CCJE: Opinion on Evolution of Councils for the Judiciary
During its 22nd plenary meeting, held online from 3 to 5 November 2021 in Strasbourg, the Consultative Council of European Judges (CCJE) adopted Opinion No. 24 (2021) “on the evolution of the Councils for the Judiciary”. These are key bodies of judicial self-governance, which are called upon to safeguard judicial independence and impartiality. While reaffirming the principles set out in Opinion No. 10 (2007) on the Council for the Judiciary at the service of society, the CCJE took into consideration that political developments at both the international and domestic levels have made it necessary to reaffirm and complement the guiding principles. In this way, further guidance can be provided to policy-makers, legislators, and judges on essential aspects covering their role in independent and impartial judicial systems.
The Opinion argues that constitutions and international standards calling for the introduction and proper regulation of councils for the judiciary are not sufficient to ensure an independent judiciary. In the long term, the judiciary and other actors from government, politics, the media, and civil society must work together to strengthen professionalism, transparency, and ethics within the judiciary.
A council for the judiciary must have effective legal remedies in order to preserve its autonomy and to challenge the legality of public acts affecting it or the judiciary. It must also have legal standing before national and international courts. Its legitimacy must rest on a legal basis, reinforced by the public trust that is earned through transparency and accountability. To ensure its independence, the council must have sufficient resources and be accountable for its actions and decisions. The members of the council for the judiciary must meet the highest ethical and professional standards and be held accountable for their actions by appropriate means. The work of any council for the judiciary should be transparent, and its decisions and procedures should be sound and accountable – subject to judicial review, where appropriate. While there is no exclusive model for a council for judiciary, it must include adequate consequences to protect the independence of the judiciary and individual judges from undue influence in their decision-making.
As far as the careers of judges are concerned, any relevant decisions should be taken in a transparent procedure, preferably based on objective criteria. Decisions must be reasoned and, where necessary, be subject to judicial review.
Council members should be selected by means of a transparent process, avoiding even the slightest impression of political influence. Ex-officio membership is possible to a limited extent but should not involve members or representatives of the legislature or the executive. The majority of members should be judges elected by their peers, guaranteeing the widest possible representation of courts and instances as well as gender and regional diversity. The CCJE also proposes including non-judicial members to ensure a diverse representation of society.
Members should be appointed for a fixed term. The secure tenure of each member of the council is a fundamental prerequisite for its independence. Members may only be removed from office in the event of proven serious misconduct, in a procedure that guarantees their right to a fair trial. The Opinion concludes by requiring that the council and its members be fully committed to taking and supporting all appropriate steps to combat corruption within the judiciary and the council, while respecting the rule of law.