THE JUDICIAL TRAINING IN TURKEY TABLE OF CONTENTS

Transcription

1 Report by Luca Perilli THE JUDICIAL TRAINING IN TURKEY TABLE OF CONTENTS EXECUTIVE SUMMARY METHODOLOGY I. THE JUDICIAL TRAINING AS A RIGHT AND A DUTY OF JUDGES AND PROSECUTORS II. TRAINING OF JUDICIAL PRACTITIONERS. III PRE-SERVICE TRAINING III.1. CRITERIA AND PROCESS FOR THE SELECTION OF FUTURE JUDGES AND PROSECUTORS III.1.1. CRITERIA FOR THE RECRUITMENT OF CANDIDATE JUDGES AND PROSECUTORS III.1.2. THE PROCESS FOR THE SELECTION OF CANDIDATES III.2 THE JUSTICE ACADEMY. ITS INDEPENDENCE AND CAPACITY TO PERFORM PRE- SERVICE TRAINING III.2.1 ESTABLISHMENT, PREMISES AND LOCATION III.2.2 THE MISSION OF THE JUSTICE ACADEMY. PRE-SERVICE TRAINING OF JUDGES AND PROSECUTORS III.2.3 STRUCTURE, ORGANISATION AND INDEPENDENCE OF THE JUSTICE ACADEMY III.2.4 CAPACITY OF THE JUSTICE TO PERFORM THE INITIAL TRAINING. CURRICULA AND TEACHING STAFF III.3 DURATION OF IN-SERVICE TRAINING III.4 INITIAL TRAINEESHIP AT COURTS AND PROSECUTION OFFICES. ROLE OF JUDICIAL MENTORS III.5 THE FINAL EXAMINATION. APPOINTMENT AS JUDGES OR PROSECUTORS IV. THE IN-SERVICE TRAINING IV.1.1 THE ROLE OF HIGH COUNCIL OF JUDGES AND PROSECUTORS AND THE JUSTICE ACADEMY IV.2. MULTIPLE PROVIDERS OF IN-SERVICE TRAINING FOR JUDGES AND PROSECUTORS IV.2.1 DEPARTMENT FOR THE EDUCATION OF THE MINISTRY OF JUSTICE IV.2.2. TRAINING PERFORMED BY THE COURT OF CASSATION AND THE COUNCIL OF STATE IV.3. THE ANNUAL PLANNING OF IN-SERVICE TRAINING. CRITERIA FOR SELECTION OF PARTICIPANTS. STATISTICS IV.4 TRAINERS AND SPEAKERS. TEACHING METHODOLOGIES. COORDINATION OF THE SEMINARS. THE EVALUATION OF THE SEMINARS. REGIONAL TRAINING IV.5. A GOOD PRACTICE OF REGIONAL TRAINING: CONSULTATION MEETINGS IV.6 IMPACT OF IN-SERVICE TRAINING ON JUDGES AND PROSECUTORS CAREER. A MANDATORY TRAINING? IV.7. TRAINING OF AUXILIARY STAFF IV.8. TRAINING OF LAWYERS 1

2 EXECUTIVE SUMMARY The report focuses both on recruitment and pre-service training of candidate judges and prosecutors and on continuous training of serving Turkish judges and prosecutors. The conclusions of the reports are summarised as follows. The competitive examination for the recruitment of judges and prosecutors should be reformed according to the principle of full transparency and of candidates merits, with the aim to test the capacity of the applicants in legal reasoning and writing. The Ministry of Justice (henceforth: MoJ) should set a clear strategy for the recruitment of young graduates and experienced lawyers and their employment in the Judiciary, taking into account the capacity of the Justice Academy (henceforth: JA) to train candidates fully and to prepare them to manage effectively their future tasks. Pre-service training of candidate judges and prosecutors is performed by the JA, a well-established institution with scientific, administrative and financial autonomy. Nevertheless, the dramatic increase in the number of candidate judges and prosecutors in 2012 and 2013 and the drastic reduction of the duration of the in-service training to only one year have seriously impacted on the capacity of the JA to perform its task and to equip the future judges and prosecutors with the skills necessary to effectively manage the case law and to tackle the workload. The decision of the High Council of Judges and Prosecutors (henceforth: HSYK) upon proposal of the MoJ to reduce pre-service training to one year should be revoked and the duration of this training should be extended to at least two or, preferably, three years. Furthermore, the Law on the JA should be amended to allow coordinators and trainers to be seconded to the Academy for a period of four years. The internship of candidates at court should be fully coordinated with the theoretical training at the JA. The Academy needs to develop different curricula for young university graduates and for experienced lawyers so the latters' different level of experience and professional know-how. Candidates should be informed at least six months in advance of their appointment to judicial posts, whether they will work as civil or criminal judges and should be trained accordingly. As regards the Academy s structure, an equal representation of the MoJ and of the HSYK should be ensured in the General Assembly and in the Board of Directors of the JA, to guarantee the principle of independence of the institution. Since August 2011, HSYK has been assigned by the law the task to provide in-service training of judges and prosecutors. HSYK mainly performs its task in cooperation with the JA. During two years of training activity HSYK has enhanced to a large extent its capacity to organize and deliver in-service training: it performs a training needs collection, it publishes an annual large offer of training events on its internet web-site and in UYAP, it has involved in conferences, workshops and symposia more than half of the judges and almost 1/3 of the practicing prosecutors. In cooperation with the JA, it has built up a large network of trainers and speakers. The JA regularly trains the trainers. Nevertheless there is still room for improvement to comply with the best EU standards. HSYK should develop multi-annual agreements and protocols with the JA, in order to entrust the Academy with the formal and visible role to perform in-service training for all judges and prosecutors, including members of the Court of Cassation and of the Council of State. HSYK and the JA should be equipped with the capacity and the resources to train all judges and prosecutors on most sensitive issues, and on changes in law and technology, to organize continuous training that accompanies young judges and prosecutors during the first years of their practice on important issues which relate to the role and functions, to provide judicial training for small groups of judges or prosecutors or even individualised training in the event of career changes, such as a move between criminal and 2

