Preface. Enjoy reading! Pim Albers Strasbourg, 2007

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2 Preface In this book I bundled several articles which I have written for conference-books and international magazines. All of the documents are connected with my current work as a special advisor for the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe. I have been invited by this organisation to assist them with one of the most important activities of the Commission: the evaluation of judicial systems. In addition to this I have been involved in two new activities of the CEPEJ as well, namely the measurement of the quality of courts (and the judiciary) and the length of court proceedings. For both topics I deliver input for two expert groups (GT-QUAL and SATURN). Enjoy reading! Pim Albers Strasbourg,

3 Judicial systems in Europe compared 1 Introduction Judicial systems in Europe are based on different legal traditions. Some of them are described as civil law systems, whilst others as common law systems. There is also variation in litigation culture. This may be reflected by the high number of lawyers, the number of (specialised) courts and the use of alternative dispute resolution. A couple of years ago, legal scientists (see for example Zuckerman ) identified, especially in the civil law area, a crisis in the courts Europe. In many countries there should be a problem in the area of length of proceedings. There was the impression that much civil proceedings exceeded the norms and standards of reasonable time as laid down in article 6 of the European Convention on Human Rights. At the European level this problem was recognised and discussed in various fora. For example at the 23rd Ministerial Conference of Justice Ministers of the Council of Europe (London 2000). What is interesting to notice is that the debates were launched without any detailed figures on the length of proceedings. Only an indication of the magnitude of the problem in judicial systems could be derived from the number of cases received by the European Court of Human Rights in Strasbourg (France). Concrete facts and figures on the length of court proceedings are in most countries hard to find. This, combined with the need to gain more knowledge on the differences and similarities between the judicial systems was one of the reasons to address the European Commission for the Efficiency of Justice (CEPEJ) with the task to examine the results achieved by the different judicial systems in the light of the principles [access to justice and efficient court proceedings, the status and role of legal professionals, administration of justice and management of courts, use of information and communication technologies: comment PA] referred to in the preamble to this resolution by using, amongst other things, common statistical criteria and means of evaluation. This task should be according to the Resolution 2002 (12) accomplished by the identification and development of indicators, collection and analysis of quantitative and qualitative data and the definition of measures and means of evaluation. Where to start and what approach to be followed was one of the difficult task the CEPEJ was facing at the beginning of their terms of office. How the methodology for evaluating judicial systems at a European level was developed will be described in this chapter. The limitations of the methodology will be mentioned too, as well as future developments, including 3

4 the report on European judicial systems as a source of inspiration for other regions in the World to start a similar international justice benchmarking. 2 The early phase: 2003 May 2005 The first meeting of a working group of the CEPEJ (CEPEJ-GT1), composed of 6 experts from France, Portugal, Italy, the Netherlands, Poland, United Kingdom, a scientific expert from the Dutch Scientific Research and Documentation Centre of the Ministry of Justice (WODC) and an observer from the World Bank, took place in June Starting point for discussion was a paper prepared by the author of this chapter titled evaluating judicial systems: a balance between variety and generalization. The subtitle of this paper was chosen, because one of the challenges to be faced by the working group on evaluation was to create an evaluation methodology which reflects the variation and complexity of the judicial systems of the 47 Member States of the Council of Europe at the one hand and at the other hand the need to create a practical and workable instrument to collect relevant quantitative and qualitative information. The CEPEJ (2003)12 article described a list of possible problems to be solved, lessons to be learned from other comparative studies and a concrete proposal for the development of an evaluation scheme. One of the most difficult problems to be solved in the process of developing the evaluation scheme concerns the differences in definitions and the lack of court data in the various member states. The CEPEJ 2003 article (CEPEJ (2003) 12) provide examples of variation in definitions of lawyers, judges, courts and public prosecutors. What is defined in the United Kingdom as a lawyer (including the use of other names such as barristers and solicitors) is totally different, due to another legal status and competences, from lawyers operating in France for example. The same difficulties arise with the definition of a court. What is a court? Is it a building, a panel of judges in a court session or the jurisdiction? Differences in definition have a negative impact on the figures received from countries and the level of comparability. In addition to problems to be solved in the area of legal definitions, there is the issue of lack of data. As already has been discussed in the introduction, not many countries are able to present information on the length of court proceedings or other court performance related information. The development of a comparative evaluation scheme for judicial systems is a unique exercise and can only - for a limited part be based on past experiences derived from other comparative studies (for example conducted or initiated by the European Commission, OECD, the World Bank, universities). An example of a comparative study is the justice sector at a glance exercise of the World Bank (2003). One of the problems with the statistics presented is that it is limited to certain selective areas of the justice sector. It does not include all the items that are necessary to compare one judicial system with another one. A second limitation of the World Bank statistics 4

5 on the justice sector is that information of many European countries is lacking. New and additional information to be collected is necessary. Another example is derived from a research report from the European Research Network on Judicial Systems (IRSIG CNR(2000) Bologna). This research report illustrates what kind of statistical information is available on judicial systems in eight European Countries. As is the case with the World Bank study, the report is limited to only a few numbers of countries. Despite these limitations, both the World Bank study and the IRSIG CNR report were a valuable source of inspiration for the working group of the CEPEJ. In the article evaluating judicial systems (CEPEJ (2003(12)) recommendations are given for the topics to be covered in the evaluation scheme as well as instruments to be used to collect data. The article stated that the evaluation must focus on the following items: the judicial organisation (courts, judges, and court staff), the court performance (incoming cases, length of proceedings and judicial decisions), legal professionals (lawyers, mediators and enforcement agents), the public prosecution and the society (for example with respect to the public trust in the judiciary and the level of satisfaction of the court users). One of the additional possibilities suggested in the CEPEJ 2003 (12) article is the use of an electronic questionnaire. This should have the advantage that the collection and registration of data is relatively easy (compared to traditional ways of registration through the use of written forms). During the first meeting of the expert group on evaluation in June 2003 it was decided that the evaluation scheme should include questions related to: the resources allocated to the judicial system (budget, human and technical resources), the work of this system, provisions ensuring compliance with the principles of the European Convention on Human Rights, arrangements for guaranteeing the quality of judicial work and the resources used to ascertain the perception of the quality by the users of the courts and the general public. Another decision that has been taken was that each member state should nominate a department or a person ( national correspondent ) to be responsible for the content of the data supplied. This person could also facilitate the communication with the experts of the CEPEJ, who are responsible for the drafting of the evaluation report. Already at the end of the first (3 days) meeting the experts finalised a preliminary draft evaluation scheme for judicial systems composed of 110 questions. To test the feasibility of the questionnaire all six experts were invited to collect the information required by the scheme. Using this test round could identify problems in the area of definitions, too complicated formulated questions and a lack of certain types of court performance information at a national level. As a result of the test phase in the second meeting of the expert group (October 2003) the experts spend more time on the redrafting of the scheme (deleting, modifying or inserting questions) and the definition of the terms used (to avoid and reduce interpretation problems). To facilitate the national correspondents it was decided that an explanatory note will be attached to the scheme, to explain the background of the individual ques- 5

6 tions and to present common definitions of all relevant legal terms. After the adoption of the scheme by the members of the CEPEJ at a plenary meeting in December 2003 the questionnaire was disseminated to the national correspondents at the end of February Due to the fact that the preparation time for the questionnaire was relatively short it was not possible to follow the recommendation of the author of the CEPEJ (2003) 12 article to develop an electronic questionnaire. The scheme was a simple paper printed document. The methodology for the collection of data is based on a self-reporting principle, which means in practice that the national correspondents are responsible for the quality of the data delivered. Modifications in the data provided by the experts were only allowed when it was agreed by the correspondents. The deadline for sending the replies to the Secretariat of the CEPEJ was determined at the month May However, due to a lack of experiences with the CEPEJ evaluation scheme, interpretation problems and problems in the process of data collection, this deadline was extended to the end of July. By August 2004, 36 member states had sent their replies to the Secretariat of the CEPEJ. In the period between sending the Scheme to the national correspondents and receiving the replies intensive contact took place with the correspondents (via and telephone). Mainly to verify the data and to solve interpretation problems. The first pilot report on European judicial systems was finalised and adopted by the members of the CEPEJ at a plenary meeting in December At an international conference held in The Hague (May 2005) the report was presented to the public. In an interview with the former president of the CEPEJ the pilot report was described as followed: ( ) this report is a first in Europe. There has never been such an array of data on forty European countries quite simply because for a long time it was considered impossible to collect comparable data when our countries judicial systems are all so different. Judges have the same tasks more or less everywhere, but procedure, judges training and the way they are appointed differ widely from one country to another. By way of example, the role of a British judge is completely different from that of a French judge. With data received from 43 member states out of 46 the pilot exercise was very successful. It showed the importance and interest of the governments of the member states for the need of comparative information on judicial system as a basis for improvement or reform in the area of administration of justice. 3 Content, political impact and lessons learned from the first evaluation round The report European judicial systems: facts and figures 2002 contains a first description at a European level of the composition and functioning of judicial systems in 43 member states of the Council of Europe. An overview 6

7 is given on the public expenditure on courts and legal aid, the composition of courts in terms of numbers of courts, judges and court staff, the court performance, the functioning of public prosecution agencies and (private) legal professionals (lawyers, enforcement agents and mediators). After the publication of the report, especially the parts concerning financing of courts, the number of courts and professional judges received much media attention. The results of the report also stimulated debates in the various countries between the legal professionals and the government on the need to change judicial systems, to improve court performance and quality of services delivered by the courts. In graph 1 the public expenditure on courts and legal aid (data year 2002) as a percentage of the national budget is described. Graph 1 Public expenditure on courts and legal aid as a percentage of the national budget (CEPEJ 2006: p. 22) 3,0% 2,5% 2,0% 1,5% 1,0% 0,5% 0,0% UK-England & Wales Denmark FYROM Ireland Georgia Turkey Azerbaijan Sweden Netherlands Finland Moldova Italy France Estonia Latvia Armenia Bulgaria Czech Republic Hungary Germany Russian Federation Ukraine Austria Switzerland Slovak Republic Portugal Lithuania Andorra Croatia Liechtenstein Romania Slovenia Poland Norway courtbudget aidbudget The graph is an illustration of the variety in financial means that are allocated to the courts, as well as the expenditure on legal aid in the different countries. It is evident that in Norway and in England and Wales a relative high amount is spent on legal aid. The presentation of the graph in the evaluation report 2002 resulted in certain countries in heated debates between the minister of justice, the judiciary and the ministry of finance. The chapter on financing the courts and legal aid showed also the limitations of the pilot evaluation exercise. This is mainly caused by the fact that the budgetary structure of courts (and public prosecution agencies) can differ largely from one country to another. There was at that time no information available on the specific budgetary items that has been included or excluded in the replies of the member states. For example in certain countries the public prosecution is an integral part of the budget of the courts. If countries have included the budget of the public prosecution in the court figures, it is not comparable with countries 7

