Annexes to COM(2020)306 - 2020 EU Justice Scoreboard

Please note

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

dossier COM(2020)306 - 2020 EU Justice Scoreboard.
document COM(2020)306 EN
date July 10, 2020
Agreement reached by the parties becomes enforceable by the court 13) Use of electronic tools to resolve the dispute through ADR methods. For each of these 13 indicators, one point was awarded for each area of law. CZ: data for administrative disputes is not available. 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 mediation. IE: administrative cases are subsumed within the category of 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. Seeking an amicable dispute settlement is a mandatory task for the judge unless it is inappropriate due to the nature of the case.

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The methods to promote and incentivise the use of ADR do not cover compulsory requirements to use ADR before going to court, as such requirements raise concerns about their compatibility with the right to an effective remedy before a tribunal enshrined in the EU Charter of Fundamental Rights.

– Child-friendly justice –

Figure 31 shows the various arrangements in Member States that make justice system more accessible for children and suited to their needs, for example by providing child-friendly information on proceedings or undertaking measures to prevent the child having to go throuh several hearings.

Figure 31: Child-friendly justice, 2019 (*) (source: European Commission (72))

Illllllll 11II1111IIII1111 11II1111IIII111II ■■ ■ 11II1111IIII111II1111II

II

BG SI BE DK DE EE E5 LV LT HU CZ FR IT NL PL SK SE HR LU MT AT PT RO Fl IE EL CY Needs and satisfaction of children covered in court surveys addressed to court users in 2018 Child-friendly information on the proceedings and adequate preparation for participation Training forjudges on child-friendly and child rights based communication with children Measures to prevent several hearings of a child Children are heard in child-friendly specialised settings ■ Specifically child-friendly designed website to provide online information about the justice system

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 the operation of the justice system (excluding prisons), both per inhabitant (Figure 32) and as a share of gross domestic product (GDP) (Figure 33) and, finally, the main categories of expenditure on law courts (Figure 34) (73).

72 73

2019 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 32: General government total expenditure on law courts, 2012, 2016-2018 (*) (in EUR per inhabitant) (source: Eurostat)

(*) Member States are ordered according to the expenditure in 2018 (from highest to lowest). 2018 data for ES, FR, HR, PT and SK are provisional.

Figure 33: General government total expenditure on law courts, 2012, 2016-2018 (*) (as percentage of GDP) (source: Eurostat)

(*) Member States are ordered according to the expenditure in 2018 (from highest to lowest). 2018 data for ES, FR, HR, PT and SK are provisional.

a

Figure 34 shows 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’ (74)), 2) operating costs for goods and services consumed by the law courts such as building rentals, office consumables, energy and legal aid (‘intermediate consumption’ (75)), 3) investment in fixed assets, such as court buildings and software (‘gross fixed capital formation’ (76)), and 4) other expenditure.

Figure 34: General government total expenditure on law courts by category (*) (in 2018, as a percentage of total expenditure) (source: Eurostat)


(*) Data for ES, FR, HR and SK are provisional, data for PT

are estimated.

– 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.

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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-

4

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Figure 35: Number of judges, 2012-2018 (*) (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 audit commissions, local tax commissions and military courts are not taken into consideration. LU: numbers have been revised following an improved methodology.

Figure 36: Proportion of female professional judges at Supreme Courts 2017-2019 (*) (source: European Commission (77))

(*) sorted by 2019 figures, highest to

77

2019

European Institute

Gender Equality, Gender Statistics Database,

available

at:

lowest.

data.

for

Figure 37: Number of lawyers, 2012 - 2018 (*) (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.

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 38: Share of continuous training of judges on various types of skills, 2018 (*) (as a percentage of total number of judges receiving these types of training) (source: European

Commission (78))

100%


HI

MIMI MMMI         MMMMMM

BE BG CZ DK DE EE IE ES FR HR IT CY LV LT LU HU NL AT PL RO SI SK Fl SE EL MT PT ■ Judgecraft            IT skills           Court management             Judicial ethics

( ) ( ) Figure 38 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 identical 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, MT and PT did not provide specific training activities on the selected skills. DK: including court staff. A T : including prosecutors.

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2018

data collected in cooperation with the

European Judicial Training Network and CEPEJ. ‘Judgecraft’

Figure 39: Availability of training in communication for judges, 2019 (*) (source: European Commission (79))

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I I I Ul

ii 111111111111 ni il i

IT BG DE ES PT AT RO SE IE HU LV PL BE FR EE LU NL SK EL

■ Other communication related trainings

Awareness raising and dealing with disinformation campaigns in new media

Gender-sensitive practices in judicial proceedings

Communication with victims of gender based violence (inclduing domestic violence)

Communication with asylum seekers

Communication with visually/hearing impaired

■ Communication with persons of different cultural, religious, ethnic or linguistic background

(*) Maximum possible: 14 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 support in form of tools or an assistant in the courtroom to visually or hearing impaired people, e.g. a deaf interpreter. Other communication related trainings include: courses aimed at enhancing the public communication skills and communication with media (BE, BG, EE, LV, NL, PL, RO, SK); courses on questioning skills (DE and AT), courses on people management (BE, ES, PL) and soft skill trainings cover enhancing the clarity of court decisions and presentation

methods (CZ, DK, LV, HU, PL, SK).

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 IC T tools could provide real-time case management systems and could help to provide nationwide standardised court statistics. In addition, they could be used to manage backlogs and automated early-warning systems. Surveys are essential in assessing how justice systems operate from the perspective of legal professionals

and court users. An adequate followup on the surveys’ findings is a prerequisite to improve the

quality of justice systems.

Figure 40: Availability of ICT for case management and court activity statistics, 2018 (*) (0 = available in 0% of courts, 4 = available in 100% of courts (80)) (source: CEPEJ study)

LV LT AT SI CZ EE IT HU NL PT EL MT BE DK DE ES FR RO Fl PL HR LU SE IE BG SK CY Case management systems               Tools of producing courts activity statistics

( *) New method logy, data not comparable to past years.

Figure 41 : Topics of surveys conducted among court users or legal professionals, 2018 ( ) (source: European Commission (81))

i General level of trust in the justice system

Needs and satisfaction of non-native speakers

The conduct of the hearing I Accessibility of the court service

( *) Member States were given one point per survey topic indicated regard less of whether the survey was conducted

at national, regional or court level. ‘Other topics’ include: surveys among lawyers on the functioning of certain

courts (ES); awareness of ICT measures as a means of i m proving user accessibility (MT ); resources and material conditions of courts (PT); questions related to a project on procedural fairness (SI), possibilities for the improvement of the courts’ functioning (SK); conceptions of appropriate pubishment (FI); and satisfaction of legal professionals and court users with the services delivered by th e ju d icia l system (SE). In DE, a number of different surveys were carried out at the level of th e federal states.

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2018 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. “Specific matter” relates to the type of litigation handled (civil/commercial, criminal, administrative or other).

Figure 42: Follow-up of surveys conducted among court users or legal professionals, 2018

(*) (source: European Commission (82))

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■■■■■III

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

Determine training needs of judges and court staff Modifying/improving the functioning of courts

■ Feed an evaluation or to identify the need to amend legislation

■ Feed an annual/specific report at local or national level

■ Results publicly available online in their entirety

(*) Member States were given one point per type of follow-up The category ‘other specific follow - up ’ included: inspection (ES); use as guidance for internal policy development (MT ); publication of informative tools for the general (SI ); and s elf-a ss ess m emt reports of courts (SK).

