RESEARCH
LPL EDITIONS
RESEARCH ACADEMY
HAPPENING
RESEARCH
Constitutional Law and Political Science
TRust, Independence, Impartiality and Accountability of Legal professionals under the EU Charter – part 2 (TRIIAL 2) GA nº 101089737
Responsible Researchers:
Tiago Fidalgo de Freitas
Tiago Fidalgo de Freitas
Financing:
European CommissionJUST-2022-JTRA
European CommissionJUST-2022-JTRA
Project Status:
Ongoing
Ongoing
Summary
Providing training activities and tools aimed at making judges, prosecutors, and lawyers familiar with the European concepts of independence, impartiality and accountability, the principles of mutual trust and mutual recognition in the justice field, as well as the
protection offered to the freedom of expression of justice professionals. In doing so, it enhances the contribution of these professionals to the protection of fundamental rights, ultimately benefiting the European rule of law (RoL).
Activities: training at least 500 justice professionals within 12 cross-border trainings (WP2); developing an e-repository of training materials in English and 8 national languages (WP3); developing an active network of professionals exchanging views on the European RoL related issues, which will include the consortium partners, associate partners, trainers and trainees (WPs1-4); updating the CJC database with new European and domestic case law on RoL topics (WPs2-4); disseminating RoL and fundamental rights standards at the national level through cross-border training events (WPs2-4); collecting and developing training tools that may be included in the e-Justice portal (WPs2-4). Type and number of persons benefiting from the project: Directly (through the training events) approx. 500 judges, prosecutors, and lawyers, some of whom are also legal trainers. Indirectly, EU citizens, civil society, national legislators, EU policy makers will also benefit, as justice will be delivered by more informed professionals.
Expected results: Increasing the ability of justice professionals to promote the European RoL in their everyday work, notably by means of the different techniques of judicial interaction; fostering cross-sectoral and cross-border cooperation in the promotion of the European RoL.
Activities: training at least 500 justice professionals within 12 cross-border trainings (WP2); developing an e-repository of training materials in English and 8 national languages (WP3); developing an active network of professionals exchanging views on the European RoL related issues, which will include the consortium partners, associate partners, trainers and trainees (WPs1-4); updating the CJC database with new European and domestic case law on RoL topics (WPs2-4); disseminating RoL and fundamental rights standards at the national level through cross-border training events (WPs2-4); collecting and developing training tools that may be included in the e-Justice portal (WPs2-4). Type and number of persons benefiting from the project: Directly (through the training events) approx. 500 judges, prosecutors, and lawyers, some of whom are also legal trainers. Indirectly, EU citizens, civil society, national legislators, EU policy makers will also benefit, as justice will be delivered by more informed professionals.
Expected results: Increasing the ability of justice professionals to promote the European RoL in their everyday work, notably by means of the different techniques of judicial interaction; fostering cross-sectoral and cross-border cooperation in the promotion of the European RoL.
Objectives
In devising TRIIAL 2, five main groups of needs have been identified:
1) strengthening the rule of law and fundamental rights as a priority for an effective functioning of the Union (Commission, 2021 Rule of Law Report, op.cit., p.2). These areas have been identified as requiring the highest need for training among EU law areas (e.g. Commission evaluation of the 2011-2020 European Judicial Training Strategy SWD(2019) 380 final, p.49);
2) making justice professionals aware of their role in contributing to tackle the ongoing rule of law backsliding (European judicial training strategy for 2021-2024, op. cit., p.2; FRA Analysis of responses from the consultation on a new European Commission Strategy on the effective application of the EU Charter of Fundamental Rights [2020] p. 18-26);
3) clarifying the uncertainty regarding the different scopes of application and interaction between Art. 2 and Art. 19(1)(2) TEU, and between Arts. 2 and 19 TEU and Art. 47 CFR (AG Opinion, Joined Cases C‑83/19, C‑127/19 and C‑195/19, para. 183);
4) raising awareness of the new emerging challenges to the rule of law stemming from the use of new technologies in court organisation and case resolution (European Commission White Paper On Artificial Intelligence - A European approach to excellence and trust Brussels, 19.2.2020 COM(2020) 65 final) as well as on the impact that justice institutions play in fostering or hindering gender equality; and
5) need for improving EU law training for lawyers (Commission evaluation of the 2011-2020 European Judicial Training Strategy cit., p.50). Although these needs are shared by all justice professionals, specific attention will be dedicated to the specificities emerging in each category (e.g the prosecutors’ perspective will consider the level of discretion afforded to this category and the limits applicable to hierarchical system as highlighted by the preliminary question in Joined cases C-566/19, JR and C-626/19 PPU, YC).
