G. Di Federico

Jornadas Internacionales sobre el Consejo de la Magistratura

Buenos Aires October 28-30,1998

The Consejo de la Magistratura: selected features in a comparative perspective

by Giuseppe Di Federico

Professor of Ordinamento Giudiziario, University of Bologna Director of the Center for Judicial Studies, University of Bologna

Director of the Research Institute on Judicial Systems, National Research Council

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the Consejo de la Magistratura In general, one can certainly say that the basic reason for the creation of

Judicial Councils in Westem European countries as a means to protect judicial independence is closely tied to the bureaucratic nature of their judicial corps. In those countries, in fact, judges (and prosecutors) are recruited the same way as any other corps of higher level civil servants of the various Ministries at the national level and follow a similar career pattem. In other words, they are recruited from amongst young law graduates (usually in their twenties) with no previous professional experience and selected on the basis of exams testing their theoretical knowledge of the law. Judges thus recruited develop their entire professional competence within the judiciary, where they usually remain for the rest of their working life (Le. for 40/45 years) advancing along career ladders whose steps are based on recurrent, competitive evaluations of professional performance. Contrary to what can be seen in countries which have adopted a professional model of recruitment, entrance in the judicial functions does not imply assignment to a specific julcial function in a specific court. Newly appointed magistrates are recruited to satisfy indistinctly the needs of the entire court system of the nation (and also the functional needs of the entire network of prosecutor’s offices where, like in France and Italy, judges and prosecutors are jointly recruited, belong to the same corps, and can be transferred from one function to the other, even recurrently, in the course of their career). Such systems entail responsibilities and difficulties in the personnel management of the julcial corps that are far more complex than those of the countries adopting a professional model of recruitment, i.e. where judges are chosen from among experienced lawyers and appointed, each of them, to fill a specific judicial position in a specific court. In the “bureaucratic model”, instead, newly appointed judges are called to fill indifferently the many different vacancies existing at the lower levels of jurisdiction throughout the country, i.e. to perform, depending on their destination, a great variety of judicial functions that are quite different fiom one another and require rather different professional qualifications. Thereafter they may be transferred from one court to another, they must be evaluated recurrently for promotion and, once promoted, they are assigned to fill the vacancies at the higher levels of jurisdiction.

.. Traditionally such decisions, as well as those concerning disciplinary or disability matters, were among the responsibilities of the Ministry of Justice. National judicial councils in Westem Continental Europe were created primarily to avoid that through those decisions -which touch upon emotionally loaded expectations of the magistrates- the Executive branch of government could indirectly, but nevertheless very effectively, influence judicial decisions. Transferring all or

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In some Western European countries, like France, a minor portion of judges is recruited from among people that have professional experience. Not so in Italy. Of course, different means of recruitment are everywhere provided for “special courts“ such I Constitutional courts.

Such as those needed to be a successful civil judge in tort or bankruptcy or family controversies, to be a criminal judge, to be a juvenile judge or even -in countries like France and Italy- to be a prosecutor and conduct investigations.

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the corporate leanings of the judiciary by establishing a closer connection between the respective councils and other government institutions. Though I have no specific information regarding the reasons for whch it was decided that the percentage of the judges in the CMA should be limited, nevertheless it appears quite evident that the need not to sever the links between the CMA and other government institutions seems to have been even more prominent in Argentina than in either Spain or France. Evidence of this orientation emerges also from other very distinctive features of the CMA to be found in no other Council that I know of. In particular the fact that eight out of the 20 members are at the same time active members of Parliament: 4 senators and 4 members of the Chamber of Deputies who are not elected by the respective branches of Parliament but are, instead, designated directly by the Parliamentary groups of the majority and of the minority in equal number. Additional elements pointing in the same direction can be found in the wording of article 114 of the Constitution while others will emerge later on while dealing with the responsibilities and duties of the CMA.

