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Reply to Recommendation | Doc. 12446 | 16 December 2010
Judicial corruption
1. The Committee of Ministers has attentively
examined Parliamentary Assembly Recommendation 1896 (2010) on “Judicial corruption” as well as its Resolution 1703 (2010). It has brought it to the attention of the member states
and forwarded it to the various competent bodies for information
and any comments .
2. The Committee of Ministers believes that judicial corruption
undermines the rule of law, which is a pillar of any pluralist democracy,
and engenders impunity. Consequently, combating judicial corruption
is a priority for the Council of Europe's work. To be effective,
this requires strong involvement on the part of the member states
to guarantee the impartiality, integrity and reliability of the
judicial system. The Committee notes that, on the basis of Committee
of Ministers Resolution Res(97)24 on the twenty guiding principles
against corruption, the Group of States against Corruption (GRECO)
has recommended the development of objective, fair and transparent
systems of judicial recruitment, promotion and dismissal; the improvement
of material conditions pertaining to the judiciary (reasonable wages,
adequate resources and staffing); the establishment of terms of office
for judges and prosecutors which are sufficient in length and free
from any undue interference; the strict limitation of immunity from
investigation, prosecution or adjudication of corruption offences
to the degree necessary in a democratic society.
3. Concerning the revision of Committee of Ministers Recommendation
Rec(94)12 on the independence, efficiency and role of judges, in
conformity with the terms of reference given in 2009 to the Group
of specialists on the Judiciary (CJ-S-JUD), which is a subordinate
body to the European Committee on Legal Co-operation (CDCJ), the
Committee of Ministers wishes to inform the Assembly that Recommendation
CM/Rec(2010)12 of the Committee of Ministers to member states on
judges: independence, efficiency and responsibilities was adopted
at the 1098th meeting of the Ministers’ Deputies on 17 November
2010. It should be noted in this connection that the recommendation,
like the recommendation of 1994, seeks to guarantee the independence of
the judicial system and covers, inter
alia, both internal and external independence, the status
of judges (selection and career, irremovability, term of office,
remuneration and assessment) and the rules setting out their responsibilities.
In keeping with the Parliamentary Assembly's request, the Explanatory
Memorandum to this new recommendation refers to the fight against
corruption and states that “an adequate level of remuneration is
a key element in the fight against corruption of judges and aims
at shielding them from any such attempts”.
4. Concerning the Assembly's proposal to draw up a model code
of conduct directed at judicial officials, the Committee of Ministers
shares the opinion of the GRECO that a code of conduct must promote
the highest levels of professionalism and integrity of judicial
officials, thus helping to prevent misconduct or acts of corruption.
The Committee of Ministers stresses, in this connection, that one
section of the revised draft recommendation drawn up by the CJ-S-JUD
focuses on judges' ethics, inviting the member states to lay down ethical
principles in codes of judicial ethics. This issue has furthermore
been brought to the attention of the CDCJ during its recent plenary
meeting (11-14 October 2010), which took note of the request relating
to the expediency and feasibility of drawing up a model code of
professional conduct (or judicial ethics).
5. The Committee of Ministers supports the Assembly's call for
closer co-operation between the GRECO and the relevant institutions
of the European Union in order to avoid duplication and promote
synergies. It notes that the GRECO firmly reiterates its willingness
to contribute to the development of a comprehensive anti-corruption
policy and help foster the accession of the European Union to the
GRECO in this connection.
6. Concerning the request made by the Assembly in paragraph 6
that the Committee gather figure-supported information on prosecutions
and convictions of judicial officials in the Council of Europe member states,
the Committee of Ministers refers the Assembly to the results of
the upcoming fourth evaluation round of the GRECO, the theme of
which is “corruption prevention in parliamentary assemblies, judiciary
and among other actors of the pre-judicial and judicial process”.
7. Finally, the Committee of Ministers will bear in mind the
Assembly's request that Committee of Ministers’ Recommendation CM/Rec(2000)19
on the role of public prosecution in the criminal justice system
be updated and underlines that the CDCJ recently proposed that the
role of prosecution services outside the criminal law field be the
subject of a future recommendation of the Committee of Ministers.
This proposal is linked to Opinion No.
3 of the Consultative Council of European Prosecutors
(CCPE) on “The role of prosecution services outside the criminal
law field” and will also be on the agenda of a future meeting of
the Ministers’ Deputies.
Appendix 1 to the draft reply
(open)Comments by the Group of States against Corruption (GRECO)
1. The GRECO notes with interest the call of the Parliamentary
Assembly, in line with Resolution
1703 (2010) to regard the eradication of judicial corruption as
a priority for the action of the Council of Europe, in that it threatens
the rule of law – backbone of a pluralistic democracy – and favours
impunity.