8 where there is a clear separation between the budget of the courts and the public prosecution. The same example can be given on the figures on legal aid. In some countries it is counted as a part of the court budget, whilst in other countries legal aid is a separate budget item. Taking this into account, the first presentation of the public expenditure is a raw and limited snap-shot of the situation in 2002 and does not reflect the complexity and differences between countries concerning the budgetary structure and processes. Another example of the limited comparability of the figures in the 2002 report without any additional qualitative information concerns the number of first instance courts of general jurisdiction. In Portugal, the information on the number of courts of first instance led to discussions regarding the need of maintaining a high number of small first instance courts and the necessity to integrate small courts into larger courts for efficiency reasons. In graph 2 the number of first instance courts per inhabitants (data year 2002) is presented. Graph 2 Number of first instance courts of general jurisdiction per inhabitants (Source: CEPEJ report 2002: p. 32) Spain Turkey Croatia Switzerland Iceland Portugal Malta Slovenia UK-Scotland Norway Austria France Italy SM-Serbia Bulgaria Lithuania Georgia Ukraine Denmark Moldova Andorra Latvia UK-Northern Ireland Germany Finland Hungary Ireland Sweden Azerbaijan Estonia Slovak Republic Poland Czech Republic Romania Armenia Netherlands This graph shows similar with the graph on the expenditure on courts and legal aid - the limitations of the data collected. The graph for example does not take into account the population density of a country or definition problems with respect to what is meant by a court. In Spain judges in a court session are defined as a court, whilst in other countries the number of courts counted can be a reflection of the number of court buildings i.e. court locations or the number of courts that are formally described in the laws on the organisation of courts (where for example only the main seats of courts are mentioned and not sub-locations of courts). In that respect a more detailed view on courts and court locations in future evaluation studies is necessary. 8

9 Other problems identified in the pilot-exercise, concerned the court performance information. Especially the (lack) of data on the length of court proceedings. Despite the fact that many countries are facing difficulties in reducing the length of proceedings to a reasonable time only a few of them are able to provide information on the number of days spend on cases from filing a case to the final judicial decision. 4 The second evaluation round: After the finalisation of the pilot evaluation report at the end of 2004, an expert group (mainly composed of the same experts as in the previous evaluation, supported by a French scientific expert) was formed to revise the Scheme on the basis of the lessons learned from the previous exercise. As a part of the experience of the pilot evaluation many questions were redrafted. Especially questions regarding the financing of courts (and other justice institutions related to the work of courts), courts and court performance has been modified. On one hand the modifications where necessary to reduce interpretation problems in the new evaluation round and on the other hand to increase the integrity and the reliability of the data received. In addition to the necessity to modify questions the expert group decided to add new questions as well to the Scheme. Especially those who have a high (political) priority, according to the decisions of the Committee of Ministers. Topics of priorities are: the enforcement of judicial decisions, the protection and special arrangement for vulnerable persons or group of persons, duration of court proceedings and lawyers. Next to the introduction of new questions and the redrafting of old ones, the layout of the revised scheme was drastically improved. Several questions were regrouped with the aim to enhance the logical order of the various questions and to facilitate the national correspondent to make it possible to delegate a part of the data collection process to specialised departments, courts and or other justice i.e. judicial organisations. Despite the wish to replace the paper version of the revised scheme to an electronic one, in the second evaluation round a paper version of the questionnaire was still used. Further improvements that have been carried out concerned the Explanatory note of the Scheme. This document was extended with more precise descriptions of the aims and the background of questions. Better definitions of the common used legal terminology in the questionnaire were added to the Note as well. During a period of six months the questionnaire was revised and adopted at a plenary meeting of the CEPEJ (June 2005) and a meeting of the Committee of Ministers (September 2005). The national correspondents were invited to start the process of data collection from September 2005 onwards until mid January The analysis of the replies received and the drafting of the evaluation report started in March until August Not- 9

10 withstanding that the questionnaire was significant improved; there were still interpretation problems and problems in the area of wrongful replies to certain questions. As was the case in the first evaluation an intensive exchange of information between the national correspondents, the scientific expert and the author of this chapter was necessary. In contrast with the pilot evaluation round, a meeting with national correspondents was organised before the finalisation of the report. At this meeting the correspondents had the opportunity to comment the first drafts of the (tables) of the report, to amend (parts) of their replies and to make suggestions for improvement of the report. The drafting of the report was finished in the summer period of 2006, resulting in a publication of the report in the fall of the same year. 5 The 2006 report Compared to the first evaluation report, the second report contained more detailed, richer and reliable data on the various systems in Europe. Compared to the pilot exercise in this report an extensive presentation is given on the public expenditure on courts, public prosecution services and legal aid. In contrast with the first report, separate tables and charts are presented to reflect the variety in budgetary systems. Systems where the budgets of the courts are separated from the public prosecution, systems where the budget of the public prosecution is integrated in the budget of the courts, systems where legal aid is a part of the budget of the courts, etc. As a result of this, a more precise description of the financial situation of courts at a national level can be given as well as a better comparison between the different countries. A second improvement of the 2006 report is the fact that more qualitative information, in terms of descriptions and explanations of the data provided, is placed in the various chapters of the report. For the reader it is better understandable why figures from one country differ from another one and what the specific similarities and differences between the judicial systems are. As a part of the learning process a more reliable picture could be provided on the (number of) courts, the (non-) professional judges and the staff working in the courts. Instead of only looking at courts the report describes the variety in geographical court locations too. As has been said in this chapter, there can be a large difference between the number of courts and geographical court locations. To give an example how the information is presented the following graph (3) on court locations per inhabitants in 2004 is inserted in this paragraph. It is a geographical map where the locations are presented in different shades of grey colour. The darker the colour, the more geographical court locations per inhabitants there are a country. 10

11 Graph 3 The number of geographic court locations per inhabi tants (Source: CEPEJ Report 2006: p. 63) The graph shows that Portugal, Belgium, Ireland, Finland, Greece and the majority of the Balkan Countries have many court locations per inhabitants. For a proper interpretation of the figures, it is still necessary to take the differences of the tasks and competences of the various courts in Europe into account. Especially in the Balkan Countries (but for example in countries with a German-Austrian court model too), courts have, in addition to the adjudication of cases, a major task in the area of land registry, business registers, insolvency registers, etc. What is also interesting in the 2006 evaluation report is the diversity in (gross annual) salaries of judges and prosecutors. Especially countries with low gross annual salaries compared with the average annual income may face the risk of corruption of judges and prosecutors. Another threat for countries with low salaries for judges and prosecutors is the chance that experienced judges or prosecutors will leave the courts (or the public prosecution agencies) for more financial attractive (legal) posts in the market sector. In the long run this can lead to a shortage of experienced judges and prosecutors in courts and public prosecution agencies. On the other extreme there are countries, like the United Kingdom and Ireland where judges are earning a relatively high salary. However these figures cannot be correctly understood, if you do not take the specific situation of the recruitment and nomination of judges in the United Kingdom and probably Ireland too, into account. For instance in the United Kingdom, there are relatively few professional judges and to become a professional judge you need to have extensive working experience as a lawyer or a barrister. 11

12 What is still problematic with the data presented in the 2006 report are the figures on court performance. Data received on the number of incoming civil cases and the length of court proceedings remained difficult to compare. This is mainly caused by the variety in definitions on civil cases used by the various countries. In certain countries administrative law cases are included in the figures, enforcement of judicial decisions, commercial cases, activities concerning land and business registers and even certain categories of criminal cases, whilst in other countries this is not the case. Only for four pre-defined categories of cases (divorce cases, employment dismissal cases, robbery and intentional homicide cases) it was possible to generate limited comparable case and performance information. As was the case with the 2002 report, many countries were not able to provide information on one of the most important performance indicators of courts; the length of proceedings. 6 The media attention of the report and the (political) impact The 2006 report was launched at a press conference in Strasbourg in October It received a widespread coverage in the press, in particular in the French media (Le Monde, Dernières Nouvelles D Alsace, L Express, L Alsace, L Indépendant, Reuters, La Tribune, Capital, etc) and in Italy (Il Sole 24 re, Il Resto Del Carline, La Nazione, Il Giorno, Diritto & Giustizia). The French newspaper Le Monde had several articles published on the report; one with an interview with the chair of the evaluation expert group and a comment of the French minister of Justice. [Some reactions on the content of the 2006 report: It clearly shows the state of poverty of the French judicial system (reaction of the French Trade Union for Judges (l Union Syndicale des Magistrats) in AFP) The former French minister of Justice, Pascal Clément, was skeptical about the outcomes of the report. He found the report: an old photograph relating to things which are not comparable (Pascal Clément in Le Monde 7 October 2006) In the Italian newspapers special attention has been given to one of the largest problems in the Italian courts: the length of proceedings. The year [2004] taken in consideration from the CEPEJ in its document, rendered public on the 5th of October 2006 testifies the inability of Italy of giving a serious answer to a big problem - the slowness of the court proceedings - that represents a serious obstacle to the competitiveness of the Italian system in Europe and offends the fundamental rights of the citizens. (Donatella Stasio in Il Sole 24 Ore 9 October 2006). In other countries attention has been given to the (low) number of judges (Ireland) or the (high) number of lawyers (Spain): 12

13 Ireland has the second-lowest proportion of judges in Europe (Sunday Business Post United Kingdom, 8 October 2006) Spain is the third European country with a high number of lawyers, behind Italy and Germany, according to the Report on the European judicial systems that today the Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe has made public (EFE Spain, 5 October 2006). In the majority of countries the report was well received and accepted as a major and important source of reference., although some government representatives / ministers contested the methodology or the figures, in particular as regards budgetary issues. The report is useful to compare their own system with others, to modify current judicial systems or to start a reform on the administration of justice. At the European Union level, the CEPEJ evaluation report is accepted by the Vice-President of the European Commission, Franco FRATTINI, as the most important source of data in the area of the judiciary and will be used for (evaluation and policy) purposes by the European Commission. 7 From description to a real evaluation One of the biggest limitations of the two CEPEJ reports is the fact that it is not a real evaluation in terms of an assessment against a standard norm or a value or a judgment as to whether something is good or bad in some respects. Both reports give only a description - a photographic snapshot -of the current state of affairs of the various judicial systems, without any value-judgment. The next step towards a real evaluation study needs to be taken. We know now for example in which European countries the level of implementation of information and communication technology is the highest. However, what we do not know is an answer to the question if the use of computer technology in the courts will contribute to the improvement of the court performance. What is also unclear is the relation between the systems characters of judicial systems (for example in terms of financing of court, court organisation, court resources, etc.), the environment of judicial systems (external partners, the society, and the economic situation) and the influence on court performance. Are there better judicial systems in terms of efficiency, effectiveness and quality then others? If yes, what are the main characteristics of these systems? To answer these questions, more additional information on the various systems is necessary. With two evaluation rounds applied it is too early to start with such an analysis of information. What can be done at this moment is to exploit the available data and to start certain in-depth studies. In the 2006 evaluation report much information on judicial systems is presented. On the other side, there is still raw data available for further analysis. What can be done for instance is to generate new ratio s from the current data or to combine the CEPEJ data with other international sources of data (for example from EUROSTAT, OECD, World Bank, United Nations, etc). 13

