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Judicial Decisions and Improper Influences Implemented by Dr. Lorenz Meyer, President of Supreme Court of Switzerland Dear madams and sirs It is honorable and pleasing for me to speak to this society. This subject is related both with law and ethics. The improper influences have various types. • Improper influences of other governmental powers; • Improper influences due to special benefits; • Improper influences by other judges, especially senior colleagues or presidents. The first two types are external improper influences, and the third one forms the internal improper influences. I propose to handle all three categories sequentially, let’s whether there are proposals concerning these each time and I tell you the concerned applications at Supreme Court of Switzerland. I have mainly used the replies of CCJE (Consultative Council of European Judges) and recommendations of Committee of Ministers of European Council for general proposals, especially those concerning the independence and ethics. Before handling here various improper influences, I wish to express the relation between independence and improper influences from the point of judgeship in a somewhat different way. 1. The relation between the independence of the judge and improper influences UNO has published a law draft in 1985 for the fundamental principles about the independence of judges (Principes fondamentaux relatifs à l’indépendance de la magistrature started to be implemented at Mailand between 26 August to 6 September 1985 and then approved by the general assembly of UNO on 29 November 1985 with decision number 40/32 and on 13 December 1985 with decision number 40/146).In articles 2 and 4 of this document, protection of jurisdiction is clearly indicated against improper influences during its activities. Committee of Ministers of European Council has issued a recommendation in 1994 about the independence, efficiency and role of the judge. (Recommendation No. R(94) 12, 13 October 1994). It contains a section which re-interprets the general principles of the independence of the judge, here it talks about protecting the judge against improper influences at many points. These influences may be observed in the context of the recognition and promotion of the judges (see, for example, sub clause 2, c, iii) or during the realization of the activity by the judge (see, for example, sub clause 2, d, e and f). Protecting the judge against the improper influences enters in the core of the independence of judge due to this reason. 2. Improper influences of other governmental powers; Independence of jurisdiction and judge in the state of law relates to the separation of powers. However, the courses of three governmental powers, that is, jurisdiction, legislation and execution should cross in certain fields. This is a situation observed during the election of judges, the budget of jurisdiction and audit of the periodic court audit over from another governmental power. a) Election of judges General principles of UNO and the recommendation of European Council have the same opinion on the independence of judges; assignment - and then promotion and re-election - of the judge must be realized according to objective criteria and political interference should not be permitted. On the other hand, CCJE identifies that “assignment of judges are realized according to political criteria as per the constitution in some countries.” If the judge is elected by people or the parliament, the procedure here is indeed the determination of a directly democratic basis for the judge to perform his duty (see CCJE, reply no 1 (2001) clause 19 f). Supreme court judges in Switzerland are elected by the federal council upon the proposal of the political parties. The number of chairs of the supreme court reflects the parties represented in the parliament. If there occurs changes in the proportional representation of the party after parliament elections, in this case the distribution of chairs between the parties in the supreme court is made appropriate in the next judge elections. Political belonging plays a certain role both for the election and the federal judge. A liability of the judge against the party which has elected him isn’t in question. He may even put a great distance between him and his party. While assigning new judges for the new departments of court, attention is paid whether the judges of a party would not obtain the absolute majority in any department. As observed often in public consultancies, the judges proposed by the same party represent different opinions in the conclusion of case in a complex field from the point of politics. Therefore , it may be said that political parties don’t apply improper influences on judges at Switzerland. b) Budget of the courts Budget forms another point of contact between governmental powers; in extraordinary cases, improper influences may form on the jurisdiction, such that the independence of jurisdiction becomes in danger by applying pressure on both courts and judges. CCJE identifies that the finance of courts is an integral part of the budget plan, and this is presented to the parliament by the minister of finance; this finance should not be subject to political variations. (…) Independence of judges should strictly be considered in the decisions concerning the allocation of finance means directed to the court. (see CCJE, Reply no. 2 (2002) clause 5). In addition CCJE “emphasizes the importance of paying attention to the reply of jurisdiction power in the negotiations of enact by the parliament directed to the budget of jurisdiction.” (see CCJE, reply no 2 (2001) clause 10) Supreme Court of Switzerland prepares the budget itself and submit directly to the parliament. The president of supreme court and the secretary general are invited to finance commissions of confederate councils. The president of supreme court defends the budget in the general assembly of the Parliament. In the level of cantons, the following development is observed in Switzerland, a global budget is promised to the courts and the jurisdiction undertakes to perform certain services under a contract of one year duration. For example, law drafts are made through the consent and agreement of the parties for finalization times in the basis of subject. A global law is effective now in Solothurn Canton and it shall be realized on 01.01.2011 at Bern Canton. Direct submission of the budget to the parliament and the global budget allows the Courts of Switzerland to be financed without improper influences of other governmental powers. c) Audit by another power I want to mention the control of jurisdiction by the other governmental powers having the third possibility of influence. CCJE has brought the following requirement so that this control out of the court would not convert to an improper influence: “The systems established for the audit of courts in the countries should not be interested in the contents or correctness of court decisions, and besides, they should not promote and agitate the judges to keep efficiency on the forefront instead of performing their duty in compliance with order. The judge aims to give a punctual decision thought in compliance with the benefit of the person who seeks his right. (see CCJE, reply no 1 (2001) clause 69 and linked clause 27). In Switzerland, the parliament audits the supreme court. This is realized by submitting a balance sheet once a year to the parliament by the supreme court. This balance sheet is composed of three sections: a) Financial obligations chart of the previous year; b) All statistics showing these financial obligations of the court; c) Requests from the lawmaker: In this section, the lawmaker is warned about the objections in the laws and implementation faults. The balance sheet is also publicized. Then a joint meeting is organized between the parliament board (financial audit commission) and the supreme court and the balance sheet is discussed. Other statistics are submitted in this session to the parliament board and discussed. The matter in question here in general is to convince the parliamentarians that the means provided by the parliament are used properly and compliant with the purpose and the court is administered effectively. Concerning the effective management of the court, the court also has statistics for itself, for example, these enable the heads of departments to determine the performance of judges and clerks and take the necessary control precautions. These statistics can’t be seen by the public or the parliament.. This course is determined together with the parliament in previous years and it brings to the supreme court the obligation of presenting an account of its administrative affairs only and prevents the entrance of any improper influence on the jurisdiction. 3. Improper influences due to special benefits: The special benefits may be either the benefits of third parties (eg. parties to suits) or the own benefits of the judge. The following implementations cover both subjects. “ Independence of the judge stipulates the prerequisite of full impartiality of the judge. The judges are obliged to conduct impartially in their decisions on the disputes of the parties., that is, be independent of any relation, sympathy or trend, anything that shall or seem to affect adversely their capability of giving completely independent decisions. (….) Not only the parties to the suit, on the contrary all the society should entrust the judicial system. Not only a judge should be kept exempt from any relation based on misconduct, prejudice or any influence, but he should also create such an effect on a prudent observer, otherwise trust to the independence of the jurisdiction may be shaken. (see CCJE, Reply no 1 (2001) clause 12). In extreme cases, the judicial system faces the risk of bribery. Trust to the judge, and of course to jurisdiction due to this reason is at the lowest level in countries where bribery is dominant (see: this covers the elimination of international transparency and this covers the corruption of jurisdiction). Elementary conduct rules should be complied with to provide the impartiality of the judges and their recognition and perception. CCJE defines this as follows. i. CCJE has the opinion that any judge should do his best for the protection of independence of judge and the protection of this independence in corporate, as well as personal level, ii. The judges are obliged to conduct regularly during their duty and in their private life, iii. They should move forward always impartially or seeming impartially, iv. They should perform their own liabilities without an option and responsibilities on the subject of real or probable prejudices or impartiality. v. They are obliged to consider in their decisions all ideas presenting importance for the implementation