1. The origins
In order to understand the origins of Medel, we need to go back to the historical and political background representing the “prehistory” of the context in which – almost 40 years ago – the visionary project of MEDEL came to life. As one of MEDEL’s founding fathers, Christoph Strecker, wrote[1], Europe inherited from the fall of the authoritarian regimes a justice sysyem that had failed in its duty and had legitimised tyranny instead of protecting fundamental rights and the Rule of law. Following the collapse of these regimes, many magistrates remained in office and, just like their judicial associations, did not want to come to terms with the past. They were rather more interested in their working conditions and in defending their privileges. Only the youngest members of the judiciary felt the need for an open and frank debate on that past as well as on the responsibilities and teachings stemming from its tragedies.
Eventually, that debate started and its first conclusion was that the defence of democracy needs democratic judicial systems. Progressive associations of judges and prosecutors were born, willing to openly declare the need for a new “democratic approach” – starting with the names they chose for themselves: these were Magistratura democratica in Italy (1964), Syndicat and Sindicato in France (1968), Belgium and Portugal; in Spain the judicial and prosecutorial associations Jueces para la Democracia and Union progresista de Fiscales were born; in Germany, progressive magistrates gathered under the civil service trade unions of the same tendency.
These associations established their first contacts around the late 1970s, early 1980s.
«Endowed with ubiquity, with one foot in the local dimension and the other in the universal one» - as the first president of Medel and founder of the Belgian ASM Christian Wettinck wrote[2], Salvatore Senese and Louis Joinet (the founder of the French Syndicat de la magistrature) were the junction for these jurists and judicial associations.
Just like he did for Magistratura democratica, Salvatore Senese greatly affected with its presence the birth and development of this new collective experience that Medel has become.
Salvatore Senese was one of the protagonists of the forerunner event to Medel’s foundation, a seminar on «Judiciary and democracy in Europe»organised in 1983 by the Syndicat de la magistrature and Lille University.
Re-reading that debate and Salvatore Senese’s contributions – published in the volume Être juge demain[3] - today means going back to the still-relevant reflections that contributed to lay the foundations of a new judicial associationism and the building of a new “European magistrate” identity, of whose creation Medel has been a key actor. This identity is that of a judge engaged in the protection of all «the values of the democratic rule of law» as well as of fundamental rights, «in particular the rights of immigrants and the most disadvantaged, in a perspective of social emancipation of the most vulnerable», as the Statute of Medel still states today.
In those reflections, we can find a vision of the justice system as a key actor of the new European democratic challenge born with the institution of national and supranational judicial review systems as a reaction to totalitarian regimes. Combined with the enactment of higher-ranking sources of law, this led to a radical shift of paradigm paving the way to the affirmation of the absolute primacy of fundamental human rights.
Alongside the institutional one, a new idea of democratic judicial legitimacy and independence was put forth, as a value to be fostered and protected not only as a safeguard against external interferences but also as an agent of democratisation of the judiciary. It was intended as a promoter of a judge’s ability to take on their own responsibility towards the different stances emerging across the society, as well as in culture and in lawmaking processes; as a prerequirement for cultural emancipation, capable of enhancing the manifold, complex aspects of “legality”, including those expressing the positions and needs of the most vulnerable, often overlooked by judicial practices[4].
In those considerations, we can find a new idea of judicial independence and status, which – as the president of the Syndicat de la magistrature and co-founder of Medel Simone Gaboriau wrote – becomes crucial as it reveals the state’s understanding of the role and functions of the judiciary in the society as well as that of the justice system in the machinery of state. Those thoughts reveal a democratic understanding of this status, which requires a judiciary free from any influence from the executive power and private interests, reflecting the pluralism of society and enabling citizens to exercise oversight over the functioning of justice[5].
Such reflections still very relevant and bring us back to the present and to the current Italian debate on the reforms, which instead foreshadow a normalised, hierarchical, bureaucratised, intimidated, and standardised judiciary modeled in the image and likeness of its new High Council. The Council envisioned by the proposed reforms is one shaped “by the hand of fate”[6], stripped of the essential prerogatives necessary for performing its role of protecting the independence of the judiciary, and reduced to a mere staff management body. Such High Council is far removed from the institution envisioned by the original intent of the Constitution: this was conceived as a «guarantee of guarantees, – as Pino Borrè wrote – the keystone that makes a democratic judicial system realistic and possible»[7].
In a Europe still characterised by Communities with limited economic competencies and opposing blocs divided by the Berlin Wall, with a view to address the many new democratic challenges of the time, a small group of visionary European judges decided to come together for a common project and contribute to building a Europe that was not only an economic union but one founded on social and legal integration[8].