3 civil courts, a move to a specialist jurisdiction, the assumption of the presidency of a chamber or a court or of the management of a prosecution office. Particular importance should be attached to training to improve the organisational capacities of judges and prosecutors in the areas of efficient case preparation and management. Furthermore the current centralised organisation of judicial training does not ensure that it can systematically reach the majority of judges and prosecutors who operate in the field. According to the EU best practices, regional training branches of the JA should be established with the aim to convey information, disseminate training materials, case law and ECtHR judgments to judges and prosecutors working in the field and to assist judges and prosecutors in individualized or small groups training in case of career changes. Finally, HSYK should set transparent rules and procedures for the admission of judges and prosecutors on equal footing to the in-service training. The participation of judges and prosecutors in continuous training should be taken into consideration in the framework of their individual professional evaluation. In-service should become mandatory in the event of a career change. A final consideration is devoted to common training of legal practitioners. The quality of the performance of the judicial system depends clearly on the interaction of many roles: the police, prosecutors, defence lawyers, clerks, justice experts, and bailiffs. However, in Turkey common training of judges, prosecutors and lawyers is very rare. Common training of legal practitioners is almost non- existent. MoJ needs to draft a strategy, in cooperation with the relevant stakeholders, aimed at fostering the systematic training of legal practitioners and at increasing the capacity of the JA to perform the training of legal practitioners in accordance with its legal duties. METHODOLOGY The expert drafted the present report, in the capacity as an independent expert, relying on information gathered during an official visits to Turkey performed from 27 to 31 May 2013 and on documents provided by the Turkish authorities and the European Commission before and during the mission. The visit to Turkey consisted of four full days meetings arranged by the Turkish Authorities with the following stakeholders: the President of the First Chamber and a Deputy Secretary General of HSYK, rapporteurs judges attached to the In-Service Training Office of HSYK, the General Director of EU department, the General Director of Personnel Affairs departments and other representatives of the Ministry of Justice, the Deputy Secretary General of the Court of Cassation; the General Secretary, two deputies and rapporteur judges from the Council of State, judges of an Administrative Court, judges and prosecutors from an Ankara court, the President, a Deputy President, the Director General and Deputy Directors of Training Centre, coordinators, teachers, trainers, and trainees (candidates) from the Turkish Justice Academy, the President, former President of the Ankara Bar Internship Board and members from the Ankara Bar Training Board and two trainees. During the meetings the expert was accompanied by Mr Christos Makridis, the Deputy Head of the Turkey Unit within the Directorate General Enlargement of the European Commission and by Ms Didem Bulutlar Ulusoy from the EU Delegation in Ankara. Judge Ziya Bekir Bugucam, guided the expert through the official part of the programme as representative of the Turkish Ministry of Justice. The expert conducted his analysis of the Turkish Justice system by referring to the data included in reports of the European Commission or elaborated in the framework of projects, missions and studies supported by the European Commission and the Council of Europe, in particular: 2012 and 2011 EC progress reports on Turkey, the Third Advisory Report of 2005 by Kjell Björnberg and 3

4 Ross Cranston on The Functioning of the Judicial System in the Republic of Turkey ; the reports drafted by the expert Thomas Giegerich following the 2008, 2010, 2011 and 2012 peer review missions to Turkey; and the Commissioner of Human Rights of the Council of Europe, Thomas Hammarberg's, report Administration of justice and protection of human rights in Turkey of 10 January The main sources of Turkish Law consulted by the expert for the assessment are as follows: the Constitution of the Republic of Turkey, law no 6087 of 11 December 2010 on the High Council of Judges and Prosecutors, law no 2802 on Judges and Prosecutors, law no 4954 on Turkish JA; JA regulation on the internship period of candidate judges and prosecutors in civil and criminal jurisdiction and candidate judges in administrative jurisdiction and internship courts, JA regulation on the principles and procedures regarding the pre-service training of candidate judges and prosecutors in civil and criminal jurisdiction and candidate judges in administrative jurisdiction, JA regulation on the principles and procedures regarding the pre-service training of lawyers appointed as candidate judges and prosecutors in civil and criminal jurisdiction and candidate judges in administrative jurisdiction, the MoJ bylaw on training periods of candidate civil and administrative judges and prosecutors and training courts. This assessment is guided by European standards derived mainly from the following sources: the European Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth: ECHR) and the case-law of the European Court for Human Rights (henceforth: ECtHR); the Charter of Fundamental Rights of European Union, 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 at the 1098th meeting of the Ministers' Deputies, Recommendation Rec(2000)19, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000 on The role of public prosecution in the criminal justice system, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of The Regions: Building Trust In EU-Wide Justice A New Dimension To European Judicial Training, COM(2011) 551 final, Communication from the Commission to the European Parliament and the Council on judicial training in the European Union, Brussels, COM(2006) 356 final. Furthermore, the following Opinions of the Consultative Council of European Judges (henceforth: CCJE) to the attention of the Committee of Ministers of the Council of Europe have been taken into account: Opinion no. 1 on standards concerning the independence of the judiciary and the irremovability of judges; Opinion no. 3 on the principles and rules governing judges professional conduct, in particular ethics, incompatible behaviour and impartiality; Opinion no. 4 on Appropriate initial and in-service training; Opinion no. 9 on The role of national judges in ensuring an effective application of international and European Law. Opinion no. 10 on The role of judges in the enforcement of judicial decisions; Opinion N.11 on Quality of judicial decisions. The assessment takes note of the progress and efforts made by the Turkish Authorities to improve the fairness of the Turkish criminal justice system and of the Judicial Reform Strategy and related Action Plan drafted by the Turkish MoJ. This report has been made possible thanks to the constant, open and warm cooperation of the Turkish Authorities and the expertise and support provided by the representatives from the European Commission DGs Enlargement and Justice, as well as the EC Delegation in Turkey. 4

5 I. THE JUDICIAL TRAINING AS A RIGHT AND A DUTY OF JUDGES AND PROSECUTORS Article 119 of the Law No 2802 on Judges and prosecutors as amended by Law 6494 adopted by Parliament on 27 June 2013 and published in the Official Gazette on 7 July , considers the judicial training as a right and a duty of judges and prosecutors. CONSIDERATIONS The Turkish Law complies with the international standards by including the right and the duty to undergo training in the rules governing the status of judges and prosecutors. The importance of the training, as both a right and a duty of judges and prosecutors, is recognised in international instruments such as the UN Basic Principles on the Independence of the Judiciary, adopted in and Council of Europe texts, such as: Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges independence, efficiency and responsibilities 3 adopted in 2010, Recommendation Rec(2000)19, adopted on 6 October 2000 by the Committee of Ministers of the Council of Europe on The role of public prosecution in the criminal justice system 4 ; the European Charter on the Statute for Judges 5 adopted in The same provision was contained in the former text of article 119, as amended by a Government decree. The decree was annulled by the Constitutional Court in January 2013 for formal reasons (the provision had been adopted by a decree and not by a law). The Parliament, following the Constitutional Court s ruling, legally reinstated the previous text. 2 Point 10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training 3 Point 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. Point 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. Point 65. Judges should regularly update and develop their proficiency. 4 Point 7. Training is both a duty and a right for all public prosecutors, before their appointment as well as on a permanent basis. States should therefore take effective measures to ensure that public prosecutors have appropriate education and training, both before and after their appointment. In particular, public prosecutors should be made aware of: a. the principles and ethical duties of their office; b. the constitutional and legal protection of suspects, victims and witnesses; c. human rights and freedoms as laid down by the convention for the Protection of Human Rights and Fundamental Freedoms, especially the rights as established by Articles 5 and 6 of this Convention; d. principles and practices of organisation of work, management and human resources in a judicial context; e. mechanisms and materials which contribute to consistency in their activities. Furthermore, states should take effective measures to provide for additional training on specific issues or in specific sectors, in the light of present-day conditions, taking into account in particular the types and the development of criminality, as well as international co-operation on criminal matters. Point 8. In order to respond better to developing forms of criminality, in particular organised crime, specialisation should be seen as a priority, in terms of the organisation of public prosecutors, as well as in terms of training and in terms of careers. Recourse to teams of specialists, including multi-disciplinary teams, designed to assist public prosecutors in carrying out their functions should also be developed. 5 Point 1.3. In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary. Point 1.5 judges must ensure that they maintain the high level of competence that the hearing of cases demands. This means that the high level of competence and of ability is a constant requirement for the judge in examining and adjudicating on cases, and also that he or she must maintain this high level, if necessary through further training. As is pointed out later in the text, judges must be granted access to training facilities. Point 2.3. The statute ensures by means of appropriate training at the expense of the State, the preparation of the chosen candidates for the effective exercise of judicial duties. The authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training programmes and of the organization which implements them, in the light of the requirements of open-mindedness, competence and impartiality which are bound up with the exercise of judicial duties. 5

