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Resolution 1685 (2009)
Allegations of politically motivated abuses of the criminal justice system in Council of Europe member states
1. The Parliamentary
Assembly stresses the fundamental importance, for the rule of law
and the protection of individual freedom, of shielding criminal
justice systems throughout Europe from politically motivated interferences.
2. Successful co-operation between member states of the Council
of Europe in the field of criminal justice (in matters such as extradition
and obtaining evidence, as specified in pertinent conventions of
the Council of Europe) depends on mutual trust in the basic fairness
of the criminal justice systems of all member states and the absence
of politically motivated abuses.
3. The independence of the judiciary, in law and practice, is
the principal line of defence against such abuses.
3.1. The independence of the courts
and of each individual judge is recognised, in principle, in all member
states of the Council of Europe. This should also be reflected in
their constitutions. True independence of judges also requires a
number of legal and practical safeguards, including:
3.1.1. recruitment and promotion of
judges must be based solely on merit (qualifications, integrity,
ability and efficiency);
3.1.2. protection against unfair disciplinary sanctions (in particular,
dismissal) must be effective;
3.1.3. salaries and allowances must permit judges and their families
not to depend on the provision of housing and other amenities by
executive authorities;
3.1.4. the independence of judges vis-à-vis court chairpersons
and judges of superior courts shall be protected, inter alia, by the allocation of
cases on the basis of predetermined, objective systems, by strict
rules protecting judges from being taken off individual cases without
reasons specifically defined by law and by ensuring that the assessment
of a judge’s performance is not determined by the ratio of judgments
upheld or quashed by superior courts.
3.2. Prosecutors must be allowed to perform their tasks without
interference from the political sphere. They must be shielded from
instructions pertaining to individual cases, at least where such
instructions would prevent an investigation from proceeding to court.
3.3. In order for the practical safeguards of judicial independence
to be effective, a judicial council with strong powers could play
an important role in supervising the implementation of judicial
independence:
3.3.1. judicial councils
must have a decisive influence with respect to the recruitment and promotion
of judges and prosecutors, as well as concerning disciplinary measures
against them, without prejudice to any judicial review mechanisms
required by certain constitutions;
3.3.2. the number of elected representatives of judges and prosecutors
should be at least equal to that of members representing other groups
in society that are appointed by political bodies. The latter members
should be representative of all main political currents in the country. The
existing practice followed by many states of involving parliamentary
committees in the process of appointing certain senior judges –
also followed for the election of judges to the European Court of
Human Rights – is also acceptable.
3.4. The division of labour between judges and prosecutors
is a question of national legal traditions. The right balance, ensuring
the best possible protection from politically motivated interferences,
also depends on the degree of independence granted to prosecutors
as well as the procedural rights and material resources available
to the defence.
3.4.1. In countries
such as the United Kingdom and Italy, where prosecutors enjoy a
high degree of independence and the defence has access to the case
file and to the suspect at an early stage, the role of judges may
safely be limited to legal oversight and final decision making.
3.4.2. In countries such as France and Germany, where prosecutors
are more closely tied into their hierarchies, judges and defence
lawyers must be able to play a more active role also during the
investigation.
3.5. The success of any changes to the system – such as the
planned abolition of the position of juge d’instruction in
France or the strengthening, in Germany, of the Bundesanwaltschaft under recent
anti-terrorism laws – depends on maintaining the right balance between
actors enjoying full independence (judges, defence lawyers) and
the prosecution and the police. Such reforms may also require an increase
in the independence of the prosecution so as to safeguard the overall
independence of the criminal justice system and to protect it from
politically motivated interferences.
4. The situation in the four countries examined as examples of
the principal types of criminal justice systems in Europe – the
United Kingdom (England and Wales), France, Germany and the Russian
Federation – is characterised by the following factors:
4.1. In the United Kingdom:
4.1.1. the adversarial character of
the criminal justice system is underpinned by considerable, though
recently dwindling, resources available for legal aid to ensure
equality of arms between the prosecution and the defence;
4.1.2. the long-standing culture of independence and professionalism
among judges as well as prosecutors is buttressed by their high
social status and further enhanced by the recent establishment of
the Judicial Appointments Commission;
4.1.3. the government’s traditionally active supervision by Parliament
and by the lively, pluralistic and free media;
4.1.4. recent cases (including the British Aerospace and cash-for-honours
cases) have shown that the role of the attorney general needs to
be changed and clarified; a reform proposal to this effect is currently
under discussion.
