wishes. In addition, traditional legal education has been more insistently criticised as being unable to sustain the judge in performing the new and complex tasks ...
Appointment and career of judges in continental Europe: the rise of judicial seIf-government Carlo Guarnieri University of Bologna
Traditionally, European continental judiciaries have been organised along a bureaucratic, civil service model.’ Early recruitment was complemented by the strong hierarchical character of the judicial organisation. Therefore, in this type of judiciary guarantees of independence have been problematic because of the influence hierarchical superiors (or in some cases the government itself) had on promotions. Since the Second World War the need for change has been increasingly felt. The main aims have been to increase external independence, especially vis-avis the executive, and to protect lower ranking judges from negative influence by the senior judiciary, often considered to be too responsive to governmental wishes. In addition, traditional legal education has been more insistently criticised as being unable to sustain the judge in performing the new and complex tasks contemporary societies have entrusted upon him or her. Thus, in several countries special institutions in charge of judicial training have been instituted and collegial bodies - the higher councils of the judiciary - in charge of making all decisions affecting the status of judges have been established, an institutional innovation of deep political significance. However, not all continental countries have introduced such bodies or have entrusted them with significant powers. In Germany, for example, collegial bodies only perform an auxiliary function - and only in some Lander - and the powers of the executive - and sometimes of parliament - have been more or less left unchanged. In other countries of the European Union - Belgium, Denmark, Finland and the Netherlands - more or less strong forms of judicial self-government have been introduced only recently and any assessment is premature.? However, the trend toward establishing forms of judicial self-
1. The traits of bureaucratic judiciaries and their consequences are analysed in G Di Federico ‘The Italian Judicial Profession and Its Bureaucratic Setting’ (1976) 1 The Juridical Review 40; G Freddi Tensioni e conflitto nella magistratura (Bari: Laterza, 1978);and J H Merryman The C i v i l h w Tradition (Stanford: Stanford University Press, 2nd edn, 1985). 2. See M Fabri, P M Langbroek and H Pauliat (eds) The Administration ofJustice in Europe: Towurds the Development of Quality Standards (Bologna: Research Institute on Judicial Systems (IRSIG-CNR), 2003); and, for similar trends in Eastern Europe, E Rekosh ‘Emerging Lessons from Reform Effort in Eastern Europe and Eurasia’ in Ofice of Democracy and Governance, Guidance for promoting Judicial Independence and Impartiality (Washington: USAID, 2001) pp 53-7 1.
169
170 Legal Studies government has been stronger in Latin countries: France, Italy, Portugal and Spain. Together with Germany, they are the subject of our a n a l y ~ i s . ~ THE RECRUITMENT Civil law judiciaries of continental Europe do not differ fundamentally from the state bureaucracy, and reflect the old division of law from politics. Judicial legitimacy rests on technical legal knowledge, and the traditional assumption that judges (like civil servants) simply apply pre-existing legal rules without interfering in the prerogatives of the political branches." Traditionally, recruitment into the judiciary has been based on criteria and procedures very similar to those governing entrance into the civil service. In most civil law countries, the largest proportion of judges are still recruited directly from university through some form of public examination (normally run by the Ministry of Justice), and with no requirement of previous professional experience. Successful candidates are appointed at the bottom of the career ladder, and professional training and socialisation take place within the judiciary, with promotions usually granted on the basis of seniority and merit. Some form of either mandatory or optional training usually exists for both new recruits and senior members of the judiciary. Indeed, judicial training has become an increasingly important element in the administration of justice, and most entry-level judges are required to complete an initial period of probationary training. However, the level of training for senior members of the judiciary is far more variable and generally less structured.s In most civil law countries public competition is deemed to be the most effective way of ensuring both the professional qualifications and independence of the judiciary.h Several specific features define this merit-based selection model. Competitions are open to young university graduates in law, usually with little or no previous professional experience. Legal education is typically multi-purpose, providing a general knowledge of all relevant branches of the law at the expense of any form of specialisation. As a consequence, selection incorporates little or no emphasis on the practical side of the work of the judiciary, and is made on the basis of written and oral exams that test the candidates' theoretical knowledge of the law. According to the underlying principle of 'functional omni-competence', recruits are supposed to be able to perform the entire range of tasks they could be assigned, from adjudicating a criminal, family or fiscal case to acting as a public p r o s e ~ u t o r Legal .~ training is carried out on the job and is generally supervised by senior judges. Thus, judicial socialisation takes place within, and is therefore essentially controlled by, the judiciary. All of these elements, and in particular the reluctance to
3. For a broader analysis of what follows see C Guarnieri and P Pederzoli The Power of Judges (Oxford: Oxford University Press, 2002). 4. G Rebuffa Lafunzione giudiziaria (Turin: Giappichelli, 1993). 5. For a recent assessment see R J Asensio (ed) El acceso a lafuncidn judicial. Esrudio cornparado (Madrid: Consejo General del Poder Judicial, 2002). 6. Rebuffa, n 4 above, p 69. 7. G Freddi, n 2 above, p 62ff.
