Ms. Victoria PALAU TÁRREGA,

EuroMed Justice Project Team Leader

Mr. Virgil IVAN-CUCU,

EuroMed Justice Key Judicial Expert and Senior Lecturer,

EIPA Luxembourg

1. Introduction to the EuroMed Justice IV*

EuroMed Justice is a European Union funded project with a cross-regional scope, covering EU Member States (EUMS) and the European Neighbourhood South Partner Countries (SPCs): Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestine and Tunisia. Syria’s participation is suspended.

EuroMed Justice’s main goal is to contribute to the development of a Euro-Mediterranean effective, efficient and protective to the human rights judicial and law enforcement cooperation in criminal matters. However, one important module of the project covers the independence and accountability of justice in the SPCs.

Concerning the independence of justice, strengthening the capacities of the Judicial Councils in order to ensure a high standard of judicial independence, self-governance and accountability represent a priority. In the case of Morocco, this process is ongoing, as the new Superior Council of Judicial Power (Conseil Supérieur du Pouvoir Judiciaire) was set up one year ago in 2017.

A well-functioning, independent judicial system and the respect for rule of law are indispensable factors towards democracy, security and economic growth in the SPCs. Previous EuroMed Justice phases have shown that in several partner countries one of the institutional factors that are not clearly resolved is the distribution (check and balances) of judicial and executive powers between the various institutional stakeholders and authorities. A proper identification of the specific roles and capacities, of the models of interaction between Councils of the Judiciary, Ministries of Justice, Parliaments, Prosecution Offices regarding judicial independence, necessarily have an impact on improving further the rule of law, democracy and human rights.

2. Justice and the rule of law in transition[1]

In the transition countries, nationwide judiciary is weakened and destabilised by the executive and legislative powers, crippled by corruption and intimidated by massive global powers, hardly controllable, such as social media, digital economy and finance.

To face these transition challenges, when national “rule of law safeguards” do not seem capable of effectively address them, innovative solutions and lessons learned could contribute to the gradual strengthening of the independence of justice. After 11 years since they become members of the European Union, the justice systems from Romania (within judicial reform, and the fight against corruption) and Bulgaria (within judicial reform and the fight against organised crime) are still under the control of Cooperation and Verification Mechanism[2].

During the process of identifying the common standards for monitoring and evaluation of the two mentioned countries, EU has found that the efforts to maintain afloat the rule of law and judiciary independence are characteristics to other members of the Union too. As a result, a new European monitoring and information tool was created, this time for all Member States – designated to achieve more effective justice – the Justice Scoreboard[3].

Moreover, the Lisbon Treaty (TEU) under article 7, establishes a mechanism for preventing and sanctioning Member States’ serious breaches of common EU values, addressing and redressing ‘systemic threats’ to the rule of law. EU Commission and Council set up in March 2014, the rule of law framework with an early warning tool.[4]

3. Setting the Scene – State of Play at the EU level

EU confronted, on several occasions true “rule of law” crisis. They included notably the Roma crisis in France in the summer of 2010; the Hungarian crisis that started at the end of 2011; and the Romanian rule of law crisis in the summer of 2012. Recent developments in particularly in Hungary, Poland, and Romania show that the rule of law is under severe pressure in the EU. Last December the European Commission triggered the so-called ‘nuclear option’ against Poland: the Article 7 procedure of the EU Treaty, which can ultimately lead to the suspension of voting rights in case of a serious breach of European values. On April 12, 2018 the European Parliament produced the Sargentini Report which could lead to proposing Article 7 against Hungary in September 2018 as well.

These cases does not mean that rule of law issues are confined to Central and Eastern Europe, but it is undeniable that this region systemically scores worse in the rule of law as a component of national democratic governance.[5]

Above-mentioned assumptions explain the approach EuroMed Justice adopts towards the SPCs overwhelmed by the transition process induced after the Arab Spring[6].

4. Setting the Scene – State of play at the level of SPCs

Judicial reform has long been a top demand of political movements and civil society in South Partner Countries, even decades before the Arab Spring. Despite the critical role the judiciary has historically played as an institution, it remains in dire need of reform, particularly after the 2010      anti-governmental movements. Proposed and debated reforms have included modernizing and automating litigation procedures to help solve the notorious slow pace of trials – a perpetual problem dogging the court system – and to support judges independence and prosecutors individual and institutional autonomy.