These general needs will be tackled by pursuing the following specific objectives:
1) raising deeper awareness of justice professionals of the European standards of judicial independence and rule of law as developed by the new emerging case law of the CJEU and ECtHR. In this respect, TRIIAL 2 training materials will offer tools for justice professionals to establish which aspects of the organisation of domestic judicial systems fall within the scope of EU law and of the EU Charter, as well as the applicable standards of effective judicial protection of EU-derived rights (Commission Communication, Strategy to reinforce the application of the Charter of Fundamental Rights in the EU (COM(2020) 711 final);
2) making justice professionals acquainted with the instruments of vertical and horizontal judicial cooperation offered by EU law, in particular their respective scopes of application and effects, and their added value for solving issues regarding the interpretation and application of Arts. 2 and 19(1) TEU, and Art. 47 CFR (FRA, Ten Years On: Unlocking The Charter’s Full Potential [2020] p 22ff; FRA Fundamental Rights Report 2020, p 9).
3) raising deeper awareness on the potential risks of opaque decision-making, gender-based or other kinds of discrimination by the use of AI assisted case allocation systems and ways to tackle them. 4) include specific cross-border training events for lawyers and prosecutors and partnering with national and transnational institutions representing the specific interests of these two legal professions (MEDEL, UNBR, EWLA).
1) strengthening the rule of law and fundamental rights as a priority for an effective functioning of the Union (Commission, 2021 Rule of Law Report, op.cit., p.2). These areas have been identified as requiring the highest need for training among EU law areas (e.g. Commission evaluation of the 2011-2020 European Judicial Training Strategy SWD(2019) 380 final, p.49);
2) making justice professionals aware of their role in contributing to tackle the ongoing rule of law backsliding (European judicial training strategy for 2021-2024, op. cit., p.2; FRA Analysis of responses from the consultation on a new European Commission Strategy on the effective application of the EU Charter of Fundamental Rights [2020] p. 18-26);
3) clarifying the uncertainty regarding the different scopes of application and interaction between Art. 2 and Art. 19(1)(2) TEU, and between Arts. 2 and 19 TEU and Art. 47 CFR (AG Opinion, Joined Cases C‑83/19, C‑127/19 and C‑195/19, para. 183);
4) raising awareness of the new emerging challenges to the rule of law stemming from the use of new technologies in court organisation and case resolution (European Commission White Paper On Artificial Intelligence - A European approach to excellence and trust Brussels, 19.2.2020 COM(2020) 65 final) as well as on the impact that justice institutions play in fostering or hindering gender equality; and
5) need for improving EU law training for lawyers (Commission evaluation of the 2011-2020 European Judicial Training Strategy cit., p.50). Although these needs are shared by all justice professionals, specific attention will be dedicated to the specificities emerging in each category (e.g the prosecutors’ perspective will consider the level of discretion afforded to this category and the limits applicable to hierarchical system as highlighted by the preliminary question in Joined cases C-566/19, JR and C-626/19 PPU, YC).
These general needs will be tackled by pursuing the following specific objectives:
1) raising deeper awareness of justice professionals of the European standards of judicial independence and rule of law as developed by the new emerging case law of the CJEU and ECtHR. In this respect, TRIIAL 2 training materials will offer tools for justice professionals to establish which aspects of the organisation of domestic judicial systems fall within the scope of EU law and of the EU Charter, as well as the applicable standards of effective judicial protection of EU-derived rights (Commission Communication, Strategy to reinforce the application of the Charter of Fundamental Rights in the EU (COM(2020) 711 final);
2) making justice professionals acquainted with the instruments of vertical and horizontal judicial cooperation offered by EU law, in particular their respective scopes of application and effects, and their added value for solving issues regarding the interpretation and application of Arts. 2 and 19(1) TEU, and Art. 47 CFR (FRA, Ten Years On: Unlocking The Charter’s Full Potential [2020] p 22ff; FRA Fundamental Rights Report 2020, p 9).