Appointment and career of judges in continental Europe 171 require professional legal experience outside the judiciary, encourage both the esprit de corps of the judiciary and the ‘balkanization’ of the bench and Bar, and relations between the two different sides of the legal profession can often be rather strained.8 However, recruitment by public competition in continental European countries has undergone some major changes. Lateral entry into the judiciary, open to experienced lawyers or civil servants on merit, has increased in an attempt to prevent corporatist tendencies. In the same way, judicial schools have been established in many European countries to provide legal education and training for new judges to fill the vacuum that exists between university education and professional p r a ~ t i c e The . ~ French have been in the forefront of both developments;” legal education and the training of judges and public prosecutors (who form a single professional group referred to as magistrature) is entrusted to the Ecole Nationale de la Magistrature (ENM).” This institution has provided a model for other countries, such as Spain and Portugal. A competition open to young law graduates (concours Ptudiant) is by far the most important recruitment channel for the ENM, but there are other ways to enter the school, and all forms of competition share a common goal: to open the judiciary to candidates from different professional environments.I2 In Germany judges and public prosecutors, although they do not belong to the same organisation, share a common legal education and training leading to the ‘qualification for judgeship’ (Befahigung zum Richteramt). This qualification is a necessary requirement to serve in all legal professions and the higher ranks of the civil service. As a consequence, judges, public prosecutors, private attorneys, notaries, and government officials are all educated through a lengthy and highly selective route and tend to identify themselves with a larger professional group, the Juristen.13 Lateral mobility among these various professions also exists, and although not widespread, their common educational experience appears to create a strong connection among the different legal professions that is characteristic of the German system. Under German federal legislation14 training for future judges is organised in two parts: the first, devoted to theory, takes place in a university law faculty; 8. Merryman, n 1 above, p 102. 9. Rebuffa, n 4 above, pp 74-77. 10. L M Diez Picazo ‘El sistema francbs de acceso a la judiciatura: seleccibn y formacibn inicial’ in Asensio (ed), above n 5. 11. Established in 1970 under the Ministry of Justice, the ENM inherited the functions of the National Centre for Judicial Studies founded in 1958: A Boigeol ‘Histoire d’une revendication: I’Ccole de la magistrature 1945-1958’ (Paris: Cahiers du CRIV, n 7, 1989). 12. An analysis of different recruitment methods is provided by A Mestitz Selezione e formazione professionale dei magistrati e degli avvocati in Francia (Padua: CEDAM, 1990); and L M Diez-Picazo ‘El sistema francts de acceso a la judiciatura: seleccibn y formacibn inicial’ in Asensio, (ed), n 5 above, pp 41-56. 13. D S Clark ‘The Selection and Accountability of Judges in West Germany: Implementation of a Recthsstaat’ (1988) 61 SCal LR 1795; P Pederzoli Selezione e formazione delleprofessioni legali in Gemania (Padua: CEDAM, 1992); and P Pederzoli ‘El acceso a las profesiones legales en la Republica Federal de Alemania’ in Asensio (ed), n 5 above, pp 57-80. 14. The Deutsches Richtergesetz enacted in 1961. But finder also have legislative competencies in this field.
172 Legal Studies the second, made up of two years of practical training, establishes contacts with different legal environments. After completing university studies, candidates for the legal profession sit the ‘first state examination’. If successful, they are granted status as temporary civil servants, allowing them to carry out their practical training and receive a small salary. During this period trainees become familiarised with the full range of legal roles they may have to perform in the near future: the judiciary (civil, criminal and administrative), Bar, civil service, and public prosecution. In the next stage, trainees can shape the curriculum to suit their individual professional aspirations. The final stage of the legal selection process is the ‘second state examination’, covering similar subject matter as the first but with a more practical orientation. The entire process lasts about ten years and has a remarkably low success rate.15 It is only after completion of the second state examination that separate selections are made for judges. Judicial recruitment in Italy still bears a close resemblance to the traditional continental model,16 based on the set-up in France before the creation of the ENM. A national public competition is the only way to enter the judiciary,” which is a unitary organisation (in Italy, as in France, both judges and public prosecutors are referred to as magistrates). Law graduates usually sit the national examination immediately after completing their university studies. As a result, they have no experience in legal practice, and even if a candidate did, it would not be taken into consideration. University law faculties and various private institutions, often managed by magistrates, which focus only on preparation for the national competition, control legal education.” However, in 1997 provision was made for the creation of institutions managed by law faculties and devoted to the education and training of legal professionals (magistrates, attorneys, and notaries); it is presently under discussion whether in the future anyone intending to sit the examination for entry into the judiciary will be required to complete a two-year course at one of these institutions. The entry test is made up of written and oral exams testing general knowledge in the main subjects included in law faculty curricula. The aim is to select those individuals capable of performing all possible organisational roles they may be assigned once appointed, but concern has been expressed that this system is not necessarily reliable, even for evaluating theoretical knowledge of law. Although the number of applicants has continued to increase (currently about 10,000 per year), it is sometimes hard to fill all the judicial vacancies, and there has been a growing number of successful candidates with only the minimum marks. 15. Less than the half of the initial candidates are able to pass the two exams: P Pederzoli ‘El acceso a las profesiones legales en la Republica Federal de Alemania’ in Asensio (ed), n 13 above, pp 57-80. 16. Di Federico, n 1 above. 17. A constitutional provision exists for the direct appointment of experienced lawyers and law professors to the Court of Cassation, the highest ordinary court in the country. The relevant statute was only adopted in 1998, and a few judges have recently been appointed in this way: P Pederzoli ‘El sistema italiano de seleccibn de jueces. Situacibn y perspectivas de futuro’ in Asensio (ed), n 5 above, pp 81-1 14. 18. Currently, a bill is being discussed in Parliament to institute a school in charge of continuing education for judges and prosecutors.
Appointment and career of judges in continental Europe 173 Selection and subsequent training of judges and public prosecutors is the responsibility of the Higher Council of the Judiciary (Consiglio Superiore della Magistruturu), to which we shall return. The Ministry of Justice is not involved in either the recruitment process or decisions concerning the status of judges and public prosecutors. In the absence of any judicial school, apprenticeship takes place in judicial offices under the supervision of senior magistrates, but appears less structured than in Germany. Training is divided into two phases. The first is devoted to familiarising young magistrates with different legal roles, including adjudication as well as prosecution. As in France, the second phase (lasting six months) attempts to train them in the specific functions they will have to perform once appointed (eg adjudication in civil, criminal, juvenile, and labour courts as well as public prosecution). No further weeding out of candidates occurs during this period. The reports on personal performance drafted by the Higher Council are almost invariably positive, making the initial national examination the only effective means of ~e1ection.l~ Portugal and Spain have followed the French practice of establishing a judicial school as a central element of judicial recruitment.2" In the Portuguese Centro de estudos judiciurios, trainees have to choose whether to become a judge or a public prosecutor soon after admission, since they constitute two separate professional organisations. Public competition to enter the school is similar to the French system: written and oral exams on legal subjects as well as more general social and economic issues. The separation between judges and public prosecutors is even more marked in Spain, in which the Escuela Judicial only selects future judges (by public competition open to law graduates) and is in charge of their education and training. However, both countries allow for lateral entry into the judiciary for experienced jurists 'of recognized competence', and they can be appointed to a small number of positions in a variety of courts. A number of common features, therefore, define judicial recruitment in continental countries. In all cases recruitment occurs at a younger age than in the English and United States systems. The means of educating and training new judges, whether in special schools as in France or extensive on-the-job training as in Germany, partially compensate for the recruits' lack of practical legal experience. More significantly, their professional socialisation is achieved almost exclusively within the judiciary itself, which is therefore likely to become a crucial reference point for judicial attitudes. Recruitment is governed in large part by merit, and no partisan considerations openly operate in the selection process. Yet, with the exception of Italy where this process is under the full control of the judiciary itself, judicial recruitment is monitored by the Ministries of Justice, which can therefore exert some influence. However, we have to take into account that in order to partially compensate the shortcomings of early recruitment, continental judiciaries have traditionally relied on internal controls.