In Algeria, the judicial system has sustained progressive changes over the years as a result of constitutional reforms. The judiciary was given for the first time the status of independent power, separate from other constitutional powers by the 1989 Constitution. The Constitution of 1996, consolidated the independence of the judges, and after the adoption of the Organic Laws no. 04-11 and no. 04-12 of 6 September 2004[7] the Superior Council of Magistracy (Conseil superieur de la magistrature) becomes the judiciary’s regulatory body, handling the appointments, careers of judges, and disciplinary matters[8]. It is presiding by the Head of state and among the members are the Chief Justice, Justice Minister and the General Prosecutor.

Tunisia Constitution form 2014 (Articles 112-114) and the Law no. 2016-34 of 28 April 2016 established the composition and the tasks of the Superior Council of Magistracy (Le Conseil supérieur de la magistrature) as the main guardian of the independence of justice and the guarantor of its proper functioning[9]. State General Prosecutor is member of the Council.

In Egypt, the Supreme Judicial Council is the governing body responsible for managing all general judiciary’s affairs. It has seven members, consisting of the President of the Court of Cassation, who serves as the Council’s president; the two most senior Vice-Presidents of the Court of Cassation; the Presidents of the Courts of Appeal for Cairo, Alexandria, and Tanta; and the Prosecutor General.

It has been the longstanding judicial norm[10] since the establishment of the Egyptian judiciary to consider seniority as the fundamental standard for promotions within the judicial system. This includes to top-level positions such as the chief justice of the Court of Cassation, (founded in 1931), who simultaneously serves as head of the Supreme Judicial Council. However, the principle of absolute seniority was replaced in 2017[11] with a new mechanism wherein the President of the State has the sole power, without approval or review from any other authority, to appoint the chief justice of the Court of Cassation (the Supreme Judiciary Council per-se) from among three nominees put forward by the Supreme Judiciary Council.

In Israel, there is no High Judicial Council. However, although the lines of legal and institutional development are different from those of the surrounding countries, the Supreme Court, together with other legal institutions, such as the Attorney General and the prosecution agencies, managed to defend the independency of justice.[12] The Judges Act of 1953 increased the structural independence of the judiciary adopting a new procedure for the appointment and promotion of judges. The government and the Knesset gave up their powers to appoint judges towards a Judicial Committee to perform this task, while giving the formal appointing power to the President of the State. The system of appointing and promoting judges adopted in 1953 is still in force today. In 1984, the Knesset replaced the Judges Act by Basic Law: Judicature, which retained the procedure for the selection of judges, but upgraded its normative status to a basic law, to be part of Israel’s Constitution, therefore enhancing and reaffirming the structural independence of the judiciary.

In Jordan[13], the Constitutional amendments of 2011 and 2016 (art 98 – 2)[14] contain provisions towards an independent judicial power, including the establishment of the Judicial Council as an independent institution. The Law on Judiciary Independence dating from 2001[15] referring to the Jordan’s Judicial Council was amended in 2017. Judicial Council represents the judiciary’s highest administrative body and has the legal authority to oversee the affairs of all judges in the country on matters related to: employment, discipline, accountability, transportation, promotions, loans, mandates and retirement.[16] Public Prosecution Chief at the Court of Cassation is member of the Judicial Council.

In Lebanon, article 20 of the Constitution guarantees the separation of powers and provides for judges to be “independent in the exercise of their functions.” It further provides that the law shall “determine conditions and limits of the judicial guarantees”[17]. Under the article 4 of the Decree-Law No. 150/83 form 1983 on the organization of judiciary, the High Judicial Council is charged with ensuring ”the proper functioning, dignity and independence of the judiciary, the proper functioning of the courts, and with taking the necessary decisions in this regard.” The Decree-Law also details the composition and competencies of the HJC – the General Prosecutor is the vice-president of the HJC.