c) The CMA, unlike its European counterparts, includes both members (four) that are representative of the lawyers with federal registration and members (two) that are representative of the academia. Certainly lawyers and university law professors are also members of the Councils of European countries, as shown in Table 1, but not as representatives of their respective corporation elected by their peers. In other words to be a member of those professional groups is a prerequisite that other appointing subjects (Parliament, President of the Republic, etc.) are formally required to take into account -like in Italy and Spain- or that defacto do take into account - like in France and Portugal- as a guarantee of professional qualification for the job. In the CMA, instead, lawyers and legal scholars formally represent their peers and are legitimized to stand for the views of their respective constituencies in the decisions that the CMA is called upon to make. In particular, the presence in the CMA of the elected lawyers in the same proportion as the elected judges seems to be a recognition -appropriate, in my judgement- of an equal relevance of the views and experiences of the two professions for the proper functioning of the administration of justice (a notion totally foreign to the experience of the councils of continental Europe).

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In fact the second paragraph of art. 1 14 of the Constitution states that: "El Consejo s e d integradoperibdicamente de modo che se procure el equilibrio entre le representach de 10s organos politicos resultantes de la elecciin popular, de 10s jueces de todas las instancias y de 10s abrogados de la matricula federal. .." [emphasis mine]. The representative nature of their presence in the CMA is revealed also by the fact that they can stand to be elected for a second term (a possibility that in European councils is formally excluded). Italian lawyers have recurrently requested to be allowed to elect their representative in the Judicial Council, but to no

avail..

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4. Duties and responsibilities of the Consejo de la Magistratura in the area of personnel management.

Compared with its European counterparts, the CMA has in various respects -as I will try to show- far less power for that whch concerns the management of the judicial corps, but has far more responsibilities with regard to the management, monitoring and innovation of the judicial system.

In the area of personnel management of the judicial corps, the CMA has responsibilities with regard to the recruitment, discipline and training of judges of first instance and appeal (but not for the judges of the Supreme Court). In performing some of those tasks the CMA has final decisional powers (like judicial training and all disciplinary decisions short of removal); in some others (such as recruitment of judges of first instance and appellate judges) final decisions remain in the hands of the executive and the legislative powers. From what I understand, the effective protection of judicial independence was certainly among the main reasons for the creation of the CMA. It is therefore worth considering very briefly some of the basic characteristics of the activities of the CMA in the areas of recruitment, training and discipline, not only to bring to the fore some of the problems that need to be solved, but also because the ways in which decisions are adopted in those matters are certainly of great relevance in evaluating the level of protection of judicial independence.

4.1. Recruitment. Unlike European Councils the CMA does not have among its tasks that of periodically evaluating judicial performance for promotion to the higher levels of the jurisdictional ladder. Recruitment to the Supreme Court is outside the CMA's competence. Recruitment for the appellate level of jurisdiction is not performed -as in Continental European countries- by choosing from among the most qualified judges serving at the trial level, but instead through a system of selection identical to that adopted for the selection of the judges of first instance. In other words, both lawyers with eight years of experience and judges of first instance -so it seems by reading the law on the CMA- can participate in the process of selection for appenate judges on an equal footing.

Let us now turn our attention to the mode of selection of judges of first instance and appellate judges. It is indeed a system of rare complexity mixing features of recruitment that are typical on the one hand of the recruitment of US Federal Judges and on the other of the recruitment of judges in Continental Europe.

The main steps of the recruiting process are the following:

a) one of the four commissions of the CMA, the Comision de Selection y EscueZa JudiciaZ (CSEJ), issues a separate public competition for each of the vacancies that have to be filled in each of the courts of first instance or of

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innovation in the recruitment of judges in Argentina nor about the political compromises that accompanied its approval. Nevertheless, even the cursory, oversimplified version of the complex procedure described above is per se sufficient, in my view, to suggest that the question of a non-partisan recruitment of the members of the judiciary must have been a hot, much debated and divisive political issue for years. It suggests furthermore, in my view, that Argentina must have encountered greater difficulties than other nations in reconciling the competing values of independence and responsibility with respect to a judicial function that in all modem democracies is acquiring an ever greater political relevance. Actually, the 1994 Constitution and the laws on the CMA have produced a mixture of complex, binding procedural provisions with recurrent concessions to discretionary choices.