14 In this paragraph two examples of further exploration of data will be given and suggestions for future analysis will be provided too. The first example is related to the number of geographic court locations. In the first evaluation round (2002) no distinction was made between courts and geographic court locations. In the report 2006 these two items were presented separately. The number of geographical court locations can be an indication for the geographical access to justice. The higher the number of geographical court locations, more (physical) access to justice can be realized because court users need lesser time to reach a court building. Is this actually true or do we need to take into account the size of a country (or the population density) in terms of square kilometres as well? To illustrate the need for additional information about the size of a country in relation to the number of geographical court locations I will present the case of the Netherlands. In the 2002 report as well as in the 2006 report the Netherlands has one of the lowest numbers of courts and court locations. However it is also a small country (in area size) with a high population density (in million inhabitants). When you look at the charts in both reports you might have the impression that the physical access to justice in the Netherlands is low. Graph 4 The number of court locations per 100 km2 in No of court locations per 100 km2 1,20 1,00 0,80 0,60 0,40 0,20 0,00 Croatia Malta Belgium Portugal Italy Germany Slovenia Greece Ireland England & Wales and Luxemburg Hungary Austria Andorra Netherlands Cyprus Albania Bulgaria Bosnia and Herzegovina Azerbaijan Czech Republic Spain No. courts per 100 km2 France Slovakia Georgia Poland Lithuania Finland Latvia Armenia Norway Sweden Estonia Moldova Montenegro Denmark Iceland Russia A totally different conclusion can be reached when the information of the CEPEJ on geographic court locations is combined with information on the surface size of the country. In graph 4 the CEPEJ data is combined with geographical information. What you can see is that the Netherlands, with respect to the number of geographic court locations per 100 km2, is positioned somewhere in the middle. In other words, the physical access to justice (access to court buildings) might be not as low as expected, compared with the data on the number of geographical court locations per inhabitants presented in the 2006 report. The second example concerns the data on the (private) legal professions compared with the number of professional judges and prosecutors. In the most comparisons (as is the case in the two CEPEJ evaluation reports) it is common only to compare one group of legal professionals between countries and then for example to conclude we have too few judges or prosecutors in country X compared to the countries YZ. However, what about the distribution of all legal professionals in countries and the implications 14

15 of an in-equal distribution of legal professions for the workload of courts. One might raise the hypothesis that a high number of lawyers in a country will positively contribute to the number of cases received by the courts. In the next graph I have selected the countries where data was available on the following legal professionals: professional judges, prosecutors, lawyers (excluding legal advisors), enforcement agents and notaries. For each category the average score for the countries concerned was calculated and the relative distribution between the professions was presented in percentages. As you can see, the large majority of the legal professions are lawyers; judges and prosecutors forms only a limited number of the total group of selected legal professionals (graph 5) Graph 5 The legal professions in 2004 compared (based in the data of the CEPEJ 2006 evaluation report). Law yer (ex. Advisor) 60% Enforcement age 6% Prosecutor 13% Judge 15% Notary 6% Ratios Many ratios has been left for future research. One might think of the ratio between professional judges and staff directly assisting a judge. Information on this ratio can give insight in the level of delegation of work between judges and staff and efficiency (if more work is delegated to staff, the costs per case will be reduced. Other interesting examples are the relative distribution of incoming cases between civil law and criminal law, the clearance rates of courts (sum of incoming cases (new cases, re-opened cases and re-activated cases) divided by the sum of outgoing cases (decisions and pending cases)), the average costs per case, etc. Common case categories One part of the problems in the area of quantitative information, concerns the definition of case categories and the length of proceedings. This problem is currently the working field of the recently created Centre/body of the CEPEJ, called SATURN (Study and Analysis of judicial Time Use Research Network). This Centre will work on common case categories and definitions used by the courts to measure the length of proceedings. The outcome of the work of the Centre will be used to improve and to modify future questionnaires on judicial systems in Europe. 15

16 Qualitative information Exploring the quantitative data is one part of the journey towards a real evaluation of judicial systems. The other part is related to the qualitative information. What is lacking in both reports is more detailed insight in the various elements of the legal systems. For instance what are the similarities and differences between the systems concerning legal aid? How is legal aid organised? What criteria are used for granting or refusing legal aid? Etc. More background information is necessary on the use of information and communication technology in the courts, nomination and recruitment policies concerning judges and prosecutors, etc. too. This is one of the reasons that the CEPEJ launched in the beginning of 2007 a call for projects to explore the CEPEJ data. As a result of this call for projects several universities an research institutes in Europe are conducting studies on the following issues: access to justice, the enforcement of judicial decisions, delays and length of proceedings, monitoring and evaluation of courts, the use of information and communication technology, training and education of judges and prosecutors, justice and cultural diversity in Europe, administration and management of courts. The outcome of the studies will contribute to a better understanding of the CEPEJ data. However, due to the limited character of the studies, more future (scientific) research is necessary. The need for a scientific research programme The evaluation of judicial systems in Europe conducted and initiated by the CEPEJ is unique and one of its kind. With a growing attention to the work of the CEPEJ, the need for additional information is also increasing. This justifies even the creation of a scientific research programme at a European level, aiming at a better understanding of how the different legal systems are operating. Another recommendation is the need for an introduction of a research and education department at universities in Europe with the task of promoting research (and education) in the area of efficiency of justice. Returning from the need to draw attention to more scientific research, there are other points left to discuss in this chapter, namely the regular cycle of evaluation of judicial system, the use of an electronic questionnaire and the future prospects of the CEPEJ evaluation method on judicial systems. 8 Evaluation cycle, electronic questionnaire, side effects and future ambition In September 2007 a third evaluation round on judicial systems is launched. At the moment the evaluations are conducted in a two-year cycle. This has the advantage that with the implementation of regular evaluation cycles longitudinal information will be available on the composition and functioning of courts. This information can be used to draft reports on the most important trends in Europe concerning the composition and functioning of legal systems. For example in the area of increase or decrease of budgets for the courts, the number of incoming cases, etc. The drawback of the two-year cycle is however that countries are faced with a high workload to collect the necessary information. 16

17 To make the life of the national correspondents easier an electronic questionnaire is used in the third evaluation round. Correspondents will be able - through a secured website to provide the necessary information via a standard questionnaire, which can be forwarded to other persons or departments as well. For the experts responsible for the analysis and monitoring of the progress of the replies by the countries, the workload will be reduced as well. Experts and the secretariat of the CEPEJ have, via the electronic questionnaire, an instrument which makes it possible to follow the progress of receiving the replies from the individual countries during the phase of data-collection. It improves also the communication process between the national correspondents and the experts in case that there are interpretation problems or mistakes in the replies (all the replies will be validated by the experts and the Secretariat of the CEPEJ. In case of wrong answers, the reply to a certain question will be rejected and the country concerned will be invited to send the correct information to the Secretariat of the CEPEJ). The last advantage of the electronic questionnaire is the fact that data can directly be exported to statistical packages. This will lead to a reduction in the time needed for analysis of the data. What seem to be remaining are the problems of the federal States regarding the data collection (Germany and Switzerland for example). For these States the advantage of an electronic questionnaire is limited, because in the current developed application information at the level of the individual States (Länder or Cantons) still needs to be collected via traditional research methods, namely the use of a paper based version of the questionnaire. This is one of the reasons that the Swiss representative of the CEPEJ has taken the initiative to modify the software application in such a manner, that it will be possible to forward an electronic questionnaire to the Cantons (Switzerland) or the Länder (Germany). The replies of the questionnaire received from the Länder or the Cantons will be aggregated at the national level to information that is requested by the CEPEJ. This has the advantage that the process of data collection at the national level will be simplified and - as a side-effect - the federal States will have at a federal level insight in the differences and similarities of the judicial systems operating in their own countries. In addition to the two-year cycle there is a debate within the CEPEJ for the need of an annual evaluation cycle to collect information on key-items. In practice this will mean that in addition to the long version of the questionnaire, which will be send to the national correspondents on a two years basis, a short questionnaire will be drafted with mainly quantitative questions on the court organisation, court performance, budget and legal professionals. With this approach it will be easy to generate information on trends in Europe. Future ambitions? After four years of experience with the evaluation on judicial systems the CEPEJ has positioned itself as one of the centres of knowledge in this field. This is not only recognized in Europe, but also outside Europe there is interest in the work of the CEPEJ in the area of evaluation. For instance, such an 17

18 interest is already available in the Arab countries. The author has been involved in the preparation of a project for the development of justice benchmark in the Middle East and North Africa countries (MENA countries). As a part of this project, initiated by the American Bar Association and the Arab Council for Judicial and Legal Studies (ACJLS), two expert meetings have been organised with twenty-three (23) high level judicial and legal sector professionals from 11 Arab countries. As a result of these two meetings a benchmark with indicators clustered around four areas has been developed (independence of the judiciary, access to justice and fair process, well managed judicial system and a good use of resources, competent and qualified judicial system). It is foreseen that in the near future a pilot project will be started in two MENA-countries to improve the benchmark methodology and to test its implementation. After this phase, the benchmark will be enrolled throughout the Middle East and Northern African region. Hopefully, if the benchmark will use similar indicators as drafted in the CE- PEJ evaluation scheme, not only comparable data will be available for the European countries but also for the Middle East and North Africa. In the long run the methodology developed by the CEPEJ, might not be limited to these two regions of the World, but will be extended to other regions i.e. continents as well. Similar to the United Nations Surveys on Crime Trends and the Operations of Criminal Justice Systems, this can lead to the development of a global evaluation scheme on judicial systems, which makes it possible to compare judicial systems with a common historical, legal or cultural background with each other. Data derived from such a scheme can be used to improve the knowledge in the area of the composition and functioning of judicial systems and to stimulate reform on judicial systems aiming at improvement of the performance and the quality of services delivered by the courts. References: AFM (6 October 2006), Rapport sur les justices européennes: pauperisation française, selon l USM. Arab Council for Judicial and Legal Studies (June 2007), Justice sector Monitoring Benchmark Initiative Report. CEPEJ (2002), European judicial systems: facts and figures, Strasbourg. CEPEJ (2003) 12: P. Albers, Evaluating judicial systems: a balance between variety and generalization, Strasbourg. CEPEJ 2003(16), Meeting Report working party No. 1 (26-27 June 2003) CEPEJ (2006)1, CEPEJ-GT-EVAL meeting report. CEPEJ (2006), CEPEJ Studies No. 1, European Judicial Systems; edition 2006 (2004 data), Strasbourg. CEPEJ (2006) 6 Rev., Abridged Report 7th Plenary meeting of the CEPEJ, Rome. CEPEJ(2007)1, Terms of reference of the Groupe de pilotage of the SATURN Centre for judicial time management, Strasbourg. EFE (5 October 2006), Espaňa es el tercer país europeo con más abogados, ségun informe. Le Monde (7 October 2006), Efficacité de la justice: M. Clément critique les experts européens Resolution 2002(12) Establishing the European Commission for the Efficiency of Justice (CEPEJ). Sole 24 Ore (9 October 2006), L Italia resta maglia nera nella classifica europea sui tempi dei processi civili. Sunday Business Post (8 October 2006), Ireland has the second-lowest proportion of jud- 18

19 ges in Europe. Zuckerman A. (Ed.) (1999), Civil Justice in Crisis. Comparative Perspectives of Civil Procedure, Oxford. 19

