10.6092/issn.2531-6133/9561
This article assumes that proper training of magistrates is essential for society to have a democratic, independent judiciary and to provide a fair process, as judges ultimately pronounce on life, freedoms, rights, duties and assets of citizens. From this perspective, the present study aims to identify the pedagogical principles and guidelines to be observed for effective training of magistrates. In order to obtain a satisfactory answer to the presented problem the inductive method was used, concluding that the training of magistrates must be of a practical and multidisciplinary form, aiming at transmitting professional values and techniques that complement the legal formation and must seek the development of capacities and competences capable of providing efficiency and legitimacy in the judicial proceedings. Judicial training, therefore, is paramount in order for magistrates to be able to perform their tasks properly and to understand the human and social realities with which the justice system interacts.
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João Batista Lazzari
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Skills
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João Batista Lazzari
2019/06/20
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For an Effective Training of Magistrates
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 ARTICLES & ESSAYS                                                      https://doi.org/10.6092/issn.2531-6133/9561




                 For an Eﬀective Training of Magistrates

                                           ~
                                         JOAO BATISTA LAZZARI †


TABLE OF CONTENTS: 1. Introduction; 2. The importance of Judicial Training in the
Constitutional Plan of Modern Democracies; 3. Fundamental Principles of Judicial
Training; 4. Pedagogical Guidelines to Inspire Effective Training of Magistrates; 5. Final
Considerations.

ABSTRACT: This article assumes that proper training of magistrates is essential for society
to have a democratic, independent judiciary and to provide a fair process, as judges
ultimately pronounce on life, freedoms, rights, duties and assets of citizens. From this
perspective, the present study aims to identify the pedagogical principles and guidelines
to be observed for effective training of magistrates. In order to obtain a satisfactory
answer to the presented problem the inductive method was used, concluding that the
training of magistrates must be of a practical and multidisciplinary form, aiming at
transmitting professional values and techniques that complement the legal formation and
must seek the development of capacities and competences capable of providing efficiency
and legitimacy in the judicial proceedings. Judicial training, therefore, is paramount in
order for magistrates to be able to perform their tasks properly and to understand the
human and social realities with which the justice system interacts.

KEYWORDS: Magistrates; Formation; Principles; Guidelines; Skills


JEL CODES: A1, K11, Y19




                                     UNIVERSITY OF BOLOGNA LAW REVIEW

                                                  ISSN 2531-6133

                                                  [VOL.4:1 2019]

            This article is released under the terms of Creative Commons Attribution 4.0 International License



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          1. INTRODUCTION

In recent decades there has been an intensiﬁcation in the access to justice in
contemporary democracies unleashing a great challenge to the Judiciary,
namely to provide society with an efficient and fair jurisdictional provision,
with reasonable duration of proceedings.
          In this scenario, it is up to magistrates to decide ultimately on the
lives, freedoms, rights, duties and assets of citizens.                      It is therefore
essential that the domestic legal systems of each country promote the
independence and impartiality of judges so that they can conduct judicial
proceedings in an appropriate manner, while respecting the fundamental
rights and guarantees of the parties.
          As the Italian scholars Guarnieri and Pederzoli rightly point out in
the work “Il Sistema Giudiziario”, in a constitutional state, deﬁned by its
concern to adequately protect the rights of its citizens, the role of the judge
is to resolve disputes, especially between the state and the citizen, and its
independence has guaranteeing impartiality as its main objective.1
          To ensure that the performance of forensic activities occurs with
efficiency, legitimacy, and independence, it is essential that training be
provided for this purpose, which must occur from the investiture of the
position and continue in a gradual and permanent manner throughout the
judicial career.
          Thus, in order to provide training in line with the human and social
realities experienced in democratic and open societies, Judicial Schools
should promote educational programs focused not only on the
†
    Post-Doc in Law and Constitutional Justice by Alma Mater Studiorum - Università di
    Bologna (Italy), Doctor in Public Law from the University of Perugia (Italy), Doctor and
    Master in Legal Science from the University of Vale do Itajaí (Brazil), Federal Judge in
    Florianópolis (Brazil). Scientiﬁc production related to Postdoctoral research in Law and
    Constitutional Justice, focusing on the Judiciary and Judges Training, at Alma Mater
    Studiorum - Università di Bologna (Italy), under the guidance of Professor Dr. Luca
    Mezzetti.
1
    CARLO GUARNIERI & PATRIZIA PEDERZOLI, IL   SISTEMA GIUDIZIARIO: L’ESPANSIONE DEL POTERE
    GIUDIZIARIO NELLE DEMOCRAZIE CONTEMPORANEE [THE JUDICIAL SYSTEM: THE EXPANSION OF THE
    JUDICIARY IN CONTEMPORARY DEMOCRACIES],   129–130 (2017).