In Morocco, the 2011 major Constitutional reform consecrated the separation of powers, and the judiciary as independent of legislative and executive powers. According to Chapter 107 of the new Constitution of the Kingdom of Morocco: “the king is the guarantor of the independence of judiciary, and prevents any intervention in cases given to the courts”. In 2013, a comprehensive Chart of reform of the Justice System was adopted. After over five years of debate, the Law 100-13 on Superior Council of Judicial Power[18] and the Law 106-13 on the status of magistrates[19] passed in March 2016, paving the way for the inauguration of the High Judicial Council, whose members were not appointed until April 7, 2017. On October 7, 2017, Morocco transferred the office of the public prosecution from the Ministry of Justice, part of the executive branch, to the Court of Cassation, part of the judicial branch. This move signals the end of an era of tight executive oversight of the public prosecution, which it has controlled since 1956.

Although Palestine, in the past years, has achieved significant improvements in delivering judicial services to Palestinian citizens, there is the need to facilitate the reintegration of the justice sectors between the West Bank and the Gaza Strip started after the establishment of the Consensus Government. The High Judicial Council[20] was established according to Article (1), 2002 of the Judicial Authority Law, which placed all courts under the HJC single administrative body. The Council is comprised of the President, the two most senior judges selected by the High Court Assembly, the presiding judges of the Courts of Appeal in Jerusalem, Gaza and Ramallah, the Attorney General and the Deputy Minister of Justice. It constitutes the basic guarantee of the independence of the judicial authority where its duty is the administrative supervision on the judiciary system.

5. EuroMed support for the implementation of international and European standards and the joint working with Spanish judiciary and ENCJ for building the capacities of the SPCs High Judicial Councils

Several norms, principles and recommendations apply to the independence and accountability of justice such as the United Nations’ Draft Principles on the Independence of the Judiciary (1981) (“Siracusa Principles”), the UN Basic Principles on the Independence of the Judiciary (1985) (“Basic Principles”) and Beijing Statement of Principles of the Independence of the Judiciary (1995). Expressing the highest traditions relating to the judicial function as visualised in all cultures and legal systems are the Bangalore Principles of Judicial Conduct (2002) endorsed by UN (2006)[21] followed by the UNODC Commentary (2007)[22].

Within Europe, the Consultative Council of European Judges (CCJE www.coe.int/ccje) and the Consultative Council of European Prosecutors (CCPE – www.coe.int/ccpe) adopted several relevant documents. Inter alia: the position of the judiciary and its relation with the other powers of state in a modern democracy (Opinion no. 18 (2015); the relations between judges and prosecutors in a democratic society (Joint Opinion no. 12 (2009) CCJE and no. 4 (2009) CCPE); challenges for judicial independence and impartiality in the member states of the Council of Europe (Joint Report 2016 CCJE-CCPE).

European Commission for Democracy through Law (Venice Commission http://www.venice.coe.int/WebForms/pages/?p=01_ Presentation) provided important advices and recommendations in its Reports on the rule of law and standards on independence of the judicial system, independence of judges and of the prosecution services[23].

The relatively recent established European Network of Councils of the Judiciary (ENCJ, website www.encj.eu/ formally created in 2004) has developed a framework and a vision of independence and accountability of the judiciary and a set of indicators to assess the state of independence and accountability of EU judicial systems.

Although no two Councils are alike, they are all in charge of monitoring and promotion of the judiciary. Some Councils have competencies that include policy, justice administration and managerial tasks, budget and budgeting procedures, whereas other Councils are competent with regard to career decisions for judges and prosecutors, recruitment, training and disciplinary actions.

In recent years, ENCJ strives to provide support for the independence, accountability and quality of judiciaries and to improve justice system through the implementation of the existing standards and guidelines, and interaction between Councils and their representatives.

In this context, EuroMed Justice facilitated the dialogue between High Judicial Councils from EuroMed region and ENCJ and the jointly implementation, with the support of Spanish judiciary, in Madrid between  18-21 September 2018, of a new format of practical cooperation between judiciaries, including a study visit and an intensive seminar.

The key objective of the Mediterranean HJC visit to the Spanish Ministry of Justice, Spanish General Council for the Judiciary and Spanish General Prosecutor’s Office was to see at work the models, methods and standards able to put into action the principle of justice independence and to update the SPCs on the evolution occurred in the EU Member States regarding the rule of law and the independence of the judiciary.

After the study visit, SPCs participants dedicated one day of jointly work with the European Networks of the Councils for Judiciary (ENCJ) on the self-assessment of the independence and accountability of their justice systems.