4.2. In France and in Germany:
4.2.1. the traditionally inquisitorial criminal justice systems
have taken on more adversarial elements; but in both countries there
has been no commensurate increase in the resources available for
legal aid; in addition, in France, defence lawyers have not yet
obtained the same degree of access to the suspect and to the pre-trial
investigation as their colleagues in the United Kingdom and in Germany;
4.2.2. the independence of judges is respected in law and practice,
but their social status has been allowed to erode considerably;
4.2.3. in both countries, the independence of prosecutors is
considerably less developed than in the United Kingdom; in France,
a marked regression in practice has recently been deplored by senior
prosecutors and elected representatives of judges and prosecutors;
4.2.4. the French Conseil supérieur de la magistrature, which
plays an important role in career and disciplinary matters for judges
and, to a lesser extent, for prosecutors, still does not have an equivalent
in Germany; in France, it was recently decided to double the number
of members appointed by the president of the republic and the presidents
of the two chambers of parliament, thus placing elected representatives
of judges and prosecutors in a minority;
4.2.5. the proposed abolition of the position of juge d’instruction in France and
the transfer of most of their competences to the prosecution is
widely suspected as being part of an attempt by the political authorities
to increase their influence on the handling of sensitive cases;
4.2.6. in both countries, parliaments and independent media provide
fairly solid safeguards against abuses of the criminal justice system
by the executive powers.
4.3. In the Russian Federation:
4.3.1. strong improvements in the social status of judges and
prosecutors in recent years have all but eliminated their dependence
on executive bodies for housing and other basic needs and should
help to reduce judicial corruption;
4.3.2. legislative reforms taking into account European standards,
including the creation of a federal council of judges in charge
of career and disciplinary matters, have strengthened the status
of judges in law;
4.3.3. the creation of a separate investigative committee, within
the Prosecutor General’s Office, may in time somewhat dilute the
overwhelming influence of the latter over the criminal justice process;
4.3.4. a number of legislative acts have recently been adopted,
strengthening the independence of the judicial system and the protection
of defence lawyers from groundless criminal prosecution: an order
for the lifelong appointment of federal judges has been introduced, a
special order for the commencement of criminal prosecutions in relation
to defence lawyers has been established, and a special judicial
body – the Disciplinary Bar – has been constituted to examine appeals
from judges deprived of their powers;
4.3.5. the traditionally subservient attitude among many judges
and prosecutors inherited from the past has not yet been fully overcome;
on the contrary, after an encouraging new beginning in the early
1990s, judges are subjected to an increasing level of pressure aimed
at ensuring convictions in almost all cases brought to court by
the prosecutor’s office;
4.3.6. the vectors of pressure still include old-style unofficial
methods described as “telephone justice”, but also official performance
evaluation and disciplinary mechanisms. The number of judges dismissed
from their functions on different grounds is comparatively high.
Court chairpersons have disproportionate power over other judges,
in particular because of their power to decide on the distribution
of cases. Legal protection for judges resisting such pressures is
very limited, as the judges’ councils have not yet developed sufficient
independence and standing;
4.3.7. lawyers are still subjected to searches and seizures and
other forms of pressure in violation of Russian and European legal
provisions;
4.3.8. a number of high-profile cases, such as the second trial
of M. Khodorkovsky and P. Lebedev, the proceedings against the managers
and lawyers of HSBC/Hermitage, the investigation into the murder
of A. Politkovskaya, the prosecution of Y. Samodurov and the dismissal
of Judge Kudeshkina and several other judges, give rise to concerns
that the fight against “legal nihilism” launched by President Medvedev
is still far from won;
4.3.9. Parliament and the media still do not provide sufficient
safeguards against abuses, although some recent, open debates in
certain media give rise to hope for the future.