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transmission of legal concepts but, above all, on the development of
skills,2 ethics and humanism.
        Based on this perspective, it is fundamental to identify the
pedagogical principles and guidelines to be observed for the effective
training of magistrates (judges)3 , as well as the formative actions that can
be performed by the Judicial Schools. Faced with this reality, the question
is: what are the pedagogical principles and guidelines to be observed in
order to obtain an effective training of magistrates?
        To reach a satisfactory answer to this question, the research was
structured into three topics. The ﬁrst was to demonstrate the importance
of judicial training in the constitutional plan of modern democracies in
view of the fundamental role that judges play.                  The second, aimed at
recognizing the fundamental principles of judicial training with a focus
on those adopted in the Member States of the European Union
(hereinafter E.U.). The third, reserved to identify pedagogical guidelines
that could inspire effective formative actions of magistrates.
        In this way, it has sought to obtain elements that can help Judicial
Schools develop training programs that address the need to provide
efficiency and legitimacy in the jurisdictional practice.
        The investigation, data processing and the elaboration of the report
of this research were carried out based on the inductive method, using the
techniques of the referent, the registration of works and consultations in
the worldwide computer network.
2
  See ENFAM, PEDAGOGICAL GUIDELINES, 10 (2017) (“It’s the ability to act in Expected and
  unexpected situations quickly and efficiently, articulating tacit and scientiﬁc knowledge,
  social and work experiences, behaviors and values, desires and motivations developed
  over the life trajectories in increasingly complex contexts. Competence, therefore, is
  linked to the capacity to solve problems, mobilizing, in an inter- and transdisciplinary
  way, - speciﬁc, complex cognitive and behavioral - knowledge, capacities and skills,
  transferred to new situations, i.e. implies to act mobilizing knowledge and resources.”).
3
  Judicial training is important and necessary for all legal practitioners, so that they can
  acquire the skills necessary for the performance of their duties. In many countries,
  especially members of the E.J.T.N., the term “magistrates” is adopted for judges and
  members of the prosecution service. However, for the purpose of this research, the
  reference to magistrates focuses on the judges.




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        2. THE IMPORTANCE OF JUDICIAL TRAINING IN THE CONSTITUTIONAL PLAN OF
     MODERN DEMOCRACIES

The need for training of magistrates lies in the constitutional framework
of modern democracies in view of the fundamental role that judges play,
namely of resolving conﬂicts and enforcing the law, functions that must be
carried out with complete independence and impartiality in order to ensure
the effectiveness of judicial systems.
        These guarantees are essential for a fair trial and, therefore, for a
balanced protection of rights.
        According to professor Luca Mezzetti the complexity of the
jurisdictional function, means that it requires multiple guarantees,
especially when privileging citizens’ freedoms. This is why constitutional
norms must provide for an organizational system inspired by the
principles of the rule of law, especially the principles of legality,
independence and impartiality of judges.            4


        Moreover, according to professor Boaventura de Sousa Santos, the
courts require more efficiency, more speed, more quality and more social
proximity. These challenges are gigantic for a routinized system in a
bureaucratic and socially distant operation.                 Thus, the judicial system
does not overcome the challenges that the new social context poses if it
does not transform its model of recruitment and training of magistrates.5
        As for the growing importance of judiciary training in Europe, Carlo
Guarnieri argues that it is linked to the need to enrich the professional skills
of the magistrate with new and different contents considered essential for
4
  LUCA MEZZETTI, MANUALE BREVE DIRITTO COSTITUZIONALE [BRIEF CONSTITUTIONAL LAW
  MANUAL] 395 (2017). See ZAGREBLESKY GUSTAVO ZAGREBELSKY, VALERIA MARCENò, FRANCESCO
  PALLANTE, LINEAMENTI DI DIRITTO COSTITUZIONALE [OUTLINES OF CONSTITUTIONAL LAW] 400
  (2014) (according to Zagrebelsky, “the subjection of judges only to the law results in their
  independence”).
5
  BOAVENTURA DE SOUSA SANTOS (COORD), O SISTEMA JUDICIAL E OS DESAFIOS DA
  COMPLEXIDADE SOCIAL: NOVOS CAMINHOS PARA O RECRUTAMENTO E FORMAçãO DE MAGISTRADOS
  [THE JUDICIAL SYSTEM AND THE CHALLENGES OF SOCIAL COMPLEXITY: NEW PATHS FOR THE
  RECRUITMENT AND TRAINING OF MAGISTRATES] 453-454 (2011), http://www.smmp.pt/wp-
  content/relatorio_formacao_16jun_ﬁnal.pdf.




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the proper functioning of the judicial system which faces the challenge of
continuous growth of new cases addressed to it.6
        It should be noted that the United Nations (hereinafter U.N.)
provided for the adoption of the Bangalore Principles of Judicial Conduct,
which is a project of the Judicial Code in global scope, based on other
national, regional and international codes and statutes, among them the
Universal Declaration of Human Rights of U.N..
        This Code recognizes that in addition to the basic knowledge that
every judge needs to acquire early in his career, a judge is committed,
from nomination, to perpetually study and learn and that such training is
indispensable, given the constant changes in law, technology and the
possibility that in many countries a judge will take on new responsibilities
when he takes up the new post. In this context, the Judiciary should play
the leading role, or be responsible for organizing and supervising the
training of judges, so that its members are kept informed of relevant
developments in legislation, including international conventions and
human rights standards.7
        For Luca Mezzetti, the internationalization-universalization of
human rights has matured as a consequence of the evident inability of
nation-states to adequately protect fundamental human rights.                              The
globalization of human rights implies a close synergy between
international law and national laws to protect the same rights and, before
6
  CARLO GUARNIERI ET AL., ANATOMIA DEL POTERE GIUDIZIARIO: NUOVE CONCEZIONI, NUOVE
  SFIDE [ANATOMY OF THE JUDICIARY: NEW CONCEPTS, NEW CHALLENGES] 67 (2016). In the
  same vein is the approach taken by the Superior Council Of The Judiciary of Italy, which
  deﬁnes training as a set of activities designed to ensure that magistrates are given
  the up-to-date knowledge and in-depth scientiﬁc and professional studies necessary
  to perform the judicial functions with the utmost competence and preparation. For
  this reason, the training has always been considered one of the main guarantees
  of autonomy and independence of the judicial function.          See also Magistratura:
  Il Percorso Professionale, CONSIGLIO SUPERIORE DELLA MAGISTRATURA [Judiciary: The
  Professional Path, Superior Council of the Judiciary], https://www.csm.it/web/csm-
  internet/magistratura/ordinaria/percorso-professionale.
7
  See United Nations Office on Drugs and Crime (hereinafter U.N.O.D.C.), COMENTÁRIOS AOS
  PRINCíPIOS DE BANGALORE DE CONDUTA JUDICIAL [Comments on the Bangalore Principles of
  Judicial Conduct. Translation by Marlon da Silva Malha, Ariane Emílio Kloth]. BRASíLIA:
  CONSELHO DA JUSTIçA FEDERAL [BRASìLIA: THE COUNCIL OF FEDERAL JUSTICE], 129-141, N 118
  (May, 2008).