The appointment of the nine supreme court judges remains f m l y in the hands of the President of the Republic and the Senate with a procedure similar to that followed in the U.S.. The previous discretionary powers of the President and of the Senate in appointing trial and appellate federal judges have not been cancelled but only limited, in the sense that the President and the Senate are now bound to choose from among the three candidates proposed by the CMA.

On the other hand, the introduction of a national public competition open to all citizens having predetermined requisites and whose “theoretical and applied” knowledge of the law will be tested on the basis of written exams seems to resemble the modes of selection of the judges (and prosecutors) typical of continental European countries. However the differences are very relevant.

In the first place because candidates are adrmtted to the competition only if they have several years of previous professional practice as lawyers (a requisite that characterizes the appointment of US Federal Judges but is not commonly found -as we saw- in the competitions for the recruitment of Continental European judges).

In the second place because each recruitment procedure is intended to choose one judge to fill a specific vacancy in a specific court (a feature which resembles more the appointment of US federal judges than the recruitment of judges in Continental European countries). In the third and most important respect because the role of the examining commissions is far more limited than in Continental European countries, where the examining commissions, short of formal violations of their duties, make the fmal choice of the candidates to be appointed judges. In the Argentinian system, instead, the evaluations given by the examining commissions on the written work of the candidates can be reviewed by the CSEJ. Furthermore the list of merit prepared by the examining commissions can also be changed both by the CSEJ and by the PZenum of the CMA on the basis of various other criteria of evaluation characterized by wide margins of discretion (see above points - f and g of the recruitment procedure).

During my brief visit to Argentina last June I was told that one of the first

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The fvst paragraph of art. 9914 of the Constitution provides that the President “appoints the justices of the Supreme Court with the consent of the Senate by two thirds of its members present, in a public meeting convoked to this effect”

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functionally related to the activities to be performed, but also that they be clearly stated, not only to render the admission process more expedient, but also to avoid discriminatory or particularistic practices. For all those that meet the pre-defined requisites to be admitted in the competition becomes -one way or another- a justiciable right. The only requisites provided for by the laws on the CMA are: that the participants be citizens of Argentina, that they be lawyers with at least eight years of professional experience if they apply for an appellate judgeship, and at least six years of professional experience if they apply to become a judge of first instance.

While the requisite of being a citizen of Argentina does not require any further specification, the ways in which the requisites of professional experience have to be certified must be defined to make sure that experience is substantive and cultivated constantly for the entire period of at least six or eight years. Other requisites not mentioned in the law, but quite common in the competitions for judicial positions in other countries, will probably have to be defined by the CMA, as for example those related to the “moral standing” of the candidates or even, as in some European Countries, of their families: can someone be admitted who has been sentenced for stealing? Should someone be excluded for having stolen in a super-market when he was 15? Should someone be excluded who has been sentenced for a crime committed unintentionally? Should someone be admitted who is a drug addict or a habitual drinker or has been in a mental hospital? Can the candidate be admitted if his father has been sentenced for very serious crimes? Furthermore, who should be in charge of conducting investigations on these and similar aspects of the private life of the candidates, and eventually of the members of their families?

4.2. The Judicial School. The laws on the CMA do not say much about the structure and responsibilities of the Escuela Judicial (EJ). The subject is dealt with in the first three paragraphs of art.13 which state that the EJ operates under the lrection of the CSEJ “a fin de attender la foimacion y el perjeccionamiento de 10s funcionarios y 10s aspirantes a la magistratura ”. The only additional indication to be found in the law is that “La concuwencia a la Escuela Judicial no serci obligatoria para aspirar a ser promovido pero podrci ser evaluada a tale fines ”.