19. G Di Federico (ed) Preparaiione professionale degli avvocari e dei magistrati: discussione su una ipotesi di riforma (Padua: CEDAM, 1987). 20. Asensio (ed), n 5 above.
174 Legal Studies JUDICIAL INDEPENDENCE AND THE INSTITUTION OF HIGHER COUNCILS In contrast to both the English and United States systems, continental European judiciaries operate within a pyramid-like organisational structure. Salary, prestige, and personal influence depend on a judge’s position on the hierarchical ladder and can be improved only through promotions. These are granted on a competitive basis and according to two criteria, seniority and merit, the latter being determined through assessments by senior judges. In principle, each career step requires a specific procedure. Although the number and position of those in charge of such decisions varies from one country to another, some features are relatively constant. Hierarchical superiors play a fundamentally important role in determining judicial status in most continental countries. Even when the final decision lies with the Minister of Justice or other institutions, promotions rely heavily on information recorded in personal reports compiled by superiors, and this highlights the critical role entrusted to the judicial elite. The ‘peer review’, a typical device of social control in professional organisations, is superseded here by formal and written evaluations drafted by higher-ranking judges. Thus, in civil law systems two different dimensions must coexist within the judiciary, the bureaucratic and the professional dimension. This type of model creates an almost inevitable strain between the autonomy judges must necessarily be granted to perform their judicial functions and the hierarchical control over their performance.” The decision-making process for promotions in continental systems also involves others outside the judiciary: the executive (ie the Ministry of Justice) and sometimes the legislature. Traditionally, these external actors represented the most important institutional channels connecting the judiciary to the political system. However, in the second half of the twentieth century in several continental countries the prominent role traditionally played by the executive branch has been weakened substantially by the creation of new institutions, Higher Councils of the Judiciary, designed to strengthen the independence of judges. Executive - or in any case political - influence over the judiciary still seems to remain strong in Germany. Within the general framework established by federal legislation, promotions of German judges do vary at the Land (regional government) level, especially in regards to the number and the institutional position of the decision-makers. The power to appoint is vested in the Land Minister of Justice, but in eight Liinder a committee for the selection of judges (Richte~ahluuschusse~ has been instituted. The committee is usually made up of representatives of the executive, the legislature, the Bar, and the bench; although the proportions may vary, non-judicial members are usually in the majority. As a rule, the Minister of Justice presides over the committee when considering appointments to administrative and ordinary courts, while in the remaining cases this authority lies with standing ministers (for instance, the Minister of Labour or Finance for labour or fiscal courts). The presiding
21. The tension between these two dimensions and its implications for relations within the judiciary are analysed by G Freddi, n 2 above, who sees bureaucratic judiciaries as a typical example of ‘heteronomous organizations’.
Appointment and career of judges in continental Europe 175 minister cannot vote, but does have veto power over the decision.**However, in all cases the procedure involves the participation of the judicial council (Presidialrat, a body established in each court and made up exclusively of judges, half of them directly elected by their peers), which is asked for an advisory opinion. Decisions concerning judges’ promotions are based on evaluations drafted every four years by judicial superiors. These superiors have the power of ‘hierarchical supervision’ and can issue minor sanctions against junior colleagues for violations of professional duties. However, a right of appeal to specialised courts established at the Land level with jurisdiction over disciplinary matters (Dienstgerichte) exists, and sanctions against judges can be imposed only on their ruling. Federal judges sitting on Germany’s five Supreme Courts are appointed following the same general procedure, but with one crucial difference: the bench has no voice on the federal committee for the selection of these judges. The Committee is made up exclusively of representatives of the executive and legislative branches, namely the Liinder ministries and an equal number of members elected by the Bundestag, while the presidency is held by a federal minister.*3 Promotions are made primarily on the basis of the candidates’ professional qualifications, but their geographic origin also carries weight to ensure that federal courts are staffed with judges drawn from the different Liinder. This does not mean that political patronage plays no part in the appointment process; party representation on the committee plays a role and has come under strong ~riticism.’~ Promotions of federal judges are decided by the federal minister without any involvement of the committee, although an advisory opinion by the judicial council is always required. At the beginning of the 1950s some judges argued in favour of concentrating all decisions affecting the status of judges, most notably promotions to higher positions, in the hands of the judiciary itself in order to remove any political influence from the process. But the main political parties and the legislature rejected this proposal. They argued that any notion of judicial ‘self-government’ would promote ‘internal co-optation’ and open up the possibility of corporatism, thus violating the fundamental principles of a parliamentary regime and especially the democratic responsibility of the judicial function.2s A different arrangement exists in Latin European countries where Higher Councils of the Judiciary have been created in order to preserve the independence of the judiciary. All versions of these councils share one 22. For further details on the committees’ composition and functioning see E Teubner Die Bestellung zum Berufsrichterin Bund und Under (Koln: Carl Heynemann Verlag, 1984) pp 41-9 1; Clark, n 13 above; and T Gas ‘Les institutions de gestion et de discipline de la canikre des magistrats’ in T Renoux (ed) Les Conseilssupdrieurs de la magistrature en Europe (Paris: La Documentation franqaise, 1999) pp 119-141. 23. Ministries of Labour participate in the committee for appointments for both federal labour and social security courts, while the Ministries of Justice sit in all other cases. Designation of the presidency of the committee also follows this same criterion. 24. Clark, n 13 above, at 1822-1 829; D P Kommers ‘Autonomy versus Accountability: The German Judiciary’ in P H Russell and D M O’Brien (eds) Judiciallndependencein the Age of Democracy (Charlottesville: University Press of Virginia, 2001) pp 131-1 54 at p 141. 25. For an account of the parliamentary debate see E Teubner, n 22 above, p 30ff.