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that, to create prerequisites (peace, well-being, equality, solidarity) that
make the degree of effectiveness acceptable everywhere.              8


        Then, professor Carlos Gómez Ligüerre in drawing up a study
based on the constitutions of several European countries and analyzing
the functioning of their legal systems, concluded that: a) all legal cultures
seem to be aware of the relationship between the preparation of judges
and the correctness of decisions which resolve the conﬂicts that are
presented to them; b) it is wise to allocate resources (and do so efficiently)
to the preparation and training of those who will judge; c) the better the
training and preparation of the magistrates, the greater the quality of
their work.9
        In that sense, the E.U. believes that the training of legal
practitioners, both materially and procedurally, is important for the
development of transnational cooperation. In view of this, the Treaty on
the Functioning of the E.U. establishes officials and servants of justice in
civil and criminal matters as fundamental support for the training of
judges (Article 81, paragraph 2 and subparagraph “h”; Article 82,
paragraph 1and subparagraph “c”).
        It should also be mentioned that training in law is part of the
Charter of Fundamental Rights of the E.U. for initial and continuing
training at the national level, in view of the need for the proper exercise of
judicial or professional functions. In addition, the diversity of courts and
positions held by magistrates has led to the creation of international
study groups with a dual purpose, namely to facilitate judicial cooperation
and to promote more successful measures in the organization of the
judiciary. Among the various initiatives in force, the one that undoubtedly
stands out is the European Commission for the Effectiveness of Justice.10
8
   LUCA MEZZETTI, TEORIA COSTITUZIONALE: PRINCIPI COSTITUZIONALI – GIUSTIZIA
   COSTITUZIONALE – DIRITTI UMANI – TRADIZIONI GIURIDICHE E FONTI DEL DIRITTO
   [CONSTITUTIONAL THEORY ] 372 (2015).
 9
   CARLOS GóMEZ LIGüERRE, JUíZES NA EUROPA: FORMAçãO, SELECçãO, PROMOçãO E AVALIAçãO
   [Judges in Europe: Training, selection, promotion and evaluation], 32 (2014).
10
   Id. at 25.




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In order to facilitate the European training of the national judges of the
Member States, the European Judicial Training Network (hereinafter
E.J.T.N.) was created, representing the interests of more than 120,000
European judges, prosecutors and judicial trainers from all over Europe.
             In its work, E.J.T.N. seeks to identify training needs and develops
training standards and curricula, coordinates exchanges and programs of
judicial training, disseminates specialization in training and knowledge
and promotes cooperation between judicial training institutions in the
E.U..
             This complexity of performance is related to: - the set of rules of
law that countries have to apply; - social relations established that
increasingly require the intervention of justice; - the multiple and often
incompatible rights and expectations which must be recognized and
guaranteed; - the growing public inﬂuence of individuals and social
groups; - the need for social order and security; - the expectations of
non-discrimination and reduction of inequalities - social equity and
redistribution; and - the limits of available resources that may create
tensions and make it more difficult and delicate to ensure, in practice, the
necessary balance.         Ligüere also emphasizes that the specialization of
jurisdictions, proper to contemporary judicial systems, has a reﬂection on
the training and selection of judges.11
             Similarly, the 2010 Magna Carta of European Judges of the Council
of Europe (hereinafter C.C.J.E.) emphasizes that initial and continuing
training is a right and a duty of judges and that training in general is an
important element in safeguarding the independence of judges and the
quality and efficiency of the judicial system. For the Advisory Council, the
magistrates that will integrate the legal systems belonging to the
Common Law or Civil Law must undergo a necessary initial training.
             Following this legislation, for example, the Superior Council of the
Judiciary of Italy, in approving the guidelines related to the training of
magistrates, adopted as presuppositions: (a) that the formative moment,
11
     Id. at 37.