6 The independence of the judiciary confers rights on judges of all levels and jurisdictions, but also imposes ethical duties. The latter include the duty to perform judicial work professionally and diligently, which implies that they should have great professional ability, acquired, maintained and enhanced by the training which they have a duty, as well as a right, to undergo 6. It is essential that judges, selected after their graduation from university, receive detailed, in-depth, diversified preservice training so that they are able to perform their duties satisfactorily 7. Such training is also a guarantee of their independence and impartiality, in accordance with the requirements of the ECHR 8. Training should be also seen as essential in view of the need to improve not only the skills of those in the judicial public service but also the very functioning of that service 9. The trust citizens place in the judicial system will be strengthened if judges have a depth and diversity of knowledge which extend beyond the technical field of law to areas of important social concern, as well as understanding enabling them to manage cases and deal with all persons involved appropriately and sensitively. In-service training is therefore essential for the objective, impartial and competent performance of judicial functions, and for the protection of judges from inappropriate influences 10. II. TRAINING OF JUDICIAL PRACTITIONERS The pre-service training of candidate judges and prosecutors is performed by the Turkish Justice Academy. The in-service training of first instance judges and prosecutors and of rapporteur judges attached to the Court of Cassation and the Council of State is organised and supervised by HSYK and is mainly performed in cooperation with the JA. The training of members of the Court of Cassation and the Council of State is organized and performed by these courts themselves. Auxiliary and administrative staff of courts and prosecution offices is trained by the Training Department of the MoJ. Law Enforcement Officials are trained by the Ministries they belong to. The pre-service training of lawyers and notaries falls within the competence of the Turkish Bar and the Union of Turkish notaries public, respectively. Common training and exchange of knowledge and experience among the above legal practitioners is very rare, if even not existent. CONSIDERATIONS The quality of the performance of the judicial system depends clearly on the interaction of many roles: the police, prosecutors, defence lawyers, clerks, the jury - where applicable, justice experts, bailiffs. The judge is only one link in the chain of such co-actors, and not necessarily even the final one as the enforcement stage is of equal importance. Even when one concentrates only on the quality of judicial decisions, it follows from what has already been mentioned that judges performance of their role is, although central, not the only factor conditioning the production of a judicial decision of quality The statute guarantees to judges the maintenance and broadening of their knowledge, technical as well as social and cultural, needed to perform their duties, through regular access to training which the State pays for, and ensures its organization whilst respecting the conditions set out at paragraph 2.3 hereof. 6 Opinion no. 4 of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on Appropriate initial and in-service training for judges at national and European levels (hereinafter Opinion No 4 of the CCJE), paragraph 2. 7 Opinion No 4 of CCJE paragraph 3. 8 Opinion No 4 of CCJE paragraph 4. 9 Opinion No 4 of CCJE paragraph Opinion No 4 of CCJE paragraph Opinion N.11 of CCJE on Quality of judicial decisions paragraphs

7 There are a large number of legal practitioners in the European Union, including judges, court staff and legal professionals of various kinds 12. By adopting the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of The Regions: Building Trust In EU-Wide Justice A New Dimension To European Judicial Training 13, the European Commission set the objective to enable half of the legal practitioners in the European Union to participate in European judicial training activities by 2020 through the use of all available resources at local, national and European levels, in line with the objectives of the Stockholm Programme 14. The objective is to target all legal practitioners whether judges, prosecutors, court staff, lawyers or other legal professionals. Reaching this goal requires the commitment and full co-operation of stakeholders at all levels. Priority is given to judges and prosecutors as they are responsible for the enforcement and respect of Union law, but judicial training is also essential for other legal practitioners. The expert encourages the MoJ to draft a strategy, in cooperation with the relevant stakeholders, aimed at fostering the systematic training of all legal practitioners and encourages the Government to increase the capacity of the JA to perform the training of legal practitioners in accordance with its duties established by article 5 letter A 15 of Law No 4954 on Justice Academy. The expert encourages the JA, HSYK, the MoJ, the Union of Turkish Bar and the Union of Turkish Notaries to establish protocols with the aim to foster common training of legal practitioners. We ENCOURAGE the Ministry of Justice to draft a strategy, in cooperation with all relevant stakeholders, aimed at fostering the systematic training of all legal practitioners and to increase the capacity of the Justice Academy to perform the training of legal practitioners in accordance with its duties under article 5 letter A of Law No 4954; The Justice Academy, the High Council of Judges and Prosecutors, the Ministry of Justice, the Union of Turkish Bar and the Union of Turkish Notaries to establish protocols aimed at fostering common training of legal practitioners. III. THE PRE-SERVICE TRAINING. III. 1 CRITERIA AND PROCESS FOR THE SELECTION OF FUTURE JUDGES AND PROSECUTORS III.1.1. CRITERIA FOR THE RECRUITMENT OF CANDIDATE JUDGES AND PROSECUTORS Turkish Judges are divided into two categories: ordinary judges (the category includes also prosecutors) and administrative judges. 12 In year 2011 professional judges were , prosecutors , lawyers, solicitors, barristers, , court staff , bailiffs , notaries Legal professional in total were (see COM(2011) 551 final. 13 COM (2011) 551 final. 14 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of The Regions: Building Trust in EU-Wide Justice A New Dimension to European Judicial Training, COM (2011) 551 final. 15 The Academy shall fulfil the following duties: to open training courses for the pre-service and in-service training and development of the civil, administrative and military judges and prosecutors and notaries as well as the staff assisting the judicial services and the lawyers upon their request; to organize specialty programmes in certain fields, seminars, symposia, conferences and similar events; to implement the education and training programmes to be assessed through certificates; to assist in the development and implementation of the training plans and study projects to be prepared by the relevant institutions, organizations and boards in the field of law and justice. 7

