proposal for dismissal: Minister of Justice on non-binding advice of the Council of the Judiciary Decision on dismissal: President of the Republic. IT: Decision on appointment: after the proposal of the Council, the Minister of Justice issues a ministerial decree, without any discretion not to appoint or to appoint any other candid ate than the proposed candidate prosecutor. CY: Proposal for appointment/dismissal: Attorney General. Decision on appointment/dismissal: Public Service Commission with the opinion of the Attorney General. LT: Proposal for appointment: Prosecution Selection Commission (composed by two prosecutors nominated by

Collegiate Council,

two prosecutors nominated by the

Prosecutor General

and one member nominated by each the

President

__________


__________________

the

__

____

__

appointment: Head of State. Proposal for dismissal: Prosecutor General. Decision on dismissal: Court. HU: Proposal/decision on appointment: Senior Prosecutor. Proposal for dismissal: Senior Prosecutor. Decision on dismissal: Prosecutor General. MT: T he police have the exclusive competence to institute and undertake criminal proceedings and act as prosecutors before the inferior courts; the Attorney General acts as a prosecutor before the Superior Courts when the compi lation of evidence before the Inferior Courts is concluded. NL: Proposal for appointment: Minister of Justice. Decision on appointment is taken by royal decree (the appointing authority has an obligation by constitutional practice to follow the proposal to appoint the cand id ate for the post of prosecutor). Proposal for dismissal: Minister of Justice on advice of the Head of the prosecution office. Decision on dismissal is taken by royal decree. AT: Proposal for appointment: Independent Personnel Body (Person a lko mmission) consisting of four members, who must be public prosecutors. Decision on appointment: Federal President delegates the decision to the Minister of Justice. Proposal and decision on dismissal: Disciplinary Court. PL: Proposal for and decision on appointment: Prosecutor General - who is also the Minister of Justice - upon a motion of the National Public Prosecutor. A competent public

prosecutor's office’s board gives an opinion on a candidate for the post of prosecutor. Proposal for dismissal: National

prosecutor. Decision on dismissal: Disciplinary court; in very limited situations, also the Prosecutor General can dismiss a prosecutor at the request of the National Prosecutor. T he opinion on dismissa l of a prosecutor is given by the meeting of pu blic

prosecutors of the National Public Prosecutor’s Office or competent Regional Prosecutor’s Office. RO: Proposal for

appointment: Superior Council of Magistracy. Decision on appointment: President (the appointing authority has an obligation by law to follow the proposal to appoint the candidate for the post of prosecutor). SI: Proposal for appointment: Minister of Justice on the opinion of the Council for the Prosecution Service. Decision on appointment: Council for the Prosecution Service (the appointing authority has not an obligation to follow the proposal to appoint the candidate for the post of prosecutor). Proposal for dismissal: Council for the Prosecution Service. Decision on dismissal: Government on the proposal from the Minister of Justice. SK: Proposal for appointment: Chairman of the Selection Board of the General Prosecutor´s Office. Appointment and dismissal: Prosecutor General. FI: Appointment and dismissal: Prosecutor General. SE: Proposal for, decision on appointment: Director of human resources of the Swedish prosecution authority, on the opinion of the Prosecutor General. Proposal for dismissal: Director of human resources of the Swedish prosecution authority. Decision on dismissal: Court on the opinion of the Prosecutor General.

3.3.3. Summary on judicial independence

Judicial independence is a fundamental element of an effective justice system. It is vital for upholding the rule of law, the fairness of judicial proceedings and the trust of citizens and businesses in the legal system. For this reason, any justice reform should uphold the rule of law and comply with European standards on judicial independence. The Scoreboard shows trends in perceived judicial independence among the general public and businesses. This edition also presents some selected indicators concerning legal safeguards in relation to the bodies involved in disciplinary proceedings regarding judges and of the management of the prosecution services. The structural indicators do not in themselves allow for conclusions to be drawn about the independence of the judiciaries of the Member States, but represent possible elements which may be taken as a starti ng point for such an analysis.