3.2.4. Standards

Standards can improve the quality of justice systems. Following the overview of standards on timing and information to parties in the previous editions, the 2020 EU Justice Scoreboard focuses on timing, backlogs and timeframes as a management tool for the judiciary ( ). F i g ure 43 shows an overview of which Member States use standard measures on time limits, timeframes and backlogs and includes for the first time information broken down by the areas of laws and instances at which such standards exist. 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. Timef ra mes are measurable tar gets/pra cti ces e.g. specifying a pre-defined share of cases to be completed within a certain time period.

82 83

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

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

Charter

of the

of

Figure 43: Existence

of standards on

timing, 2019 (*) (source: European Commission (84))

24 21 18 15 12

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

(*) Member States were given 1 point per instance (first, second, final) for each area of law (civil/co mmercia l, administrative and criminal) if a standard is defined. Maximum possible: 27 points. For Member States with only two court instances, points have been given for three court instances by mirroring the respective higher instance court of the non-existing instance. For those Member States that do not distinguish the two areas of law (civil/commercial and administrative), the same number of points have been given for both areas.

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.The 2020 EU Justice Scoreboard develops its comparative examination of these factors.

Accessibility This edition looks again at a number of elements contributing to a citizen-friendly justice system:

• 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 22). Differences appear on the content of the information and how adequate it is to respond to people’s needs. For example, only a limited number of Member States (9) enable people to find out whether they are eligible for legal aid through an interactive online simulation. However, information for non-native speakers as well as targeted information for visually or hearing impaired people is available in the majority of Member States.

• The availability of legal aid and the level of court fees have a major impact on the access to justice, in particular for people in poverty. Figure 23 shows that in some Member States,

consumers whose income is below the Eurostat poverty threshold would not receive legal aid. Compared to last year, accessibility of legal aid has remained stable. At the same time, over the years, legal aid has become less accessible in some Member States. The level of court fees (Figure 24) has remained largely stable since 2016, although the burden of court fees continues to be proportionally higher for low value claims. The difficulty in benefiting from legal aid combined with high levels of court fees in some Member States could have a dissuasive effect for people in poverty to a ccess j usti ce .

• The 2020 EU Justice Scoreboard for the first time also includes information on court fees and the recoverab il ity of legal costs in a commercial case. The level of court fees for commercial litigation (Figure 25) varies greatly among Member States (ranging from 0.1% to 6% of the value of the claim), with only two Member States having no court fee at all. Figure 26 shows, for the first time, to what extent legal costs can be recovered by the winning party in a commercial case. Large differences regarding the recoverablity of legal fees for the litigious phase appear both between Member States with and without a statutory fee system as well as within these groups (in particular between more and less generous statutory fee systems). In

addition, in many Member States, recoverability of legal costs depends on the courts’

discretion. The level of generosity of the system for recovering legal fees can have either incenti viz ing or deterring effects on the probability of filing a case, and therefore on the overall a c cess to justice .

• The availability of elect ronic means during the judicial procedure contributes to easier access to just ice and the reduction of delays and costs. Figure 27 shows that in more than half of the Member States, electronic submission of claims and transmission of summons is still not in place or is possible only to a limited extent, as was already seen in the 2019 EU Justice Scoreboard. Large gaps remain in particular as regards the possibility to follow court proceedings online, where no Member State has reached full deployment in all courts in all areas of law.

• Compared to previous years, online access to court judgments (Figure 28) has remained stable, particularly for the publication of judgments at the highest instance 19 Member States publish all civil/commercial and a dmi nistrati ve judg ments and the same number of Member States also publish criminal judgments at the highest instance. These positive numbers encourage all Member States to further improve as decisions at the highest instance play an important role for the consistency of case law. At lower instances, the number of Member

• The 2020 EU Justice Scoreboard deepens the examination of arrangements in place in the Member States that can facilitate producing machine-readable judicial decisions (F i gure 29). All Member States have at least some arrangements in place for c ivi l/c omm erc ial, administrative and criminal cases. However a considerable variance among the Member States can be observed. It appears that administrative courts are relatively more advanced as regards creating the enabling factors for a lg o rithm -fr ien dl y justice system. Justice systems where arrangements for modelling judgments according to standards enabling their machine readability have been put in place seem to have potential to achieve better results in the future.

• The number of Member States promoting the voluntary use of alternative dispute resolution methods (ADR) (Figure 30) for private disputes has again continued 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 now been taken into consideration for the second year in a row, showing a slight expansion as now more than half of the Member States allow ADR in this area.

• For the first time, the 2020 EU Justice Scoreboard presents a consolidated overview of the measures taken by Member States for a c h il d -f r i e n d ly justice system (Figure 31). Almost all Member States make at least some accommodations for children, with measures for child-friendly hearings (including in the settings) and to prevent several hearings of a child particularly prevalent. However, less than half of Member States have dedicated c hil d -fr i e ndl y websites providing information ab out the justice system.

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 2020 EU J usti ce Sc ore boa rd shows t he f oll owing :

• In terms of financial resources, the data show that, overall, in 2018, general government total expenditure on law courts continued to remain 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 32 and 33). Almost all Member States increased their expenditure per capita in 2018 (an increase compared to 2017) and a majority also increased their expenditure as percentage of GDP.

• As in 2019, the 2020 EU Justice Scoreboard also shows the breakdown of total expenditure into different categories based on data gathered by Eurostat. Figure 34 shows major 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 generally very low, and even absent in some Member States. The expenditure on operating costs (e.g. building rentals, legal aid and other consumables), on the other hand, is significantly higher in a few Member States than in most others. This breakdown has remained relatively stable year-to-year (Figure 34).

• Women still represent less than fifty percent of judges at the level of Supreme Courts in most Member States (Figure 36). The evolution over the three year period from 2017 to 2019 shows that trends diverge between Member States, but the proportion of female judges at Supreme Courts has grown since 2010 in most M e mber States.

• On the training of judges, while almost all Member States provide at least some continuous training on judgecraft, fewer offer training on I T skills, court management and judicial ethics and the share of judges receiving such training remains low in most countries (Figure 38). On


of gender-based violence and asylum seekers (Figure 39). Training on awareness raising and dealing with disinformation has also become more widely available compared to last year.

Assessment tools

• While most Member States have fully implemented ICT case management systems (with a few exceptions), gaps continue to remain as regards tools of producing court activity statistics (Figure 40). These systems serve various purposes, including generating statistics, and are to be implemented consistently across the 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 again decreased, with a rising number of Member States opting not to conduct any surveys. However, there seems to be some variance as to which Member States did not conduct surveys, inidcating that sometimes surveys are conducted only every other/every few years. Accessibility, customer service, court hearings and judgments, as well as the overall trust in the justice system, re m ain recurring topics for surveys, but only a few Member States inquired about the satisfaction of

groups with special needs or about individuals’ awarness of their rights. Almost all Member

States who used surveys also ensured follow-up (Figure 42), although the extent of this follow-up continued to vary greatly. Results generally fed into annual or specific reports and in many Member States they fed an evalution or were used to identify the need to amend legislation.

Standards

Standards can drive up the quality of justice systems. This edition of the EU Justice Scoreboard continues to examine in more deta il certain standards aiming to improve the timing of proceedings and breaks down these standards in more granular manner taking into account the instance and areas of law where such standards exist.

• Almost al Member States use standards on timing, although they are not always developed to the same degree at all instances and in all areas of law. Standards fixing time limits (e.g. fixed time from the registration of a case until the first hearing) continue to become more widespread, while standards on time frames (e.g. specifying a pre-defined share of cases to be completed within a certai n time) and backlogs remain comparatively less common (Figure 43). However, certain Member States facing particular challenges on efficiency are currently not using such standards or only to a limited extent.