5. Noting that the criminal justice systems of all member states
are exposed to politically motivated interferences, although to
very different degrees:
5.1. the
Assembly calls on all member states to:
5.1.1. further strengthen judicial independence and the equality
of arms between the prosecution and the defence, in particular by
providing sufficient resources to the judicial system, including
legal aid, by granting strong procedural rights to defence lawyers,
including during the pre-trial investigation, and by strengthening
judicial self-administration;
5.1.2. ensure that the competent authorities for deciding on
extraditions and other types of judicial co-operation take into
account the degree of independence of the judiciary in the requesting
state – in practice as well as in law – and refuse extradition whenever
there are reasons to believe that the person concerned is unlikely,
for political reasons, to be given a fair trial in the requesting
state;
5.2. the Assembly calls on the United Kingdom to:
5.2.1. complete the reform of the attorney
general’s role without further delay, strengthening his/her accountability
before Parliament;
5.2.2. fully implement the Organisation for Economic Co-operation
and Development’s Convention against Bribery, including its Article
5;
5.2.3. halt the recent erosion of resources available for legal
aid, in order to avoid the development of a two-tier justice system
dependent on the suspect’s ability to pay for an effective defence;
5.3. the Assembly calls on France to:
5.3.1. reconsider the proposed abolition of the position of juge d’instruction; in the event
of abolition and the transfer of this institution’s competences
to the prosecutor’s office, to strengthen the independence of prosecutors,
and to grant defence lawyers at least the same access to the pre-trial
investigation by the prosecution as is presently the case before
the juge d’instruction;
5.3.2. gradually increase the salaries of judges and prosecutors
to a level commensurate with the dignity and importance of their
office until they reach the average of all European countries (in
comparison with average earnings of the general population);
5.3.3. increase the resources available for legal aid commensurately
with the introduction of more adversarial elements in the criminal
justice system;
5.3.4. consider restoring a majority of judges and prosecutors
within the Conseil supérieur de la magistrature or ensuring that
the members appointed by political bodies also include representatives
of the opposition and making the Conseil supérieur de la magistrature’s
opinion binding also for decisions concerning prosecutors;
5.4. the Assembly calls on Germany to:
5.4.1. consider setting up a system of judicial self-administration,
taking into account the federal structure of the German judiciary,
along the lines of the judicial councils existing in the vast majority
of European states, as a matter of securing the independence of
the judiciary in future;
5.4.2. gradually increase the salaries of judges and prosecutors
and increase the resources available for legal aid (as recommended
for France in paragraphs 5.3.2 and 5.3.3 above);
5.4.3. abolish the possibility for ministers of justice to give
the prosecution instructions concerning individual cases;
5.4.4. strengthen in law and practice the supervision by judges
of the exercise of the prosecutors’ increased powers, in particular
in the fight against terrorism;
5.5. the Assembly calls on the Russian Federation to:
5.5.1. strengthen the independence
of judges by ensuring that the evaluation of their performance is
not based on the material content of their judicial decisions;
5.5.2. increase the independence of the judicial council and
the transparency of its proceedings;
5.5.3. strengthen the system of allocation of cases among the
courts and to individual judges or sections within the courts, in
such a way as to prevent any “forum shopping” by the prosecutor’s
office and the exercise of any discretion in this respect by the
court chairpersons;
5.5.4. promote the development of a spirit of independence and
critical analysis in legal education in general and in initial and
continued training of judges and prosecutors in particular, and
to robustly sanction any local, regional or federal officials that
continue to try to give instructions to judges, as well as any judges
who seek to obtain such instructions;
5.5.5. effectively protect defence lawyers from searches and
seizures of documents pertaining to the privileged lawyer–client
relationship and from other forms of pressure, including abusive prosecutions
and administrative harassment;
5.5.6. contribute to the development of independence of the media
when investigating and publicising abuses in the criminal justice
system.
6. The Assembly calls on the European Commission for Democracy
through Law (Venice Commission) and the European Commission for
the Efficiency of Justice (CEPEJ) to continue upholding the independence of
the judiciary throughout Europe and to speak out in support of colleagues
in difficulty and against any politically motivated interferences,
wherever they may occur.
7. The Assembly believes that the Committee of Ministers should
review Council of Europe conventions in the field of legal co-operation
with a view to ensuring that they cannot be misused for purposes
of politically motivated prosecutions, as long as comparable standards
of judicial independence have not been reached in law and practice
in all member states of the Council of Europe.
8. Finally, the Assembly encourages the European Court of Human
Rights to consider giving priority to applications pertaining to
alleged violations of the independence of judges and politically
motivated abuses of the criminal justice system. In view of the
fundamental importance of independent courts for the protection
of human rights at national level, such a policy could help stem
the flood of applications to the European Court.