Deputy
Secretary General of the International Association of Judges
JUDGES
AND NOTARIES IN EUROPE:
POSSIBLE
COMMON DENOMINATORS (*)
Dear Mr President
of the European Affairs Commission (CAE) of UINL,
Dear Madam
President of the Albanian Notariat,
Ladies and
gentlemen,
It is a great
honour and a pleasure for me to take the floor in front of the assembly of the
European Affairs Commission (CAE) of
the International Union of Notaries, on behalf of the International Association
of Judges (IAJ) and of the European Association of Judges (EAJ), Regional Group
of the IAJ.
First of all let me
convey to you our best wishes for an interesting and fruitful meeting of your
Organisation, also on behalf of the President of the IAJ, Ms. Fatoumata
Diakité, as well as of the President of the EAJ, First Vice President of the
IAJ, Mr Gerhard Reissner, as well as of the Secretary General, Mr Antonio Mura.
Let me now
introduce you the organisation I am representing here.
The International
Association of Judges (IAJ) (www.iaj-uim.org),
of which I have the honour to be, since 1994, one of the Deputy Secretaries General,
was founded in 1953, just after the Second World War, to bring about a better
understanding of the judicial systems of member countries. At present it
includes the representatives of seventy-four member states of all five
continents. The IAJ is a non-governmental organisation, membership of which is
open not to individuals, but to national associations of judges. More
precisely, associations belonging to it must be judges’ associations that have
been freely formed and which represent the judiciary of their own country.
Furthermore, the domestic legal systems of the member countries must guarantee
real independence of the judiciary.
The main purpose of
the IAJ is to reinforce the independence of the judiciary as an essential
attribute of the judicial function, together with the protection of the
constitutional and moral status of the judiciary and the guarantee of
fundamental rights and freedoms.
The IAJ has
consultative status with the United Nations (namely the International Labour
Office and the U.N. Economic and Social Council) and with the Council of
Europe. As far as the latter is concerned, we have the status of observer
within the CEPEJ (Commission Européenne pour l’Efficacité de
la Justice – European Commission for the Efficiency of Justice) as well as
within the CCJE (Conseil Consultatif de Juges Européens – Consultative Council of
European Judges).
The IAJ is governed by its Central Council, composed of representatives
of the member associations, and also by the Presidency Committee, which is the
administrative organ under the leadership of a President who is elected every
two years, as are the members of the Presidency Committee, consisting of the
President, six Vice-Presidents and, for a period of two years, the immediate
past President.
The Association has four Study Commissions whose task it is to study a
different topic each year in various fields:
- The first is engaged in the study of the status of judges, the
independence of the judiciary, judicial administration and the protection of individual
freedoms.
- The second commission is involved in the study of civil law and
procedure;
- The third commission is engaged in the study of criminal law and
procedure;
- The fourth commission is involved in the study of public and social
law.
At meetings and congresses, the member countries try to gain a better
knowledge of the country where the conference is being held, of its legal
system, and of the problems encountered by its judges. Petitions and
recommendations are produced at the conclusion of each congress.
Within the IAJ there are also four Regional Groups whose aim is to
monitor closely specific questions relating to the judiciary in different parts
of the world:
- the European Association of Judges (EAJ);
- the Ibero-American Group;
- the African Group
- the “ANAO” (Asian, North American and Oceanian) Group.
As far as the Studies Commissions are concerned, the one which is closer
to your aims and activities is the second (civil law and civil procedural law).
Actually, since its creation, it has sometimes dealt with topics which
may be of some interest for Notaries. Its conclusions for each annual meeting
are available at the IAJ’s website (http://www.iaj-uim.org/site/modules/mastop_publish/?tac=II_-_Conclusions).
Let me mention just some of them:
(1980) “Effects of foreign
judgements in fields not covered by international conventions. Possibilities,
means and methods of executing urgent measures in the field of family law);”
(1981) “Protection
of the interests of mentally handicapped in private law;”
(1983) “The equality
of husband and wife in family law;”
(1985) “What legal
rules should apply to the couples living together not being married, both
between themselves and towards their common children;”
(1989) “The judge and the co-operation of other
Justice-related professions: Lawyers, Law-Professors, Public Notaries,
professional experts, and other State officials;”
(1992) “The Legal
Status of Children after a) Divorce, b) Separation, c) Annulment of Marriage
and d) Separation of Parents Having Cohabited Without Being Married;”
(2004) “The powers
of the judge in family matters;”
(2005) “Alternative
Dispute Resolution as a means of improving the delivery of justice and reducing
the delays in civil procedure;”
(2006) “Legal rules
regarding patrimonial interests, succession and duties of couples living
together but not being married;”
This year’s (2011)
topic will be “Cross-border issues in the face of increasing globalization – as
reflected in a series of individual fact scenarios” and it will be discussed
during our next meeting in Istanbul, in September.