At first, sight the literal interpretation of those provisions led me to the conclusion that the EJ is primarily intended to provide initial and continuing education only for the nonjudicial court personnel, while its educational activities for the judicial corps would be limited solely to prepare for the entrance examination

In contrast, a lawyer that has not been taken into consideration in the appointment process for a federal judgeship in the US, or for one of the 9 positions of Supreme Court judge in Argentina, does not have at his disposal any legal means to invalidate that appointment for much that his professional qualifications might be superior to those of the judge that has been chosen. In Italy, for example, the law provides that the candidates shou1d“belong to a family of unquestionable moral

esteem”. One must add however that many jurists do consider that provision unconstitutional insofar as it runs counter the principle that no one should be considered responsible for deeds other than his own. For this very reason the Superior Council of the Judiciary has applied that provision very rarely in the last 30 years.

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geographlcal areas of the country. I do not think that Argentina can ignore this problem of giving all the candidates an equal chance, even more so in Argentina than in other countries because the law provides that attendance of the Judicial School may be considered in deciding promotions. The only alternative to the creation of several training centers located in various parts of the Country would be to provide the participants with a scholarship or with some other sort of financial support.

In performing the function of preparing the candidates for the entrance examinations, the EJ will also have to face another problem that other countries adopting a similar means of selection do not have. In continental Europe the entrance examination is identical for all the candidates regardless of the judicial functions to which the successful candidates will be assigned. Not so in Argentina, where separate competitive examinations are to be conducted for each vacancy occurring in courts which on the one hand perform different judicial functions (first instance or appeal) and on the other are, at the same time, specialized (in the sense that they deal with different kinds of controversies). As a consequence, not only the nature of the competitive examinations will have to be at least in part different for the different courts, but also the training programs to prepare the candidates for different competitive examinations will have to be planned and performed in a partially different way. Those organizational difficulties will, obviously, vary as a consequence of the variations of other factors. Some of them are known, others are unknown at the present time. Certainly the type and number of specialized courts is known (I could not find any specific indication on this point in the documentation I have; reference is made, from time to time, to civil courts, commercial courts, labor courts, criminal courts, but no specific and exhaustive listing is anywhere provided). Other factors are certainly unknown. Above all the number of those that might want to attend the EJ both to be facilitated in the acquisition of the notions that are necessary to perform well in the exams (after all, who more that the EJ might h o w what notions are best suited to succeed) and to take advantage of the provision that allows attendance of the EJ to be considered in deciding promotions.

4.2.2. Initial and continuing education for judges and non-judicial court personnel. The joint responsibility in the area of education for both judges and non- judicial court personnel makes the EJ more similar to the US Federal Judicial Center than to the judicial schools of continental Europe. Actually none of the latter is competent for the initial and continuing education of non-judicial court personnel.

See the second paragraph of art. 13. Obviously the cost of creating various branches of the EJ throughout Argentina could be sharply reduced by a

systematic use of modem technologies like interactive videoconferencing. One has also to keep in mind that the number of those that plan to participate in the competition and initiate the

preparation for the exams may be far greater than those that, later on, actually participate in the competition. As an example of the d k n s i o n s that such a phenomenon might have, see note 10 above.

In countries of continental Europe-such as France, Germany and Italy- such institutions are organized and financed by the respective Ministries of Justice. One of the better organized is the FrencEcole Nationale des Grefleslocated in Dijon.