2. The GRECO has often observed, in the course of its monitoring
work, that the impartiality, integrity and trustworthiness of the
justice system are issues of great concern in a number of its member
states. Inefficient and biased justice systems hamper the fight
against crime, including corruption, and undermine public trust
in the efforts undertaken by the authorities. Justice must not only
be done, but must also be seen to be done.
3. Consequently, the GRECO has repeatedly urged member states
to set in place comprehensive measures, of a legislative and/or
institutional nature, with a view to firmly guaranteeing the independence
and the accountability of the judiciary. In this connection, the
GRECO wishes to draw attention to Committee of Ministers Resolution Res(97)24
on the twenty guiding principles against corruption, which have
inspired GRECO’s multifaceted recommendations in this field. More
particularly, the GRECO has recommended the development of objective,
fair and transparent systems of judicial recruitment, promotion
and dismissal; the improvement of material conditions pertaining
to the judiciary (reasonable wages, adequate staffing and resources);
the establishment of terms of office for judges and prosecutors
which are sufficient in length and free from any undue interference;
the strict limitation of immunity from investigation, prosecution
or adjudication of corruption offences to the degree necessary in
a democratic society.
4. The GRECO welcomes paragraph 4 of the Parliamentary Assembly’s
recommendation which invites the Committee of Ministers to elaborate
a model code of conduct directed at judicial officials, along the
lines of the model code of conduct for public officials appended
to Committee of Ministers Recommendation Rec(2000)10 on codes of
conduct for public officials. In GRECO’s longstanding experience,
it is of pivotal importance to establish codes of conduct which
promote the highest levels of professionalism and integrity of judicial
officials. In particular, it must be stressed that a code of conduct
is most useful in preventing misconduct or corruption when it is
fair and well-known by those subject to it as well as by the public,
when there are mechanisms for providing training and education on
the code as well as individualised advice to those who need guidance
and when there are appropriate and effective mechanisms for enforcing
its provisions.
5. Lastly, regarding paragraph 5, the GRECO concurs with the
Parliamentary Assembly in stressing the need for closer co-operation
between the GRECO and the relevant institutions of the European
Union in order to guard against duplications and to promote synergies.
In the framework of the Stockholm Programme, the GRECO reiterates
its willingness to contribute to the development of a comprehensive
anti-corruption policy of the European Union, in line with the
invitation addressed by the European Council to the Commission.
The GRECO welcomes, in particular, the invitation by the European
Council to the Commission to submit a report, in 2010, to the Council
on the modalities for the Union to accede to the GRECO and, in this
connection, expresses its willingness to discuss such modalities
with the competent services of the European Union in light of GRECO’s
Statute, the Criminal Law Convention on Corruption (ETS No. 173)
and the Civil Law Convention on Corruption (ETS No. 174), which
already provide for the possibility of the European Union to participate
in the GRECO.
Appendix 2 to the draft reply
(open)Opinion of the Bureau of the European Committee on Legal Co-operation (CDCJ)
1. Following the adoption by the Parliamentary Assembly,
at its session of 27 January 2010, of Recommendation 1896 (2010) on “Judicial corruption”, the Committee of Ministers decided to send this recommendation
to the European Committee on Legal Co‑operation (CDCJ) for information
and possible comments.
2. The Bureau of the CDCJ welcomed the recommendation of the
Parliamentary Assembly which is fully in line with the priorities
of the CDCJ, which has been striving for many years for the promotion
of the independence of judges, inherent element of the rule of law,
which is indispensable to judges’ impartiality and to the functioning
of the judicial system.
3. The Bureau of the CDCJ welcomes the reference to the work
of the Group of Specialists on the Judiciary (CJ-S-JUD) which was
entrusted in 2009 with
the task of drawing up a draft recommendation, updating Recommendation
Rec(94)12 on the independence, efficiency and role of judges, integrating
the developments which have taken place since the adoption of that
recommendation and strengthening the scope of this instrument.
4. The draft recommendation and Explanatory Memorandum produced
by the CJ-S-JUD are currently being examined by the Bureau of the
CDCJ, which has called for comments of national delegations on the
draft with a view to discussing and approving it at the 85th plenary
meeting of the CDCJ (11-14 October 2010). The draft recommendation
will subsequently be sent to the Committee of Ministers for adoption.
5. The current version of the draft states that judges’ remuneration
should be sufficient to shield them from inducements aimed at influencing
their decisions and a reference to the fight against corruption
of judges could, as suggested by the Parliamentary Assembly, be
made in the Explanatory Memorandum.