Coming to the
topics of your meeting, let me only remark that in a globalised world it is of
great interest to try to cope with problems raised by “Registered Civil
Partnerships,” or “Non Marital Unions,” or “Acquisition of Real Estate by
Foreigners.” This highly skilled and well qualified Assembly will surely find
adequate answers to such thorny issues.
As far as relations
between Notaries and Judges are concerned, let me point out that already more
than twenty years ago, during our Congress in Macau held on 23-27 October 1989,
the IAJ approved, among other things, following conclusions on the subject of
“The Judge and the Co-operation of Other Justice-Related Professions: Lawyers,
Law-Professors, Public Notaries, Professional Experts, And Other State
Officials,”:
“in the civil law
countries which know the Latin Notary
·
the Notary is a public official who advises the
parties impartially and points out to them the legal implications of such deeds
as they might wish to make, thereby preventing conflict between the parties,
·
authenticated deeds drawn up by the Notary simplify
evidence proceedings;
·
the Notary represents the parties in Court in matters
of voluntary jurisdiction;
·
the Notary is further required by the Court to perform
judicial acts such as inventories, divisions of property and affixing of seals;
it is desirable
that the functions of the Notary be consolidated and that resort to the
notary’s services in the administration of Justice be recognised and encouraged.”
Currently,
following the kind invitation of Mr Mario Miccoli, a very good friend of the
IAJ, we have started to think over the possibility to set up a common
initiative, which should be focused on the delicate issue of recruitment and
training of Notaries and Judges, possibly on common basis, in a comparative
view. Therefore we are envisaging a bilateral seminar on a topic which could be
organized e.g. under the following title: “Selection and Training of Judges and
Notaries in Europe: Possible Common Denominators.”
We know well that,
on the international level, we already have a whole array of instruments and
declarations issued by international bodies such as the U.N. (see the so called
Basic Principles on the Independence of the Judiciary) and the Council of
Europe (I am referring especially to Recommendation
No. 12/2010 and to some opinions of the Consultative Council of European
Judges), which are stressing the need to safeguard the autonomy, independence
and impartiality of Judges. But if we reflect attentively on the fundamental
issues at stake, we can easily discover that these very requirements are
basically the same for the selection and training of Notaries.
So I think that,
having in mind the highlights of those international principles, we could try
to benefit from the experience of those legal systems in which qualified,
objective and effective selection of legal professionals has been successfully
developed for many years.
Actually, we do
know that recruitment of legal professionals differs enormously in Common Law
countries, when compared to Civil Law countries. As far as the latter are
concerned, the first thing to note is that a university qualification in legal
studies is required nearly everywhere. A minimum age together with “good
character” is also a requirement laid down by law nearly in every European
Country. Having said this, the system of competition is certainly preponderant
in Western and Southern Continental Europe (with some notable exceptions such
as, for example, the Swiss cantons, where Judges are elected by the people or
by Parliament). Such a competition may be open, in some cases, to any person
with a law degree (subject to the conditions established by the various laws),
or else to persons whom one could term “specialists,” in that they not only
have a legal qualification, but also some form of specialisation or practical
experience.
Moreover, depending
on the country concerned, the competition can give either direct access to the
judiciary, subject to the completion of a period of initial training under the
supervision of the Higher Judicial Council (such is the case, for example, in
Italy), or access to a training institution (such is the case, for example, in
France, the Netherlands and Portugal; the result is practically the same in
Germany, although there the training precedes the choice of career and is
common to judges, lawyers and notaries; the system of competition is also to be
found in the Baltic states and in Turkey).
By way of contrast,
the Common Law systems and those of the Nordic states are characterised either
by the complete absence of any competition for access to the judiciary, or by
the absence of a competition in the strict sense: here, appointment to the
judiciary is primarily the culmination of a training process, a cursus honorum, which candidates complete
in the field (even if the Commission for Judicial Appointments–which provides,
for the first time in the U.K., an independent mechanism for applicants for
judicial office who feel that their candidacy has not been considered
fairly–would appear to open new perspectives in this field).
In this framework I
would like particularly to emphasize the German experience of a common initial
training based on two phases (zweiphasige
Ausbildung): one more theoretical and the other one more practical, marked
by two severe and very selective examinations (erste Juristische Staatsprüfung, zweite Juristische Staatsprüfung), between which a “Preparatory
Service” (Vorbereitungsdienst) helps
prospective Judges, Notaries and Lawyers with getting acquainted with the
specific issues of each legal profession.