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 as a legitimating basis for the magistrate’s function, is an objective of
 collective, shared and general interest, of paramount importance; (b) for
 each magistrate the formation is one of the conditions for the legitimacy
 of his work and his independence; (c) in conjunction with the system of
 professional assessments, disciplinary procedures and criteria for the
 organization          of   work,      training     helps     to   improve         the    level     of
 professionalism and become an essential objective in consideration of the
 new political-institutional position of the judiciary.
            In addition, in Report No. 4 (2003), the C.C.J.E. presents a series of
 recommendations, among them the need to take into account the
 peculiarities of designation methods for directing and adapting training
 programs in an appropriate way and indication of the need for
 compulsory initial training with programs adapted to the professional
 experience of the selected candidates.12
            Given this context, there is a need to identify who should take the
 responsibility for training of magistrates.
            Following what the Italian Judge Giacomo Oberto argues, the
 independence of the judiciary and freedom of education are the two
 pillars of the training of magistrates. If there is acceptance of these two
 principles, the answer to the question concerning the identiﬁcation of the
 person responsible for training can only be as follows: a body that trains
 judges should not only be independent of other branches of government,
 but also must be equipped with a considerable degree of autonomy in the
 institution responsible for the self-government of the judiciary. But the
 real problem today is not so much the “labeling” of the formal institution
 in question (academy, school, institution, center, etc.)                                  but the
 relationship between this body and the authorities responsible for
 “administering the judicial system.”13
12
     Id. at 35-36.
13
     Giacomo Oberto, La Formazione Professionale dei Magistrati Italiani nell’Ottica della
     Formazione del Giurista Europeo [The Professional Training of Italian Judges in the Perspective
     of the Training of European Jurist], 8 Riv. Dir. Priv., 2003, at 173.




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 As a result of the recognized need for judicial training, it has become
 essential for democratic nations to create Judicial Schools to account for
 this assignment. And, as a rule, the Judicial Schools were structured with
 organizational, didactic, functional and managerial autonomy to carry
 out their functions.14
         Likewise, the E.J.T.N. has been distinguished by the creation of a
 European area of justice and by promoting knowledge of the E.U. legal
 systems, thus increasing the understanding, trust and cooperation
 between judges and members of the prosecution service within the
 Member States of the E.U.. Still, among the results already achieved, it is
 the extension of the scope of actions for training - adding new ﬁelds of
 law, as well as non-legal training.
         In addition, according to professor Boaventura de Sousa Santos,
 “training     should      give     equal     importance        to     technical-juridical
 preparation, to the understanding of social phenomena and renewing of
 the legal culture.”15
         Judicial training faces challenges in the face of a globalized context
 and the growing need for an environment of cooperation and
 international dialogue among magistrates, especially for the application
 of criminal law, the ﬁght against organized crime and corruption
 affecting modern democracies. Thus, the training of magistrates needs to
 add new insights into the social context of law and judicial processes and
 develop skills to interact with the public and the media in order to
 preserve the independence of judges and the quality and efficiency of the
 judicial system.
14
   “La scuola è una struttura didattica autonoma, con personalità giuridica di diritto
   pubblico, piena capacità di diritto privato e autonomia organizzativa, funzionale e
   gestionale, secondo disposizioni del proprio statuto e dei regolamenti interni e nel
   rispetto della legge.” [“The school is an autonomous didactics structure and a legal person
   under the public law, with a full legal capacity under common law and organisational,
   functional and management autonomy, according to its statute and rules of procedures
   and in compliance with the law.”] See GIULIANO SCARSELLI, ORDINAMENTO GIUDIZIARIO E
   FORENSE [JUDICIAL AND FORENSIC SYSTEM], 123 (2013).
15
   SANTOS, supra note 5, at 504.




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           3. FUNDAMENTAL PRINCIPLES OF JUDICIAL TRAINING

 The Brazilian jurist, Miguel Reale works the “principles” category from
 the logical point of view, in the perspective of statements admitted as
 conditions or bases of validity of the other assertions that make up the
 ﬁeld of knowledge, founding truths of a knowledge system.16
           Based on this concept, it is assumed that “principle” is a more
 generalized idea that inspires other ideas in order to deal speciﬁcally with
 each institute. The principle can be considered as the foundation of the
 legal norms of a country or a community of nations, that is, the
 foundation of the phased construction of the legal-positive order.
           In line with this guideline, the U.N. has endorsed the Basic
 Principles formulated for Member States to ensure and promote the
 independence of the judiciary. One of the most important is number one
 (1), which establishes that the independence of the judiciary must be
 guaranteed by the State and incorporated into the Constitution and laws
 of the country and that it is the duty of all governments and other
 institutions to respect and observe the independence of the Judiciary.17
           Another principle of the U.N., which is fundamental to the selection
 and training of magistrates, is number (10), which establishes that persons
 selected for judicial activity should be individuals of integrity and ability
 with appropriate training or legal qualiﬁcations. This stipulates that any
 method of judicial selection shall prevent nominations made for incorrect
 reasons and that in the selection of judges there shall be no discrimination
 against the person on the basis of race, color, sex, religion, political opinion
 or other opinion, national or social origin, possession, birth or status.
           Further, according to the Bangalore Judicial Conduct Principles,
 judgments must be equitable,                fair and public,          conducted by an
 independent and impartial court. From this conception the connection
 between independence and the education of magistrates is clearly seen, as
16
     MIGUEL REALE, LIçõES PRELIMINARES DE DIREITO [Preliminary Law Lessons] 303 (2003).
17
     U.N.O.D.C., supra note 7, at 45.