3.3. Independence

Judicial independence, which is integral to the task of judicial decision-making, 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) (85). That requirement presumes (a) external independence, when the body concerned exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions, and (b) internal independence and impartiality, when an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings (86). Judicial independence guarantees that all the rights that individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (87). The preservation of the EU legal order is fundamental for all citizens and business whose rights and freedoms are protected under EU law.

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 2020 EU Justice 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 from the Expert Group on Money Laundering and Financing of Terrorism, the 2020 EU Justice Scoreboard shows updated indicators in relation to legal safeguards on the disciplinary proceedings regarding judges, and the appointment of members of the Councils for the Judiciary, and two new overviews on the disciplinary proceedings regarding prosecutors.

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87

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

Court of Justice of the European Union, judgment of 19 November 2019, A. K. and Others, C 585/18, C 624/18 and C 625/18, ECLI:EU:C:2019:982, paras 121 and 122; judgment of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531 paras 73 and 74; judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑ 64/16, EU:C:2018:117, paragraph 44; judgment of 25 July 2018, Minister for Justice and Equality, C‑ 216/18 PPU, EU:C:2018:586, paragraph 65.

Court of Justice of the European Union, judgment of 24 June 2019, Commission v. Poland, C-619/18,

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3.3.1. Perceived judicial independence

Figure 44: Perceived independence of courts and judges among the general public

(source: Eurobarometer (88) — light colours: 2016, 2018 and 2019, dark colours: 2020)

(*)

90% 80% 70%

I I I I I I I

I I I I I

I I I I II II II I II II I

I I I I I I I I I I I I I I I

I I I I I I I I I I I I I I I I I

ml I I I I I I I I I I I I I I I I I I I I I I I I I

111111111111 r 111111111111 r

DK AT Fl SE NL DE LU IE BE EE FR CZ CY EL MT LT HU LV E5 SI PT RO BG PL IT 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 tota l 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 respondents who stated that the independence of courts and judges is very good ; if some Member States have the same percentage of tota l good, tota l 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.

F igure 45 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

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 44.

Eurobarometer survey FL483, conducted between 7 and 11 January 2020. 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

88

Figure 45: Main reasons among the general public for the perceived lack of independence (share of all respondents — higher value means more influence) (source: Eurobarometer (89))

30%

20%

10%

0%

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rri rn ri i riww 11111111111 n i n 1111111111111111

DK AT Fl 5E NL DE LU IE BE EE FR CZ CY EL MT LT HU LV E5 SI PT RO BG PL IT 5K HR The status and position of judges do not Interference or pressure from               Interference or pressure from

sufficiently guarantee their independence economic or other specific interests government and politicians

Figure 46: Perceived independence of courts and judges among companies (*) (source: Eurobarometer (90) — light colours: 2017, 2018 and 2019, dark colours: 2020)

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

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Mill I                      III

Mill                             I I         I

I I I I I         II                  II         I

I I I I I           I I I I      III         II

I M I I I           I IIII      II11         II

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

Fl NL SE DK IE LU AT DE FR LT BE RO EL MT CY LV BG PT CZ ES EE SI IT PL HU HR SK ■ 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 tota l 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 are ordered by the percentage of respondents who stated that the independence of courts and judges is very good ; if some Member States have the same percentage of tota l good, tota l 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.

89

Eurobarometer

FL483, 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 FL484, conducted between 7 January and 20 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:

survey

90

Figure 47 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 46.

Figure 47: Main reasons among companies for the perceived lack of independence (rate of all respondents — higher value means more influence) (source: Eurobarometer (91))

Figure 48: WEF: businesses’ perception of judicial independence, 2010-2019 (perception higher value means better perception) (source: World Economic Forum (92))

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m rr i____

r f n

i i i i

Fl NL DK LU BE AT IE SE EE DE FR CY PT CZ LT ES IT RO MT LV SI EL BG HU SK PL HR Survey conducted in:                      2010-12 2016-17 ■ 2017-18 2018-19

Eurobarometer survey FL484; 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

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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 (93). Those rules must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (94).

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 (95). The 2020 EU Justice Scoreboard presents a number of indicators on how justice systems are organised to safeguard judicial independence.

This edition of the EU Justice Scoreboard contains updated indicators on bodies and authorities involved in disciplinary proceedings regarding judges (Figures 49 and 50), and on the appointment of members of the Councils for the Judiciary (Figures 51 and 52) (96). The 2020 EU Justice Scoreboard also presents information on bodies and authorities involved in disciplinary proceedings regarding prosecutors (Figures 53 and 54) and an updated more detailed figure on instructions to prosecutors in individual cases (Figure 55) (97). The figures present the national frameworks as they were in place in December 2019.

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.

95

96

97

See Court of Justice , judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, C 624/18 and C-625/18, ECLI:EU:C:2019:982, paras 121 and 122; judgment of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531 paras 73 and 74; 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 Court of Justice , judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, C-624/18 and C-625/18, ECLI:EU:C:2019:982, para 123; judgment of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531 para 112.

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

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Ultimately, the effective protection of judicial independence requires a culture of integrity and impartiality, shared by magistrates and respected by the wider society.

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 “the rules governing the disciplinary regime […] of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions” (98). 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 (99). 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” (100). According to the Court of Justice, 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” (101). The Court has also stated that “not being exposed to disciplinary sanctions for (…) sending a request for a preliminary ruling to the Court (…) constitutes a guarantee essential to judicial independence” (102).

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 (103). 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 (104). 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 both the decision and the sanction. Disciplinary sanctions should be proportionate (105).

Figure 49 presents an updated 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)

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See Court of Justice, judgments of 5 November 2019, Commission v. Poland, C-192/18, ECLI:EU:C:2019:924, para 114; of 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531, para 77, and 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 24 June 2019, Commission v. Poland, C-619/18, ECLI:EU:C:2019:531, para 77, and judgment of 25 July 2018, LM, C-216/18 PPU, ECLI:EU:C:2018:586, para 67.

See Court of Justice , judgment of 5 July 2016, Ognyanov, C-614/14, ECLI:EU:C:2016:514, para. 17. See also Court of Justice of the European Union, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, C 624/18 and C-625/18, ECLI:EU:C:2019:982, para 103.

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

See Court of Justice, 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.

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102

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other authorities whose members are specifically appointed by the Council for the Judiciary, by judges or by the executive.