Another worth
considering option is the experience of the French Ecole Nationale de la Magistrature, which since 1958 has been
preparing young French law graduated to become Judges and Prosecutors. A model
which helped during these decades training thousands and thousands of judges of
the French speaking world and which was successfully exported in many other
countries of Europe and of other continents. Other positive experiences are
those of Spain, Portugal and of the Netherlands.
I am personally
convinced that, as far as the judicial side is concerned, we should try to
start a comparison among such systems in order to see what kind of “input” we
can find for a prospective new system of selection and training of Judges and
Notaries in a perspective which emphasises common aspects.
Let me also point
out that, as already said, international bodies have been developing in these
last years several legal instruments which could serve as a guide for singling
out common denominators for judicial and notarial selection and training, so
many are the aspect of our professions we share.
First of them is
the basic need to be, as I like to put it, independent and free from ignorance.
“If the Judge is ignorant”, said La Fontaine (The donkey carrying relics) - “it’s the robes that carry
respect.” If we want those robes to be
worn by a Judge who is respected by the people in court, and entirely free in
reaching his decision, the Judge must have a thorough knowledge of the subject
matter with which he is dealing. A well
trained Judge is a more independent one. But the same of course is true for the
Notary.
On the other hand,
we must not forget that training constitutes a veritable right for a European
Judge, according to Recommendation
CM/Rec(2010)12 of the Committee of Ministers to member states on Judges:
independence, efficiency and responsibilities (Adopted by the Committee of
Ministers on 17 November 2010), “56. Judges should be provided with theoretical
and practical initial and in-service training, entirely funded by the state.
This should include economic, social and cultural issues related to the exercise
of judicial functions. The intensity and duration of such training should be
determined in the light of previous professional experience. 57. An independent
authority should ensure, in full compliance with educational autonomy, that
initial and in-service training programmes meet the requirements of openness,
competence and impartiality inherent in judicial office.” These very same
principles should apply, in my opinion, also to Notaries.
The same is true, mutatis mutandis, for the duties
provided for by aforesaid Recommendation, like e.g.,
“59. Judges should
protect the rights and freedoms of all persons equally, respecting their
dignity in the conduct of court proceedings.
60. Judges should
act independently and impartially in all cases, ensuring that a fair hearing is
given to all parties and, where necessary, explaining procedural matters.
Judges should act and be seen to act without any improper external influence on
the judicial proceedings.
61. Judges should
adjudicate on cases which are referred to them. They should withdraw from a
case or decline to act where there are valid reasons defined by law, and not
otherwise.
62. Judges should
manage each case with due diligence and within a reasonable time.
63. Judges should
give clear reasons for their judgments in language which is clear and
comprehensible.
64. Judges should,
in appropriate cases, encourage parties to reach amicable settlements.
65. Judges should
regularly update and develop their proficiency.”
Finally, also some
of the principles on judicial selection enshrined in the Recommendation could
be extended in some parts to Notaries. Let me quote on this aspect following
provisions:
“44. Decisions
concerning the selection and career of judges should be based on objective
criteria pre-established by law or by the competent authorities. Such decisions
should be based on merit, having regard to the qualifications, skills and
capacity required to adjudicate cases by applying the law while respecting
human dignity.
45. There should be
no discrimination against judges or candidates for judicial office on any
ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, disability, birth, sexual orientation or other status. A requirement
that a judge or a candidate for judicial office must be a national of the state
concerned should not be considered discriminatory.
46. The authority
taking decisions on the selection and career of judges should be independent of
the executive and legislative powers (…).”
Both our
professions need people who are not only legal experts, but who are able to
cope with the awkward challenges of present times. Rather than people who know
by heart thousands of legal provisions, which very often are bound to stay in
force for a period no longer than… l’espace
d’un matin, we need young men and women who are able to find solutions to
unexpected problems raised by the dazzling and increasingly complex legal
framework resulting from internal, international, supra-national, transnational
and foreign legal provisions.
We also need
honest, independent minded and courageous people, who are able to defend and
protect day by day their own autonomy vis-à-vis possible external undue
influences of any kind. New ways of selection and training must encourage and
foster such spirits among young jurists. Also on this level a co-operation
among Judges and Notaries is nowadays more and more needed. I am sure both our
organisations will be able to find out common denominators for Judges and
Notaries of 21st century.
(*) Presentation submitted to the 1st
Plenary Session of the European Affairs Commission (CAE) of the Union Internationale du Notariat Latin, 2011-2013
Legislature, held in Tirana (Albania), on 14, 15 & 16 April 2011.