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 evidenced in Principle no.             6, named “value 6:               competence and
 diligence.”.
         This principle points out that competence in the performance of
 judicial duties requires legal knowledge,                  skill,    thoroughness and
 preparation.       “The professional competence of the judge should be
 evident in the performance of his duties.” Also, the “judge must take
 reasonable measures to maintain and increase his knowledge, skills and
 personal qualities necessary for the proper execution of judicial duties,
 taking advantage, for this purpose,of training and other resources that
 may be available under judicial control for judges.”18
         On October 6th, 2016, the E.J.T.N. held an important assembly
 bringing together the institutions responsible for training judges and
 prosecutors from 28 Member States of the E.U., in which nine
 fundamental principles on judicial training were adopted, which were also
 adopted by the European Network of Councils of Justice, bringing together
 the Superior Councils of the Judiciary of twenty-eight Member States of
 the E.U.. These principles recognize the importance and speciﬁcity of
 training for magistrates, who work in democratic societies and, at the
 same time, serve as a guarantee of competence and professionalism.19
         For the development of this research, the principles of judicial
 training were chosen, as they properly reﬂect the foundations to be
 followed by the magistrates of democratic countries to carry out their
 functions with efficiency and legitimacy.
         The use of these founding elements is also justiﬁed by the fact that
 “the nine principles of judicial training constitute both the common
 ground and the horizon which unites all the judicial schools of the E.U., in
 addition to the diversity of legal systems and training models of
 magistrates in Europe.”20
18
   U.N.O.D.C., supra note 7, at 129-141.
19
   See European Judicial Training Network (E.J.T.N.), Judicial Training Principles, (June 10,
   2016).
20
   Id.




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 On the basis of these considerations, each of the principles considered to
 be fundamental to judicial training is listed, which is intended to guide
 and inspire the training of individual magistrates in the E.U., as well as in
 judicial training institutions outside the E.U. that wish to adopt the
 standards.
           The ﬁrst establishes that judicial training should be a practical and
 multidisciplinary approach which seeks, essentially, to transmit values
 and professional techniques that complement the legal training.
           In a similar way and in line with this principle, the National School
 of Judicial Training of Brazil adopts the principle of interdisciplinarity
 that “requires the trainer to plan and organize pedagogical practices to
 develop the competencies that constitute the objective of training, in
 order to integrate knowledge and diverse knowledge, methods and
 resources that allow greater integration and contextualization of
 knowledge and actions through the protagonism of the training
 subjects.”21
           The second determines that each magistrate must receive initial
 training before or at the time of his appointment, an essential condition
 for the exercise of the position.
           The third provides that all magistrates have the right to receive
 regular training after their appointment and throughout their careers and
 are responsible for carrying out this training and that each Member State
 should put into operation a system to ensure that magistrates exercise
 this right and responsibility.
           The fourth stipulates that the training is part of the normal
 professional life of a magistrate.        Thus, all magistrates must have
 sufficient time to attend training within their normal working hours,
 except in exceptional circumstances when this would undermine the
 proper administration of justice.
           The ﬁfth indicates that in accordance with the principles of judicial
 independence, the design, the content and method of transmission of
21
     ENFAM, supra note 2, at 9.


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 judicial training are determined exclusively by the appropriate national
 institutions.
           The sixth designates that the training should be given, mainly, by
 magistrates with previous training for this purpose, valuing the formation
 of the trainers.
           The seventh prescribes that in training, priority should be given to
 active and modern teaching techniques.                         Observance of active
 methodologies is essential to teaching them how to do.
           The eighth sets out that the Member States must make available to
 the national institutions responsible for judicial training sufficient
 ﬁnancial and other resources to enable them to meet their priorities and
 objectives.
           The new and ﬁnal set of principles calls on the highest judicial
 authorities to support judicial training.
           In line with these principles is the E.J.T.N. Manual, which also
 draws the principles that judicial trainers should observe when they teach
 magistrates, such as:

             a) adults need to know why they should learn something;

             b) adults have to learn using their own experiences;

             c) adults approach learning as a resolution of problems;

             d) adults learn best when they see the immediate value of the

             theme;

             e) education of adults is an active process of reﬂection and

             discussion.22

 Once the fundamental principles of judicial training have been deﬁned, the
 analysis of the pedagogical guidelines that can be considered adequate to
 give effect to the desire for effective training of magistrates is carried out.
22
     E.J.T.N., HANDBOOK ON JUDICIAL TRAINING METHODOLOGY IN EUROPE 32 (2016).




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           4. PEDAGOGICAL GUIDELINES TO INSPIRE EFFECTIVE TRAINING OF MAGISTRATES

 This topic intends to address the pedagogical guidelines that Judicial
 Schools must observe in order to succeed in the difficult task of effectively
 conducting initial and continuing training of magistrates.
           Pedagogical guidelines include guidelines aimed at assisting
 judicial schools in curriculum planning, in the way these institutions
 should work, in the didactics to be used, in the monitoring and evaluation
 of educational actions, as well as in the achievement of training goals of
 magistrates. It involves the training nature, the process of knowledge
 production, the principles and pedagogical processes, skills development
 and evaluation system.
           For the deﬁnition of an effective process of learning, we rely on
 David A. Kolb’s teachings, educational theorist focused on experiential
 learning. For him, “learning is the process by which knowledge is created
 through the transformation of experience” and occurs when a person
 progresses following a cycle of four phases, namely: “(1) to have concrete
 experience followed by (2) observation and reﬂection on this experience,
 which leads to (3) the formation of abstract concepts (analysis) and
 generalizations (conclusions) which are, then, (4) used to test hypotheses
 in future situations, resulting in new experiences.”23
           Yet, according to Kolb, learning is an integrated process, that is to
 say, “each phase mutually supports and feeds the next phase.” He believes
 that it is even possible to enter the cycle in any one of the phases and follow
 it according to the logical sequence. However, the effective learning occurs
 only when a learner is capable of performing the four phases of the model.
 “Therefore, none of the phases of the cycle is effective in itself as a learning
 process.”
           In terms of judicial training, the guidelines contained in Report No.
 4 (2004) of the Consultative Council of European Judges on Judicial
23
     DAVID A. KOLB, EXPERIENTIAL LEARNING: EXPERIENCE   AS THE   SOURCE   OF   LEARNING   AND
     DEVELOPMENT (1984).