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. It is a task which -to be performed adequately- requires, as in other countries, the integrated use of multidisciplinary skills and substantial research resources (and I have no idea whether and to what extent such professional resources may already exist in Argentina within or without the judicial system - for certain they are far fiom being adequate in the judicial systems of Continental Europe). If the EJ is to serve the functions on the one hand of preparing the candidates for the entrance examination in the judicial corps, and on the other of providing initial and continuing education for both court employees and judges, one would have to conclude that its role will be, in future perspective, of crucial relevance in supporting the institutional goals of the CMA, i.e. the promotion of a more independent, more effective and efficient judicial system. On the other hand, looking at the momentous operational implications that the proper performance of those functions does entail, one would have to admit that it is unlikely that the EJ can fully face up to all its manifold, complex responsibilities in the short run. Even if all the financia.and professional resources needed are immediately available a clear definition of priorities will most probably be needed. In closing th s paragraph I wish to add a caveat. The European experience shows in many ways that it is a mistake to address the issue of initial and continuing education in the judicial area to the exclusion of the lawyers. AEter all, for the citizens the quality of justice depends not only on the professional competence of the judges (and the prosecutors) but also and no less on the professional competence of the lawyers.

4.3. Discipline. I shall make only two brief remarks on this matter, one of a substantive nature and one with reference to the proposed disciplinary procedures.

In my view the dmiplinary violations listed in art. 14/A of the law on the CMA leave too much room for discretionary interpretations and should be more analytically specified, and not only to avoid benevolent judgements on the one hand or to insure a more effective repression of deviant judicial behavior on the other. To insure that disciplinary violations and punishments will not be largely defined fiom time to time with reference to single cases is in itself a way to better protect judicial independence. Furthermore a detailed code of judicial conduct would serve a preventive educational function and could effectively be used as a text book in the programs of initial and continuing education of the EJ. Let me add that in most European Countries the norms regulating judicial conduct are, if any, more generic than those included in art.

In France the &ole for the judiciary was created in 1958. To remedy the negative consequences of such a one sided initiative a similar institution for the initial and continuing education of the lawyers was finally enacted in the early 89 and operates in various French cities; see: A. Mestitz Selezione e formmione professionale dei magistrati e degli avvocati in Francia, CEDAM, Padova, 1990; F. Terre (sous la direction),Magistrats et avocats: formation, carrike, activite' professionnelle, La Documentation Francaise, Paris, 1987. The negative consequences of the exclusion of lawyers fiom the programs of continuing education becomes particularly evident on the occasion of the enactment of complex legislative innovations. A recent research we conducted in Italy clearly shows that having overlooked the need for continuing education of the lawyers was one of the causes of the many failures of the new 1988 code of criminal procedure; see: G. Di Federico, D. Gion, et. al., Codice di procedura penale e dritti della difesa: l'opinione degli avvocatipenalisti italiani, Working Papers IRSIG-CNR n. 7 ,Ed. Lo Scarabeo, Bologna, 1996.

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Judicial Center. To speculate appropriately on the difficulties that the CMA will encounter in performing all its complex tasks and provide suggestions on the strategies that would facilitate their accomplishment, one should have on the one hand a substantial knowledge of the Argentinean judicial system and its working problems (which I do not now have) and on the other hand, even more important, a substantial amount of information on how the CMA intends to face up to its momentous tasks. I have been told that tentative regulations of the working of the CMA have already been prepared (like those concerning the EJ and the transfer of approximately 700/800 employees from the Supreme Court to the CMA). Unfortunately I did not have access to those documents and, obviously, I could not take them into account in this report.

The comments I have made in the preceding pages underline in the first place the very distinctive features of the composition of the Judicial Council of Argentina and some of the implications deriving therefiom. I have also considered summarily some limited aspects of some of the CMA’s future activities in the area of personnel management (judicial and non judicial) mainly on the basis of a comparative perspective. The reasons I could offer a number of comments which might have some relevance for the performance of those activities and not for others are basically three: because I could acquire some general information on them, because they are relative to tasks that only in the last 30 years or so have progressively acquired relevance in various democratic states and because comparative analysis shows that the major difficulties encountered by the various countries in facing those new tasks have been, in many respects, of the same kind.

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