Figure 49: Authority deciding on disciplinary sanctions regarding judges (*) (106)

COURT/COURT PRESIDENT              COUNCIL FOR THE JUDICIARY

DECIDES                                              DECIDES

lUIUillUI

I            I           I           I            I           I           I            I           I           I           I           I

I----------1----------1----------1----------1----------1----------1----------1---------1----------1----------1----------1----------1----------1----------1-

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

■ Other body composed of judges (selected by judges and of court presidents) and members selected by the Government

■ A special court composed of judges selected by the Minister of Justice

■ A special court composed of judges selected by judges

A special court, whose members are appointed by the Council for the Judiciary

( *) BG: Lighter disciplinary sanctions may be imposed by the Court President. Any decision on disciplinary measures are open to judicial review before the Supreme Administrative Court. CZ: Disciplinary cases are examined by disciplinary chambers of the Supreme Administrative Court. The members are proposed by the President of the Court from among a list of judges and are chosen by sortition. DK: The special Court of Indictment and Revision comprising five members, formally appointed by the Minister of Justice but nominated respectively by the Supreme Court, the High Courts, the Judges Association and the Bar Association in addition to a distinguished academic, decides on discipl in a ry sa nctions. The president of a first instance court can issue a wa rning. DE: Disciplinary measures can be a pplied in forma l disciplina ry proceedings (see Section 63 German Judiciary Act for feder a l j u dges and the equivalent provision at the level of the Länder) by service courts (‘Dienstgericht des Bundes’

concerning federal judges and ‘Dienstgerichte der Länder’ concerning federal state judges), which are special panels in regular courts. The

members of these panels are appointed by the judges (‘Präsidium’) of the particular court (the Federal Court of Justice or higher regional court or regional court). Less severe disciplina ry measures, such as reprimands, can be issued in a disciplinary order (see Section 64 German Judiciary Act for federa l judges and the equiva lent provisions at the level of the Länder) 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 Eston ia n judges. IE: The Judicial Conduct Committeee decides, which is established by the Judicial Council and is composed by three judges elected by their peers, five court presidents (members ex officio) and by five lay-members appointed by the government. Under the Constitution, a judge may be removed from office for stated misbehaviour or incapacity upon resolutions passed by both Houses of Parliament (the Oi rea c hta s) c a lli n g for his/her rem ova l. EL: The disciplina ry authority over judges is exercised, in the first and second insta nce, by councils composed of regu l a r j u d ges of higher rank chosen by lot. Disciplina ry authority over high ranking judges is exercised by the Supreme Disciplinary Council.. IT: Decisions of the Council for the Judiciary on disciplinary measures are open to judicial review before the Supreme Court. LV: : Disciplinary cases are examined by the Judicial Disciplinary Committee, whose members are appointed by the general meeting of judges. ES: Disciplina ry decisions rega rding minor disciplina ry offences are made by the governance chamber of the respective Court of the district where the d isc i p li ned j ud ge sits (High Court of Justice, National Court and Supreme Court, and even by the Presidents of Supreme Court, Nati ona l Aud ience and Superior Court of Justice where the disc i p li ned judge sits according 421.1.a) Organic Law of Judiciary). LT: At first instance, the Judical Court of Honour, whose members and chairperson (judge, elected by the Council for the Judicia ry) a re laid out in the Ruling of the Council for the Judicia ry, decides. It is composed of si x j ud ges se l ected and a p pointed by the Council for the Judicia ry, two members a p pointed by the President of the Republic and two members appoi nted by the Spea ker of the Sei mas. At second instance, the Supreme Court decides. HU: Disciplinary cases are examined by the Service Court appointed by the National Judicial Council. The president of the court may impose the mildest sanction (‘warning’) that can be challenged before the Service Court. MT: The Committee for Judges and Magistrates, which is a subcommittee of the Commission for the Administration of Justice, decides. The Committee consists of three judges or ma gistrates elected by their peers. PL: The Minister of Justice selects d isc i p li n a ry j ud ges after a non-binding consultation with the National Council for the Judiciary. The Disciplinary Chamber of the Supreme Court, tasked with deciding i.a. on disciplinary cases of judges in second instance, was found to be not an independent court within the mean ing of EU law in three rulings of the Supreme Court, i m ple menting the judgment of the Court of Justice of 19 November 2019. SI: The disciplinary court is appointed by the Council for the Judiciary, from among members of the Council itself and from among judges proposed by the Supreme Court. SK: Presidents of first instance courts have the power to

impose the disciplinary sanction of a ‘written warning’. 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 pe rm a ne nt j u dge may be removed from office only if they have committed a serious crime or repeatedly neglected their duties, and thereby show that they are 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. The decision can be challenged by the judge on their own in the district court or with a support of the trade union in the labour court as a first instance court.

Figure 50 presents an updated overview of the investigative bodies, that 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 aff ect judi c ial 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 re g a rdin g jud g es.

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 whose ENCJ membership has been suspended, were obtained through cooperation

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Figure 50: Investigator

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()

in charge of formal disciplinary proceedings regarding judges

(*)

JJIilIUI

I              I              I              I              I              I               I              I              I              I

Investigator selected by the Council for the Judiciary

■ Investigator selected by judges

■ Investigator selected by the Minister of Justice

(*) BG: The relevant administrative head of the court [for facts which might lead to the sanction of the reprimand] or the Judge’s

College (disciplinary panel) to the Supreme Judicial Council of Bulgaria investigates. The Inspectorate at the Supreme Judcial Council carries out inspections on which basis it can make proposals for disciplinary proceed ings. CZ: The minister of justice can also conduct some preliminary enquiries in order to prepare the motion to initiate discipl in ary proceedings, normally consulting the president of the court where the co ncerned judge sits. DK:Anyone can bring a compla int to the Special Court of Ind ictment and Revision, which is located and ad ministered at the Supreme Court, and which decides after hearing both parties. The Director of the Public Prosecution can also investigate. DE: T here is no formal p re- investig ato ry 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 proceed ing before the court. T hen the court carries out formal investig ati ons. EE: The president of a court or the Chancellor of Justice (Ombudsman) can conduct an investigation. 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 incap a city upon resolutions passed by both Houses of Parlia ment (the Oireachtas) calling for their removal. EL: For civil and criminal courts: The Judical Inspection Body which is elected from a mong judges by lot. For administrative courts: T he 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 their mand ate. FR: T he president of the Council for the Judiciary chooses one or two members of the Council for the Judiciary to conduct the relevant investigations. T he ministry can ask a report to the Judicial inspection body before the decision to bring the case to the Council. IT: The Prosecutor General at the Supreme Court is entitled to conduct the investigation. The Inspectorate General at the Ministry of Justice is entitled to carry out a dministra ti ve enquiries. CY: The investigative judge, appointed by the Supreme Court, in vestiga tes. LV: The Judical Disciplinary Committee in vestiga tes. HU: The Disciplinary Commissioner, appointed by the Service Tribunal (disciplin a ry co urt), i nvestig ates. LT: The Judical 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 Committee of Judges and Magistrates in vestiga tes. NL: The Prosecutor-General in vestiga tes. PL: The Minister of Justice appoints the Disciplinary Officer for ordinary court judges and his/her two deputies (they, in turn, appoint their own deputies from among judges) 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 Judical Inspection Body, which in vestiga tes. RO The Judical Inspection Body in vestiga tes. SI: The Judical Council appoints a disciplinary prosecutor from among candidates proposed by the Supreme Court to in vestiga te. SK: The Disciplinary Panel, appointed by the Council for the Judiciary, conducts the investigation. SE: The Parliamentary Ombudsman and the Chancellor of Justice act as prosecutors in cases of serious ma lpractice.

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

Councils for the judi c iary 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 Judicary. However, well established European standards, in particular

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

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 whose ENCJ membership has been suspended, were obtained through cooperation

107

and with respect for pluralism inside the judiciary’ (108). The figure below shows whether the judiciary is involved in the appointment of judges-members of the Councils for the Judiciary.

Figure 51: Appointment of judges-members of the Councils for the Judiciary: of the judiciary (*) (109)

involvement

(*) 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 2019. 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 Royal Decree, an administrative act that 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.

The figure shows the composition of Councils for the Judiciary (110) according to the nomination process. In particular, it shows whether the members of the Councils are judges/prosecutors proposed and selected/elected by their peers, members nominated by the executive or legislative branch, or members nominated by other bodies and authorities. Not less than half the members of Councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary (111). The Figure is a factual representation of the composition of the Councils for the Judiciary and does not make a qualitative assessment of their effective functioning.