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 Schools are paramount. In view of the diversity of the systems applicable
 to the initial training of judges,                     this document sets out key
 recommendations, including the following:

             i. that, prior to their taking office, all candidates selected for

             judicial functions acquire extensive legal knowledge in the ﬁeld

             of material and procedural law, at national and international

             level;

             ii. that more speciﬁc training programs for the exercise of the

             profession of judge should be determined by the training

             center, the trainers and the judges themselves;

             iii. that such theoretical and practical programs should not be

             limited to purely legal techniques, but rather should also

             include ethical training, as well as openness to other areas

             relevant to judicial activities, such as management of issues

             and administration of courts, information technology, foreign

             languages, social sciences and alternative modes of conﬂict

             resolution;

             iv. that training is pluralistic in order to ensure and strengthen

             the open-mindedness of the judge;

             v. that, depending on the existence and duration of a previous

             professional experience, the training has a signiﬁcant duration

             with the purpose of preventing its purely formal character.24

 Regarding continuing education that seeks to meet the need for constant
 updating of magistrates, “should be seen as a right/duty closely linked to
 their ethical attitude, in which an obligation of permanent actualization is
 implicit, determined by an imperative of intellectual honesty.”25
24
     LIGÜERRE, supra note 9, at 42.
25
     Mário Tavares Mendes, A formação inicial e continua de magistrados: uma perspectiva do
     Centro de Estudos Judiciários de Portugal [The initial and continuing training of magistrates:
     a perspective from the Center for Judicial Studies of Portugal], REVISTA DO CENTRO DE
     ESTUDOS JUDICIáRIOS [R. CEJ], Jan.-Mar. 2004, at 23, 23-29.




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 The C.C.J.E. Report provides important recommendations/guidelines to be
 observed by the Judicial Schools regarding continuing education, namely:

             i. that the continuous training should, in principle, be based on

             the judges’ will;

             ii.   that, exceptionally, ongoing training may be imposed in

             certain circumstances, for example (if the judiciary or other

             body responsible has decided) when a judge accepts a new

             position or a job type or different function or private functions

             or on fundamental changes to legislation;

             iii. that training programs are deﬁned by the authority of a

             judicial body, or other responsible for initial and continuing

             training, as well as the trainers and judges;

             iv. that these programs, put into practice by the same body,

             revolve around legal issues and around other questions

             concerning the functions of judges and respond to their needs;

             v.    that the jurisdictions encourage their members to follow

             courses of continuing training;

             vi. that programs are in charge of promoting an environment in

             which members of different sectors and levels of jurisdictions

             can meet and share their experience and materialize common

             ideas;

             vii. that, although training is for the judge a deontological duty,

             Member States should also make available to the judges the

             ﬁnancial resources, time and other resources necessary for

             continuing training.26

 In line with the recommendations outlined by the C.C.J.E., the E.J.T.N.
 Manual on Judicial Training in Europe is based on the assumption that the
 main idea is that adults learn best when they participate fully in training.
 That is, a conception of participatory training means that all people must
 be involved and active.
26
     LIGÜERRE, supra note 9, at 42-43.




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 Based on the discussion above, it can be said that among the guidelines to
 inspire effective training of magistrates is the use of methodologies
 aimed at learning, not only legal and judicial knowledge, but also
 multidisciplinary knowledge, skills and competences that a good judge
 needs to properly perform his tasks and have an understanding of the
 human and social realities with which the justice system interacts.
         For example, the School of National Training and Improvement of
 Magistrates (hereinafter E.N.F.A.M.) has made a political-educational
 option focused on humanism and ethics as an ideal for training Brazilian
 judges, understanding “that the man-judge must be fully developed with
 knowledge that aim at competencies that go beyond technical rationality
 and that lead to the critical and creative awakening of the human being in
 the praxis of work.”     27


         Similarly, professor Livingston Armytage argues that judicial
 education programs should be focused on skills development and should
 be designed to meet the speciﬁc learning characteristics of judges.28
         This understanding is also part of the Councils for the training
 bodies, published by the E.U., in the sense that                        “judicial training
 programs for professionals of justice should focus not only on the
 knowledge about law, but also include the development of competences
 and a wide range of non-legal skills, thus ensuring a greater openness to a
 modern society.”29
         Also, in accordance with these guidelines, the Superior Council of
 the Judiciary of Italy, in drawing the programmatic lines on the training
 and professional updating of magistrates, has chosen the most important
 questions to be explored in training activities, namely: a) the theme of
 ethics and professional ethics; b) ordinary themes and the organization
27
   ENFAM, supra note 2, at 8.
28
   LIVINGSTON ARMYTAGE, EDUCATING JUDGES: TOWARDS A NEW MODEL OF CONTINUING JUDICIAL
   LEARNING (1996). (apud ENFAM, supra note 2, at 9).
29
   European Commission, Directorate-General for Justice and Consumers, Conselhos para os
   Organismos de Formação - Formação Judiciária Europeia, at 5 (2016), available at https://e-
   justice.europa.eu/ﬁleDownload.do?id=fe5753d6-8434-4689-bd06-f6d6a8808dab                  5
   (2016).