176 Legal Studies prominent feature: members of the judiciary are always granted representation, although in different proportions (Table 1 below). To understand how the relationship between courts and politics has evolved in these countries, an examination of the role of the Higher Councils is crucial, taking into account their functions, composition (above all, the ratio of judges to lay members), and the way their members are chosen. Obviously, the level of judicial independence will tend to be higher where judges hold the majority of seats and are directly elected by their peers. In the same way, guarantees of judicial independence are likely to be broader where Higher Councils are entrusted with extensive powers. Among continental countries, Italy has undergone the most radical transformation in its judiciary and is the only country to achieve true judicial ‘self-government’. The organisational characters of the Italian judiciary were established in the second half of the nineteenth century under the influence of the Napoleonic model. It retained its hierarchical structure even during the fascist regime, as the strategy then was to establish special courts to try all politically significant crimes. The bureaucratic nature of the judiciary was not questioned in the post-War Constituent Assembly, and no radical changes occurred during the transition to democracy in the 1940s and 1950s.’‘ Only in the early 1960s a gradual process began to alter the traditional set-up of the judiciary, and a number of related factors contributed to this evolution. First, the Higher Council of the Judiciary (Consiglio superiore della magistruturu), which was formally established by the Constitution of 1948, finally began to operate in 1959. The National Association of Magistrates (Anm),a union-like association divided into several political factions (correnti),became the main player in Higher Council decisions. All this led to the dismantling of the traditional promotion system, under the belief (actively supported by a large section of the judiciary) that a judicial career and its underlying hierarchy were inconsistent with the notion of judicial independence. The experience of authoritarianism and the subsequent attempt in the 1948 Constitution to shield the judiciary from all partisan influence severed nearly all the institutional connections between the judiciary and the other branches of government, especially the executive. Thus, the Higher Council makes all decisions related to the status of both judges and public prosecutors. Recruitment, appointment, promotion, transfer, and disciplinary proceedings have been removed from the Minister of Justice (who only retains the power to initiate disciplinary proceedings) and concentrated in a body that has become the main institutional bridge between the judiciary and the political system. The extent of judicial self-government in Italy is obvious if one considers the composition of the Higher Council. After the last reform, in 2002, it consists of 16 magistrates directly elected by the whole judiciary, eight lay members elected by both chambers of Parliament from among experienced lawyers and university law professors, and three ex officio members (the President of the Republic,”
26. C Guamieri Giustizin e politica: I nodi della Seconda Repubblica (Bologna: I1 Mulino, 2003) pp 94-100. 27. In Italy the President of the Republic does not enjoy the same broad prerogatives as the French President. As F Gerber Justice iizd@endante. Justice sur commande (Paris: PUF, 1990) p 209 points out, these bear a closer resemblance to the French President under the IV Republic.
Appointment and career of judges in continental Europe 177 and the President and Prosecutor General of the Court of Cassation). In practice, the lay members are chosen to reflect the strength of the different political parties in Parliament (Table 2 below). To understand the internal operation of the Higher Council and the influence various factions of the AnmZ8exert, we have to take into account that inside this institution, the number of positions reserved for higher-ranking judges has been steadily reduced. Moreover, the introduction in 1975 of a proportional system of election for all members has further increased the influence of different ideological factions (Table 3 below). As it has been argued, these developments have opened the Council up to the risk of both corporatism and partisan politic^.?^ The changed composition of the Higher Council has also had major consequences for the way promotions are managed and for the general organisation of the judiciary. As a result of reforms brought in between 1963 and 1979, today a system of de facto automatic promotions operates. The eight traditional ranks on the career ladder have been reduced to three, corresponding to the main levels of jurisdiction: lower courts, appellate courts, and the Court of Cassation. The traditional promotion system, based on competitive examinations or assessments of judicial work (previously controlled by senior judges) has been abolished. In theory, promotions should be based on a combination of the two usual criteria, seniority and merit, the latter being assessed by the Higher Council by means of a ‘global’ evaluation. In reality, advancements depend exclusively on seniority, mainly due to the way the Higher Council has interpreted the legal rules. Professional evaluations now no longer hold any practical significance, as they are almost invariably positive or at least drafted in a way not to prevent promotion.30 The result is a clear separation of rank from the functions judges are assigned to perform: those who meet the seniority requirements are promoted, draw their pay at the higher scale, but continue to perform the functions of their previous rank. Therefore, promotions no longer depend on the availability of vacant positions at higher levels. Automatic promotions almost invariably allow every magistrate to attain the highest rank within 28 years of service, or at least to earn the corresponding salary. Decisions still have to be made to fill judicial vacancies, but because professional evaluations are inevitably uniform, the Higher Council lacks substantive information on the applicants’ qualifications, and candidates are frequently chosen solely on the basis of seniority. This in turn means that seniority becomes synonymous with professional merit. However, membership in one of the judicial factions represented on the Higher Council plays a significant part in the process, and helps explain the need for magistrates to affiliate themselves with such factions.31 Automatic promotions also seem to have encouraged the proliferation of both part-time and full-time extra-judicial activities. This is a phenomenon
28. From right to left on the ideological spectrum, the most important are: Magistratura democratica, Movimento per la giustizia, Unit6 per la costituzione, and Magistratura Indipendente. 29. Guamieri, n 26 above, pp 106-1 14. 30. Di Federico (ed), n 19 above, pp 19-26. 31. G Di Federico ‘“Lottizzazionicorrentizie”e “politicizzazione”del CSM: quali rimedi?’ (1990) Quaderni Costituzionali at 279-297; Rebuffa, n 4 above.