20 Improvements of judicial systems: European experiences 1 Introduction A proper functioning of courts may have a positive influence on the economic development of societies. Companies or enterprises are best served when courts are fast, fair and affordable. However, courts exist not only for the sake of the interest of companies, but are in general important for bringing justice to citizens in accordance with the principle of the rule of law. I will not bother the reader to much with the difficulties concerning defining the concept of rule of law, because there are many different definitions used. But to stress the fact that every developed society should respect the principle of the rule of law. As a part of this principle there must be an independent judiciary and an impartial system of courts. Rule of law implies also a degree of separation of powers between the executive, legislative and the judicial branches and a right to a fair trial. At a European level this is laid down in article 6 of the European Convention on Human Rights. The article states that: ( ) everyone is entitled to a fair and public hearing within reasonable time by an independent and impartial tribunal established by law ( ). It is one of the guiding principles for the work of the Council of Europe in the area of the judiciary. Before I go into detail in the activities that are carried out by the Council of Europe in supporting countries to promote efficiency of justice and improvement of quality, it is necessary to make the reader aware of a recently launched global initiative in stimulating courts to improve themselves and to modernise: the framework for Court Excellence. In 2007 a consortium for Court Excellence has been created, at the initiative of the Subordinate Courts of Singapore. Partners in this Consortium are: the US National Centre for State Courts, the US Federal Judicial Centre, the Singapore Subordinate Courts and the Inter-Australasian Institute of Justice. The Consortium is assisted by the special advisor of the CEPEJ and experts from the legal vice presidency of the World Bank. The main aim of the work of the Consortium for Court Excellence is to stimulate courts around the world to improve the quality in the courts and to make a journey towards court excellence. The general idea of the framework of court excellence is based on standard quality models, such as the Malcolm Baldridge Quality Award, the European Foundation on Quality Management, the Singapore Quality Awards and Quality systems that have already been developed in certain countries (for example the RechtspraaQ system in the Netherlands and the Quality system model of the Rovaniemi courts in Finland). During the course of 2007 the Framework for court excellence will be adopted, including a self assessment tool for the courts. Both the Framework and the tool can be used to identify points of improvements. 20

21 2 The European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe The Council of Europe is one of the oldest intergovernmental organisations in the world (it was founded in 1949). The main aim of this organisation is to protect and to promote human rights, rule of law and pluralist democracy in 47 European Member States. For promoting the rule of law the Council uses two mechanisms: (1) intergovernmental activities and (2) (legal) co-operation. The intergovernmental activities are primary based on the drafting of conventions (binding agreements between the Council of Europe and the ratifying member states) and recommendations (non-binding legal instruments for example on the independence of judges and prosecutors, the enforcement of legal decision and the use of mediation). Legal co-operation programmes are developed to help beneficiary countries with institutional, legislative and administrative reforms. Mostly experts of the Council of Europe and staff members work together with governmental authorities to prepare and to introduce new legislation (or the modify current ones) as well as to create an operational framework, which can be used to implement legislative (or organisational) reforms. Examples of cooperation activities are: the training of members of Schools for Magistrates, the organisation of workshops and seminars on specific topics (councils for the judiciary, judicial ethics, court statistics, etc.), etc. The European Commission for the Efficiency of Justice (CEPEJ) is one of the intergovernmental activities of the Council of Europe. The creation of the Commission was the outcome of the 23rd Ministerial Conference of Justice Ministers in London Main topics of this conference were the problems in the area of length of (civil) court proceedings in Europe and improvements that could be made in the organization of the functioning of the judiciary. The central aim and tasks of the CEPEJ are described in Resolution 2002(12). The CEPEJ is established to improve the efficiency and functioning of the justice systems of member states with a view to ensure that everyone within there jurisdiction can enforce their legal rights effectively. It examines the results achieved by the different judicial systems in the light of the principles (access to justice, efficient court proceedings, status and role of legal professionals, administration of justice and management of courts, the use of information and communication technology) laid down in the Statute of the CEPEJ by using common statistical criteria and means of evaluation. Other tasks of the CEPEJ are: to identify concrete ways to improve the measuring and functioning of judicial systems, assistance to member states and at the request of relevant steering committees of the Council of Europe the drafting of new legal instruments (for example Recommendations) or the modification of existing ones. In this article I will primary focus on two task of the CEPEJ: (1) the evaluation of judicial systems and (2) the improvement of the measurement and functioning of the systems. The evaluation of judicial systems are explained by showing the results of the work of expert groups in the field of evaluation and the second task will be illustrated with examples of reports that have been drafted on the topic of reducing delays in court proceedings. At the 21

22 end of the article I will also describe more recent work or other activities initiated by the CEPEJ. One of them is the creation of a working group in the field of quality. 3 Evaluation of judicial systems: past and present One of the first tasks the CEPEJ carried out at the starting date of this Commission in January 2002 was also the most complicated one: the development of a methodology to evaluate in a comparative manner the composition and functioning of the judicial systems in Europe. It was a small expert group composed of six experts from the representative countries of the CEPEJ and an additional scientific expert which made a start with this exercise. Based on a discussion and expert paper which I have drafted on the experiences and lessons to be learned regarding international evaluation studies on judicial systems, this group had worked on the development of a pilot questionnaire (or in CEPEJ -terminology a pilot scheme ) on judicial systems. One of the problems to overcome was the difficulties in legal terminology. Basic concepts like courts, lawyers, judges and cases can have a different interpretation in the various countries. The use of uniform definitions should be an essential requirement for drafting a scheme, which is understandable for the 47 member states of the Council of Europe. Another problem that the experts of the working group had to solve was the lack of data. Despite the fact that at a European level and also from the viewpoint of the users of the courts there is a need for quantitative data on court performance (especially on the length of proceedings) it was expected that many countries would not be able to provide the experts the required data. The last problem is related to the limitation of the questionnaire to the two official languages of the Council of Europe: the English and French language. The pilot questionnaire could only be drafted in both official languages. Countries (and governmental agencies responsible for answering (part of the) questions) which do not understand both of the two languages, had to translate the questionnaire themselves to their own national language and were responsible to send the completed questionnaire back to the secretariat of the CEPEJ in English or French. Of course, for certain countries like Germany or the Russian Federation this could lead to interpretation problems regarding the questions to be posed in the questionnaire and their corresponding answers. Notwithstanding the future problems the experts (and the countries) were expecting, they were able to draft in a period of six months a pilot questionnaire. This (paper) questionnaire was composed of 123 questions, necessary to generate an overview of the composition and functioning of the individual countries. The items of the questionnaire included the following topics: General country information Access to justice and to all courts Functioning of courts and efficiency of justice Use of information technology in the court 22

23 Fair trial Judges Public prosecutors Lawyers Enforcement agents and execution of court decisions To facilitate the process of data collection the experts decided that each country must nominate a national correspondent. This official mostly a representative of a ministry of justice should be responsible for the co-ordination of the data-collection process in his or her own country. He or she is also the main contact person for the experts of the evaluation working group. Another decision that has been made during the process of preparation of the questionnaire was to test the scheme in the group of 6 experts to assess which questions should be modified and which questions should be removed, due to the fact that even within the small group of experts it was not possible to provide a proper answer. After the test round and the nomination of national correspondents the questionnaire was disseminated to these correspondents by the end of February The first (pilot) report on European judicial systems was finalized and officially adopted by the members of the CEPEJ at a plenary meeting and at the highest decision making body in the Council of Europe the Committee of Ministers at the end of 2004, respectively the beginning of the year At the occasion of an international event (an international conference on judicial systems in The Hague) the report was widely presented to the public in May Government officials, scientists, politicians and the media were very enthusiastic about the content of the report. Most of them expressed the opinion that the experts of the CEPEJ had produced a unique document, because it was for the first time that on such a wide scale an overview was given on the composition and functioning of judicial systems, based on empirical data collected by the member states. Data that could be used by the countries to compare each other and if necessary - to start reforms in the system of administration of justice. Most attention at the content of the report was given on topics that were related to the financing of courts, the salaries of judges and prosecutors and the number of courts. As a part of the evaluation exercise comparative data was collected on the budget that was spend at a national level on the courts and the (gross annual) salaries that are paid to judges and prosecutors starting and ending at their career. In certain countries it lead to heated debates between the minister of justice and the union of judges regarding the need to increase the budget of the courts or to discussions on the need to reduce the number of court locations. Content and limitations of the first evaluation report In addition to the topics mentioned, the report European judicial systems: facts and figures 2002 contained a qualitative and quantitative description of the state of affairs on: legal aid, the number of judges and court staff, the court performance of the courts in Europe, the functioning of public prosecution agencies and (private) legal professionals (lawyers, enforcement agents and mediators). 23

24 The first report on judicial systems has one limitation, namely the fact that a majority of the countries were not able (in 2002) to provide information on one of the most important aspects to assess the performance of courts; the duration of court proceedings. Only a few number of countries could present information on the length of proceedings in (litigious) divorce cases, employment dismissal cases and two types of criminal cases (intentional homicide and robbery). Preparation of the second evaluation round Immediately after the publication of the pilot report the experts of the evaluation working group started with the preparation of the next evaluation round. The first task of the working group was to revise the questionnaire based on the lessons learned from the first evaluation round. Many questions with interpretation problems were revised, some of them even removed from the scheme and new questions were introduced. Most of the new questions added to the questionnaire were derived from topics suggested by the Committee of Ministers or stemming from wishes of member states to include certain new issues at the scheme. Examples are: the enforcement of judicial decisions, the arrangement and procedures for the protection of vulnerable persons, lawyers and the notary. Another attempt to improve the questionnaire was related to case-information and the performance of courts. The experts have tried to insert clearer definitions on cases and to improve the design of the questions concerning court performance. In addition to this, especially to reduce interpretation problems, the explanatory text of the questionnaire was revised by introducing more complete explanations of the background of certain questions or by adding detailed descriptions of common legal terminology. The national correspondents were invited to start with the second round of data collection in September The whole process from data collection until the drafting and publication of the second report on European judicial systems lasted approximated one year. In October 2006 a new report, based on the figures of the year 2004, was published. Compared with the first evaluation report, the second one contained more detailed and richer information. Especially, better information could be given on the financing of courts, public prosecution agencies and legal aid. With respect to the courts a more complete picture could be presented of the variety of judicial and extra-judicial tasks of courts. In certain European countries business registers, land registers and insolvency registers do not form a part of the competencies of the courts, whilst in other countries it is included in the organizational chart of the courts. Of course this may influence the workload significantly. A similar example can be given regarding the number of courts. In the first report no differentiation was made between courts of first instance and geographical court locations. This resulted for certain countries in the presentation of non-representative figures, due to the manner of defining courts. For example in some countries courts are seen as the administrative entities or jurisdictions described in the law, whilst in other countries judges or a panel of judges is defined as a court. By introducing the concept of geographical court locations a more precise 24

25 picture could be presented on the issue of geographical access to justice in terms of number of court buildings. In figure 1 a geographical map is presented with the number of court locations per inhabitants in Europe. The darker the colour grey, the more court locations can be found in the given countries. When you take a closer look at the map, you can see that especially in a certain number of Balkan countries, Portugal, Belgium, Greece, Ireland and Finland there exist a relatively high number of court locations. This may be partly caused by the fact that these courts have extra-judicial tasks in the field of land and business registers. As has been said before, the report was launched at a press conference in Strasbourg in October Many articles were presented in newspapers describing the main important headlines of the report. Especially in France much attention was given to the work of the CEPEJ. Most of the media reviewed the report positively. This was also the case with respect to the majority of policy makers and legal professionals. However, some politicians i.e. ministers of justice were sceptical about the outcome of the report and indicated that the results described were outdated and concluded that the comparison was based on things that are not comparable at all. Figure 1 The Number of geographic court locations per inhabi tants (Source: CEPEJ report 2006: 63) 25