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 culture in a theoretical-practical perspective;                    c) the use of new
 technologies on the performance of judicial functions; d) procedural
 issues, not as a place of exasperated technicalities, but as a moment of
 loyal dialectical confrontation between the opposing positions of the
 parties;      e) interdisciplinary themes,           the so-called uniﬁcation of
 knowledge to develop the capacity to reﬂect on yourself and on the main
 challenges; f) immigration, foreign minors and others that derive from
 them or that connect to them (prostitution, slavery, organ trafficking,
 trafficking human beings, small crimes, etc.), and also international
 terrorism.     30


           In short, training in interpersonal skills should occupy a relevant
 place in Judicial Schools programs in all educational initiatives. Based on
 this premise, formative actions should be planned and executed following
 methodologies that provide the development of capacities and skills that
 go beyond the acquisition of new legal knowledge. Therefore, a modern
 judge must be connected with the reality that surrounds him and
 attentive to the innovations coming from a globalized and interconnected
 way and to be able to understand the social phenomena for a correct and
 complete legal evaluation of the concrete case.
           Another fundamental guideline to generate an effective training
 and provide the necessary institutional conﬁdence is the understanding
 and appreciation of the role and competences of the trainer in the use of
 modern methodologies for the development of training actions.
           In view of this, participatory methodologies should be used. The
 main features of these methodologies are that trainee-centered training
 should be based on experience and often open to ﬁt the group’s needs for
 which it was designed.
           E.J.T.N. recognizes that Judicial Training Methods (J.T.M.) represent
 a “thread” with all the actions that are implemented, since its purpose is
30
     See CONSIGLIO SUPERIORE   DELLA   MAGISTRATURA [SUPERIOR COUNCIL     OF   JUDICIARY], LINEE
     PROGRAMMATICHE SULLA FORMAZIONE E L’AGGIORNAMENTO PROFESSIONALE DEI MAGISTRATI PER
     L’ANNO 2018 (JUL. 27, 2017) [Outlines on training and continuing education of judges of
     2018] (It.) [Resolution of 27th July 2017].



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 to propose the most efficient and concrete training methodologies, as well
 as strengthen the spread of best practices, essential requirements for any
 action of judicial training.
        For this, the J.T.Ms. were organized according to three topics and
 three main ﬁelds of action:              assessment/appreciation, ability and
 leadership. They aim to meet the following needs: a) sharing good judicial
 training practices among E.U. judicial practitioners, while deﬁning new
 approaches towards knowledge and training; b) combining judicial
 training with quality of justice.31
        It is up to trainers to identify the needs of training magistrates in
 order to sustainably improve their skills, competences and professional
 knowledge.
        E.J.T.N. Manual states that “instead of confronting, or even
 overloading, merely passive and reactive participants with a substantial
 amount of theoretical content,              the trainer should promote the
 professional development of (future) judges and (future) prosecutors in a
 practical way, demonstrating the importance of the topics addressed.”32
        This guideline adopts the concept of “lifelong learning” by
 requiring judges to constantly question their knowledge, skills and
 professional behavior. This is because we live in a constantly evolving and
 transforming scenario, and the role of the trainers is to make the
 participants see the need to “unlearn and learn” again.
        Further, from E.J.T.N. Manual it is possible to extract a chronology
 guided by the “life cycle of training”, as speciﬁed:
        a) planning of a curriculum based on needs assessment;
        b) modern conception of actions and individual sessions of training;
        c) organizational management of the training action;
31
   See E.J.T.N., EUROPEAN E-JUSTICE, https://e-justice.europa.eu/content_european_train
   ing_networks_and_structures-122 (last visited Feb. 03, 2018).
32
   The evaluation questionnaires and a guide for the evaluation of training to promote the
   exchange of best practices among national training institutions are also highlighted as
   an important tool in the Manual of Methodology for Judicial Training in Europe of the
   E.J.T.N., supra note 22, at 9.




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      d) accurate assessment, which should also give ideas for future
training actions.
      Since the planning process in a modern training institution must
follow three principles:
      1) Any training program must be oriented toward the needs;
      2) Any training program must use a variety of training formats. And,
the approach must be “by measure”, i.e., that the content and method are
chosen according to the group proﬁle of trainees;
      3) Planning must be oriented towards the needs and be integrated
into a general conceptual framework.
      In this sense, it can be said that the modern conception of judicial
training can be carried out through methods involving lectures, group
work, seminars, trial simulations, jurisprudence analysis, interviews,
e-learning, courses, orientation, among others.
      E.J.T.N. Manual highlights: a) the methodology to be applied shall
use appropriate trainers;     b) the methodology must respect and
correspond to the chosen training format (conference, symposium,
seminar, workshop, webinar, etc.); (c) training content should be
practical (issues related to law, ethics, judges and prosecutors in society,
methodological and behavioral skills and competences, etc.), (d) the
expectations and capacities of the target group concerned should be taken
into account.
      It is thus evidenced that the Judicial Schools must invest in the
development of electronic tools with the purpose of expanding the scope
of training opportunities, making the universalization of the courses
offered and the reduction of operational costs possible.
      The extension of distance learning courses is an imposition so that
the Judicial Schools can improve the administrative efficiency of the
management of judicial programs, especially in the continuous training
of magistrates. Distance learning courses format can also be adopted for
the development of learning in mixed mode, that is, part with
face-to-face meetings and part by online platforms.