178 Legal Studies that has also developed in other countries (for instance, in France and Spain), but has grown substantially in Italy because such activities do not prevent magistrates from being promoted or reassigned to their previous position.32 By allowing magistrates to establish relations, sometimes long-term, with other institutions and also with the broader social and economic environment, these activities foster informal links between courts and politics. In the past, Italian judges looked to both the Court of Cassation and legal scholarship for their points of reference (primarily as a result of the role they played in promotions), but today reference points are increasingly found in the political environment and the media. Therefore, while severing formal institutional links with the political system and dismantling all hierarchical constraints can produce high levels of judicial independence (both internal and external), it can also help judges develop a network of less visible connections that could undermine the autonomy of the judiciary.33 The importance of the Italian experience lies not only in its peculiarities, but because it has become a model for Spain and Portugal in their postauthoritarian periods. However, significant differences have emerged in these countries, especially Spain. The Spanish judiciary has a similar institutional set-up to the Italian, namely a bureaucratic organisation that was not dramatically altered under the prior authoritarian regime. During the Franco period, politically sensitive cases, especially criminal cases, were removed from the ordinary courts and decided by special courts under the direct control of the regime. The transition to democracy and the Constitution of 1978 restored a unified jurisdiction, and established democratic principles such as the separation of powers and judicial independence, with the judiciary forming a separate body from public prosecutors. Within this framework, the Spanish Higher Council of the Judiciary (Consejo general del poder judicial) was created to ensure the independence of the judiciary from the executive.34 Following the Italian model, the Spanish Constitution required that the majority of the members of the Higher Council be judges, but the Council’s functions were limited to determining the status of judges. The k y organica of 1980 stipulated that the Higher Council be presided over by the Chief of the Supreme Tribunal and be made up of 20 members appointed by the Crown;
32. Institutions with magistrates as advisors or as pro-tempore staff include Parliament, the central government (especially the Ministry of Justice), the Office of the Presidency of the Republic, regional and provincial governments, as well as a range of administrative agencies. Judges also serve as arbiters in economic disputes, involving them in decisions with considerable financial consequences; F Zannotti Le attivitu extragiudiziarie dei magistrati ordinnri (Padua: CEDAM, 198I). 33. For a detailed analysis of the Italian case see Guamieri, n 26 above. The extensive use of the media by the Italian judiciary is discussed in P P Giglioli ‘Political Corruption and the Media: the Tangentopoli Affair’ (1996) 149 Int Social Science J 381. For a comparative assessment see V Pujas and M Rhodes ‘Party Finance and Political Scandals in Italy, Spain and France’ (1999)22 West European Politics 41. 34. L M Diez-Picazo Regimen constirucional del poderjudicial (Madrid: Civitas, I99 1); P Magalhles, C Guarnieri and G Kaminis ‘Democratic Consolidation, Judicial Reform and the Judicialisation of Politics in Southern Europe’ in N Diamandouros, R Gunther and G Pasquino (eds) Democratic Consolidarion in Southern Europe (Baltimore: The Johns Hopkins University Press, forthcoming).
Appointment and career of judges in continental Europe 179 12 were judges directly elected by their peers, and the rest were appointed by both chambers of Parliament. As in Italy, the Minister of Justice’s powers were limited to funding the judicial system. The Higher Council has been in charge of appointments and promotions according to procedures that vary with the type of judicial position to be filled. In principle, advancements depend on seniority and, to a lesser extent, on merit, but appointments to the highest judicial positions also take into account the need to ensure representation of linguistic minorities. In disciplinary proceedings, senior judges share these functions with a standing committee of the Higher Council, which intervenes only in instances of gross violation of professional duties. However, after the election of the Socialist party in 1982 the government clashed with the conservative majority on the Higher Council, and three years later this led to a reform of the Ley organica. The composition of the Higher Council was altered, with all judicial members elected by Parliament. The reform aimed at reinforcing the democratic character of the Higher Council,75 and has subsequently altered the relationship between judges and other political actors, giving rise to complaints from both the judiciary and parliamentary o p p o ~ i t i o n .However, ~~ parliamentary selection of judicial members of the Higher Council (while fostering some collaboration between judges and political parties) seems to have reduced the role of judicial associations that the previous proportional system of election had helped to create. In 2001, following the Pacto de la Justicia between government and opposition, it has been established that Parliament must appoint the judicial members choosing from a list of 36 judges, prepared by the various judicial associations in proportion with their affiliati~n.~’ In Portugal, after the fall of the Salazar and Caetano dictatorship, major reforms took place within the judicial system. Measures adopted immediately in 1974 included the direct election of the presidents of the Supreme Court and Courts of Appeal by their peers. Thus the most senior judicial appointments were placed in the hands of the judiciary itself with no intervention by either the executive or the Higher Council (Conselho Superior du Magistradura), whose composition was also reformed.’* Following the constitutional amendments of 1982 and 1997, the 17 members of the Higher Council now
35. Clearly stated in the text of the Ley organica 6/1985 (Organizacih del poderjudicial, 1991) pp 28-29). 36. Although it turned down a legal challenge to these reforms, the Spanish Constitutional Tribunal expressed concerns about an appointment mechanism that could produce a ‘partisan logic’ in the Higher Council’s decision making. P Magalhfies et a1 ‘Democratic Consolidation. Judicial Reform and the Judicialisation of Politics in Southern Europe’, in Diamandouros, Gunther and Pasquino (eds), n 34 above. 37. The Spanish judiciary is also divided into different groups: the AsociacihnP rofesional de la Magistrutura, a conservative group with the support of most judges; the Francisco de Vitoriu, a centrist group; and Jucesparu la Democracia, on the left. 38. Under the authoritarian regime, the Higher Council (which dates back to the foundation of the Republic in 1910) was retained, although its internal structure was changed, with the executive appointing all its members. Efforts to bring the judiciary under the full control of the regime were made even clearer in a 1933 constitutional provision that established special tribunals and placed the power to appoint and promote judges in the hands of the Minister of Justice.