• The 2019 Scoreboard presents the developments in perceived independence from surveys of

citizens (Eurobarometer) and companies (Eurobarometer and World Economic Forum):

All surveys generally show similar results, in particular as regards the composition of the two groups of Member States that have the highest and the lowest perceived judicial independence.

The World Economic Forum survey (Figure 51), presented for the seventh time, shows

that businesses’ perception of independence has improved or remained stable in about

three-fifths of the Member States when compared to 2010. Also among the Member States facing specific challenges ( ), the perception of independence improved or remained stable in nearly three-fifths of those countries looking over the eight-year

period. However, compared to 201617, businesses’ perception of independence

decreased in about three-fifths of all Member States.

The Eurobarometer survey among the general public (Figure 47), presented for the fourth time, shows that the perception of independence has improved in about two-thirds of the

Member States when compared to 2016. The general public’s perception of

independence has improved in more than two-thirds among the Members States facing specific challenges looking over the four-year period. However, compared to last year,


the general public’s perception of independence decreased in about three-fifths of all Member States (in more than two-thirds of Members States facing specific challenges, and about half of other Member States).

The Eurobarometer survey among the companies (Figure 49), presented for the fourth time, shows that the perception of independence has improved in about two-thirds of the Member States both compared to 2016 and to the last year (compared to last year this was the case in more than two-thirds of Members States facing specific challenges, and about three-fifths of other Member States).

Among the reasons for the perceived lack of independence of courts and judges, the interference or pressure from government and politicians was the most stated reason, followed by the pressure from economic or other specific interests. Both reasons are still notable for several Member States where perceived independence is very low (Figures 48 and 50).

Among the reasons for good perception of independence of courts and judges, nearly four-fifth of companies and of citizens (equivalent to 40 % or 44 % of all respondents, respectively) named the guarantees provided by the status and position of judges.

The 2019 EU Justice Scoreboard presents overviews on the disciplinary authorities dealing with proceedings regarding judges as well as competence of the judiciary, the executive and the parliament in the selection of judges-members of the Councils for the Judiciary, and some managerial and organisational aspects of the prosecution services:

Figure 52 presents an overview of the authorities in charge of disciplinary proceedings regarding judges. In the majority of Member States, the authority deciding on disciplinary sanctions is an independent authority such as a court (Supreme Court, Administrative Court or Court President) or a Council for the judiciary, while in some Member States it is a special court whose members are specifically selected or appointed (by the Council for the Judiciary, by Judges or, in one Member State, by the Minister of Justice) to act in disciplinary proceedings.

Figure 53 presents an overview of who is the investigator in charge of disciplinary investigations regarding judges. In the majority of Member States, the investigator is a Court President or a Council for the Judiciary. In some Member States the investigator is specifically selected either by judges or by the Council of the Judiciary or, in one Member State, by the Minister of Justice.

Figure 54 shows the involvement of the judiciary in the appointment of judges-members of the Council for the Judiciary. It is up to the Member States to organise their justice systems, including whether or not to establish a Council for the Judiciary. However, where a Council for the Judiciary has been established by a Member State, the independence of the Council must be guaranteed in line with European standards. In almost all Member States, the judges-members of the Councils are proposed and elected or selected by judges.

Figure 55 presents an overview of the distribution, among different authorities, of the main management powers over national prosecutors. Figure 56 presents a factual overview of the main management powers of the Prosecutor General over prosecutors. These figures show that in some Member States there is a certain level of concentration in one single authority of the main management powers relating to the prosecution services. Figure 57 presents an overview of the authorities involved in the appointment and dismissal procedures for national prosecutors. While the situation varies widely among Member States, in most countries the Council for the Judiciary/Prosecutorial Council or the prosecution service is involved.


4. CONCLUSIONS

This seventh edition of the EU Justice Scoreboard shows that a large number of Member States have continued their efforts to further improve the effectiveness of national justice systems. However, challenges remain to ensure full trust of citizens in the legal systems of those Member States where guarantees of status and position of judges might be at risk and so their independence. The Commission has taken the necessary action and continues to monitor the situation in Member States. It is committed to ensure that any justice reform respects EU law and European standards on rule of law.