110

111

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. Responses to the updated questionnaire from Member States that have no Councils for the Judiciary, are not ENCJ members, or whose ENCJ membership has been suspended, were obtained through cooperation with the NPSC.

Councils for the Judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system.

See recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on judges:

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Figure 52: Composition process (*)

Councils

for the

Judiciary

according to the nomination

Judges proposed not exclusively by judges & appointed by the Parliament

■ Minister of justice (ex officio)

Members appointed/nominated by other bodies/authorities

Members appointed by the Head of State/ Prime Minister/ Government/ Minister of justice or Head of State (ex officio)

■ Members elected/appointed by the Parliament

Members appointed by associations of lawyers / legal practitioners

■ Prosecutor General (ex officio) Prosecutors (elected by their peers)

■ Court presidents (ex officio)

(*) BE: Judical members are either judges or prosecutors; BG: the Supreme Judicial Council is composed of the Judges’ Chamber (fourteen

members of which the Chairmen of the Supreme Court of Cassation and of the Supreme Ad m i n istr ative Court, six members elected directly by the judges and six m e m be rs elected by the Na tiona l Assembly) and of the Prosecutors’ Chamber (eleven members of which the Prosecutor General, four members elected directly by the prosecutors, one member elected directly by the investigators and five members elected by the National Assembly); DK: all members of the National Courts Ad m i n istrati o n board are formally appointed by the Minister of Justice; the category

‘Appointed/nominated by other bodies/authorities’ includes two court representatives (nominated by the union for administrati ve sta ff a n d by th e

police union). In addition a J u d ic i a l Ap p oi ntm ents Council exists, which prepares proposals for judicial appointments (ha lf of its members are judges sel ected by their peers); IE: The figure reflects the com positi on of the Courts Service, member of the European Network of Councils for the Judiciary, according to the framework in force in beginning of December 2019. On 17 December 2019, a new Judical Councl was formally esta blished pursuant to the Judicial Councl Act of 2019. The first plenary session of the Judicial Council, comprising all of the judges of Ireland, was held on 7 February 2020. ES: : Members of the Council coming from the judiciary are appointed by the Parliament — the Council communicates to the Parliament the list of candidates who have received the support of a judges’ assoc iation or of twenty five judges; EL(civil & crim inal judiciary): the council has the total of 11/15 members, out of which 7/11 are judges. Judges and prosecutors are chosen by a lot. EL (admininistrative judicary): the councl has the total of 1 1/15 me m be rs, out of which 10/14 a re j u dges, who are chosen by a lot. FR: The Council has two formations ---- one with jurisdiction over sitting judges, the other with jurisdiction over prosecutors; the Council includes one member of

the Conseil d’Etat (Council of State) elected by the general assembly of the Conseil d’Etat; IT-CSM: Consiglio Superiore della Magistratura

(covering cvil and criminal courts, and the prosecution service); according to the Co nstituti o n, the President of the Re p u b li c, the first President at the High Court of Cassation and the Prosecutor General at the Hight Court of Cassation are members ex officio. IT-CPGA: Consiglio di presidenza della giustizia a m m i n istrativa (covering administrative courts); MT: : The leader of the opposition appoints one lay member. NL: Members are formally appointed by Royal Decree on a proposal from the Minister of Security and Justice. PL: Ca n di date j u d ges- m e m be rs are

proposed by groups of at least 2 000 ctizens 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 Pa rl ia ment (Sejm) establishes a final list of 15 candidates, who are appointed by the Sej m. On 23 January 2020, the Supreme Court, implementing the p reli m i n a ry ruli ng of the Court of Justice i ssued i n j oi ned c a ses C-585/18, C-624/18 and C-625/18, ruled that in its current com position the Council is not independent from executive and legislative powers and judges appointed at its request cannot adjudicate cases. On 17 September 2018, an Extra ordina ry General Assembly of the European Network of Councils for the Judicary decided to suspend the membership of the National Council for the Judiciary (KRS) because it no longer met the req uirements of the ENCJ that it is independent of the Executive and Legislature in a ma nner which ensured the independence of the Polish Judicia ry. PT: The figure refers to the composition of the Conselho Superior da Ma gi stratu ra . In addition, a High Councl for the Adm i n istrative and Tax Courts (Conselho Superior dos Tribunais Ad mi n istrati vos e Fiscais) and a High Council for the Public Prosecution (Conselho Superior do Ministério Público) also exist. RO: elected magistrates are validated by the Senate; SI: Non judge members are elected by the National Assembly on a proposal from the President of the Republic

– 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 between Member States in criminal matters. The proper functioning of the national prosecution service is crucial for the effective fight against crime, including economic and financial crime, such as money laundering and corruption. According to the Court of Justice case law, in the

of the

context of the Framework Decision on the European Arrest Warrant (112), the public prosecutor’s office can be considered a Member State judicial authority for the purposes of issuing a European arrest warrant whenever it can act independently, without being exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister for Justice (113).

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 have a more independent prosecutor’s office, rather than one subordinated or linked to the executive (114). According to the Consultative Council of European Prosecutors, for the effective fight against corruption and money laundering and related economic and financial crime, greater independence and autonomy of the prosecution service, along with its accountability, can be a further guarantee for the respect of the rule of law (115). 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 (116) and without unjustified interference (117). 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 (118). Where the government has the power to give instructions to prosecute a specific case, such instructions must carry with them adequate guarantees (119). According to the 2000 Recommendation of the Committee of Ministers of the Council of Europe, instructions not

Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States (OJ L 190, 18.7.2002, p. 1).

Court of Justice, judgment of 27 May 2019, OG and PI (Public Prosecutor’s Office of Lübeck and Zwickau), Joined Cases C-508/18 and C-82/19 PPU, paras 73, 74 and 88, ECLI:EU:C:2019:456; judgment of 27 May 2019, C‑ 509/18, para 52, ECLI:EU:C:2019:457; see also judgments of 12 December 2019, Parquet général du Grand-Duché de Luxembourg and Openbaar Ministerie (Public Prosecutors of Lyon and Tours), in Joined Cases C-566/19 PPU and C-626/19, ECLI:EU:C:2019:1077; Openbaar Ministerie (Swedish Prosecution Authority), C-625/19 PPU, ECLI:EU:C:2019:1078, and Openbaar Ministerie (Public Prosecutor in Brussels), C-627/19 PPU, ECLI:EU:C:2019:1079. See also judgment of 10 November 2016, Kovalkovas, C-477/16 PPU, paras 34 and 36, ECLI:EU:C:2016:861, and judgment of 10 November 2016, Poltorak, C-452/16 PPU, para 35, ECLI:EU:C:2016:858, on the term ‘judiciary’, ‘which must […] be distinguished, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, from the executive’. See also Opinion No. 13(2018) Independence, accountability and ethics of prosecutors, adopted by the Consultative Council of European Prosecutors (CCPE), recommendation xii.

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.

Opinion No. 14(2019), The role of prosecutors in fighting corruption and related economic and financial crime, adopted by the Consultative Council of European Prosecutors (CCPE), recommendation iii.

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; Group of States against corruption (GRECO), fourth evaluation round “Corruption prevention - Members of Parliament, Judges and Prosecutors”, a vast number of recommendations ask for the introduction of arrangements to shield the prosecution service from undue influence and interference in the investigation of criminal cases.

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

112

3

14

115

6

7

8

to prosecute should be prohibited (120). Interested parties (including victims) should be able to challenge a decision of a public prosecutor not to prosecute a case (121).

The figures below present a factual overview of certain aspects of the framework applicable to the prosecution services and does not assess their effective functioning, which requires a qualitative assessment taking into account specific circumstances of each Member State.