It was 15 June 1983 when the founding meeting of MEDEL was held in Strasbourg, at the European Parliament building. Magistratura Democratica was represented by Pierluigi Zanchetta, Giovanni Palombarini, and Domenico Gallo[9].
Since then, the paths of MEDEL and Magistratura Democratica have never parted. Magistratura Democratica has always maintained an active presence in MEDEL, represented over the years not only in its bureau by Salvatore Senese, Pierluigi Zanchetta, and Edmondo Bruti Liberati, but also through the presidencies of Juanito Patrone (2001–2003), Vito Monetti (2009–2011), and Gualtiero Michelini (2014–2017).
2. A community of European magistrates; a community of friendship and solidarity
Since the beginning, Medel appeared much more than a simple network connecting different associations: a community of persons was born, united by common values, friendship and solidarity[10]. Today this community gathers 25 judicial and prosecutorial associations from 17 member States of the Council of Europe[11]. In this community, Magistratura democratica has expressed its commitment to a Europe of rights and the rule of law. Through Medel, we became increasingly aware that only acting as European judges we can live up to the difficult challenges that jurisdiction is facing today[12].
Those who lived and are living the experience of Medel can testify how this awareness - of being and needing to be European judges – is widespread today and how strong is the ideal drive that comes from feeling united in the defense of common values threatened by the populist and sovereignist drift, and by a contagious process of democratic erosion that is affecting Europe and the European Union.
Medel has always been a lookout, able to spot in advance in national contexts the early signs of dangerous setbacks. This was the case in Turkey. Through Yarsav's colleagues and its president Murat Arslan, we have experienced an increasingly deep crisis of the Rule of law in that country and the collapse of democracy since the coup attempt in July 2016 and the introduction of the state of emergency. We have witnessed how the guarantees for fundamental rights and freedoms were generally and permanently set aside; we have seen mass arrests of journalists, lawyers, magistrates, professors and civil servants, dismissals and confiscation of personal property. And then, summary trials were held and harsh sentences delivered by a no-longer-independent judicial system, as it was the case of the ten-year sentence - imposed in violation of basic due process guarantees - on Murat Arslan. Murat's case is exemplary of the most traumatic event Medel has experienced and clearly demonstrates how – when there is no longer an independent justice system- investigations and trials can turn into instruments of oppression and persecution.
By being aware of being European judges, Medel contributed to foster and support a resilient, independent judicial system in contexts where, through systemic reforms, internal manipulation of the judiciary and external attacks aimed at delegitimising judges and their decisions, the Rule of law backsliding led to the “seizure” of courts, judicial councils, prosecutor’s offices and constitutional courts by the executive power, while putting enormous pressure on judges, prosecutors and their associations. Holding on to this awareness, and in spite of the abuses an the disciplinary sanctions introduced by the so-called muzzle law, Polish judges continued their “dialogue” with European Courts and constantly reaffirmed the primacy of European law, including through the preliminary reference procedure. The European Courts have thus had the opportunity to restate the non negotiable core of primary European values, among which is the independence of judicial systems, vis-à-vis the claims of old and new “wannabe-autocrats” aspiring to have a free hand and exercise their “proprietary rights” on them.
We owe it to the wide-ranging perspective provided by MEDEL's observatory if today we are fully aware that the takeover of justice systems in Europe is part of a larger project.
Attacking the independence of the judiciary is not only functional to altering the checks-and-balances system and rules of democracy: retrogressive policies on fundamental rights and freedoms are always on the horizon, as are the building of a new order, overcoming the very idea of Europe as a community based on equality, solidarity and human dignity to affirm a project aimed at exclusion in the name of identity and at the dismantling of a supranational jurisdiction system established to protect fundamental human rights.
3. A Europe based on peace, solidarity and the Rule of law
A Europe based on peace, solidarity and the rule of law was the idea to be realised that inspired the visionary project behind Medel. Today it represents the perspective to be rediscovered and defended.
The great democratic challenge has become unprecedentedly dramatic and complex. Since its origins, Medel has understood that European democracy would play its decisive game on the ground of the rights of migrants. Today it is exactly the choices on these rights that put the future of Europe and its democratic identity at stake.
For Medel, today, reflecting on the rule of law is key, especially in the light of the current trend that sees Member States openly and de facto acting against EU Law, its founding values, its protection standards and the paramount importance of human being. Immigration and asylum policies are the ground where this new trend has emerged more clearly in Europe.