The seminar was organized in an innovative and efficient format, focusing on the operational character of the activities with the aim to promote dialogue and change based on the standards of the independence of justice covering:

– The distribution of competencies between the judicial authorities (checks and balances);

– The role of the MoJ in relation to the HJC;

– The management of judicial careers, judicial inspections and disciplinary proceedings.

A questionnaire drafted by ENCJ, regarding the main indicators related to the justice independence and accountability (see the table below) was answered by the participating SPCs before the seminar (5 countries responded out of 6). The development and measurement of indicators are not a goal in itself. The indicators are meant to provide the factual basis to examine the strengths and weaknesses of legal systems and to open a dialogue among the Judiciaries in EuroMed region.

Indicators

At the seminar, the ENCJ announced the scores per country and indicated the strengths and deficiencies for each of the judicial systems. Two dialogue groups moderated by ENCJ experts discussed in depth the shortcomings identified and search for remedies with their peers.

At the end of the seminar, the participants evaluated the process and the results. It was concluded that the EuroMed Justice’s joint activity provided the platform for an in depth discussion that otherwise would not have been possible. It has augmented mutual understanding of the challenges countries face and has led to the recognition that many issues are not confined to one single country, but are often shared by (nearly) all participants. Some participants had hoped to get concrete advice on how to resolve their problems. This proved too ambitious. Still, the participants went home with specific ideas about how the issues were addressed in the other countries and this provided suggestions for possible solutions.

As to the substance of the discussions that took place, it is important to note that some common problems were identified. Some of them concern the distribution of powers between the judicial and political entities (executive and legislative)[24] the funding of the Judiciary[25], the arrangements for the transfer of judges without their consent, the workload and the allocation of cases, which is usually decided by the court presidents. The dialogue groups concluded that this would be the main topics the SPCs should address. Another issue shared by the participants is the complicated relationship between judiciary and media. It was felt that unfair reporting by the media demolish the trust in the act of justice. This requires an active media strategy, which was currently lacking in SPCs countries.

6. Concluding remarks

Therefore, regarding the judiciary independence, EuroMed Justice is focusing on the operational aspects, pursuing the objective of attaining results that will help the SPCs to institutionalise the structures indispensable for the independence of justice. Inter alia, such objectives consist in:

• Enhancing the capacity of the Judicial Councils to perform their core responsibilities, and achieving self-governance;
• Restructuring the responsibilities of the MoJ in relation to the HJC that addresses managerial, administrative, budget and human resources issues;
• Ownership for quality and efficiency of justice, and workload management;
• Reform of the disciplinary system for magistrates;
• Transparent and merit-based selection procedures for senior level appointments;
• Staffing and organisational reforms of the judicial system;
• Adoption of ethical judicial norms of conduct, conflicts of interest and incompatibilities regimes and;
• Ensuring sustainability and irreversibility of the reform process.

A comprehensive legal and judicial development within SPCs is slow and difficult to achieve. The success in carrying out the capacity building of the judiciary requires considerable commitment and patience, and is sometimes blocked by unexpected events.  This is an elaborated process requiring planning, effective execution, coordination of public officials and institutions, as well as the agreement of those directly affected by it.

EuroMed Justice and ECJN have also a part to play in this process. They provide a lively and relatively inexpensive mechanism with practical benefits, which enables HJC to organises joint activities and debates on topics of mutual interest.

It must be noted that, contrary to what happens in other legal technical assistance projects, these exchanges benefit to both Euro-Mediterranean sides.

* This article represents a further development of the presentation submitted by the EuroMed Justice at the International Conference on Justice hold in Marrakesh, Morocco in April 2018.

[1] A non-EU third country that is in a transition process based on more liberal, market-friendly structures and associated features of constitutional democracy.

[2] https://ec.europa.eu/info/policies/justice-and-fundamental-rights/effective-justice/ rule-law/assistance-bulgaria-and-romania-under-cvm/reports-progress-bulgaria-and-romania_en.

[3] The EU Justice Scoreboard provides comparable data on the independence, quality, and efficiency of national justice systems https://ec.europa.eu/info/policies/justice-and-fundamental-rights/effective-justice/eu-justice-scoreboard_en.

[4] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014DC0158 &from=EN.