Figure 53 presents an overview of the authorities that decide on disciplinary sanctions regarding basic-rank prosecutors. These can be either (a) independent authorities such as courts or Councils for the Judiciary or Prosecutorial Councils, or (b) other bodies or authorities, such as the Prosecutor General or a superior prosecutor, independent bodies, special bodies composed of prosecutors, or the Minister of Justice. Unless stated differently in the explanation below the figure, a decision of the authority on disciplinary measures regarding a prosecutor is open to judicial review (122).

Figure 53: Authority deciding on disciplinary sanctions regarding prosecutors (*) (Source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

(*) BE: The superior prosecutor (head of the prosecutor's office) has the power to decide on minor disciplinary sanctions, while major sanctions are imposed by the disciplinary court of first instance. Decisions on disciplinary measures are open to appeal before a disciplinary court of appeal. BG: The Prosecutorial Chamber of the Supreme Judicial Council is composed of the Prosecutor General, four members elected by prosecutors, one member elected by investigative magistrates and five members elected by the National Assembly. Its decisions on disciplinary measures regarding a prosecutor are open to judicial review before the Supreme Administrative Court. The administrative head of the prosecutor may only impose a reprimand, notifying this sanction to the Prosecutorial Chamber, which may confirm or revoke this sanction. CZ: Disciplinary cases are examined by a disciplinary chamber of the Supreme Administrative Court. The chamber is composed of two judges (a judge of the Supreme Administrative Court and a judge of the Supreme Court), two prosecutors, a lawyer, and a person of another legal profession. Members of the chamber are selected by lot by the President of the Supreme Administrative Court drawing from lists of candidates provided by representatives of the different legal professions (by the Supreme Administrative Court, the President of the Supreme Court, Prosecutor General, President of the Bar Association, and deans of law schools). No appeal is open against the decision of the disciplinary chamber. DK: The Danish Ministry of Justice has the power to decide on specific disciplinary measures against prosecutors. However, in practice the Ministry of Justice empowers the Prosecution Service to handle disciplinary measures against prosecutors. All decisions on disciplinary measures taken by the Prosecution Service can be appealed to the Ministry of Justice. Judicial review is open against disciplinary measures taken by the Ministry of Justice and a prosecutor may bring a complaint to the Parliamentary Ombudsman. DE: The superior prosecutor may impose a disciplinary measure of a lighter nature. Because of the competence of the states for regulating the disciplinary law of the state officials, there are various special features in the laws of the states. EE: The Prosecutor General decides on disciplinary measures, including dismissal, on the proposal of the Prosecutors’ Disciplinary Committee. Decisions on disciplinary measures are open to appeal before an administrative court. IE: The Deputy Director of Public Prosecutions decides on disciplinary measures concerning basic rank prosecutors. The recommendation from the relevant manager that a disciplinary measure should be adopted is open to appeal before an external Disciplinary Appeals Board, before the disciplinary decision is adopted. EL: Five-member Disciplinary Councils of Courts of Appeal are primarily responsible for adjudicating disciplinary offenses and imposing all disciplinary penalties on prosecutors except dismissal, which is decided upon by the plenary of the Court of Cassation. Decisions by the five-member Disciplinary Councils are open to appeal before a seven-member Disciplinary Board of the Supreme Court. ES: The Chief Prosecutors of the various bodies of the Public Prosecutor’s Office decide on disciplinary measures, which can be appealed to the Consejo Fiscal. This body consists of the Prosecutor General, the Deputy Prosecutor General, the Chief Inspector and six other prosecutors. Its decisions are open to judicial review at the Audiencia Nacional. FR: The Ministry of Justice decides on the measure after the Conseil Supérieur de la Magistrature issues a non-binding opinion. Decisions on disciplinary measures can be appealed before the Conseil d'Etat. HR: The State’s Attorney Council decides on disciplinary measures, which can be reviewed before the administrative courts. IT:

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.

The 2000 Recommendation,

para.

34.

120

121

measures are

Decisions of the Council for the Judiciary on disciplinary measures are open to judicial review before the Supreme Court. CY: Disciplinary adopted by the Public Service Commission, a constitutional body consisting of five members appointed by the President of the Republic for a six-year period. Decisions on disciplinary measures are open to appeal before the administrative court, and subsequently before the Supreme Court. LV: The Prosecutor General can decide on any disciplinary measure against any prosecutor. Head Prosecutors can make an annotation or a reprimand to prosecutors under their management. In the event of a more serious violation, the Head Prosecutor may submit a proposal to the Prosecutor General to apply another disciplinary measure. Decisions on disciplinary measures adopted by a Head Prosecutor can be appealed to the Prosecutor General. Decisions on disciplinary measures adopted by the Prosecutor General are open to appeal before a Disciplinary Court. LT: The Prosecutor General decides on disciplinary measures. Decisions on disciplinary measures are open to appeal before an administrative court. LU: The Prosecutor General decides on disciplinary measures. HU: The Prosecutor General decides on measures to revoke a distinction, to demote by paygrade or by rank or to dismiss. The Head of Unit (superior prosecutor) may adopt lighter measures (reprimand, censure) regarding a prosecutor under their supervision. Decisions on disciplinary measures are open to appeal before a labour court. MT: The Committee on Advocates and Legal Procurators consists of an advocate appointed by the Commission for the administration of justice, an advocate appointed by the Attorney General and three legal procurators appointed by the Chamber of Legal Procurators. The Committee may impose a pecuniary penalty, issue and admonishment and make recommendations to the prosecutor. The Committee may request the Commission to recommend to the Prime Minister to advise the President of Malta to suspend or dismiss a prosecutor. Measures adopted by the Committee can be appealed to the Commission for the Administration of Justice. NL: The hierarchically superior prosecutor may impose certain measures of a lighter nature (written reprimand, reduction of annual leave, extra working hours). The Minister of Justice may decide on transfer without consent, suspension, a financial fine and measures relating to salary, after the hierarchically superior prosecutor has proposed this measure or issued an advice. The government has the power to dismiss a prosecutor, after the hierarchically superior prosecutor has proposed dismissal or given an advice. Decisions on disciplinary measures are open to appeal before the Centrale Raad van Beroep. AT: Special chamber of a court decides on disciplinary measures. PL: At first instance, disciplinary measures are generally decided upon by a disciplinary body at the General

Prosecutor’s Office, consisting of three prosecutors appointed by assemblies of prosecutors. These measures are open to appeal

before the

Disciplinary

Chamber of the Supreme Court, which in certain cases acts as the deciding authority at first instance. When acting as the court of second instance, this Chamber is composed of two Disciplinary Chamber judges and one lay judge. A prosecutor who has been sanctioned twice with a sanction different than a reprimand may be dismissed from office by the Prosecutor General (who is also the Minister of Justice) in case of commitment of a new disciplinary offence (which is not to be ascertained by the disciplinary court and without the possibility of judicial review of the Prosecutor-General’s decision. PT: The Disciplinary Section of the High Council of the Prosecution Service decides on the adoption of disciplinary measures. Its decisions can be appealed to the plenary of the High Council of the Prosecution Service, and subsequently to the Supreme Administrative Court. RO: The Superior Council of Magistracy decides on disciplinary measures. Decisions on disciplinary measures are open to appeal before the Supreme Court. SI: The Disciplinary court appointed by the Prosecutorial Council decides on disciplinary sanctions. The Disciplinary court of first degree is composed of six state prosecutors proposed by the Prosecutor General and three judges proposed by the president of the disciplinary court of first instance for judges from among the members of this court. The disciplinary court of second instance is composed of six members appointed by the Prosecutorial Council: the president, deputy of the president and two members are proposed by the president of the disciplinary court for judges of second instance from among the members of this court; two supreme state prosecutors are proposed by Prosecutor General. SK: A disciplinary board composed of three prosecutors, appointed by the Prosecutor General from a database of at least 40 persons proposed by the Prosecutor’s Council, decides on disciplinary measures. These decisions are open to appeal before a Disciplinary Board of Appeal at the General Prosecutor’s Office, composed of five prosecutors appointed by the Prosecutor General from a database of persons proposed by the Council of Prosecutors. Judicial review against decisions of the Disciplinary Board of Appeal is open before the regional courts. FI: The Prosecutor General decides on disciplinary measures. Decisions to adopt disciplinary measures are open to appeal before an administrative court.