8 Law n 2802 dated on Judges and Prosecutors establishes the requirements and the procedures for the selection of candidate judges and prosecutors and their admittance to the inservice training at the JA. The Law envisages two different ways of recruitment of candidate judges and prosecutors: the first one relates to young university graduates and the second one to experienced lawyers. 1) The recruitment of young university graduates is regulated by article 8 letters a-j) of as follows: - Ordinary jurisdiction judges are selected from among graduates of law faculties which fulfil the requirements established by the Law. - Administrative jurisdiction judges are selected from among graduates of either law faculties or faculties of political or social sciences, which include law courses in their programmes that fulfil the requirements under the Law. 2) The provision about recruitment of experienced lawyers was introduced in December 2007 by Law n /1 dated which amended Law No 2802, by adding a letter k in its article 8, according to which lawyers who have a five years' experience and who have not completed the age of 35 in the last day of January of the year of the entry examination, can be appointed as candidate judges or prosecutors. Pursuant to article 9 of Law 2802 the number of candidates (term which designates applicants who passed the selection procedure to access the initial training), including the ones to be selected among lawyers, is determined by the MoJ taking into account the needs in the judiciary and the opinion of the JA. In the last two years the MoJ recruited a number of candidates almost three times higher than that of the two years before: candidate judges and prosecutors were 855 in 2009; 941 in 2010; in 2011 and in Among them, 1000 lawyers were recruited in the past two years and further 600 will be recruited in The expert was told that a similar trend will continue in the future until the members of Turkish Judiciary reach , up from the current serving judges and prosecutors. III.1.2. THE PROCESS FOR THE SELECTION OF CANDIDATES Applicants must pass a competitive examination which is composed of a written and of an oral part. The examination is regulated by article 9A of Law n 2802 of The written competitive examination is held by the Student Selection and Placement Centre, in accordance with a Protocol signed between the Centre and the MoJ. The written examination consists of 140 written questions on the following topics: general capability and general culture consisting of Turkish Language, Mathematics, Turkish Culture and Civilization, The Principles of Atatürk and the History of Reforms, and Basic Information on Citizenship, and a) for civil and penal judiciary: constitutional law, civil law, law of obligations, civil procedural law, commercial law, bankruptcy and insolvency law, penal law, penal procedural law, administrative procedural law and administrative law, b) for administrative judiciary: constitutional law, administrative law, administrative procedural law, civil procedural law, law of obligations (general provisions), civil law, penal law (general provisions), tax law, tax procedural law and finance economics. Written answers are rated by points (maximum 100). A number of successful applicants exceeding by three times the posts announced for competition is admitted to the oral part of the exam. The oral exam is performed by the Board of Interview which is composed by the following seven members: the Undersecretary of the MoJ who is the 8

9 president of the Board; the Head of the Inspection Board, the Directors General of Penal Affairs, Civil Affairs and Personnel Affairs of the MoJ, and two members who are assigned by the Executive Board of the JA among the members of the JA Board. The board of interview assesses the following candidates five qualifications by giving grades (up to 20 points for each qualification): a) the ability of judgement, b) the ability to understand a particular subject and to make a summary, c) the appropriateness for the profession of the physical appearance, behaviour and reactions of the applicants, d) capability and culture, f) openness towards the contemporary scientific developments and technological improvements. CONSIDERATIONS According to the terms of reference agreed with the Turkish Authorities, the experts mission is to assess judicial training and does not cover the assessment of the requirements for the recruitment of future judges and prosecutors and the composition of the Board of Interview. However, the process of recruitment of candidate judges and prosecutors is relevant for the present report for the following reasons: - the quality and level of juridical preparation and professional experience of candidates impact on the organization and on the duration of the initial training. While it is obvious that judges who are recruited at the start of their professional career need to be trained, the intensity and duration of this training depend on how the Law School prepared the students for dealing with the challenges of legal professions 16 and also on the suitability of the entry examination for selecting the best Law School graduates; when judges and prosecutors are instead selected from among experienced lawyers, training programmes should be adapted to train them only on what is required for their new profession 17 ; - the number of candidates recruited every year should be compatible with the capacity of the JA to train properly and accurately future judges and prosecutors. On both scores, the expert noted the absence of a clear strategy by the MoJ as regards the recruitment policies. Whilst it is clear that the MoJ intends in the next years to almost double the size of the Turkish Judiciary (from the current members to a final number of ) it is not clear whether this process of enlargement of the Judiciary takes care of the fundamental need to recruit and appoint judges and prosecutors who are technically well prepared, fully acquainted with the principles of judicial ethics and trained to deal with the complex judicial practice. The expert has indeed to raise the following concerns: - the competitive entry written examination in not conceived to test the legal knowledge of candidates, and therefore to select the best candidates, because it is basically a questionnaire. The candidates do not have to show their capacities in legal reasoning and writing that is of outmost importance in the legal profession; - the oral part of the examination is aimed at testing qualifications (please see above) which can hardly be measured in the short conversation with candidates held by the Interview Board; the candidates met by the expert clearly reported that they did not know how to prepare for the exam. This oral exam is not only unsuitable to test the preparation of candidates but also gives a discretionary power to the Interview Board mainly composed of members of the Executive - that is too large to comply with international principles. These stipulate that in the process of recruitment of judges and prosecutors there must be total transparency in the conditions for the selection of candidates, so that judges and society itself are able to ascertain that an appointment is made exclusively on a candidate s merit. 16 On this please see the parallel report by German professor Thomas Griegerich. 17 Opinion No 4 of CCJE paragraph 3, paragraphs 25 and 26. 9

10 The transparency of the criteria for the selection of candidates is also aimed at ensuring that procedures for judicial appointment are opened to a pool of candidates as diverse and reflective of society as a whole as possible 18 and that this choice should be based exclusively on a candidate s merits rather than on more subjective reasons 19 ; - young graduates and experienced lawyers are subject to a similar entry exam - and to the same initial training at the JA, even though among the two categories there are differences in age (22-23 years of age for young graduates; more than 30 and up to 35 years of age for experienced lawyers) and professional experience. The strategy of the MOJ on how to employ experienced lawyers at courts is not clear. In some EU Member States (like France or Italy) experienced lawyers are recruited to be appointed to superior courts. In Turkey instead, after the completion of the initial training, they perform the same functions in the same geographical areas (4 th and 5 th categories of regions) as young graduates; their assignment is decided by lot, irrespective of their capability and experience; - the number of candidates (2 452 in 2011 and in 2012) is incompatible with the capacity of the JA to train the candidates fully and to prepare them to manage effectively their future tasks. The justification for this massive recruitment, which is the need to deal with the huge court s workload, is questionable, if we consider that the number of candidates is not compatible with the capacity of the JA to equip the future judges and prosecutors with the skills necessary to effectively manage the case law and to tackle the workload. A human resources strategy for the judiciary needs to be developed which should acknowledge the need for candidate judges and prosecutors to be properly and accurately trained; otherwise citizens rights will be put to risk by bad decisions, trust in the judicial system will be eroded, and the effectiveness of the judicial system will be compromised because improper judgments are destined to be annulled and create new workload. We RECOMMEND that the competitive examination for the recruitment of judges and prosecutors is reformed according to the principle of full transparency and a candidate s merits, and with the aim to test the capacity of the applicants in legal reasoning and writing; that the MoJ establishes a clear strategy for the recruitment of young graduates and of experienced lawyers and their employment in the Judiciary; that a strategy for future recruitment of judges and prosecutors is established which takes into account the capacity of the JA to train candidates fully and to prepare them to manage effectively their future tasks. III.2 THE JUSTICE ACADEMY, ITS INDEPENDENCE AND CAPACITY TO PERFORM PRE- SERVICE TRAINING Applicants who are finally selected by the Interview Board are admitted to the pre-service training at the Turkish Justice Academy as candidate judges (or prosecutors). III ESTABLISHMENT, PREMISES AND LOCATION OP. No 10 of CCJE paragraph OP. No 10 of CCJE paragraph The following information is mainly derived from the publication of the Ministry of Justice: Turkish Judicial System. 10