3) raising deeper awareness on the potential risks of opaque decision-making, gender-based or other kinds of discrimination by the use of AI assisted case allocation systems and ways to tackle them. 4) include specific cross-border training events for lawyers and prosecutors and partnering with national and transnational institutions representing the specific interests of these two legal professions (MEDEL, UNBR, EWLA).
Relevance
The ongoing rule of law crisis, and the need to empower justice professionals across the Member States (MSs) to defend the EU rule of law and fundamental rights.
Recent constitutional and legislative changes in several MSs (e.g. Hungary, Poland, Romania, and Slovenia) are questioning core features of the EU rule of law (RoL). For the first time ever, the EU institutions proposed the activation of the preventive mechanism under Art. 7 TEU against Poland (see COM (2017) 835 final) and Hungary (see EP resolution of 16 January 2020 (2020/2513(RSP)) and of the RoL conditionality mechanism (see the European Parliament resolution of 10 March 2022 (2022/2535(RSP) calling on the Commission to immediately apply the RoL conditionality mechanism set out by the Regulation on a general regime of conditionality for the protection of the Union budget 2022/2092)). The jurisprudence of the CJEU is growing at a fast pace finding numerous violations of judicial independence and fundamental rights undermining the RoL in Europe (so far, only by Romanian courts, we count 16 references for preliminary rulings that have been presented to the CJEU: e.g. Joined Cases C-83/19, C-127/19, C195/19, C-291/19, C-355/19 AFJR; Joined Cases C-357/19, Case C-379/19, C-547/19, Cases C-811/19 and C-840/19, C-926/19, C-929/19, Cases C-430/21, C-709/21, C-817/21; 41 infringement procedures and references for preliminary rulings have been addressed by Polish courts; and 16 infringement procedures and references for preliminary rulings have been addressed by Hungarian courts; see more in the TRIIAL Database and Meijers Committee database).
In spite of the growing judicial dialogue between the CJEU and domestic courts from rule of law backsliding countries, the future of such interactions is undermined by recent decisions of supreme and constitutional courts limiting domestic courts’ right to use the preliminary reference procedure and prohibiting domestic courts’ obligation to give effect to EU law on the basis of a tendentious understanding of national constitutional identity (e.g. Decision 390/2021 of the Romanian Constitutional Court; and Polish Constitutional Tribunal Judgment case No. K 3/21).
In parallel, the chilling effect of the increasing disciplinary proceedings and sanctions against domestic judges giving priority to EU law is endangering the effective application of EU law at the domestic level (e.g. C-791/19, C-430/21). These growing RoL challenges indicate the need for increased training of all legal professionals involved in the delivery of justice in the EU countries most affected by the RoL crisis on the effective implementation of RoL benchmarks (in particular, Hungary, Poland, and Romania).
Saliently, the RoL crisis effects, stemming from a strong governmental influence on judges, prosecutors and lawyers, and more generally on the national justice systems, are stretching beyond the so-called rule of law backsliding countries, bringing into the spotlight current independence issues of judges and prosecutors across EU countries (e.g. Guðmundur Andri Ástráðsson v. Iceland, Appl No. 26374/18; C-869/19, Repubblika; on the threats posed by court presidents to internal judicial independence see D. Kosar, ‘Politics of Judicial Independence and Judicial Accountability in Czechia: Bargaining in the Shadow of the Law between Court Presidents and the Ministry of Justice’ (2017) European Constitutional Law Review, 13(2); on insufficient judicial independence of prosecutors see for instance, Germany, cases C-508/19 and 82/19); on unlawful governmental interference into nomination procedures of legal professionals, see J Vidmar: Slovenia’s Legal Farce with the Nomination of European Delegated Prosecutors, VerfBlog, 2021/8/27, https://verfassungsblog.de/slovenias-legal-farce/ ; on worrisome developments towards illiberal democracy in Slovenia, see: S. Bardutzky, B. Bugaric, S. Zagorc, ‘Slovenian Constitutional Hardball: Disruptive moves towards an illiberal democracy?’, VerfBlog, 2021/4/01, https://verfassungsblog.de/slovenian-constitutionalhardball/; on Italy, see the G. Grasso, TRIIAL National Report, available on the TRIIAL webpage; see the selection and participation into the judicial councils in Spain and in Portugal (Commission Staff Working Document. 2021 Rule of Law Report)).