26 4 Limitations of the CEPEJ methodology and suggestions for improvement Despite the fact that the CEPEJ reports gives a unique overview of the current state of affairs on judicial systems in Europe it has also many limitations. The first one is that the report is not a real evaluation, but only a photographic snapshot of the functioning and composition of judicial systems in the Member States of the Council of Europe. For future work it is necessary to conduct additional studies in this field. A second limitation is related to the main orientation of the study: the supply side of the judicial systems i.e. the courts, judges, prosecutors and (private) legal professionals. In the report factual data is presented on for example the number of courts, professional judges, the budget of courts and prosecution agencies, the court performance, etc. What is missing however is the perceived level of satisfaction with respect to the services delivered by the courts, legal professionals and other legal institutions. Efficiency of justice is restricted to the manner how judicial institutions are organized and functioning. Information about satisfaction on efficiency of justice is lacking. This in contrast with for example the Governance Matters reports of the World bank were information on the perceived rule of law is presented, based on perception surveys of the users of the system. The third limitation is connected with the quality of data. The quantitative and qualitative information is received from only one source per country: the national correspondent. He or she is responsible for the whole process of data collection in his or her own country. Depending on the level of informatization of court statistics and justice indicators and the quality control of the data used, the quality of the data received from the different countries may vary. Some countries can have a high level of quality control, whilst in other countries the quality of data is below the average. The last limitation of the CEPEJ methodology that I will mention concerns the use of paper-based questionnaires. It can be time consuming for national correspondents to fill in the paper-based questionnaire. Especially when parts of the questionnaire need to be forwarded to different justice institutions, departments within the ministry of justice or even to different geographical regions (as is the case for the German Federation and Switzerland). To solve the limitations described, several improvements have been currently implemented. First of all, in the beginning of 2007 a call for research projects has been launched to explore the CEPEJ data further and to identify possibilities for evaluation. As a result of this call several universities and research institutes in Europe have worked on study projects on the following topics: access to justice, the enforcement of judicial decisions, delays and length of proceedings, monitoring and evaluation of courts, the use of information and communication technology, training and education of judges and prosecutors, justice and cultural diversity in Europe, administration and management of courts. At the end of 2007 many reports with additional information on the judicial systems will be available. A second suggestion for improving the quality of data is proposed by one of the member states of the CEPEJ: the evaluation of the quality of the CE- PEJ data by peer member states. It is proposed that, on a voluntary basis, 26

27 during the next evaluation round, a small group of countries will be evaluated by a team of experts from other countries. The main aim of the evaluation should be the observation of the national statistical justice systems, which could lead to the improvement of the consistency and quality of the data. At the moment this proposal is discussed with representatives of the CEPEJ. Another suggestion is related to the paper-based questionnaire. During the third evaluation round, scheduled for the fall of 2007 and the winter 2008, a web-based internet questionnaire will be used. As a result of this national correspondents will be able to fill in the required data by using the Internet. Parts of the questionnaire can be forwarded to different justice institutions as well. Even for the federal countries the workload in the area of the data collection process will be reduced, as a result of the possibility to send questionnaire to regions and to aggregate the data at the national level (when the information is received from the individual regions). Next to these improvements, further modifications have been realized in the questionnaire and the explanatory note, to reduce interpretation problems and to increase the uniformity of the data to be received. 5 Reducing delays and the management of judicial time Another important task of the CEPEJ lies in the area of reducing delays and the management of judicial time in courts. In 2003 a working group on delays invited experts to draft a report on indicators that can be used to determine reasonable length of proceedings and on factors which may influence the length positively or negatively. The researchers Langbroek and Fabri (2003) described on the basis of research from Mahoney (1988) and Steelman (2000) the following list of factors which may have a positive effect on the length of court proceedings: judicial commitment, leadership and adequate accountability mechanisms (for example a court president which promotes strongly activities that are oriented at reducing length of proceedings); involvement of the different actors in the system (a successful reduction of the length of proceedings is related to the involvement of other actors: such as the court staff and the lawyers); court supervision of case progress (it is important that the progress of cases are systematically supervised by the court); definition of goals and standards (the definition of goals and standards are also important to identify best practices and to compare the performances of the courts with each other); monitoring of cases by an information system (this should include the progress of cases, the inactivity of cases, the workload of the courts, etc); a case management approach (A case management system approach is, according to the researchers, the active management by the court of the case progress from filing to disposition); a policy against unjustifiable continuances, like a firm trial date and a backup judge system for trials; an individual assignment system; education and training (Mahoney 1988, Steelman 2000). 27

28 The list of factors, combined with the recommendation of the researchers to stimulate future research on the features of court proceedings, the management of courts and the governance setting of courts (for example the integration of courts or the creation of specialized courts), was used by the CEPEJ to create in 2004 a Framework programme on the optimum and foreseeable timeframes. The Framework document starts with the notion that all the court cases must be processed in optimum and foreseeable timeframes. It is the responsibility of national jurisdictions to take adequate measures to reduce the length of proceedings. The reader of the Framework is made aware of the fact that excessive length of proceedings may lead to corruption in the judiciary. A lack of financial resources is not always a proper argument for delays. Sometimes changes in the internal work processes of the courts are sufficient to reduce the length of proceedings drastically, without the need to spend much additional financial resources for the realization of this improvement. The framework programme is developed for guiding countries in drafting measures for reducing court delays. However, when it comes to these measures three principles needs to be taken into account: Each Member State must find a balance between the resources which can be allocated to justice and the good management of these resources, and the objectives set for to justice. There should be efficient measuring and analysis tools for measuring timeframes available and these tools should be defined by the stakeholders through consensus. A careful balance should be struck between procedural safeguards, which necessarily entail the existence of lengths that cannot be reduced, and a concern for prompt justice. Bearing in mind these three principles 18 lines of action were formulated, which may be helpful for countries in the fight against delays. Certain actions requires more financial resources and an improvement of the quality of legislation, whilst others are aiming at improvements of legal proceedings and the introduction of specific measures to change the internal organization of courts. The 18 principles listed in the framework programme are: 1. acting on resources; 2. acting on the quality of legislation; 3. improving the foreseeability of the timeframes; 4. defining and monitoring standards for an optimum timeframe for each type of case; 5. improving statistical tools and developing information and communication strategies; 6. identifying pilot-courts concerning the reduction of length of proceedings; 7. allowing adjustment of timeframes; 8. acting on the number of cases dealt with by the court by ensuring an appro Priate use of appeals and other applications; 9. acting on quality of proceedings; 10. defining priorities in case management; 11. better organizing trials to reduce waiting time, while paying special attention to victims and witnesses; 12. setting up a procedure to revive a pending case; 28

29 13. making more flexible the rules on territorial jurisdiction of first instance courts; 14. involving the relevant categories in the administration of the courts; 15. developing the training of judges and prosecutors and, more generally, all the professions concerned; 16. organizing the relationships with lawyers; 17. improving the monitoring of compliance with the time-limits by judicial experts; 18. defining the modalities for having bailiffs, clerks/rechtspfleger, notaries and all other professions involved in justice. 6 The network of pilot courts One of the first outcomes of the implementation of the Framework programme was the introduction of a network of pilot courts in April 2006 (the first meeting of this network was held in Bucharest). The principle of this network is based on the assumption that each country nominates a court, which can be seen as a good example (best practice) of a court where measures towards reducing length of proceedings has been successfully implemented. Representatives of this network (mostly judges or court staff) can exchange information with each other during the annual meetings. Another possibility is to discuss certain issues at an electronic discussion board placed on the website of the CEPEJ. Members of the network can post their questions on this board and receive comments or reactions from other members. The network is not only the central forum for exchanging best practices, but also a sound board for draft proposals that have been created by working groups of the CEPEJ. For example the members of the network have given their opinion on studies on ADR and documents concerning quality of courts and judges. On the last two issues I will report at the end of this article. 7 The taskforce on Delays (TF-DEL) In a two-year period ( ) a special taskforce on Delays (composed of six expert members of the CEPEJ) has worked on the issue causes for delays and solutions to reduce the length of court proceedings. As a part of the mandate of the taskforce (TF-DEL) a Time Management checklist was delivered in This is a practical guide that individual courts can use to check if in their own organization improvements can be made on the timeliness of proceedings. It is based on assessing courts on the following five indicators: The ability of a court to assess the overall length of proceedings. The idea is that proper time management does not only require the ability to assess the duration of the individual stages of proceedings, but also the total duration of proceedings counting from the start to the final determination (if applicable to the enforcement of the judicial decision); For the purpose of assessment, planning and transparency of the 29

30 length of proceedings, standards and targets for optimum duration of proceedings should be determined and made available to the users of the system. A realistic and appropriate planning of standards and a total duration of proceedings requires a sufficiently elaborated clustering of case categories with respect to their complexity and average length. At least the timing of the most important and typical stages in the proceedings should be recorded, monitored and analyzed. The courts (or the judicial system as a whole) needs to have established a mechanism for a prompt identification of cases with an excessive duration and there should be a system where persons instantly are alarmed with a view to remedy the situation and to prevent further dysfunctions of the courts. After the publication of the time management checklist TF-DEL has worked on three studies on the delays of judicial proceedings: (1) a compendium of best practices on time management of judicial proceedings, (2) a report on the length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Rights and (3) a report on time management of justice systems in Northern Europe. The Compendium of best practices gives an overview of solutions that countries and courts can use to reduce delays and shorten judicial proceedings. Some of them are looking at the setting of realistic and measurable timeframes. For example the Finish court of the city of Rovaniemi has agreed that all the cases should be solved within one year. Another example that the authors of the report give is the introduction of small claims, fast track and multi-track procedures in the courts. An additional recommendation that can be found in the compendium is the fact that when timeframes are set (as a target) they need to be enforced too. For example in certain courts the chief judges or a court of appeal intervenes when certain timeframes concerning the duration of the court proceeding are not met. It is clear that, in line with the suggestions made in the checklist for time management, courts should monitor and disseminate data on timeframes and length of proceedings. Examples of procedural case management policies are included in the compendium as well. Illustrations that are mentioned: the introduction of case processing rules, the limitation of the number of hearings, a policy for reducing adjournments, the use of standard templates for bulk cases and video and audio conferencing techniques. The last issue that is discussed in the compendium concerns the caseload and workload policies. This may vary from the monitoring of the workload of courts, the stimulation of ADR (outside the courts), the filtering of cases to the limitation of extra-judicial activities of the judge and the increased use of a one-sitting judge in court sessions instead of a panel of judges. The second report of TF-DEL, written by a French judge, is a more analytical one. It describes the main causes for delays when the decisions of the European Court of Human Rights are studied on the topic of reasonable time and violations of article 6 of the European Convention on Human Rights. 30