11 The Centre for Training Judges and Prosecutors was established in Ankara in as an agency affiliated to the Ministry of Justice. The aim of the Centre was to train judges and prosecutors for civil and administrative judiciary. Within the context of the EU accession process, and in order to comply with European standards which call for the establishment of an independent institution, the Turkish JA was established by the Law on the Turkish Justice Academy numbered 4954 and dated The Academy is a legal entity with scientific, administrative and financial autonomy 22. In 2013 the JA was assigned a budget of 6.4 million. According to the law the Academy is affiliated to the Ministry of Justice 23. The Academy which was based in Etlik-Dışkapı quarter of Ankara province was later moved to a new campus area of square meters including square meters of indoor and square meters of outdoor space. The premises comprise five service building: an administrative building, two training buildings, one dormitory and a social centre. The Academy operates in this campus since III.2.2 THE MISSION OF THE JUSTICE ACADEMY; PRE-SERVICE TRAINING OF JUDGES AND PROSECUTORS The JA has four main general tasks related to: 1) training of legal practitioners, that includes the in-service training of judges and prosecutors 24 ; 2) consultancy and opinions in the fields of training and legal professions 25 ; 3) review, research, publications and documentation in the fields and law and Justice 26 ; and 4) international cooperation 27. The Academy is furthermore entrusted with a specific task, that is the organization of theoretical vocational courses in the preparatory and final stages of pre-service training of judges and prosecutors and administrative judges in accordance with relevant laws and by-laws 28 ; also, the 21 By the Law on the Establishment and Duties of the Training Centre for Candidate Judges and Prosecutors promulgated in the Official Gazette dated and numbered Art. 4 of Law No The Law No on Public Financial Management and Control granted the Academy the authority to operate with private budget. 23 Art. 4 paragraph 2 of Law No Training of legal practitioners is aimed at designing and implementing pre- and in-service training courses for the professional development of civil, administrative and military judges and prosecutors, auxiliary judicial personnel and for lawyers upon request. The Academy can: organize seminars, symposia, conferences and similar events, implement certificate programmes, and assist institutions and agencies in the design and implementation of training and research programmes and projects in the field of law and justice (Art. 5 paragraph 1 lett. a of Law No 4954). 25 The Academy can deliver opinions to the relevant institutions and agencies on education and training in the field of law and justice (Art. 5 paragraph 1 lett. b of Law No 4954) and can provide consultancy services and deliver opinions concerning national and international law and justice and professional matters (Art. 5 paragraph 2 of Law No 4954). 26 The Academy can further conduct research on the development of legislation, develop recommendations based on research and draft legislative texts (Art. 5 paragraph 3 lett. a of Law No 4954); carry out reviews and research and make publications in the field of national and international law and justice (Art. 5 paragraph 3 lett. b of Law No 4954) ; establish an information and documentation centre, a databank and a library which include documents, legislation, judgments and publications in the field of law and justice in Turkey and other countries. 27 As regards its international activity, the Academy may organize joint training programmes, mutual study visits, and seminars and scientific activities in cooperation with its counterpart institutions abroad. It contributes to the development of Turkish judiciary by developing projects together with the relevant institutions of the European Union ( Art. 6, last part of Law No 4954). 28 Art. 5 lett. a of Law No

12 organization of pre-service training programmes during the probation term of military judges and prosecutors, public notaries and lawyers 29. III.2.3 STRUCTURE, ORGANISATION AND INDEPENDENCE OF THE JUSTICE ACADEMY 30 The Academy is administered by the Presidency with a President, two Deputy Presidents 31 and a Secretary General. The executive manager of the Academy is the President 32. The President is the chairman of the Executive Board. The President and his deputies are appointed by the Council of Ministers for a period of four years out of three members nominated for each post by the Board of Directors from among the members of the Court of Cassation and Council of State, first level judges and prosecutors, law professors, lawyers with an experience of a minimum of 20 years, and first level notaries 33. A Secretary General is responsible for administrative and financial affairs 34. The General Assembly is the decision making body of the JA and convenes once a year. It consists of the Minister of Justice, the Undersecretary of the Ministry of Justice, the Directors General for Criminal Affairs, Civil Affairs, Legislation, EU Affairs, and Personnel Affairs, the Head of Department of Training from the Ministry of Justice and 18 more members: four elected by the Court of Cassation, three by the Council of State, two by military courts, one by the High Council of Judges and Prosecutors, two by the Council of Higher Education from lecturers in the Academy, one by the Executive Board of the Union of Turkish Bar Associations, one by the Executive Board of the Union of Turkish Public Notaries, and four from trainers of the Academy. The President and the former Presidents of the Academy are also members of the General Assembly 35. The main duties of the General Assembly are to select five regular and three substitute members for the Board of Directors, to approve the annual report, the Audit Board report, training and education plans and the Academy's budget, to discharge the President, the Board of Directors and the Audit Board 36. The Board of Directors is the permanent decision making body of the Academy. It consists 37 of six regular and three substitute members under the chairmanship of the President of the JA. The Director of Personnel Affairs of the Ministry of Justice is a permanent member of the Board. The other four regular and three substitute members are elected by the General Assembly either among the Assembly s members or amongst other candidates who have the qualifications for presidency set forth in the first paragraph of the article 9 of the Law The main competences of the Board are 39 to identify the candidate presidents and deputy presidents, to review the annual report and schedule and annual budget drafted by the Presidency and present them to the General 29 Art. 5 lett. b of Law No Please see the chart attached to the report. 31 Pursuant to article 9 of the Law No Art. 10 of Law No Art. 9 of Law No 4954: The President and deputies return to their prior posts when their term of office is over. The Secretary General is appointed by the President from those who have a degree of 4-year higher education and served for 12 years as a civil servant. 34 Art. 11 of Law No Art. 12 of Law No Art. 14 of Law No Art. 15 of Law No To be members of the Court of Cassation and Council of State, first degree civil and administrative judges and prosecutors and those who are deemed to be in this degree, law professors, lawyers who performed this profession actively for minimum twenty years or first degree notaries who performed this profession actively for minimum twenty years. 39 Art. 17 of Law No