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 For the improvement and evolution of these new training models with a
 view to an adequate use of potential of the training judges, it becomes
 pertinent that the Judicial Schools observe the recommendations
 contained in the C.C.J.E. Report No. 4 (2004), namely:

             i. that training programs and methods are regularly monitored

             by the bodies responsible for judicial training;

             ii. that the use of the potential of judges in relation to training is

             not, in principle, subject to a qualitative assessment, although it

             may be taken into account in the professional assessment;

             iii. the results of participants in training programs are, however,

             assessed in systems in which the initial training is an integral

             part of the nomination process.33

 In turn, the assessment model should be centered on the participant. The
 Kirkpatrick evaluation model is based on four levels:34 a) reaction; b)
 learning; c) behavior; d) results. From the analysis of each of these four
 levels, one can understand how effective training was, that is, whether
 the objectives and deﬁned goals were achieved and how they could be
 improved in the future.
           It can be said in summary that the evaluation of a training action
 should cover three essential aspects, namely: a) the satisfaction of the
 participants; b) the increase of the capacities and competences of the
 participants; and c) the impact on the participants’ jurisdictional practice.
           Based on the pedagogical guidelines presented in this topic, it is
 believed that the effective implementation of programs aimed at the
 training of magistrates within the scope of the Judicial Schools is fully
 possible and that such educational actions are capable of providing the
 knowledge, skills and competencies that the judges need to fulﬁll the
 tasks assigned to them.
33
     LIGÜERRE, supra note 9, at 43.
34
     The model was ﬁrst published in a series of articles in 1959 in the Journal of American
     Society of Training Directors. In 1994, a full publication of Kirkpatrick’s decades-long
     studies was published for the ﬁrst time under the title Evaluating training programs: see
     DONALD L KIRKPATRICK, EVALUATING TRAINING PROGRAMS: THE FOUR LEVELS (1994).



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         5. FINAL CONSIDERATIONS

This study has identiﬁed that the training of magistrates is characterized
as an indispensable element to ensure the independence and autonomy of
the judicial function and should include, in addition to the legal and
technical preparation, the understanding of social phenomena and the
renewal of the legal culture.
         Based on the deliberations of international bodies, including the
Council of Europe, it was concluded that training should be conceived not
only as a faculty of the magistrate, but as an expression of a deontological
duty to update and grow professionally. Therefore, it is the responsibility
of the Judiciary, through the Judicial Schools, to create the necessary
conditions to guarantee to all the magistrates an adequate and
independent formation.
         Therefore, by identifying the fundamental principles of judicial
training, it was perceived that they should be used as a foundation and
source of inspiration to guide the activities of the Judicial Schools.
         Among the principles enumerated, it is important to point out that
judicial training should be a practical and multidisciplinary training,
which essentially aims to transmit professional values and techniques
that complement legal training.      That is, the training courses should
target a deontologically conscious judge, who identiﬁes himself in his
institutional role and therefore is more independent and impartial.
         Regarding the pedagogical guidelines for effective training of
magistrates, one may conclude that there are several methods, all of
which must prevail for the development of formative actions oriented to
the practice, that is, by the transmission of theoretical knowledge
combined with active methods that allow an understanding of the
material effects of the contents studied, enabling the development of
abilities and skills that a modern judge needs to adequately perform his
tasks.




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 Therefore, as a response to the research problem, which is based on the
 references mentioned in this study, it can be said that effective training of
 magistrates requires the observance of principles and guidelines aimed at
 learning,    not    only     legal   and    judicial   knowledge,          but     also     of
 multidisciplinary knowledge, through the development of professional
 skills and competences as well as values for the performance of the
 activity in a critical perspective of application of law and social
 assessment of concrete cases.
        To undertake a virtuous journey into the contemporary era, in
 order to “understand the updated awareness of the judge’s role”, it will
 be necessary to follow the path of organization and formation, combined
 with the management of processes, in the spirit of speed, but with respect
 to the fundamental rights of peoples, thus improving the judicial system
 without ever colliding with the noble values of democracy.               35


        Finally, in order to stimulate the continuity of new research on this
 subject, we refer to to the Portuguese jurist Boaventura de Sousa Santos,
 who warns:

          [T]he formation must also pay special attention to the future,

          to which it does not reach the courts, to new rights . . . . to

          which in society is not likely to have the legal guarantees that

          the judicial system allows in democratic societies and to new

          dynamics of change in the management and governance of the

          justice system.36




35
   See Mirella Delia, La modernità del giudice e la B.D.D.C.: viaggio virtuoso fra le vie
   dell’organizzazione e della formazione. [The modernity of judges and the Conciliative
   Database: an excursus among organisation and training] 1-2 LA MAGISTRATURA 192, 192-
   202 (2017) (It.), http://www.associazionemagistrati.it/rivista/numeri/nm_5.pdf.
36
   SANTOS, supra note 5, at 505.


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