31 On the basis of this analysis general norms and standards can be derived concerning acceptable durations of judicial proceedings from the viewpoint of the judges of the European Court on Human Rights. The main causes for delays that are listed in the report are related to the following issues: the territorial distribution of court jurisdiction, transfer of judges, insufficient number of judges, systematic use of multi-member tribunals (benches), backlog of cases, complete inactivity by judicial authorities, systematic shortcomings in procedural rules, failure to summon parties or witnesses, unlawful summons, late entry into force of legislation, disputes about the jurisdiction between administrative and judicial authorities, late transmission of the case file to the appeal court, delays imputable to barristers, solicitors, local and other authorities, judicial inertia in conduct of the case, involvement of expert witnesses, frequent adjournment of hearings, excessive intervals between hearings and excessive delays before the hearing. More specific for civil proceedings delays are related to a failure to use the courts discretionary power and the absence or inadequacy of rules of civil procedures. Criminal court cases may be delayed due to: structural problems in the organisation of prosecution service, decisions to join or not to join criminal cases, a failure of witnesses to attend hearings or the dependence of civil proceedings on the outcome of criminal proceedings. On the basis of the analysis of the court decisions of the European Court and taken into account of the main causes for delays Calvez drafted the following norms for determining a reasonable duration of court proceedings in Europe: The total duration of up to two years in normal (non-complex) cases is generally regarded as reasonable. When proceedings have lasted More than two years, the Court examines the case closely to determine whether the national authorities have shown due diligence in the process; In priority cases, the court may depart from the general approach, and find violation even if the case lasted less than two years; In complex cases, the Court may allow longer time, but pays special attention to periods of inactivity which are clearly excessive. The longer time allowed is however rarely more than five years and almost never more than eight years of total duration; The only cases in which the Court did not find violation in spite of manifestly excessive duration of proceedings were the cases in which the applicant s behaviour had contributed to the delay. The third report of TF-DEL was a research report conducted by Smolej and Johnsen on projects that have been implemented in Denmark, Sweden, Norway and Finland) in the area of reducing length of proceedings. The report itself is composed of two parts. In the first part a review of proposals and policies is given from time reducing measures of the Northern European courts. It describes the use and determination of timeframes, with a special attention to the creation of specific procedures for priority cases. Also a typology of deadlines is presented as well as time management strategies (court leadership, promotion of mediation, the need for a preparatory meeting and the setting of a date and time of the main hearing at 31

32 an early stage, etc.). The second part of the report concerns a description of a Norwegian project on swifter criminal justice. As a part of this study a separation is made between action time and standstill time. Action time is the time spent when someone works on the case. Standstill time is the time when nothing happens. The researcher Johnsen reported that the average action time i.e. the report of the crime to the prosecutorial decision varied between two and five days between police districts and crime areas, whilst the standstill time varied between 43 and 309 days. He concluded that action time only constituted a minor part of the total processing time. The standstill time counted for more than 90 percent of the total processing time! The second part of the report concluded with measures to reduce the processing time, especially by focusing on measures for reducing the standstill time. 8 SATURN (Centre for judicial time management) In the beginning of the year 2007 the SATURN Centre (Study and Analysis of judicial Time Use Research Network) was launched. This centre will work on the following issues: 1. Analysis of the situation of existing timeframes in the member States (timeframes per types of cases, waiting times in the proceedings, etc.); 2. A provision to the member States of knowledge and analytical tools of judicial timeframes of proceedings; 3. A provision of guidelines with a view to possible reforms aiming to foresee the judicial timeframes (see: CEPEJ (2007)1_en). At the first meeting of the working group of SATURN the general working principles has been chosen. One of the first activities that will be carried out by SATURN is the drafting of a questionnaire on common case categories, the availability of information on length of proceedings and timeframes and (possible) definitions that are used in the various courts to measure length of proceedings. Currently the draft-questionnaire is tested amongst a small group of pilot courts. During the course of 2007 and after the second meeting of SATURN, the final version of the questionnaire will be send to all the members of the network of the pilot courts. The outcome of this exercise will contribute to a better understanding of the categorization of cases that are used in the various courts in Europe, the problems, solutions and definitions applied to measure the length of court proceedings. A second outcome of the evaluation carried out by SATURN is connected with the evaluation scheme on judicial systems. Especially the part concerning the questions on court performance might be improved in such a manner that in the long run comparable information will be available at a European level on the court performance (including key indicators on the length of proceedings). 9 Quality and Mediation One of the latest activities where the CEPEJ is involved is related to the topics on quality and mediation. One of the instruments to reduce the 32

33 workload of the courts or to offer parties alternatives next to the method of judicial proceedings, alternative dispute resolution and more specifically mediation is introduced in many different European countries. Due to the importance of this new phenomenon a special working group of the CE- PEJ is involved in this topic. In 2007 a report was presented on the impact of three Recommendations of the Council of Europe regarding mediation in the member states. With respect to Quality a draft list of items that must be taken into account when improving the quality in the courts was listed for the first meeting of a quality working group (GT-QUAL) in February For example topics on the efficiency of court hearings, the enforcement of court decisions, the quality of services, case management are mentioned in this documents as subjects that needs to be assessed when in comes to the improvement of court quality. In addition to this document I have drafted a discussion paper on (court) quality. In this paper I present an analytical model which can be used to measure quality of the judiciary at three levels: the national level, the level of the courts and the level of the judges (with respecting the independence of the judiciary). Some of these ideas I have used for drafting the content for the framework for court excellence as described in the introduction of the article. Both the work of the CEPEJ in this field as well as the future activities of the Consortium for Court Excellence, will lead to a stimulation of the debate in courts in- and outside Europe or the start of many activities to improve the court quality. 10 Assistance projects As has been said at the introduction of this article the tasks of the CEPEJ are not limited to information collection and the stimulation of the exchange of information between countries regarding the composition and functioning of judicial systems. During the last five years it has also assisted many countries. For example on the topic of mediation a seminar was held in Malta and a report from three experts on the experiences with mediation was drafted at the request of Switzerland. For the Netherlands a special event (2000) has been organized and a report was published on the territorial competence of courts, whilst for the Russian federation the nonexecution of judicial decisions against the state and its entities was studied. Court delays and the long duration of judicial proceedings were not only the topics of specialized working groups and SATURN, but also the subject of two meetings that were held in Croatia and Slovenia. 11 Conclusion After nearly five years of CEPEJ much has been realized at a European level. More comparative information is available on the composition and functioning of judicial systems. Not only at a national level, but also at the level of the individual courts. By stimulating debates between courts on the quality of justice and the creation of a network of pilot courts the CEPEJ tries to im- 33

34 prove the efficiency and quality of justice. The success of the CEPEJ could not be possible without the active participation and co-operation of the member states of the Council of Europe and the involvement of many observers at (plenary) meetings of the CEPEJ. This may vary from the international union of judicial officers, European, associations of judges and court clerks, the American Bar Association till other international organisations such as the European Commission and the World Bank. Almost five years of successful work of the CEPEJ has been realized now. Hopefully this success will be prolonged in the future. Especially, when it comes to disseminating knowledge in the area of administration of justice and promoting justice for the 800 million inhabitants of Europe by respecting the main principle of delivery of justice within reasonable time by an independent tribunal. References - CEPEJ (2003)12, P. Albers Evaluating judicial systems: a balance between variety and generalization, Strasbourg. - CEPEJ (2003)20 Rev Marco Fabri and Philip Langbroek, Delays in judicial proceedings: a preliminary inquiry into the relation between the demands of the reasonable time requirements of article 6.1 European Convention on Human Rights, Strasbourg. - CEPEJ 2003(23)25D2E Mediation, Strasbourg. - CEPEJ (2004) 14, Advancing legal and judicial approaches to mediation in civil, family and commercial matters on Malta. Strasbourg. - CEPEJ (2004) 19 Rev 2, A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe, Strasbourg. - CEPEJ (2005) 8, Examination of problems related to the execution of decisions by national civil courts against the state and its entities in the Russian Federation, Strasbourg. - CEPEJ (2005), European Judicial systems: facts and figures, Strasbourg. - CEPEJ (2005), Time management checklist, Strasbourg. - CEPEJ (2005)7, Practical ways of combating delays in the justice system, excessive workloads of judges and case backlogs, Strasbourg. - CEPEJ (2006) 11, Non-enforcement of court decisions against the state and its entities in the Russian Federation: remaining problems and solutions required, Strasbourg. - CEPEJ (2006) 13, Compendium of best practices on time management of judicial proceedings, Strasbourg. - CEPEJ (2007)12, Analysis on assessment of the impact of Council of Europe recommendations concerning mediation, Strasbourg. - CEPEJ GT-QUAL (2007)4Prov3, Draft scheme for promoting the quality of justice [guidelines], Strasbourg. - CEPEJ GT-QUAL (2007)6, Reflections on quality, Strasbourg. - CEPEJ studies No. 1, European judicial systems (edition 2006: data 2004), Strasbourg. - CEPEJ studies No. 2 M. Smolej and J.T. Johnsen (2006), Time management of justice systems: a Northern Europe study, Strasbourg. - CEPEJ studies No. 3 (2006) F. Calvez, Length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Rights, Strasbourg. - Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No 005), Strasbourg. - Council of Europe (2006), Building Europe together on the Rule of Law, Strasbourg. - D. Kaufman, A. Kraay, M. Mastruzzi (2007) WPS4280 study, Governance Matters VI: aggregate and individual governance indicators , Washington - Hill (2007), Rule of law inventory report: academic part, The Hague. - International Consortium for Court Excellence (2007). Court Excellence Framework (draft version June 2007), Singapore. - Resolution 2002(12) Establishing the European Commission for the Efficiency of Justice (CEPEJ), Strasbourg. - World Bank, Doing Business 2007: how to reform, Washington. 34

35 Integrity of judges and prosecutors: fundamental principles and facts 1 Introduction The general standard to be applied by courts in Europe concerns article 6 of the European Convention on Human Rights. This article states that: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice One of the most important elements of this article is the right to a fair and public hearing done by an independent and impartial tribunal. Fair decision making implies that parties are heard, the principle of equality between the parties is maintained, all relevant arguments and legal facts are taking into consideration and the final outcome of a court decision is not based on subjective impressions of a judge or a panel of judges. For a fair trial it is necessary that judges i.e. courts are independent and impartial. In practice independence is connected with various aspects of the work of a judge. First of all it concerns the way how judges are recruited, nominated and promoted. Secondly it is related to the decision making process of a judge (and the role of the public prosecutor in a criminal proceeding). In court proceedings judges should act freely without any interference from external parties, such as political influences or influences from superiors within a judicial organization to steer a court decision in a certain direction. Judges should be objective and neutral decision makers. Their position and role in the court must be guaranteed by the law. Lastly, independence can be brought into relation with the ethical behaviour of judges and the possibility for judges to combine their main function with other professional functions in society. Codes of conduct can help judges to promote the value of independence and also to prevent un-ethical behaviour. Rules on supplementary functions of judges if allowed are necessary to make clear what kind of additional professional functions are allowed and in what situations judges should hand over a case to another judge or a panel of judges to avoid conflict of interest. 35

36 Independence is an important value. However, sometimes this value is not properly used by judges or courts as an argument to prevent unwanted changes in the organization of courts or in the working methods. It can also be applied as an argument against openness and transparency of courts. In a modern society it is necessary that citizens (and private legal professionals) have access to relevant performance information of the courts and have a good impression of how courts are running. Courts do not operate into isolation, but are a part of the society. That is why it is important that the value of independence is added with another one: accountability. Judges and courts are accountable for their outcomes and this implies that openness and transparency must be promoted as well. Openness and transparency is one of the means to avoid situations of corruption in the courts or to reduce the (perceived) problems of corruption. In a situation where courts are not properly supervised and where there is no information available regarding the court performance, corruption may occur. Especially in circumstances where the outcome of court decisions are unpredictable, not based an a rational decision making process and the court performance is poor, it might be attractive for persons to influence the court proceedings into a certain (wished) direction by making use of means of corruption (such as bribing a judge or the court staff). How can corruption in courts (and the public prosecution agencies) be prevented, what are the main instruments that the Council of Europe have developed in this area and what are the facts? These questions will be answered in this chapter, especially by presenting certain legal instruments of the Council of Europe, the European Charter on the statute for judges, relevant opinions of the Consultative Council of European Judges (CCJE) and the information collected by the European Commission for the Efficiency of Justice (CEPEJ) on judicial systems in Europe. As already has been stressed in the introduction, most of the work that has been carried out in the field of the judiciary by the Council of Europe is not explicitly focussing on the fight against corruption of judges and prosecutors by means of drafting recommendations or opinions on this subject, but it concerns mainly the strengthening of the independent position of the judge, the drafting of documents on the status and role of judges and prosecutors, the improvement of the (infrastructure of the) court organization, judicial proceedings, etc. The only exception to this rule is related to the work of GRECO (Group of States against Corruption). The main objective of this Group is: to improve the capacity of its members to fight corruption by monitoring their compliance with Council of Europe anti-corruption standards through a dynamic process of mutual evaluation and peer pressure. It helps to identify deficiencies in national anti-corruption policies, prompting the necessary legislative, institutional and practical reforms. All the Member States that have joined the Partial Agreement of GRECO are regularly evaluated by a team of experts. Up till now three evaluation 36