13 Assembly, to review and approve regulations drafted by the Presidents, to develop short and long term education and training plans, and take decisions regarding the education and training services. The Training Centre is established in the Academy to carry out activities with regard to preservice and in-service training of judges and prosecutors of ordinary, administrative and military judiciary and lawyers, notaries and auxiliary judicial staff. The Training Centre is administered by a director and two deputy directors. The Training Centre director and deputy directors are appointed by the Minister of Justice on proposal of the President from among those working as judges, with their consent 40. CONSIDERATIONS The Turkish Academy has a very wide mission, which includes the training of legal practitioners and building up and maintaining a research and publication centre about Justice and law, which should become a reference for all legal practitioners. Even though the JA is very well equipped as regards its premises, which include not only a training building and a specialized human rights training centre, but also a social building and impressive social facilities, a big dormitory and a big restaurant, the Academy has yet to achieve its ample statute goals. Premises and space are not adequate for all candidate judges and prosecutors engaged in the preservice training (please see below). The training of legal practitioners is still far from being implemented, also because the Academy has not yet established protocols or similar formal links with the Authorities covering the training of legal practitioner (Turkish Bar Association, Turkish Association of Public Notaries, Ministry of Justice as regards administrative staff and even the High Council of Judges and Prosecutors - see below on in-service training). The library has a large variety of national and international legal books but is has not yet been organised as a research and publication centre. To reach its wide goals the JA should be significantly reinforced in terms of budget, personnel and training facilities (specifically devoted to training of legal practitioners). It should develop stable and formal relations and protocols with the Authorities legally responsible for the training of legal practitioners. As regards its main current activities, i.e. the pre-service training of candidate judges and prosecutors and in cooperation with the HSYK- the in-service training of judges and prosecutors, there are a number of concerns for the JA independence. According to European standards 41 the independence and composition of the authority responsible for training and its content is a corollary of the general principle of judicial independence and the judiciary should play a major role in organising and supervising training. Examples of independent judicial training bodies in EU Countries are L'Ecole Nationale de la Magistrature (France), the Centro de Estudos Judiciários (Portugal), the Escuela Judicial del Consejo General del Poder Judicial (Spain), and la Scuola Superiore della Magistratura (Italy). 40 Art. 27 of Law No The European Charter for the Statute for Judges (paragraph 2.3) recommends that at least half of the members of this Authority, independent of the Executive and the Parliament, should be judges. On the same line, the Consultative Council of European Judges in its Opinion No 4 paragraph 16 affirms that the judiciary should play a major role in or itself be responsible for organising and supervising training. It advocates that these responsibilities should, in each country, be entrusted, not to the Ministry of Justice or any other authority answerable to the Legislature or the Executive, but to the judiciary itself or another independent body. Judges associations can also play a valuable role in encouraging and facilitating training, working together with the judicial or other body which has direct responsibility. The CCJE therefore recommends that, under the authority of the judiciary or another independent body, training should be entrusted to a special autonomous establishment with its own budget, which is thus able, in consultation with judges, to devise training programmes and ensure their implementation (Opinion No 4 of CCJE paragraph 17). 13

14 The experts concerns are related to the strong presence of Ministry of Justice representatives in the General Assembly of the JA, which not only adopts the main policies about the development of the JA but also appoints the Executive Board (and the latter designates the candidates for the Presidency). According to the Law on the JA, this Institution is affiliated to the Ministry of Justice. In addition to the Head of the MoJ Department for Training, the Minister of Justice, his Undersecretary and five Directors General participate in the Assembly. Furthermore, the law ensures the permanent presence on the Executive Board of the Director General of Personnel Affairs of the Ministry. On the other side, the High Council of Judges and Prosecutors, which is not only the body entrusted by the Constitution with the protection and the promotion of the independence of the Judiciary but it also the Authority legally responsible for the in-service training of Judges and prosecutors, has only one representative in the General Assembly. A more balanced composition, to comply with the principle of the independence of the institution, would suggest at least an equal presence of representatives of the Ministry of Justice and of HSYK in the General Assembly (for instance four members appointed by the MoJ and four by the HSYK) and a permanent representation of the HSYK in the Executive Board (both the Ministry of Justice and HSYK could be represented by the heads of respective training departments). This would also increase the judicial component in line with the international recommendation. We RECOMMEND that the Justice Academy is reinforced in terms of budget, personnel and training facilities specifically devoted to in-service training of legal practitioners; that the Justice Academy develops stable and formal relations and protocols with the Authorities legally responsible for the training of legal practitioners; that, to preserve the principle of independence of the Justice Academy, an equal representation of the Ministry of Justice and of the High Council of Judges and Prosecutors be ensured in the General Assembly and in the Board of Directors of the Justice Academy. III.2.4 CAPACITY OF THE JUSTICE ACADEMY TO PERFORM THE INITIAL TRAINING CURRICULA AND TEACHING STAFF NUMBER OF CANDIDATES JA trainees are divided depending on whether they have been recruited to become a. civil and criminal judges and prosecutors; b. administrative judges; c. military judges. The number of trainees increased dramatically in the last two years and almost tripled since 2009: they were: 855 in ; 941 in ; in ; and in (from April 2012 to April 2013). The increase is due to the Ministry of Justice policy on recruitment of judges and prosecutors (please see paragraph III.2.2 above). At the time of the visit, the trainees employed in the Justice Academy were (around 70% male and 30% female). TEACHING STAFF The Justice Academy relies on permanent administrative staff and on temporary trainers and lecturers. Lecturers and trainers serve in the Academy within the scope of educational activities. Lecturers and trainers can be selected from Turkish or foreign academicians, members of the Turkish Court of Cassation, Council of State, Military Court of Cassation, and judges and prosecutors who have a minimum of 10 years in the profession, lawyers and notaries 42. Lecturers and trainers are selected, through interviews and academic references, by the Board of Directors and 42 Art. 22 of the Law

15 are assigned to the Academy for up to one year 43 upon the authorization of the Institutions they belong to 44. CURRICULA During the period spent at the Justice Academy candidate judges are expected to follow 21 courses and 180 classes' hours. Foreign languages are not part of the curricula. In practice candidates, because of the shortage of time devoted to the theoretical training and the enormous number of trainees, have not enough time and space to follow all courses and class hours. Classes are overcrowded. Young candidates and experienced lawyers follow almost the same pre-service training. Human rights are part of the curricula and are a mandatory topic. It is divided in two parts. The first part relates to a general outline of human rights system. The second part is devoted to specific rights such as freedom of expression or fair trial. Training on Human Rights is performed in a dedicated unit of the building, recently set up and equipped with modern IT tools, which allow research and documentation. The Academy further envisages the establishment a video-conference line with the Court of Human Rights in Strasbourg. TEACHING METHODOLOGIES AND EVALUATION OF TRAINING Trainers and teachers of the JA use different teaching methodologies, depending on the subject of training, such as didactic, Socratic, problem solving, drama, working groups. However the trainers themselves stressed that, because of the high number of trainees and the shortened training period, detailed courses' plans, frameworks and guidelines for teaching methodologies or instructions for preparation of professional material have not yet been developed. A group of Academy professors is working on a project for the establishment of new teaching modules in order to make the training more systematic. The trainers and the quality of the training are evaluated by the trainees through questionnaires. The evaluation outcomes are analysed by the Academy teaching staff and taken into account for the planning of future training. CONSIDERATIONS All JA representatives met by the expert, from the President and the vice- President to the training coordinators to pre-service and in-service trainers are enthusiastic and committed people, devoted to the task of performing an effective preparation of future judges and prosecutors. They are also aware about the current shortcomings of the in-service training which are mainly related to: the high number of trainees (1 200 at the time of the visit), which exceeds the capacity of the JA to host them and to fully implement the envisaged training courses; the reduction of the training period to only one instead of the two years provided for by the Law (see III.3 below). This reduction forces the Academy to squeeze courses and to operate in a rush; 43 Art. 23 of the Law Approval decision shall be taken by the First Presidency Board of the Court of Cassation for the members of the Court of Cassation; by the Presidency Board of the Council of State for the members of the Council of State; by the Presidency Board of the Military Court of Cassation for the members of the Military Court of Cassation; by the Presidency Board of the Supreme Military Administrative Court for the members of the Supreme Military Administrative Court; by the Supreme Council of Judges and Prosecutors for the judges and prosecutors; by the Minister for the judges working at the Ministry of Justice; by the Ministry of National Defence for the military judges and prosecutors; and by the Executive Board of the Union of Turkish Bar Associations for the public notaries. 15