Figure 54 presents an overview of the investigative bodies that carry out the investigation during disciplinary proceedings regarding prosecutors. Unless stated differently in the footnote to the figure, it does not concern preliminary enquiries to decide whether or not to initiate a formal disciplinary proceeding. The investigation phase is an important step within disciplinary proceedings, which may have an impact on the autonomy of the prosecution service. The investigative power can be exercised either (a) by regular independent authorities such as a court or the Council for the Judiciary or Prosecution, or (b) by the Prosecutor General or a superior prosecutor, or (c) by other bodies.

Figure 54: Investigator in charge of formal disciplinary proceedings regarding prosecutors (*) (Source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

(*) BE: The hierarchically superior prosecutor conducts the investigation. BG: The administrative head of the prosecutor investigates in case of a reprimand. For all other sanctions, the investigation is conducted by a three-member disciplinary panel elected by the Prosecutors Chamber of the Supreme Judicial Council from its members. The Prosecutorial Chamber of the Supreme Judicial Council is composed of the Prosecutor General, four members elected by prosecutors, one member elected by investigative magistrates and five members elected by the National Assembly. The Inspectorate at the Supreme Judicial Council carries out inspections on which basis it can make proposals for disciplinary proceedings. CZ: The Prosecutor General and Chief Public Prosecutor can look into the prosecutor´s case file, and ask for their statement. DK: The Prosecution Service conducts the investigation. DE: The head of the public prosecutor’s office not only decides whether to initiate disciplinary proceedings against a public pro secutor, but also conducts the disciplinary proceedings. Because of the competence of the states for regulating the disciplinary law of the state officials, there are various special features in the laws of the states. EE: The hierarchically superior prosecutor or the Prosecutor General conducts the investigation, depending on who initiated the

prosecutors’ offices and one judge. IE: A hierarchically superior prosecutor conducts the investigation. In cases where the facts are complex or the suspected misconduct is serious, human resources department will arrange for an investigation to take place. EL The hierarchically superior prosecutor conducts the investigation. ES: The hierarchically superior prosecutor conducts the investigation. FR: Following an administrative enquiry, the Minister of Justice can decide to seize the Conseil Supérieur de la Magistrature to investigate the case. HR: The Superior State Attorney investigates. IT: The Prosecutor General at the Supreme Court isentitled to conduct the investigation. The Inspectorate General at the Ministry of Justice is entitled to carry out administrative enquiris. CY: The Attorney General appoints one or more officers of superior rank than the officer in question, who conduct the investigation and produce a report. The Attorney General then decides on the basis of the evidence whether to refer the matter to the Public Service Commission. LV: An official, who has the right to apply a disciplinary sanction (the Prosecutor General or head prosecutors), shall review all materials received and request an explanation from a prosecutor and, if necessary, organise the investigation of the fact of a disciplinary violation. Investigation can be conducted by prosecutor of the General Prosecutor’s Office or head prosecutors. LT: The Internal Investigation Division of the Prosecutor General’s Office or official inspection commission made pursuant to the order of the Prosecutor General. LU: A Council chamber of the Superior Court of Justice conducts the investigation. HU: The Disciplinary Commissioner investigating the case is a prosecutor appointed to investigate by the Head of Unit (superior prosecutor) of the prosecutor under investigation. MT: The Committee on Advocates and Legal Procurators investigates the case. This body consists of an advocate appointed by the Commission for the Administration of Justice, an advocate appointed by the Attorney General and three legal procurators appointed by the Chamber of Legal Procurators. NL: The hierarchically superior prosecutor conducts the investigation. AT: Special chamber of a court conducts the investigation. PL: The case is investigated by a Disciplinary Officer, who is a prosecutor appointed to that function by the Prosecutor General (who is also the Minister of Justice). The Minister of Justice may also appoint, on an ad hoc basis, a prosecutor as a Disciplinary Officer of the Minister of Justice empowered to take over any ongoing disciplinary investigation or initiate a disciplinary investigation or proceedings. PT: The Inspection of Public Prosecutors conducts the investigation. This body is composed of public prosecutors appointed by the High Council of the Public Prosecution Service. RO: The Judicial Inspection Body is a body within the Superior Council of Magistracy. The section investigating disciplinary measures concerning prosecutors is composed of 13 prosecutors, appointed by the Chief Inspector of the Judicial Inspection Body following a competition. SI: A disciplinary state prosecutor and his deputy investigate, who are supreme state prosecutors appointed by the Prosecutorial Council on the proposal of the Prosecutor General with their consent. SK: A disciplinary board composed of three prosecutors, appointed by the Prosecutor General from a database of at least 40 persons proposed by the Prosecutor’s Council. FI: The Prosecutor General conducts the investigation. SE: The Swedish Prosecution Authority conducts the investigation.

Figure 55 shows in which Member States either the Prosecutor General or the Minister of Justice can give instructions to prosecutors in individual cases (authority that can instruct) and presents some of the safeguards that are in place if such instructions are given in an individual case. Apart from safeguards presented in the figure (123), there could be other in place. In countries where instructions from the minister of justice are allowed according to the law, this power may have been, or is only rarely, exercised in practice (see explanatory footnote below the figure).

Figure 55: Instructions to prosecutors in individual cases: authority that can instruct and safeguards (*) (Source: European Commission with the Expert Group on Money Laundering and Financing of Terrorism)

Willi     J II. n..

NO INSTRUCTIONS IN INDIVIDUAL CASES ALLOWED

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

Authority that can give instructions to prosecutors in individual cases:

■ Minister of Justice who is also the Prosecutor General Minister of Justice

Prosecutor General

Selected safeguards in case instructions are given in an individual case:

■ Possibility to request a review before a court Parliament must be notified

Parties can have access to instructions and make comments Instructions must be issued in written form