37 rounds has been carried out. In the first round ( ) an evaluation was conducted on national bodies engaged in the prevention and fight against corruption. In the second evaluation round ( ) it focused on the identification, seizure and confiscation of corruption proceeds, the prevention and detection of corruption in public administration and the prevention of legal persons (corporations, etc) from being used as shields for corruption. The (active and passive) bribery of judges of international courts is included in the questionnaire of the third evaluation round (launched in January 2007). As part of the evaluation the experts verifies if in a country legislative and other measures are taken to establish as criminal offences the conduct of active and passive bribery involving judges or other officials of international courts. The outcome of this evaluation is not available yet and generally speaking we can conclude that even within the reports of GRECO at the moment no detailed information is available on the active and passive bribery of judges working at national jurisdictions. 2 Selection, recruitment and appointment of judges and prosecutors The selection, recruitment and appointment of judges and prosecutors should be based on constitutional or legal provisions. Especially important is that the procedures to appoint judges and prosecutors are transparent and independent in practice. Recommendation (94) 12 on the independence, efficiency and role of judges states that the authority responsible for the selection and the career of judges should be independent from the government and administration. A similar line of reasoning can be found in the European Charter on the statute for judges (DAJ/DOC (98) 23). In this statute even a more detailed recommendation is given for the composition of the authority responsible for the selection. It is recommended that at least one half of those who sit [in a selection commission: PA] are judges elected by their peers following methods guaranteeing the widest representation of the judiciary (DAJ/DOC (98) 23, p. 5). The Consultative Council of European Judges (CCJE) stressed the fact that it is also important that every decision on the appointment of a judge should be based on objective criteria: ( ) the CCJE considered that every decision related to a judge s appointment or career should be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria. A similar legal standard on the recruitment and appointment of prosecutors can be found in Recommendation (2000)19 on the Role of public prosecution in the criminal justice system. Also for public prosecutors it is recommended that they are recruited in accordance to fair and impartial proceedings embodying safeguards against any approach which favours the interest of specific groups, and excluding discrimination on any ground 37

38 such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (paragraph 5a). In the CEPEJ evaluation on judicial systems (2006 report) member states of the Council of Europe were invited to provide information on the recruitment of judges and prosecutors. Three variants of authorities for recruitment were identified: (1) a recruitment and nomination authority composed of members of the judiciary (or the prosecution services), (2) an authority composed of members external to the judiciary (or the prosecution services) and (3) an authority with a mixed recruitment and nomination board/commission (i.e. judges or prosecutors and members external to the judiciary or the prosecution services). The results of the evaluation shows that in the majority of countries judges and prosecutors are recruited by an authority composed of judges, prosecutors and external members (for example legal scientists, lawyers and representatives of a ministry of justice). In most of these countries a High Judicial Council (or a Council for the Judiciary), a judicial appointment commission or advisory board play a dominant and influential role in this process. On the other side, the independence of recruitment and nomination is not guaranteed in 7 (judges) respectively 10 (prosecutors) countries, due to the fact that in these countries the authority responsible for the nomination is exclusively composed of members external to the judiciary or the prosecution services. In these countries there is an indication that a system of checks and balances on this point between the executive, the legislative and the judicial power is lacking, which may lead to an increase of the risks of political nominations or the influence of nominations by means of corruption. 3 Remuneration of judges and prosecutors One of the most important aspects to prevent corruption in the judicial organization is related to the remuneration of judges and prosecutors. The assumption is that when the salaries of these categories of legal professionals are in accordance with the status and responsibility, there will be lesser chance of corruption. If the salaries of judges and prosecutors are poor, this may have an impact on the possibility that corruption will emerge. Of course, a comparable situation can arise, when the salaries of the court staff are too low. For instance if the staff has the possibility to control the length of proceedings (by manipulating the prioritization of cases to be treated), it can be attractive for certain parties to bribe a staff member to speed up a specific proceeding (or even to slow down). The Recommendations Recommendation (94)12 and Recommendation (2000)19 given some direction on the necessary level of remuneration for judges and prosecutors. In the Recommendation on the independence of judges we can read that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibili- 38

39 ties (principle II 1.b: the authority of judges). According to Recommendation (2000)19 public prosecutors should have reasonable conditions of service such as remuneration, tenure and pension commensurate (paragraph 5d). It is however unclear what is reasonable and how the dignity of the work as a judge can be connected with the appropriate salary level. In that respect the European Charter for Judges gives slightly more guidance, because in the Charter it is stated that: Judges exercising judicial functions in a professional capacity are entitled to remuneration, the level which is fixed so as to shield them from pressures aimed at influencing their decisions (.) (DAJ/DOC (98) 23, paragraph 6.1). In other words, the salary for judges (and of course a similar line of reasoning can be applied to prosecutors) must be determined on such a level that the chances of corruption (or other forms of influencing the independent position of a judge) aiming at manipulating the decision of a judge are minimised. The Consultative Council of European Judges fully underlines the statement of the European Charter. In addition to this the Consultative Council draw the attention to the need for specific legal provisions guaranteeing judicial salaries against reduction and to ensure at least de facto provision for salary increase in line with the cost of living. Graph 1 Gross annual salaries of judges (CEPEJ data 2004 used) Gross annual salary in euro UK Northern Ireland UK Scotland UK England & Wales Ireland Iceland Liechtenstein Denmark Norway San Marino Luxembourg Netherlands Andorra Belgium Finland France Spain Austria Monaco In theory the above mentioned notions concerning the adequate level of remuneration is important, however what is the current situation in practice? Are judges and prosecutors adequately remunerated? The CEPEJ 2006 evaluation report on judicial systems in Europe shows a large variety in the salary level of judges and prosecutors at the beginning of their career and at the highest position between the member states of the Council of Europe. Partly this is caused by different recruitment procedures (for example in the United Kingdom a small group of judges is recruited from a pool of lawyers with a long Germany Italy Portugal Cyprus Malta Bosnia and Herzegovina Sweden Croatia Slovenia Hungary Estonia Slovakia Czech Republic Lithuania Turkey Poland Russian Federation Latvia Albania Ukraine 39

40 working experience, whilst in other countries judges might directly start after graduation of a Law School and an initial training period), but also a result of different standards of living in the 47 member states. Graph 1 provides an illustration of the variety in the gross annual salaries of judges, compared with the average annual salary in a country. Especially the countries on the right side of the graph might be vulnerable for corruption as a result of the fact that the average annual salaries of judges are very low, compared with the group of countries in the middle of the graph. In situations with low salaries, judges or prosecutors may face the need to find additional earnings to have a decent standard of living, for example by taking an additional job as a professor at a university, legal consultant, arbitrator, member of a supervisory board of a company, etc. The acceptance of a supplementary profession does not always have to be related to the need for additional earnings. The strengthening of the contacts with the society can be another reason for judges or prosecutors to combine their main function with other professions as well. By accepting these additional functions the changes of (unacceptable) interference with the work as a judge or a prosecutor might rise. For example, when a judge - who is member of a supervisory board of company X - must decide on a case against the same company. This is - strictly speaking - not a situation where corruption might arise, but a conflict of interest. Corruption or not, conflict of interest should be avoided in court proceedings too. Are there clear rules or recommendations that can be used to determine which additional functions as a judge or a prosecutor are allowed and what the current practice in the member states is? A general guideline can be found in the European Charter on the statute for judges. According to the charter judges are freely to carry out activities outside their judicial mandate. When it comes to paid activities, the Charted indicates that these kinds of activities should be part of a formal authorization procedure. One of the limitations of the recommendation of the Charter is that it does not specify which kinds of activities are allowed. The negative effects of outside activities on the conditions under which judicial duties are discharged must be pragmatically assessed (see DAJ/DOC (98)23 paragraph 4.2 and explanatory memorandum). The Consultative Council of European Judges recommends that judges should refrain from any supplementary professional activity that would restrict their independence and jeopardise their impartiality. They concluded also that in some countries incompatibilities with the function of a judge are clearly defined by the judges statute and members of the judiciary are forbidden from carrying out any professional or paid activity (with the exception of educational, research, scientific, literary or artistic activities). The CEPEJ evaluation study on judicial systems 2006 supports what has been said by the Consultative Council. In almost any member state, teaching or participating in legal and research work is considered as a normal activities, which does not interfere with the profession as a judge or a prosecutor. On the other side supplementary activities as an arbitrator or as a consultant are in most of the member states not allowed. In a certain limited number of countries all the additional professional functions are prohibited. 40

41 4 Disciplinary proceedings and sanctions In situations where corruption or a breach of the professional code of conduct might be present, there should be the possibility to apply a disciplinary proceeding against a judge or a prosecutor. The necessity of disciplinary proceedings and sanctions is underlined by the Recommendations on the independence position of the judge and the role of the public prosecutor in the criminal system, as well as by the European Charter on the Statute for judges and several opinions of the Consultative Council of European Judges. In principle IV of Recommendation (94)12 a general description is given for the procedure to be followed in a situation where judges fail to carry out their duties in an efficient and proper manner or in the event of disciplinary offences. It is recommended that for the treatment of the disciplinary proceedings a special competent body will be in charge, supervised or controlled by a superior judicial organ. Similar with the regular judicial proceedings, the authority should apply the process requirements of article 6 of the European Convention on Human Rights (especially that cases are heard within reasonable time and that the accused has a right to answer any charges). Examples of sanctions that may be applied are: a withdrawal of cases from the judge, a move of the judge to other judicial tasks within the court, economic sanctions (for example a temporary reduction of the salary) and a suspension. A more general recommendation in this respect can be found in the text on the role of the prosecutor (Recommendation (2000)19. In this Recommendation the need for a legal basis is mentioned too. Disciplinary proceedings against public prosecutors are governed by law and should guarantee a fair and objective evaluation and decision which should be subject to independent and impartial review. Detailed requirements for a proper disciplinary proceeding against judges can be found in the explanatory text of the European Charter: ( ) the only valid reason for imposing sanctions is the failure to perform one of the duties explicitly defined in the Judges Statute and that the scale of applicable sanctions must be set out in the Judges Statute. Moreover the Charter lays down guarantees on disciplinary hearings: disciplinary sanctions can only be imposed on the basis of a decision taken following a proposal or recommendation with the agreement of a tribunal or authority, at least one half of whose members must be elected judges. The judge must be given a full hearing and be entitled for representation. If the sanction is actually imposed, it must be chosen from the scale of sanctions, having due regard the principle of proportionality. Lastly, the Charter provides for a right of appeal to a higher judicial authority ( ) (DAJ/ DOC (98) 23, p. 17). In Opinion No. 1 of the Consultative Council of European Judges the principle of irremovability of judges is connected with disciplinary proceedings and sanctions. Irremovability of judges must be seen as one of the important elements to guarantee judicial independence. Only by making use of precise definitions of offences judges may be removed from their post. The Consultative Council expressed the need to prepare standards for the conduct which may lead to removal from office and for all other conducts which may result in any 41