16 the limited coordination between the Academy and courts and prosecutors' offices, which are responsible for the practical internship of candidates; this lack of coordination weakens the effectiveness of this internship period; the lack of permanent trainers and coordinators; the latter, according to the law, can be seconded to the JA for only a year, which can be extended for one more year before it expires. This short period of secondments prevents the Academy from planning medium and long term training activities. The law should ensure the secondment of trainers to the JA for longer periods, possibly four years, at the end of which trainers should return to their practice 45 ; the current lack of detailed lesson plans and frameworks and guidelines for teaching methodologies and instructions for preparation of professional material. Most of the above shortcomings are out of the control of the JA. The number of trainees is decided by the MoJ; the reduction of the training period is decided by HSYK upon proposal by the MoJ; the internship period is regulated by the MoJ and performed by courts; the limited assignment of trainers is established by the law. However, there is room for improvement also for the JA which could: - establish protocols with the Courts and the MoJ aimed at ensuring that the internship is coordinated with the in-service training at the Academy (please see III.4); - develop different curricula for young university graduates and experienced lawyers so that lawyers receive only what is necessary for their new profession 46 ; - develop foreign language courses for trainees. International documents underline that knowledge of foreign languages is an important tool for national judges to keep informed about developments in international and European law 47, and that mastering a foreign language and its legal terminology is important because it is a precondition for effective contacts across Member States, which are in turn the cornerstone for judicial cooperation 48. We RECOMMEND that the Justice Academy establish protocols with the Courts and the Ministry of Justice aimed at ensuring that the internship at courts is coordinated with the in-service training at the Academy; that the Law on Justice Academy is amended to allow coordinators and trainers to be seconded to the Justice Academy for a period of four years. We ENCOURAGE the Justice Academy to continue to develop detailed courses' plans, frameworks and guidelines for teaching methodologies and instructions for preparation of professional material; the Justice Academy to develop different curricula for young university graduates and experienced lawyers so that experienced lawyers receive only what is required for their new profession. 45 Opinion No 4 of CCJE paragraph 21: When judges are in charge of training activities, it is important that these judges preserve contact with court practice. 46 Opinion No 4 of CCJE paragraph 3, paragraphs 25 and Opinion No 9 on The role of national judges in ensuring an effective application of international and European Law, paragraph Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of The Regions: Building Trust In EU-Wide Justice A New Dimension To European Judicial Training, COM (2011) 551 final. 16

17 III.3 DURATION OF IN-SERVICE TRAINING According to the law 49, duration of pre-service training of young candidates (selected from among graduates from University faculties) should be two years. The training shall cover three periods: the preparatory training, the probationary training, and the final training period. Article 10 of Law n 2802 on Judges and prosecutors provides that the pre-service training of candidates who are recruited among lawyers lasts six months and is performed at the Training Centre of the Justice Academy in line with the principles laid down by the JA by-law. According to a Justice Academy by-law, candidate judges and prosecutors in civil and criminal jurisdiction, receive in the Academy preparatory training for three months and final training for four months. The 17 months between the preparatory and final training are spent in internship at courts. Pursuant to the MoJ by-law on Training periods of candidate civil and administrative judges and prosecutors and training courts, this period is divided between: - plenary internship for 3 months 50, and - assignment internship for 14 months 51. As soon as the candidates of civil and criminal jurisdiction complete the first six months of their pre-service training, they are divided into the groups of candidate judges- candidate prosecutors, according to their wishes. If the candidates wishes do not fit with available posts, the assignment to one of the two categories (judges or prosecutors) is done by lot. The above picture about the legal framework on duration of in-service training describes the system as it should be according to the law and the by-laws. In reality though, since 2011 up to 2016, the duration of the initial training has been reduced to only one year instead of two by decision of the High Council for Judges and Prosecutors upon proposal of the Ministry of Justice. As a consequence, all periods described above are reduced proportionally so that candidates spend five months in the Justice Academy and seven at courts. CONSIDERATIONS The justification for the reduction of pre-service training from two years to only one is the same as for the massive recruitment: the need to deal with the huge court s workload. As pointed out above in III.2.2, this justification fails to meet EU standards. The workload should be dealt with appropriate organisational measures 52, including a strategy for the recruitment and management of human resources. This strategy should aim that future judges and prosecutors acquire, trough the initial training, the knowledge and skills necessary for the performance of their tasks; improve their 49 Article 28 of Law No The three-month plenary internship for candidate judges and prosecutors in civil and criminal jurisdiction is composed of one month in a Chief Public Prosecution Office; two months in courts with 10 days each at the serious crimes courts, criminal courts of first instance, criminal and civil courts of peace, civil courts of first instance and enforcement courts. 51 The 14-month assignment internship for judges is composed of 6 months in a civil court of first instance and a civil court of peace; further six months in a serious crimes court, a criminal court of first instance and a criminal court of peace; two months at the Court of Cassation. The assignment internship for prosecutors is composed of 10 months in a Chief Public Prosecution office; two months in one of the serious crimes courts, criminal courts of first instance and criminal courts of peace; and two months at the Court of Cassation. The 17-month internship training for candidates judges in the administrative jurisdiction is composed of six months at the Council of State; four and a half months in an administrative court; four and a half months in a tax court; one month in a regional administrative court; and one month in the Office of a Governor. 52 Please see the report about the effectiveness of Turkish system by the same expert. 17