■ Instructions must be reasoned

( *) BE: Minister of Justice has the power 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). Instructions are enclosed to the case file but their reading by the parties depends on the occasion for ruling and the current stage of the case. BG: Appeal is possible except for the acts of the Prosecutor General. CZ: The Prosecutor General has a power to give instructions regard ing prosecution in individual cases only within the Prosecutor General Office and towards high public

prosecutor offices. DE: #: The safeguards differ depending on the federal or state level. The Federal Public Prosecutor General is the one public prosecutor at the federal level who is under the supervision and direction of the Federal Minister of Justice and Consumer Protection and the public prosecutors general of the 16 German states are under the supervision and direction of the respective state departments of justice. The right to supervision and direction includes the power to give instructions to the respective prosecutor general, but is limited by the principle of legality (i.e., principle of mandatory prosecution). Instructions in individual cases hardly ever occur. As examples, the federal ministry and the government parties of Saxony issued commitments not to exercise their rights to give instructions. The ministry of Thuringia committed itself not to give instructions in individual cases, the ministry of North Rhine-Westphalia and the government of Lower Saxony committed to give individual instructions only in exceptional cases. There are no federal laws but there are certain state laws as well as federal and state regulations and guidelines setting forth rules on instructions. As examples, instructions of the federal ministry and the ministries of North Rhine-Westphalia and Thuringia need to be in writing, in Thuringia they must also be reasoned, in Lower Saxony they need to be in written form if no agreement is reached and in Schleswig Holstein they need to be documented in written form and reported to the president of the parliament. At the federal and state level, instructions of a superior official are only binding within the internal employment relationship of the prosecutor and acts that are in breach with an instructions are still effective. As a prosecutor has a duty to comply with the laws he must refuse to follow illegal instructions. He may remonstrate and have instructions reviewed by the next higher superior official. If the instruction is confirmed and the prosecutor still has doubts as to its lawfulness, he may request a review by the next higher level official. If the instruction is again confirmed, the prosecutor must follow the instruction and he is not in breach of his duties if the instruction is illegal. However, as an exception, prosecutors must never comply with instructions if such acts would constitute a crime, administrative offence or violation of human dignity. There is no special legal remedy to have instructions reviewed by a court. However, courts may review the lawfulness of instructions during disciplinary proceedings against prosecutors, e.g. if they have to decide if non-compliance with instructions constitutes a breach of professional duties. DK: Minister of Justice has the power to give instructions regarding prosecution in individual cases (the administration of Justice Act, section 98 (3)). Different Ministers of Justice have, however, been very reluctant to use this option, and such an instruction has not been given since the 1990s. The President of the Danish Parliament must be informed about the instruction(s) in written form (the Administration of Justice Act, section 98(3)). The regional state prosecutors can review decisions from the police districts and the Director of Public Prosecutions can review decisions from the regional state prosecutors. IE: Not specified in Section 4.1 of the Prosecution of Offences Act, 1974. ES: The Attorney General sets internal orders and instructions appropriate to service and to the exercise of prosecuting functions, which may be general or related to specific matters. LT: Instructions from the Prosecutor General can be appealed at the court. The Prosecutor General cannot instruct on which decision to make. LU: Prosecutor General and 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 from the Minister of Justice since more than 20 years. There is no legal requirement to consult a prosecutor or seek the opinion of the Prosecutor General on such an instruction. HR: Instructions from the Prosecutor General can be reviewed regarding their legality. efficiency, etc. HU: According to Section 53 Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and Other Prosecution Employees and the Prosecution Career, the prosecutor may request the Prosecutor General to receive written confirmation of the instruction in an individual case. The prosecutor can explicitly deny the instruction, if it would constitute a criminal or an administrative offence or would put the prosecutor in danger, and if the prosecutor does not agree with the instruction he/she can request to transfer the case to another prosecutor and such a request cannot be rejected. MT: With reference to the questions regarding the role of individual prosecutors as opposed to the role of the Attorney General, the Constitution of Malta establishes the office of the Attorney General himself. It also confers upon him rights and obligation and gives him security of tenure as stipulated in terms of article 91 and 97 of the Constitution. In terms of Chapter 90 of the Laws of Malta - Attorney General Ordinance, the attorney general employs officers to represent him in his functions and duties in accordance with law. Such officers represent the Attorney General in his functions and discretion. When representing the Attorney General in his functions, the officers are endowed with the same protection at law. Hence, in terms of Maltese law the prosecutors are not specifically given guarantees because in the functions of their office in terms of law they are deemed to represent the Attorney General himself and in such functions they enjoy the protection that the law grants to the Attorney General himself. NL: Minister of Justice 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 in case of instructions not to prosecute. However, so far, there has only been one such case more than twenty years ago. There are no special regulations regarding instructions given by Prosecutor General in individual cases. The College of Prosecutors-General may give instructions to a prosecutor in a specific case. This body is composed of three to five members, and decides by majority with at least three members present. There are no specific safeguards in place, in cases where the College gives instructions in a specific case. AT: Minister of Justice has the power to give instructions regarding prosecution in individual cases, following a non-binding opinion of an independent body (Weisungsrat) established at the General Prosecutors office. The Minister of Justice has to report annually to Parliament about all instructions issued in individual cases, once the cases concerned have been concluded, including on the reasoning for not following an opinion of the Weisungsrat, if applicable (§29a.(3) of the Law on the Prosecution Service). For the period 2012-2017, 54 instructions in individual cases were reported (Weisungsbericht 2018). PL: Prosecutor General is also the Minister of Justice. If a public prosecutor disagrees with an instruction in individual case, he/she can request the instruction to be changed or himself/herself to be excluded from administering the act or from participating in the case. The exclusion is finally adjudicated by the public prosecutor who is the immediate superior of the public prosecutor who has given the order. SK: Instructions in individual cases must be attached to the case file so other parties can read them and make comments only under specific conditions.


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 companies. This edition also presents some selected indicators concerning legal safeguards in relation to the bodies involved in disciplinary proceedings regarding judges and prosecutors. 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 2020 Scoreboard presents the developments in perceived independence from surveys of

the general public (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 48), presented for the eight time, shows

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

two-thirds of the Member States when compared to 2010 as well as to last year. 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 nine-year period.

The Eurobarometer survey among the general public (Figure 44), presented for the fifth 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 five-year period. However, compared to last year,

the general public’s perception of independence decreased in about two-fifths of all

Member States and in about half of the Members States facing specific challenges, and in a few Member States, the level of perceieved independence remains particularly low.

The Eurobarometer survey among the companies (Figure 46), presented for the fifth time, shows that the perception of independence has improved in over half of the Member States both compared to 2016 and in about three-fifths of Member States compared to the last year (compared to last year this was the case in about three-fifths of Members States facing specific challenges, and over two-thirds of other Member States). However, in a few Member States, the level of perceieved independence remains particularly low.

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. Compared to previous years, both reasons remain notable for several Member States where perceived independence is very low (Figures 45 and 47).

Among the reasons for good perception of independence of courts and judges, nearly four-fifths of companies and of the general public (equivalent to 43% and 44 % of all respondents, respectively) named the guarantees provided by the status and position of judges.


• The 2020 EU Justice Scoreboard presents updated 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, as well as a few overviews regarding prosecution services:

• Figure 49 presents an updated 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 50 presents an updated 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.

• Figures 51 and 52 show updated overviews of the the involvement of the judiciary in the appointment of judges-members of the Council for the Judiciary and the composition of the Councils for the Judiciary. It is up to the M e mber States to or g a nise their justice sy stems, 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.

• Figures 53 and 54 present overviews on the disciplinary authorities dealing with proceedings regarding prosecutors. Figure 55 shows an updated and more detailed overview of which bodies can give instructions to prosecutors in individual cases and presents some of the safeguards that are in place, if such instructi ons are given in a concrete case.

4. CONCLUSIONS

The 2020 EU Justice Scoreboard shows a continued improvement in the effectiveness of justice systems in large majority of Member States. Nevertheless, challenges remain to ensure full trust of citizens in the legal systems of those Member States where guarantees of status and position of judges, and thereby their independence, might be at risk.

The EU Justice Scoreboard provides objective and comparable information on the independence, quality and efficiency of national justice systems, and is used as a reference in the European Semester, and will be one of the sources in the upcoming Rule of law Report. As announced in the Communication on further strengthening the rule of law within the Union — A blueprint for action, the EU Justice Scoreboard will be further developed in the relevant rule of law related areas.