The Functions of Judicial Councils
Many materials utilised by the Venice Commission in the field of the judiciary address the functions that have to be entrusted to a judicial council. The Commission ‘is of the opinion that a judicial council should have a decisive influence on the appointment...
of judges’. However, the decisions concerning the appointments have to be construed as a necessary part of the general competence that affects the professional careers of judges.[217]Therefore, the implementation of the system of the separation of powers and of the independence of the judiciary requires the legislative identification of different functions involving the different stages of the careers of the judges. The relevant legislative provisions shall cover all the matters from the initial appointment to promotions and transfers to other offices, and from the disciplinary control of their behaviour and activity to the eventual termination of office or retirement. The exercise of these functions has its own peculiarities, which have to be singled out by the legislative provisions concerning the organisation of the judiciary. This is the main task of the parliament in the judicial field. In a constitutional system, compliance with the basic principles of independence and impartiality of the judiciary has to be integrated by the legislative regulation of the matter.
According to a guideline of the European Charter on the status of the judges,[218] the legislator has to provide ‘for the conditions which guarantee, by requirements linked to educational qualifications or previous experience, the ability specifically to discharge judicial duties’. The Venice Commission fully agrees with this way of thinking, as demonstrated by frequent references to this guideline in the Commission’s documents. The guideline requires the legislative identification of objective criteria which have to be applied in the adoption of the decisions concerning judges.[219] Objective criteria are considered an important element to avoid the risk of political or corporative interferences in the decision-making processes of the judicial councils.
Entrusting the adoption of these criteria to the parliament clearly implies the separate role of self-administration of judicial councils. The criteria have to be adopted in the frame of the unity of the state’s legal system. The opinions of the Commission contribute to the elaboration of transnational law of the judiciary as far as the core of the competence of the judicial councils is concerned. The values initially provided for in the European Treaties were rather abstract, but were further developed by the monitoring activity. It was the Venice Commission that gave concreteness of content to these principles.[220] This is true for substantive principles, but when procedural issues are at stake, the general relevance of the Opinions is minor, especially if they concern legislative drafting.The task of the judicial councils is, first of all, the execution and application of the legislative provisions concerning the general requirements that judges need to satisfy at the moment of their appointment, during their career and possible transfers from one office to another.[221] In these cases, the council shall perform administrative functions, which means that the judicial self-administration has a substantial administrative content. The administrative nature of the council's decisions concerning the appointment, promotion and careers of the judges is at times especially emphasised in the national legislation by the participation of the Head of the State (President of the Republic) in the formal adoption of the relevant acts. The Venice Commission has not contested this solution, but has claimed that ‘as long as the President is bound by a proposal made by an independent judicial council... the appointment by the President does not appear to be problematic'. In these cases, the President ‘acts in a “ceremonial” way, only formalising the decision taken by the judicial council in substance’.[222]
The exclusion of any discretionary power of the President derives from the principle that the danger of the prevalence of political considerations over the objective merits of a candidate has to be avoided.
This idea follows the guideline, according to which ‘appointments of ordinary judges... are not an appropriate subject for a vote by parliament’[223] Special attention needs to be paid to the disciplinary control of judges. The Venice Commission recognised that in this field ‘internationally, there is no manifest approach’ Moreover, the Commission displayed a certain deal of creativity, drawing inspiration from the general principles of the rule of law. Important principles have been stated, especially with regard to the grounds for the disciplinary proceedings, to some basic elements of the procedural aspects of the disciplinary cases and to the relevant rights of the concerned judges.[224]There is no justification in principle for treating judges differently in matters of discipline and removal according to whether they are members of superior or inferior courts. All judges should enjoy equal guarantees of independence and equal immunities in the exercise of their functions.[225]
The principles of legality, respect for judicial neutrality and impartiality, procedural fairness, proportionality of the sanction with the committed offence and transparency shall be in line ‘with international standards’. A good practice/approach in conformity with international standards' suggests compliance with the rule of law and avoidance of discretionary powers of the judicial councils. Moreover, ‘an exhaustive list of specific disciplinary offences' should be drawn up ‘rather than giving a general definition which may prove too vague’[226] The purpose is always restraining the interpretative choices of the competent authorities. ‘Disciplinary proceedings should deal with gross and inexcusable professional misconduct, but they should never extend to differences in legal interpretation of the law or judicial mistakes.' ‘A judge may not be limited to applying the existing case law. The essence of his/ her function is to independently interpret legal regulations.' ‘It would be problematic to discipline judges for merely criticising judicial decisions.
or assessments with regard to the activities of state authorities and of the heads of those authorities.'[227]According to the Venice Commission, the procedure of adoption of the disciplinary measures is comparable to a jurisdictional procedure. It requires compliance with the principle of the natural judge, which implies that disciplinary trials have to be conducted by a competent jurisdiction previously established in conformity with the law. This guideline excludes the ad hoc establishment of a disciplinary panel ‘composed on a case-by-case basis’. The reporting member of the panel, ‘whose position is similar to that of a prosecutor, should be excluded from the deliberations and the vote’.[228] The concerned judge shall have the right to be heard and represented in the procedure. Moreover, if the legislator dealing with disciplinary control does not regulate a procedural issue, ‘one of the procedural codes can be applied by analogy... the fact that the criminal procedural codes provide generally better safeguards to ensure the fairness of the procedure should be taken into account’[229]
IV.