180 Legal Studies consist of seven judges directly elected by their peers through a proportional system, seven members elected by Parliament, and two other members appointed by the President of the Republic (one of which is usually a judge). The President of the Supreme Court, a position elected by fellow judges, chairs the Higher Council. Thus, judges now tend to hold the majority of the seats, and the Higher Council is rather representative of the whole j ~ d i c i a r y . ~ ’ Differences in the structure and prerogatives of the various judicial governing bodies in Europe are even more evident when the French Higher Council (Conseil Supe‘rieurde la Magistrature) is considered. In many respects the French Higher Council is at the opposite end of the spectrum to the Italian Higher Council. It has two main characteristics: a role reserved for the executive and a relatively narrow scope. There were different ‘versions’ of the Higher Council from 1958 to 1993, but both the President of the Republic and the Minister of Justice have always been present in the Council. However, the Council does not control judicial selection and training (functions entrusted to the ENM), and its appointing powers are comparatively limited. While a constitutional amendment in 1993 and subsequent legislation have had an impact on this set-up, the administration of judicial personnel in France is still defined by executive branch involvement. Created in 1946 to preserve the independence of judges, the French Higher Council underwent a significant metamorphosis in the 1958 Constitution.‘” Along with the Fifth Republic’s general shift in power to the executive, the President of the Republic’s role within the Higher Council was expanded at the expense of the legislature. Article 65 of the Constitution changed the mechanism for selecting council members and reduced both their number and area of competence. The nine councillors sitting with the Minister of Justice and the President of the Republic were appointed by the President, although with some limitations. The Higher Council’s appointment powers were also limited, confined only to the most senior appointments (about three per cent of all judicial personnel). In the remaining cases, it could only give an advisory opinion to the Minister of Justice; however, a practice gradually evolved where the Minister would not appoint judges who had been given a negative evaluation. Not surprisingly, critics of the 1958 reforms argued that ‘a body established to protect the bench from possible abuses by the executive power is formed by people ... chosen by the head of that same p ~ w e r ’ . ~ ’ A 1993 constitutional amendment significantly changed the French Higher Council, although it did not go as far as initially envisaged. Today the Higher Council is a single body separated into two distinct panels, one with competence over judges and the other over public prosecutors. It is made up of 12 members: the President of the Republic; the Minister of Justice; a Councillor of State elected by peers; three lay members appointed respectively by the
39. Magalhiies et al, n 34 above. 40. Under the 1946 Constitution the Higher Council consisted of 14 members: the
President of the Republic and the Minister of Justice (acting as president and vice-president respectively), six lay members directly elected by the National Assembly, four judges elected by their peers, and two representatives of the legal profession appointed by the President of the Republic. 41. R Perrot Institurionsjudiciaire.r (Paris: Montchretiens, 5th edn, 1993)p 42.
Appointment and career of judges in continental Europe 181 President of the Republic, the President of the Senate, and the President of the Chamber of Deputies; and six magistrates representing a variety of ranks and elected by their peers, often the representatives of the various judicial association^.^^ The composition of this last segment of the Higher Council changes according to the type of panel: it consists of five judges and one public prosecutor when measures concerning judges are under consideration, with these proportions reversed for decisions affecting public prosecutors. The reforms also expanded the powers of the Higher Council. Disciplinary decisions made by the standing panel for the judiciary now prevail over the Minister of Justice, and the range of direct appointments by the Higher Council has also increased to include nominations to top positions of courts of first instance. In all other cases judges can now be appointed only after a favourable opinion of the Higher Council. In contrast, the functions of the public prosecution panel are more narrowly defined: this panel can only give non-compulsory advice, and such advice is not required for senior appointments, which remain under the direct responsibility of the Council of Ministers.43 Notwithstanding the recent reforms, the French judiciary still resembles the traditional civil law model outlined above. However, the judiciary’s pyramid structure consists of two grades, while the most senior judges who sit in the Court of Cassation, the major courts of appeal, and the main tribunals are placed above (hors hierarchie). The position of individual judges, the functions they perform, their prestige, and salary are largely determined by advancements, and steps on the career path depend not only on seniority but above all on merit. Judges undergo very detailed work evaluations every two years, and in many cases promotion results in a transfer, although prior consent is required. French judges have higher levels of personal mobility than common law judges do, and such mobility is meant to be a device to prevent stagnation within the judiciary. Yet the procedure for promotion is rather complicated and centres on the judicial hierarchy. Evaluations of work performance are drafted by higher-ranking magistrates and recorded in personnel reports made available to everyone taking part in the decision-making process. Thus, hierarchical superiors form a key link between individual judges and appointing authorities. Each year the Commission for Advancements also drafts a list of magistrates qualified for promotion. Since any promotions must be drawn from this list, the Commission holds significant power. Its composition has recently been reformed: staffed in the past by magistrates appointed by the Minister of Justice,
42. As specified in the loi organique nn 94-100 of 5 February 1994. In France there are three judicial groups: the Syndicat de la Magistrature, on the left; the Union syndicule des Mugistruts, a centrist group, the most important; and the Association Professionnelle des Magistrats, more conservative. In January 2000 a proposal by the Jospin government to reform the Council - and to reduce the power of the executive -broke down mainly because of the opposition of the Gaullist party. 43. Although the Jospin government (1997-2002) declared to be bound by the CSM advice also for prosecutorial appointments,the practice has not been followed by the new rightist government led by Raffarin.