We are thus witnessing a longer struggle for fair trial standards enshrined in the EU Charter of Fundamental Rights (CFR), putting at risk judicial cooperation and the proper functioning of the principles of mutual trust and recognition in the Area of Freedom, Security and Justice (AFSJ) as a whole. In C-216/18 LM and C-354/20 Openbaar Ministerie, the CJEU clarified that mutual trust cannot be “blind trust”: national judges are in fact called to act as guardians of the European rule of law by ascertaining – sharing with lawyers the evidentiary burden – whether the person sought under a EAW will be granted effective judicial protection in the requesting State, and whether an asylum seeker can be transferred to a MS with rule of law issues.
The fact that this individual assessment must be pursued also when there are generalised deficiencies in the requesting State’s judicial system (Joined Cases C-354/20 PPU, C-412/20) allows to keep open the channel of cooperation between still “trustable” courts from that State and the courts of other Member States, and between the former and the CJEU. Due to the mutual trust presumption, which is the essential requirement for the functioning of the AFSJ, national courts from across the EU are required to engage in the assessment of the “health” of judicial independence and the rule of law in other Member States. Furthermore, since the ASJP judgement in C-64/16, the CJEU has consistently affirmed that any national body authorised to decide on EU law issues should fulfil the requirements of judicial independence conferred by the principle of effective judicial protection enshrined in Art. 19(1)(2) TEU and Art. 47 CFR.
Accordingly, a national court can rely on the EU parameters and, possibly, on the reference for preliminary ruling, in order to protect its own independence and impartiality as essential requirements for the respect of the RoL (more recently, this was confirmed in C-487/19, W.Ż.).
Within this context, every justice professional in every Member State plays a crucial role in the struggle for the RoL, which is an essential guarantee for the European values of human rights and freedom. Judges, prosecutors, and lawyers have proven to be the most important defenders of the RoL both within their own jurisdictions but also transnationally (Commission Communication, Strengthening the rule of law within the Union: a blueprint for action (COM(2019) 343 final, and Commission Communication 2021 Rule of Law Report COM/2021/700 final). Within this socio-legal context, the need for cross-border training on judicial independence, fundamental rights and RoL is of crucial importance for the EU integration process. The caselaw of the CJEU and ECtHR on the rule of law and judicial independence is rapidly developing and growing, and thus requires in-depth understanding of the principles guaranteeing judicial independence and RoL standards, as well as an understanding of their concrete enforceability in national cases.
Recent constitutional and legislative changes in several MSs (e.g. Hungary, Poland, Romania, and Slovenia) are questioning core features of the EU rule of law (RoL). For the first time ever, the EU institutions proposed the activation of the preventive mechanism under Art. 7 TEU against Poland (see COM (2017) 835 final) and Hungary (see EP resolution of 16 January 2020 (2020/2513(RSP)) and of the RoL conditionality mechanism (see the European Parliament resolution of 10 March 2022 (2022/2535(RSP) calling on the Commission to immediately apply the RoL conditionality mechanism set out by the Regulation on a general regime of conditionality for the protection of the Union budget 2022/2092)). The jurisprudence of the CJEU is growing at a fast pace finding numerous violations of judicial independence and fundamental rights undermining the RoL in Europe (so far, only by Romanian courts, we count 16 references for preliminary rulings that have been presented to the CJEU: e.g. Joined Cases C-83/19, C-127/19, C195/19, C-291/19, C-355/19 AFJR; Joined Cases C-357/19, Case C-379/19, C-547/19, Cases C-811/19 and C-840/19, C-926/19, C-929/19, Cases C-430/21, C-709/21, C-817/21; 41 infringement procedures and references for preliminary rulings have been addressed by Polish courts; and 16 infringement procedures and references for preliminary rulings have been addressed by Hungarian courts; see more in the TRIIAL Database and Meijers Committee database).
In spite of the growing judicial dialogue between the CJEU and domestic courts from rule of law backsliding countries, the future of such interactions is undermined by recent decisions of supreme and constitutional courts limiting domestic courts’ right to use the preliminary reference procedure and prohibiting domestic courts’ obligation to give effect to EU law on the basis of a tendentious understanding of national constitutional identity (e.g. Decision 390/2021 of the Romanian Constitutional Court; and Polish Constitutional Tribunal Judgment case No. K 3/21).