And yet it is on the ground of immigration that today we experience annoyance at the role of jurisdiction and its function of guarantee. Only few days ago the Prime Ministry of Hungary stated the need to «rebel» against judicial decisions and «judicial activism», that according to him, hamper new European policies on migrants.
Medel made us fully aware that our common values can be canceled and overturned anytime.
A few days ago, Giovanni Palombarini and others friends addressed generous words to me acknowledging Medel’s efforts and achievements so far.
This is the right time for me to thank them all, but also to remind that – just as in Magistratura democratica’s journey – we all follow in the footsteps of others before us. We know that this path has become increasingly narrow and steep. Not even the far-reaching vision of our founding fathers could have foreseen once again an era so dark for Europe and democracy. But those footsteps remains. They remain to lead us in the right direction. This is the precious legacy that two parallel stories and inextricable collective experiences such as Medel and Magistratura Democratica gave life to. Our task today is – despite everything – to keep going, to keep these experiences alive, renewing- in the difficult and uncertain times we are faring through- the meaning of our shared commitment to democracy, rights, and freedoms.
Rome, 9 November 2024
[1] C. Strecker, MEDEL, yesterday, today and tomorrow, speech held in Rome (Conference Hall, High Council of the Judiciary) on 20 May 2005 for the celebration of Medel’s 20th anniversary.
[2] C. Wettinck, Magistrats Européens pour la Démocratie et les Libertés: dall’idea alla realizzazione, in Questione Giustizia, Franco Angeli, Milan, n. 6/2000, pp. 1143 ff.
[3] Edited by J.-P. Royer, Presses Universitaires de Lille, Lille, 1983.
[4] S. Senese in L’independance est-elle aussi une valeur pour le changement?, in Être juge demain. p. 40 ff.
[5] S. Gaboriau, in Être juge demain, p. 13 ff.
[6] We refer here to the proposed selection of the members of the High Council of the Judiciary by means of a draw.
[7] https://www.questionegiustizia.it/articolo/pesi-e-contrappesi_gli-istituti-di-garanzia_04-10-2016.php
[8] Art. 1 of the Statute of Medel, on the association’s goals, stipulates under no. 1: «The establishment of a debate between magistrates from different countries in order to support and promote European Community integration and the creation of a European political union».
[9] The Statute of the Association was approved in the first general assembly held in Paris on 29 november 1987. The first bureau was also elected in that circumstance. It was composed by Simonis and Wettinck (Belgium); Belloch and Mena (Spain); Froment and Guichard (France); Stavropoulos and Rammos (Greece); Senese and Zanchetta (Italy); Van der Schans and Reiling (The Netherlands); Pinto Dos santos and Torres (Portugal); Stotzel and Strecher (Germany).
[10] As Christian Wettinck wrote in his Magistrats Européens pour la Démocratie et les Libertés: dall’idea alla realizzazione, Medel contributed to the building of a European legal space «not bureaucratic nor police-based: a European judicial space of friendship».
[11] Vito Monetti, in «Une petite chronique et quelques notes de réflexion sur la vie et les activités de Medel, in Syndicat de la magistrature, «Les mauvais jours finiront», La fabrique éditions, 2010, gives an account of the debate that took place within Medel immediately after the fall of the Berlin Wall concerning new associations joining Medel. In Romania, Medel took part in a working group of magistrates that had just created a new judicial association. In Serbia, in 1997, the judicial association JAS was born, hampered by the government that denied freedom of association to magistrates, and when in 2000, a new government took office, the association started operating again and maintaing contacts with Medel, of which today is an active member. In Turkey, Medel supported YARSAV since its foundation in 2008, the country’s first judicial association, which was soon after dissolved. Thanks to YARSAV’s relentless effort, which Medel always supported, this decision was then quashed. In 2003, the Italian judicial association Movimento per la Giustizia joined Medel. In his work Magistrats Européens pour la Démocratie et les Libertés: dall’idea alla realizzazione, Christian Wettinck gives a recount of Medel’s first experiences beyond Europe in Chile, Colombia, Bolivia and Nicaragua.
[12] Medel has been committed to publicising the EU Charter of Fundamental Rights and the first decisions of the Courts implementing its principles since its proclamation. It has actively developed its partnership with the European institutions, which has intensified in recent years with the worsening of critical situations for the rule of law in the EU member states, with declarations and reports on judicial systems. It has promoted the development of principles for a European statute for the independence of the judiciary with documents on judges, prosecutors and councils of justice. Medel also enjoys observer status within the European Union and the Council of Europe and takes part in the activities of Cepej, Ccje and Ccpe.
Speech given at the celebration of the 60th anniversary of Magistratura democratica (Rome, 9-10 November 2024)