182 Legal Studies today there is a more balanced composition including not only officials of the executive branch but also magistrates directly elected by their peers.” Thus, in a bureaucratic judiciary political influence is filtered through the hierarchical structure and procedures for career advancements. The way promotions are organised represents the weak point of this arrangement; while recruitment by appointment or direct election tends to align justice with politics on the basis of shared values, hierarchical structures entail less visible but more diffused constraints. Desire for promotion is likely to produce a stronger incentive to comply with pressure or expectations from the Minister of Justice, judicial superiors, or even a ‘self-governing’ body. Italian magistrates have tended to affiliate themselves with one of the ideological factions represented on the Higher Council, and empirical research shows that ‘proximity to power’ is also a powerful career accelerator for judges in other countries. According to Bloch, in France the swiftest career advancements are made through stints in ministerial Cabinets or by performing other functions within the administration, especially within the Ministry of At least traditionally, ‘all systems tend to advantage those who have chosen to start their careers as prosecutors’ .46 SOME CONSEQUENCES OF THE REFORMS The creation of judicial self-governing bodies has significantly affected the relationship between judges and the political system, at least in those countries in which this institutional innovation has had the time to fully develop its effects. The Higher Councils of the Judiciary have tended to radically alter bureaucratic judiciaries by strengthening judicial independence while, at the same time, fostering new connections with the political system. The powers and composition of these self-governing bodies are critical factors; obviously the more extensive their functions, the stronger their role will be and the weaker the Minister of Justice will be. However, two additional factors are the ratio of judges to non-judicial members on Higher Councils and the way judicial representatives are chosen. Judicial independence will inevitably be stronger
44. Perrot, n 41 above, pp 354-355; T S Renoux and A Roux L’administrution de la justice en France (Paris: PUF, 1994) pp 67-85; A Bancaud and Ph Robert ‘La place de la justice en France: un avenir incertain’ in Ph Robert and A Cottino (eds) Les rnututions de lajustice (Paris: L’Harrnattan, 2001) pp 161-234. 45. E Bloch ‘Faire carrikre sous la Ve RCpublique?’ (1981) 16 Pouvoirs 98 refers (at 101) to this as the ‘royal path’, where a figurative red carpet unrolls in front of magistrates who attempt to remove themselves ‘as far as possible from courtrooms’. See also A Garapon Le gurdien des promesses (Paris: Editions Odile Jacob, 1996) p 47; and A Boigeol La magistrature ‘hors les murs ’. Analyse de la rnobilite‘extru-professionnelle des magistruts (Paris: IHTP-CNRS, 1998). 46. C Charle ‘Etat et rnagistrats. Les ongines d’une crise prolongke’ (1993) 96-97 Acte de la Recherche en Sciences Sociales 39 at 43. In France, until the beginning of the twentieth century, three-quarters ofjudges on the Court of Cassation had spent most of their career as prosecutors. Today, however, it appears that the French Ministry of Justice tends to support the promotion of magistrates with experience in both the prosecution and the judiciary: J L Bodiguel Les magistrats un corps suns ;me? (Paris: PUF, 1991) p I 1 I .
Appointment and career of judges in continental Europe 183 with a higher ratio of members chosen directly by and from the judiciary. According to these criteria, the Italian judiciary seems to enjoy the highest degree of institutional independence among European civil law countries. One of the first consequences of creating a Higher Council of the Judiciary is to increase the externul independence of the judiciary by decreasing the traditional power played by the executive. But since no Higher Council is composed solely of judges, an important role is entrusted to the institution in charge of appointing the non-judicial members. This is usually assigned to Parliament, which allows political parties to bypass the Minister of Justice and influence the judiciary directly. The creation of a self-governing body also has consequences for the internal independence of the judiciary. Entrusting promotion and appointment of judges to a collegial body where normally all judicial ranks are represented contradicts the traditional hierarchical principle, whereby only higher-ranking judges are entitled to evaluate lower-ranking colleagues. In this way, the lower ranks acquire a new power, since they can participate in the process of choosing higher-ranking judges. Moreover, judicial elites have been further weakened by the loss of power of their traditional ally, the Minister of Justice. As a result, it is not surprising that challenges to the very idea of a judicial career by the lower ranks have often been successful. It is not coincidental that in the countries in which Higher Councils have been instituted the number of judicial ranks has been reduced, and the influence of senior judges’ assessments of lower-ranking judges has declined. By increasingly substituting an objective parameter (such as seniority) for the subjective assessment of merit by superiors, higher-ranking judges’ power has been reduced. For instance, in Italy (the most extreme case) promotions have de facto been abolished, at least from the economic point of view, and judicial salaries and rank increase simply on the basis of the number of years of service. The result has been that the erosion of traditional hierarchical controls - not balanced by reforms of initial selection aimed at bringing into the corps more experienced legal professionals - has brought about a decline of the standards of professional qualification of the judicial corps, with negative consequences for the performance of the judicial system.47 The erosion of hierarchical links in civil service-style judiciaries has been particularly relevant to the general expansion of judicial power. With the creation of Higher Councils, the reference group of judges has changed. Traditional members of the reference group, such as senior judges and legal academics,jx have decreased in importance, since they no longer enjoy a monopoly of power over evaluations for judicial promotion. The very role of Supreme Courts seems to have been reduced, at least to some extent. In addition, the professional criteria of the judiciary have also begun to shift. Technical legal knowledge (or conformity to the ideology of the judicial elite) is no longer the only important element for promotion. Views of others outside the judicial system (in particular, political parties in Parliament) have gained in importance, especially if they can participate in the appointment of members of the Higher Council. Similarly, the interests of the media and the judiciary increasingly overlap, since judicial (especially prosecutors’) actions provide the media with 47. G Di Federico ‘Judicial Independence in Italy: A Critical Overview in a (Nonsystematic) Perspective’ in Ofice of Democracy and Governance, n 2 above, pp 83-99. 48. Merryman, n 1 above.