18 sense of impartiality, professional dignity and understanding of justice; abide by ethical principles; develop the skills of research and analysis; comprehend the fundamental principles of law; have the ability to interpret legal disputes and produce solutions; acquire the capacity to manage case law without unnecessary delay or unnecessary steps 53. The training should equip judges and prosecutors with the abilities necessary not only to give effect to changes in domestic and international legislation and legal principles, but should also promote other complementary skills and knowledge in non-legal matters, giving them a good background understanding of the issues they face. In this regard, it would be important that, beyond the training on substantial law (civil, criminal and commercial law and civil and criminal procedures, human rights), candidates, both young graduate and experienced lawyers, are properly and accurately trained on issues relevant to the role and functions of judges and prosecutors 54 such as: human rights, judicial independence and impartiality, judicial accountability, judicial ethics and conduct, media-bench relations, judgment writing and delivery, the science of fact-finding, judicial reasoning, alternative dispute resolution, case-flow management, time management, judicially exercised discretion and interpretation of law, economic and social impact of judicial decisions, judicial communication and social skills (how to act in court, how to speak to lawyers, witnesses and defendants, non-verbal communication in court, how to write explanatory statements that are informative and acceptable by the public). They should, through practice, learn how to perform their duties. They should be able to perform a complete and logical reasoning of, for example, pretrial detention order or, if prosecutors, acquire the knowledge and experience on how to guide the judicial police during investigation, how to filter evidence gathered by judicial police and order the collection of further evidence when needed, to write indictments. The minimum time for performing the above training is, according to the EU experience 55, two years; however, taking also into account that the current recruitment procedures are not the best suited to recruit skilled and well-prepared candidates, it might be better extended to three years 56. We RECOMMEND that the decision adopted by the High Council of Judges and Prosecutors upon proposal of the Ministry of Justice to reduce the pre-service training of judges and prosecutors to one year for the period is revoked; that duration of pre-service training of judges and prosecutors is extended to at least two or preferably, three years. 53 Brochures, case studies of good and bad practices, standard models for writing judgments together with methodologies, fact sheets and bench books, developed for training purposes could be broadly disseminated among judges. 54 Recommendation Rec(2000)19, adopted by the Committee of Ministers of the Council of Europe on 6 October 2000 on The role of public prosecution in the criminal justice system, emphasizes that Training is both a duty and a right for all public prosecutors, before their appointment (as well as on a permanent basis). States should therefore take effective measures to ensure that public prosecutors have appropriate education and training, both before and after their appointment. In particular, public prosecutors should be made aware of: a. the principles and ethical duties of their office; b. the constitutional and legal protection of suspects, victims and witnesses; c. human rights and freedoms as laid down by the convention for the Protection of Human Rights and Fundamental Freedoms, especially the rights as established by Articles 5 and 6 of this Convention; d. principles and practices of organisation of work, management and human resources in a judicial context; e. mechanisms and materials which contribute to consistency in their activities. Furthermore, states should take effective measures to provide for additional training on specific issues or in specific sectors, in the light of present-day conditions, taking into account in particular the types and the development of criminality, as well as international co-operation on criminal matters. 55 For example, Italy. 56 As it is in France. 18

19 III.4 INITIAL TRAINEESHIP AT COURTS AND PROSECUTION OFFICES. ROLE OF JUDICIAL MENTORS The internship period is not under the domain of the Justice Academy. It is regulated by MoJ. Until their final judicial appointment by the HSYK, candidates are indeed considered civil servants and are formally attached to the MoJ, which provides for their salary. According to Article 5 of the Ministry of Justice by-law on Training periods of candidate civil and administrative judges and prosecutors and training courts, trainees are employed at a court's or a public prosecutor's office under the supervision of a judge or a public prosecutor. Trainees attend hearings, on-site inspections and autopsy sessions. The tasks assigned to trainees include: the preparation of draft summons, writs, arrest warrants and other interlocutory decisions. Trainees have to examine files and documents concerning on-going investigations or trials and have to write their opinions about the procedures. They must prepare draft decisions about investigation and trial files. They carry out research on legislation, supreme courts' jurisprudence and ECtHR decisions. The above draft documents are eventually endorsed by the presiding judge, judge or public prosecutor and kept in the training file. A minimum number of files and draft decisions assigned to the trainees are established by a circular issued by the Ministry after consulting the Academy. CONSIDERATIONS The internship period of candidates is considered by most of the interlocutors met by the expert as the weakest part of pre-service training, due to lack of coordination among the JA and the courts where candidates perform the internship, and because of the absence of guidelines to mentors on how to conduct the internship. Furthermore, the performance of mentors is not supervised regularly by any Authority, and mentors are not encouraged to engage in an effective traineeship because their efforts are not taken into account in their individual professional evaluation. Finally, candidates do not know in advance whether they will work as civil or criminal judges. This prevents them from orienting the internship to their future professional practice. This situation produces inefficiencies and inconsistencies. The expert recommends that, in accordance with the practice of EU countries 57 : - the internship period is regulated by the JA in cooperation with HSYK, which, being the governing body of the Judiciary, can address circulars and directives to courts; - the regulation establishes precise framework and guidelines for courts and mentors; - mentors are trained by the JA for the task (train the trainers); - mentors periodically report to the Academy about the performance of candidates in internship to allow the JA to exercise its supervision and coordination of internship; - the mentors performance is taken into account in the framework of the individual professional evaluation; - candidates are told at least six months in advance of their appointment to judicial posts whether they will work as civil or criminal judges, in order to target their final training to their future tasks. We RECOMMEND the internship period is regulated by the Justice Academy in cooperation with the High Council of Judges and Prosecutors, and with the Court of Cassation and the Council of State; this regulation establishes an appropriate framework and guidelines for courts and mentors; 57 Italy 19

20 mentors are trained by the Justice Academy for the task; mentors periodically report to the Academy about the performance of candidates in internship to allow the JA to exercise its supervision and coordination of internship; the mentors performance is taken into account in the framework of the individual professional evaluation; candidates are told at least six months in advance of their appointment to judicial posts whether they will work as civil or criminal judges. III.5 THE FINAL EXAMINATION. APPOINTMENT AS JUDGES OR PROSECUTORS Following the final period of training at the Academy, the candidates are subject to an end-oftraining examination carried out by the JA. This is conducted by an examining commission composed of five members selected among the trainers by the Academy Board: four are members of the Court of Cassation and the fifth is a rapporteur judge in the Court of Cassation. The candidates must answer four questions for each course followed at the Academy, i.e. 20 questions in total. Most questions relate to problems solving. Candidates who receive at least 70 points in the final examination can be accepted to the profession. The expert was informed that in that last five years only one candidate did not succeed this final examination. Acceptance to the profession -for those who are successful in the final examination- is decided by the HSYK 58 that can refuse to accept candidates to the profession when it is concluded that the behaviour and the attitude of a trainee are incompatible with the judgeship profession 59. According to article 11 of Law 2802, the information regarding the capability, the loyalty to the profession and the moral characteristics of the trainee is derived from the documents prepared and sent to the High Council by the head of the relevant unit in which the trainee served, and from reports of judicial inspectors. As regards the internship at the Court of Cassation or Council of State, final reports are drafted by the chief justice of the relevant chamber and submitted either to the Presidency of the Court of Cassation or the Presidency of the Council of State in order to be sent to the MoJ and to the HSYK. The expert was informed that the HSYK refused the acceptance to the profession in three cases out of 1,500 candidates. The refusal was due to disciplinary reasons. Candidates in the Administrative Jurisdiction and in the Civil and Criminal Jurisdiction who have been accepted to the profession are appointed to their posts by the HSYK upon drawing of lots, irrespective of the grades obtained in the final examination at the JA 60. CONSIDERATIONS In countries that train judges at the start of their professional career, the CCJE considers that the results obtained by candidates at the initial training need to be taken into account in their initial nominations 61. The Justice Academy evaluation should thus reward the merit of candidates and it should be relevant for the appointment to judicial posts. The expert recommends that judicial posts are assigned to candidates according to the ranking list established by the JA examination (the first in the rank chooses among the available posts according to his/her desires, the last is assigned the last available post left by the other candidates on the list) and not by lot. Those posts could be communicated and the examination carried out six months in advance of the candidates appointment as mentioned in the paragraphs above. 58 Article 13 of Law Article 12 of Law Article 13 paragraph 2 of Law Opinion No 4 of CCJE paragraph 3, paragraph