6. Concerning the invitation made to the CJ-S-JUD to take into
account Parliamentary Assembly Resolutions 1703 (2010) and 1685
(2009) respectively concerning judicial corruption and allegations
of politically motivated abuses of the criminal justice system in
Council of Europe member states, the group indeed had the opportunity
to take note of Resolution
1685 (2009), while Resolution
1703 (2010) on judicial corruption had not been adopted at the time
the CJ-S-JUD held its meetings.
7. Concerning paragraph 4 of Parliamentary Assembly Recommendation 1896 (2010), the Bureau of the CDCJ underlines that a specific chapter
of the draft recommendation deals with the ethics of judges, inviting member
states to lay down ethical principles in codes of judicial ethics
and that the opportunity to elaborate a model code of conduct (or
of judicial ethics) could be considered by the CDCJ at its forthcoming
plenary meeting.
8. Finally, in respect of paragraph 7, the Bureau of the CDCJ
notes that the CJ-S-JUD has decided to underline the importance
of the European Charter on the statute for judges prepared within
the framework of multilateral meetings of the Council of Europe,
which is to this end referred to in the preamble of the draft recommendation,
together with the opinions of the Consultative Council of European
Judges (CCJE) and the work of the European Commission for the Efficiency
of Justice
Appendix 3 to the draft reply
(open)Comments from the Bureau of the Consultative Council of European Judges (CCJE)
1. At their 1077th meeting (24 February 2010), the Ministers’
Deputies agreed, inter alia,
to communicate Recommendation
1896 (2010) on “Judicial corruption” to the Consultative Council
of European Judges (CCJE) for information and possible comments.
2. In general, the CCJE wishes to express its great satisfaction
at the existence of a recommendation on judicial corruption.
3. Regarding the paragraph in which the Parliamentary Assembly
“invites the Committee of Ministers to draw up a model code of conduct
directed at judicial officials […]” while referring to Opinion No. 3 of the CCJE, although, as a consultative committee,
the CCJE has no standard-setting competence, it wishes to be involved in
any work to draw up a code of conduct directed at all judicial officials.
The CCJE also wishes to stress how important it is that such a code
be prepared by the professionals themselves.
Appendix 4 to the draft reply
(open)Comments from the Bureau of the Consultative Council of European Prosecutors (CCPE)
1. At their 1077th meeting (24 February 2010), the Ministers’
Deputies agreed, inter alia,
to communicate Recommendation
1896 (2010) on “Judicial corruption” to the Consultative Council
of European Prosecutors (CCPE) for information and possible comments.
2. In general, the CCPE wishes to express its great satisfaction
at the existence of a recommendation on judicial corruption.
3. Regarding the paragraph encouraging the CCPE to “persevere
in its role as guardian of the due application of Committee of Ministers
Recommendation CM/Rec(2000)19 on the role of public prosecution
in the criminal justice system, bearing in mind particularly the
independence of prosecutors and having regard to the reforms which
have taken place in the member states since the recommendation was
adopted”, the CCPE stresses that this role of promoting the recommendation
in question is included in the CCPE’s terms of reference for 2009/2010
and that each CCPE member is constantly concerned to make the recommendation more
widely known and explain it. The CCPE also points out that, to
mark the 10th anniversary of Recommendation CM/Rec(2000)19, it will
undertake an impact study in the member states to find out how well known
the recommendation is and to what extent it is applied.
4. Regarding the paragraph encouraging the CCPE to “review this
recommendation in a similar way to the current revision of Recommendation
Rec(94)12”, the CCPE points out that, although, as a consultative committee,
it is not empowered to review a recommendation of the Committee
of Ministers, it will, if appropriate, make concrete proposals for
a possible revision, in the light of the results of the impact study.
The CCPE also points out that Recommendation Rec(2000)19 already
contained some of the measures recommended in Parliamentary Assembly Resolution 1703 (2010).
5. Regarding the paragraph in which the Parliamentary Assembly
“invites the Committee of Ministers to draw up a model code of conduct
directed at judicial officials […]” while referring to Opinion No. 3 of the CCJE, the CCPE is ready to be involved, alongside
the CCJE, in any work to draw up a code of conduct directed at all
judicial officials and stresses how important it is that such a
code be prepared by the professionals themselves. In addition to Opinion No. 3 of the CCJE, the CCPE notes in this connection, the
existence of the European Guidelines on Ethics and Conduct for Public
Prosecutors, known as the “Budapest Guidelines”, adopted by the
Conference of Prosecutors General of Europe on 31 May 2005.