184 Legal Studies news. In return, the media are able to support and publicise the actions of judges and prosecutors." The growing influence of these actors is partially due to broader changes in the political and social environment, but it is also encouraged by the declining significance of traditional actors brought about by the creation of Higher Councils."' Inside the judiciary itself, Higher Councils tend to increase the role of judicial associations, since they organise the electoral participation of judges. In Italy, where these trends are more developed and no judicial member of the Higher Council is now elected without the backing of one of these politically oriented groups, decision-making in the Higher Council is heavily dependent on their alignments (see Table 3 below). As we have seen, magistrates interested in being promoted or transferred to another position (the vast majority) cannot fail to take into account the complex configuration of factional and party forces that play a role in the council's decision-making. In this way, political considerations have spread throughout the Italian judiciary." As judicial actions gain political significance, a Higher Council may become the main institution where the judiciary's elected representatives can meet political representatives and develop a new relationship with the political system. In common law countries, although to a different degree,52 political considerations are inherent in the appointment process. Therefore, political influence can usually only be exerted at the moment of the recruitment because strong guarantees of independence restrict other possibilities. In civil law countries, traditionally the influence of the executive and, to a lesser extent, the legislative on the judiciary has been exerted mainly through senior judges who have been in control of judicial promotions and owe their own status to ministerial appointment. Judicial self-governing bodies have thus opened up a third channel of political influence, which can be seen as a consequence of the slow but steady attempt to limit executive power and the consequent strengthening of judicial guarantees in civil law judiciaries. Even though the extent to which the judiciary intervenes in the political process is conditioned by the evolution of the political system and by the way the judicial system is organised,s' the connections between judges and the political system influence judges' reference groups, their conception of their judicial role, and therefore their decisions.% The Italian experience suggests that the creation of judicial self-governing bodies is capable of producing a radical change in the judiciary's traditional hierarchy; this in turn can diversify the judiciary's reference group and place it, at least in part, outside the judiciary. All these processes can also support 49. D Soulez-Larivikre Du cirque niidiatico-judiciaire et des moyens d'en sortir (Paris: Editions du Seuil, 1993); Giglioli, n 33 above. 50. Garapon, n 45 above, 1996. 51. Di Federico, n 3 1 above; Rebuffa, n 4 above. 52. In England political influence is balanced by the role the Bar and the senior judiciary play in judicial appointments. In the United States politics plays a more overt role since judicial appointments are normally in the hands of politicians or the electorate. 53. It is obvious that in countries like France and Italy, where judges and prosecutors form a unified corps, greater potential exists for unrestrainedjudicial power. This possibility is stronger in Italy where guarantees of independence have been extended to prosecutors. 54. Obviously, where judges possess a high degree of independence and are free from hierarchical controls, it is extremely important to identify their reference groups and judges' conceptions of their role.
Appointment and career of judges in continental Europe 185 the development of forms of judicial activism. In any case, the change has produced visible divisions within the judiciary, and today continental judges tend to mobilise into formal groups according to their political orientations.s5 As a result, judges now often only present a united front when direct interests are at stake (for instance, personal interests such as promotion, and economic ones such as salary). On the other hand, in all Latin European judiciaries a Higher Council of the Judiciary is now the main (if not the only) institutional connection between the judiciary and the political system. In other words, the changes introduced in the second half of the twentieth century in Latin European countries have not so much reduced the political influence on the judiciary as they have altered the way political influence is exercised and, therefore, the relative power of political and institutional actors.
Table 1. Composition of Higher Councils of the Judiciary in Latin Europe” France
Portugal
Spain
Italy
Consiglio Conseil superieur Consejo general Conselho del poder superior da superiore dellu de la magistrature rnanistradura rnanistratura iudicial ludges
7
13
*
5 judges and I prosecutor indirectly elected by magistratesb
*
I councillor of state elected by colleagues
18
8
*
judges appointed by Parliament
*
President of the Supreme Court exofficio
12
*
7 judges directly elected by the judiciary
*
President of the Supreme Court exofficio
*
16 magi\tratcs elected directly by magistrates
*
President of the Court of Cassation
*
AttorneyGeneral of the Court of --.Cassation Lav members
8
5
*
* *
I each appointed by President. President of the Senate. President of the National Assembly
*
9 8 lawyers appointed by Parliament
President Minister Justice
9
*
7
lawyers appointed by Parliament
*
8 lawyers appointed by Parliament
*
2 lawyers appointed by the President’
*
President
of
Source: C Guarnieri and P Pederzoli The Power of Judges (Oxford: Oxford University Press, 2002) p 53. When the French Higher Council considers issues relating to prosecutors the composition is reversed, with 5 prosecutors and I judge. c The practice is that one of the two tends to be a judge.
a
b
55. Garapon. n 45 above; Guamieri, n 26 above.
186 Legal Studies Table 2. Party affiliation of lay members of the Italian Higher Council (1976-2002)” Year
Left
Centre
197690
3 Communists
1 Centrist parties
2 Socialists
1 Christian Democrats
3 Progressives+
1 Populai
1994
Right ~
2 Northern League 2 Forza Itaha 2 National Alliance
1998
6 Progressives
1 Popular
1 Forza ltalia 1 National Alliance
1 CCDd
-~
2002
1 Ds 1 Sdi
I Popular
2 Forza ltalia 1 National Alliance 1 CCD
a
b
c d
Source: C Guarnieri and P Pederzoli The Power of Judges (Oxford: Oxford University Press. 2002) p 57. Alliance of leftist parties. Faction of the fornier Christian Democrat party. Faction of the former Christian Democrat party.
Modernisingthe constitution: completing the unfinished business 187 Table 3. Election of judges to the Italian Higher Council by corrente ( 1976-2002)a Corrente (aligned from left to right on the
Year
Magistratur 3
Democraticc 1976
1981
1986
1990
1994
1998
Movimento ier la Yiustizia
litical spectrum)
Unitti per la Magistratur Others Costituziorre a Indipendente
755
2526
2156
506
13%
42%
36%
9%
2
9
8
1
803
2557
2263
297
14%
43%
38%
5%
3
9
8
1107
2517
2078
402
19%
41%
34%
6%
3
9
7
1
1337
714
2236
1828
22%
12%
36%
30%
4
i
8
5
1620
I133
2854
1230
24%
16%
42%
18%
5
I
1737
I105
25 %
16%
5
3
2002b
3177 46%
5
3
a Source: C Guamieri and P Pedrrzoli The Power of Judges (Oxford: Oxford University Press, 2002) p 56. b In 2002 the number of elective councillors has been reduced to 24, 16 of which elected by the judiciary. In this election MugisfrofuruDemocmricu and Movimento per /a giirstizio have run together.
