Hasmik Harutyunyan, the legal expert of the Protection of Rights without Borders NGO is presenting the international standards of the establishment order and composition of judicial councils.
The independence of the judiciary is one of the main aspects of the rule of law, since in the conditions of lack of independence, the exercise of the law by the courts become non-objective and arbitrary. In order to avoid such situations and to prevent such possible demonstrations, the modern democratic system created new mechanisms for insuring independence, from which self-government bodies of the judiciary, particularly the justice councils are considered as central bodies.
The justice councils are considered as the bodies ensuring the independence of judiciary, separating the appointments and the official promotions of the judges from political procedures and political influences and are considered as the bodies responsible for the accountability of the judges.
Currently, there are different models of judicial councils in different countries, which are under the name of “supreme council of judiciary”, “justice council” or other names.
Regardless the difference of the name, all the bodies pursue an objective to ensure the independence of the justice system. To exercise this purpose, the establishment order, composition, the scope of the functions is highlighted.
The available criteria related to the order and the establishment of the justice councils are in a line with the documents adopted within the scope of the European Council.
The establishment of the justice councils was recommended by the Council of Europe Ministerial Committee resolution number (2010)12, Advisory Council of European Judges and the Venice Commission.
Particularly, in regard to the establishment of the justice councils, it was confirmed by the Venice Commission, that there is no one common model, which shall be followed by the democratic countries. This approach is applicable till the justice council is established and functions to ensure the independence of the judiciary.
The appointment of the justice council member plays a crucial role in insuring the accountability and independence. The current models of appointment are different and at the same time, common approaches were established. Thus, talking about the composition of the justice council, as mentioned by the Venice Commission, the majority of the members shall be judges elected by the judges. And as confirmed by the European Network of the Judicial Councils, according to the adopted consensus, the justice council shall have inclusive composition, where the majority will be judges. The number of the later should not be less than 50% of the overall number of the members. It was adopted by the Network that the best models are from legal communities, academic sphere or from the civil society having necessary authorities to ensure the transparency and the accountability of the judiciary. That is why, the appointment mechanism shall be elaborated in a way in order to exclude the interventions made by the executive or the legislative bodies and the election of the judge member will be carried out by the judge. In case of non-judges candidate it is recommended that the later are elected based on their abilities and the role in civil society. The participation of the civil society representative in the composition of the councils are considered as advantage. The member representatives of civil society shall have authority in the given sector and be able to represent the needs of the society and the citizen.
Regardless the specialization, the council members shall be elected based on criteria of their abilities, recognition of the given processes. This means, that non-judicial members may be prominent lawyers, academicians, lectures. The members are required political restraint, as well as independence from the executive authority.
The non-judge members of the council shall be elected by the executive branch. Though each country shall itself balance the procedure of the elections, the Consultative Council of European Judges recommends to appoint the non-judge members of the council in non political procedure. If the non-judge members are elected by the national assembly of the given country, the elected members should not be a member of the parliament and shall be elected by the majority through the support of the opposition and participation and the most importantly, the latter shall ensure the large representativeness of the society.
European Network of the Judicial Councils accepted, that the appointment of the members of the justice council shall be such a system, which excludes the intervention by the executive or legislative branch of the authority. This approach is also supported by the theoretical literature. Overall, the political oversight over the appointment procedure of the members is considered as ir-respectfull approach and is a serious abatable for the independence of judiciary.