In parallel, the chilling effect of the increasing disciplinary proceedings and sanctions against domestic judges giving priority to EU law is endangering the effective application of EU law at the domestic level (e.g. C-791/19, C-430/21). These growing RoL challenges indicate the need for increased training of all legal professionals involved in the delivery of justice in the EU countries most affected by the RoL crisis on the effective implementation of RoL benchmarks (in particular, Hungary, Poland, and Romania).
Saliently, the RoL crisis effects, stemming from a strong governmental influence on judges, prosecutors and lawyers, and more generally on the national justice systems, are stretching beyond the so-called rule of law backsliding countries, bringing into the spotlight current independence issues of judges and prosecutors across EU countries (e.g. Guðmundur Andri Ástráðsson v. Iceland, Appl No. 26374/18; C-869/19, Repubblika; on the threats posed by court presidents to internal judicial independence see D. Kosar, ‘Politics of Judicial Independence and Judicial Accountability in Czechia: Bargaining in the Shadow of the Law between Court Presidents and the Ministry of Justice’ (2017) European Constitutional Law Review, 13(2); on insufficient judicial independence of prosecutors see for instance, Germany, cases C-508/19 and 82/19); on unlawful governmental interference into nomination procedures of legal professionals, see J Vidmar: Slovenia’s Legal Farce with the Nomination of European Delegated Prosecutors, VerfBlog, 2021/8/27, https://verfassungsblog.de/slovenias-legal-farce/ ; on worrisome developments towards illiberal democracy in Slovenia, see: S. Bardutzky, B. Bugaric, S. Zagorc, ‘Slovenian Constitutional Hardball: Disruptive moves towards an illiberal democracy?’, VerfBlog, 2021/4/01, https://verfassungsblog.de/slovenian-constitutionalhardball/; on Italy, see the G. Grasso, TRIIAL National Report, available on the TRIIAL webpage; see the selection and participation into the judicial councils in Spain and in Portugal (Commission Staff Working Document. 2021 Rule of Law Report)).
We are thus witnessing a longer struggle for fair trial standards enshrined in the EU Charter of Fundamental Rights (CFR), putting at risk judicial cooperation and the proper functioning of the principles of mutual trust and recognition in the Area of Freedom, Security and Justice (AFSJ) as a whole. In C-216/18 LM and C-354/20 Openbaar Ministerie, the CJEU clarified that mutual trust cannot be “blind trust”: national judges are in fact called to act as guardians of the European rule of law by ascertaining – sharing with lawyers the evidentiary burden – whether the person sought under a EAW will be granted effective judicial protection in the requesting State, and whether an asylum seeker can be transferred to a MS with rule of law issues.
The fact that this individual assessment must be pursued also when there are generalised deficiencies in the requesting State’s judicial system (Joined Cases C-354/20 PPU, C-412/20) allows to keep open the channel of cooperation between still “trustable” courts from that State and the courts of other Member States, and between the former and the CJEU. Due to the mutual trust presumption, which is the essential requirement for the functioning of the AFSJ, national courts from across the EU are required to engage in the assessment of the “health” of judicial independence and the rule of law in other Member States. Furthermore, since the ASJP judgement in C-64/16, the CJEU has consistently affirmed that any national body authorised to decide on EU law issues should fulfil the requirements of judicial independence conferred by the principle of effective judicial protection enshrined in Art. 19(1)(2) TEU and Art. 47 CFR.
Accordingly, a national court can rely on the EU parameters and, possibly, on the reference for preliminary ruling, in order to protect its own independence and impartiality as essential requirements for the respect of the RoL (more recently, this was confirmed in C-487/19, W.Ż.).
Within this context, every justice professional in every Member State plays a crucial role in the struggle for the RoL, which is an essential guarantee for the European values of human rights and freedom. Judges, prosecutors, and lawyers have proven to be the most important defenders of the RoL both within their own jurisdictions but also transnationally (Commission Communication, Strengthening the rule of law within the Union: a blueprint for action (COM(2019) 343 final, and Commission Communication 2021 Rule of Law Report COM/2021/700 final). Within this socio-legal context, the need for cross-border training on judicial independence, fundamental rights and RoL is of crucial importance for the EU integration process. The caselaw of the CJEU and ECtHR on the rule of law and judicial independence is rapidly developing and growing, and thus requires in-depth understanding of the principles guaranteeing judicial independence and RoL standards, as well as an understanding of their concrete enforceability in national cases.