of current law and neglect the unimportant ones. vi. They should behave frostily to every person who participates in the suit or who has relation with the suit. vii. They should perform their duty by respecting the fundamental of equal treatment directed to the parties, for this, they should avoid any prejudice and discrimination, they should look after equality before the parties and they are obliged to care the consideration of opposite opinion principle. viii. They should behave carefully in relations with media, they are obliged to protect their impartiality and independence; for this, they should avoid to provide personal benefit from relations with media and unfair explanations about events. ix. They are liable to protect the value of professional competence. x. Their professional conscious level should be high, they should have the responsibility to show the necessary care on the subject of giving the decisions in an appropriate time period. xi. They should leave a great part of their work time to the duty of judgeship including any activity connected with their work. xii. They should avoid any political activity to overshadow their independence and affect their impartiality.” (see CCJE, Reply no. 3 (2002) clause 50). The additional work of the judges in Supreme Court of Switzerland are regulated specially with the regulation of the supreme court BGerR 1 ). The below provision is especially accepted to be a criterion. “Art. 18 BGerR 1 The judges may perform additional works in compliance with the procedure and order, however these should not affect their independence and the respect of the concerned judge. 2 Additional work should not generate negativity on the subject of performing their principal duties. Additional works such as participating in courts of arbitration, judicial organs and specialization commissions, and expert reports and negotiations for peacemaking, point training assignments, interpretation if public benefit is in question, participating in publication series and specialization magazines, and organs and associations, foundations or like non-economic organizations are subject to approval. The permissions are given by an administrative commission composed of three judges within the supreme court upon application as limited in the conference of department presidents. Thus, full concentration of the supreme court judges on their judgeship duty and their protection against the external improper influences is provided. A very high salary is paid to the supreme court judges as compared to the Europe wide, these are at levels comparable to the gains of experienced attorneys. (for this, see European Commission for the Efficiency of Jurisdiction 1 Systematic collection of federal law (SR) 173.110.131. [CEPEJ – Commission européenne pour l’efficacité de la justice] European jurisdiction systems report 2008 [Data 2006] clause 11.3, Table 92). Attractive fees of the judges ensures the gain of best lawyers to the institution of judgeship and provides a certain protection against bribery. 4. Internal improper influences To be influenced by senor judges or presidents goes under the scope of probable internal improper influences. In its first reply on the impartiality and independence of judges, CCJE has spared a full paragraph to the problem of independence in judicial order. Here, the following principles are emphasized. “It is not in question that a judge acts with the order or instruction of a third party within or out of the judicial organization. (…) This is exact that it is not sufficient to protect the judge against external improper influences for his independence, but he should also be protected against improper influences that may be observed due to the conduct of other judges in certain cases (see CCJE, Recommendation no. 1 (2001), clause 64 etc.) Supreme Court of Switzerland is composed of seven departments. Each department has a president. As a rule, the suits are decided upon in triple sessions. The president always participates in principle. Here, the president is not in the position of the chief of his judge colleagues, but performs administrative works on behalf of the department in addition to his judgeship duty as “primus inter pares”. I haven’t seen such influencing efforts from my judge colleagues or the presidents. 5. Result The efforts of providing an advantage due to improper influences shall always be observed n daily court affairs. Therefore, every judicial system is obliged to fight continuously against such influences. Various means included in the aforesaid recommendations and replies serve to create the appropriate circumstances for the independent performance of judgeship duty. This is fundamental: 1. Law making measures based on the independence of the judge in constitutional level if possible. 2. Organizational measures preventing the mutual interference to main duties of the governmental powers concerning the relations between these powers. 3. Sanctions which ban the improper influences. 4. Framework conditions to be formed for the implementation of judgeship duty and the exact conduct rules for the judges shuoşd be determined being valid within and out of the court and linked with a proper salary. We are protected with these measure against improper influences and the trust for the jurisdiction and judge is established and protected. I thank you for your interest.
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