[5] See various monitoring organisations such as Freedom House, World Justice Project, World Governance Indicators and the EU’s Cooperation and Verification Mechanism regarding Bulgaria and Romania.

[6] A series of anti-government uprisings affecting Arab countries of North Africa and the Middle East beginning in 2010.

[7] https://www.vitaminedz.com/articlesfiche/1240/1240984.pdf pag. 11 to 20.

[8] https://www.aihja.org/images/users/ARCHIVES/docutheque-docs/FReportAlgeria. pdf.

[9] https://www.legislation.tn/sites/default/files/fraction-journal-officiel/2016/2016F/ 035/Tf2016341.pdf.

[10] Articles 159 and 209 of the Egyptian Constitution.

[11] Law no. 13 of 2017 amending the Law no. 46 of 1972 on the judiciary https://www.egypt.gov.eg/english/laws/.

[12] http://law.haifa.ac.il/images/Publications/Eli_Salzberger_-_Judicial_Selection_in_ Israel-_Constitution__Law_and_Politics.pdf.

[13] More information on the subject and a comparative study related to the situation of judicial inspection from Jordan and Romanian could be find in the article Judiciary Inspection in Jordan and Romania, by Drd Ali SALEH ALSHOROGY published by Acta Universitatis Lucian Blaga 160 (2017) http://aggr.ukm.um.si/vufind/EdsRecord/  edo,127493303.

[14] https://www.iec.jo/sites/default/files/Jordan%20amended%20constitution%20% 202016%20EN_0.pdf.

[15] http://www.jc.jo/en/node/3040.

[16] http://www.jc.jo/en.

[17] Article 20 of the French version of the Constitution provides: “La loi fixe les limites et les conditions de l’inamovibilité des magistrats.” [The law shall determine the limits and conditions of judicial security of tenure.] However, the Arabic version, which is the official one, follows the English translation and only mentions “judicial guarantees”.

[18] http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=fr&p_isn=103087 or http://www.sgg.gov.ma/BO/Fr/2016/BO_6492_Fr.pdf.

[19] https://www.mmsp.gov.ma/uploads/documents/statuts_magistrat_106.13.pdf.

[20] http://www.courts.gov.ps/details.aspx?id=sEugV5a60912192asEugV5.

[21] https://www.unodc.org/pdf/crime/…/judicial…/Bangalore_principles.pdf.

[22] https://www.unodc.org/…/publications_unodc_commentary-e.pdf.

[23] Report on the rule of law – adopted by the Venice Commission at its 86th plenary session (Venice, 25-26 March 2011), http://www.venice.coe.int/webforms/documents/default. aspx?pdffile=CDL-AD(2011)003rev-e.

Report on European Standards as regards the Independence of the Judicial       System – Part I: The Independence of Judges – adopted by the Venice Commission at its 82nd Plenary Session (Venice, 12-13 March 2010), https://rm.coe.int/1680700a63.

Report on the independence of the Judicial System PART II : The Prosecution Service Independence of the judicial system – Part II (the prosecution service) 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) https://rm.coe.int/1680700a60.

[24] The main institutional factors that are clearly not resolved is the distribution of powers between the judicial and political entities (executive and legislative – 4 SPCs).  Justice independence is determined by the separation of powers in the state; periodic setbacks are registered due to the legislation passed by the parliaments granting powers to the head of state or justice ministers to interfere with the High Judicial Council tasks or with the judges and prosecutors ‘status and careers (appointment or dismissal of the highest judicial functions).

[25] Second major challenges encompass courts management and administration, budget and resources. The funding of the judiciary is generally not well arranged, and judiciaries are dependent on discretionary decisions by the government. Court management is still often in the hands – directly or indirectly – of ministries of Justice. It has proven to be difficult to change arrangements in both instances. Mitigating solutions could be found within the CCJE Opinion No 2 recognizing the close link between the funding of courts and the independence of judges and that funding determines the conditions in which courts are able to perform (paragraph 2). It further stated that although the funding of courts is part of the State budget as presented to Parliament by the Ministry of Finances, such funding should not be subject to fluctuations for political reasons. ……. in a system based on the separation of powers, to ensure that neither the executive nor the legislative authorities are able to exert any pressure on the judiciary when setting its budget.