42 disciplinary steps or change of status. Also in Opinion No. 3 the Consultative Council repeated the need for each country that in a statute or fundamental charter applicable to judges the specific situations are defined where disciplinary sanctions can be imposed, an independent authority will be responsible for the disciplinary proceedings and sanctions, the right of an appeal and that the sanctions applied should be in a proportionate manner in relation with the proven misconduct. In the CEPEJ evaluation report on judicial systems only very limited information could be presented on the practice of disciplinary proceedings and the sanctions applied in the various European countries. This is caused by the fact that only a small number of countries were able to present information on this topic. In other words, not many countries collect or register the number of disciplinary proceedings and type of sanctions imposed against judges and prosecutors. For the countries that were able to give information, the main reason to start a disciplinary proceeding against a judge is a breach of professional ethics or professional inadequacy (for example when a judge takes too much time to finalize cases). Professional inadequacy seems to be the foremost cause for public prosecutors to initiate a proceeding. To a much lesser extend disciplinary proceedings against judges and prosecutors are related to criminal offences. What about the public perception then regarding corruption in the judiciary? The last report of Transparency international (the global corruption barometer 2006) shows that globally bribes in the public sector are most commonly paid to the police, followed by the registry and permit services and on the third place the judiciary. However this result is distorted due to the fact that for example in the African region the largest bribes are paid to the legal system and the judiciary. In contrast with the European region, where the reported experience of bribery is low. This could be an indication that corruption in the judiciary in Europe is a smaller problem, compared to other regions in the world. However, more detailed information to be collected on this topic is necessary. 5 Judges professional conduct at a European level One of the measures to enhance judicial integrity is the use of codes of conduct. In 2001 the Consultative Council of European Judges drafted an opinion on standards concerning the principles and rules governing judges professional conduct, in particular ethics, incompatible behaviour and impartiality. This opinion was based on a questionnaire that has been send to the member states of the Council of Europe, texts prepared by the working party of the Consultative Council, the chair, the vice chair and an expert. In addition to the relevant Council of Europe Recommendations, the opinion took into account a number of other documents as well. Examples are the United Nations basic principles on the independence of the judiciary (1985) and the Bangalore principles of judicial conduct. With respect to the aspect of impartiality and the conduct of judges in the exercise of their judicial functions the CCJE underlined that judges should discharge their duties without any favouritism, prejudice or bias. Judges should 42

43 respect the principle of equal treatment of the parties, avoid any form of discrimination and maintain a balance between the parties. Another important aspect in the conduct of judges is that they have a high degree of professional awareness and that the judicial work is carried out with diligence and reasonable despatch. The Consultative Council agreed that the judicial function should not be isolated from the society; however there should be a balance between the judges freedom of opinion and expression and the requirement of neutrality. Judges must be allowed to have supplementary functions. On the other side, the rules of professional conduct require that judges avoid activities liable to compromise the dignity of their office and to maintain public confidence in the judicial system by minimising the risk of conflicts of interests. The line between what is permitted as a supplementary profession and what is not permitted, is not precisely described by the Consultative Council. According to the Council this must be done on a country by country basis. The only recommendation presented on this part is that judges must devote most of their working time to their role as a judge and excessive attention to extra-judicial activities should be avoided. When in a country a document with principles of professional conduct is drafted this should be, according to the Consultative Council, drawn up by the judges themselves. It should have the character of self-regulatory instruments, which enables them to acquire legitimacy by operating within a framework of generally accepted ethical standards. In Opinion No. 3 also a list of rules of conduct of every judge is presented. They are composed of twelve items: - each individual judge should do everything to uphold judicial indepen d e n - ce at both the institutional and individual level, - judges should behave with integrity in office and in their private lives t h e y should at all times adopt an approach which both is and appears impartial, - they should discharge their duties without favouritism and without actual or apparent prejudice or bias, - their decisions should be reached by taking into account all considerations, material to the application of the relevant rules of law, and excluding from account all immaterial considerations, - they should show the consideration due to all persons taking part in the judicial proceedings or affected by these proceedings, - they should discharge their duties with due respect for the equal treatment of parties, by avoiding any bias and any discrimination, maintaining a balance between the parties and ensuring each a fair hearing, - they should show circumspection in their relations with the media, maintain their independence and impartiality by refraining from any personal exploitation of any relations with the media and from making any unjustified comments on the cases they are dealing with, - they should ensure they maintain a high degree of professional compe ence, - they should have a high degree of professional awareness and be subject to an obligation of diligence in order to comply with the requirement to deliver 43

44 their judgments in a reasonable time, - they should devote the most of their working time to their judicial functions, including associated activities, - they should refrain from any political activity which could compromise their independence and cause detriment to their image of impartiality 6 Conclusions With respect to protection of the integrity of judges and prosecutors at a European level, various legal instruments drafted by the Council of Europe are available. Two important Recommendations have been drafted for judges and prosecutors. In addition to these Recommendations the work of the Consultative Council of European Judges is important as well. The drafting of Opinions will contribute and stimulate the debate between judges on topics that are of major importance, such as the protection of the independent role of judges and the use of codes of conduct. It is to be expected that in the near future similar products will be developed for the public prosecutors too. With the creation of a Consultative Council of European Prosecutors in 2006 new leading documents on the profession of the public prosecutor will be drafted. Regarding the facts on corruption, disciplinary proceedings and sanctions in Europe not much empirical information is available. Further research in this area must be stimulated. References: - Criminal Law Convention on Corruption (ETS 173) - CEPEJ (2006), European judicial systems. Edition 2006 (data 2004), Strasbourg. - CCJE (2001) Op. No. 1, On standards concerning the independence of the judiciary and irremovability of judges, Strasbourg. - CCJE (2002) Op. No. 3, On the principles and rules governing judges professional conduct in particular ethics, incompatible behaviour and impartiality, Strasbourg. - CCPE (2006) Rev final, Framework overall action plan for the work of the Consultative Council of European Prosecutors, Strasbourg. - DAJ/DOC (98)23, European Charter on the statute for judges, Strasbourg. - GRECO Eval III (2006) 1E Rev2, Questionnaire on the incriminations provided for in the Criminal Law Convention on Corruption (ETS 173), its Additional Protocol (ETS 191) and Guiding Principle 2 (GPC 2). - Rec. (94) 12, On the independence, efficiency and role of judges. - Rec. (2000)19, The role of public prosecution in the criminal justice system. - Resolution (98)7, Authorising the partial and enlarged Agreement establishing the "Group of States against Corruption GRECO - Resolution (99) 5, Establishing the "Group of States against Corruption GRECO" - Resolution Res(2002)12, establishing the European Commission for Efficiency of Justice (CE- PEJ) and Statute of the CEPEJ - Transparency International (2006), Report on the Transparency international Global corruption barometer 2006, Berlin. 44

45 How to measure the rule of law: a comparison of three studies 1 Introduction In the academic part of the inventory report of Hiil we can read that there are many different definitions on the Rule of Law and that the underlying values may vary as well. There are end-based and institutional based definitions. Also a difference can be made between the notion of Rechtsstaat which primary focus is on the vertical relationship between the state or government and the citizens and the Rule of law as defined in the common law tradition which includes the horizontal relations amongst citizens too. The author of the inventory report recommends not to go too much into detail in the differences and similarities of the various rule of law notions, but to use another conception i.e. the thick versus the thin notion of the rule of law. For practical and theoretical reasons the rest of the report was drafted on the thinner conception of the rule of law. This conception is based on two main elements: 1. The law should rule the conduct of people. Both vertical (between the government and citizens) and horizontal (between the citizens) interactions must be ruled by laws. 2. A distinction between rule by law (the governmental power is exercised through or via laws) and rule of law (officials exercise power in accordance with the law). When it comes to the assessment of the level of rule of law in countries it is according to the author of the inventory report necessary to look at the requirements and conditions to be met. Concerning the requirements a reference is made to the minimum quality standards of laws practised in a society and the role and position of the judiciary. It is stated that laws should be general publicly promulgated, prospective, intelligible, consistent, practicable, etc. Further, a high level of rule of law requires that there is a political independent and impartial system of courts, some form of separation of powers and a right to a fair trial. The last mentioned aspect (fair trial) is directly related to the need for fair and open hearings, the absence of bias during the judicial decision making process, a reasonable length of proceedings, etc. Another important aspect for an independent judiciary is to have a recognised and independent legal profession, easy access to courts and the necessity that for criminal cases there is a public prosecutor, operating with some degree of independence from the government, who is responsible for bringing violations of the law before the court. For an adequate level of rule of law in a country there must be according to the author of the Hiil inventory report four conditions to be met. The first one is related to the judiciary. For a high level of rule of law there must be an independent and impartial judiciary (in addition to these alternative 45

46 dispute resolution mechanisms). Secondly, rule of law needs a certain level of access to justice and the availability of some form of legal aid. Thirdly, it is important that citizens have some basic knowledge of the law. The last condition for rule of law described by the author is the necessity of freedom of speech, free press and freedom of assembly. The notion of the thin or thinner conception, combined with the set of conditions and requirements to be met necessary for an adequate rule of law is the central point of departure of this article. When you know what kind of conditions and requirements of rule of law are necessary, you might want to use this to assess a country or a number of countries. The problem however is that there exists at the moment no comprehensive measurement system for the rule of law. Most of the studies are limited to certain aspects of the rule of law or viewing the topic from a specific angle. For example there are studies where the rule of law is measured by looking at the demand side: the needs of citizens, whilst there are also studies where the legal system (the supply side) is the main orientation. Also due to the controversy between the end-based conception of the rule of law (primary oriented at the realization of certain values connected at the rule of law) and the institutional conception of the rule of law (there is rule of law when there (is) are (a group of) judicial institutions) it seems to be difficult to generate a complete list of rule of law indicators and to develop for example a rule of law index. I will start the journey towards the development of rule of law indicators with three studies, which partly measure the rule of law. Two of them are primary oriented at the demand side of the rule of law; one of them is focussing on the legal institutions that are necessary for an acceptable level of the rule of law. At the end of this article the three studies are compared with each other and an attempt is made to see which aspects of the rule of law are covered by the three studies and where the blind spots are. This can be helpful to make to step into the direction of the development of a complete list of rule of law indicators. 2 Rule of law and good governance: Governance Matters and Doing Business (World Bank studies) The first two studies I would like to discuss are the Governance Matters and Doing Business studies of the World Bank, The Governance Matters study is aiming at assessing countries at the level of good governance. In the conception of good governance it is not sufficient when there is high level of rule of law in a given country. Other aspects need to be taken into account as well. As a result of this the researchers of the governance matters study evaluates the level of democracy and political stability in a country, the effectiveness of policies of governments, the quality of regulation and the level of corruption. Kaufman, Kraay and Mastruzzi (2007) identify six dimensions of governance : 1. Voice and accountability: this measures the extend to which in a country citizens are able to participate in selecting their government, freedom of expres- 46

47 sion, freedom of the media, etc. Political stability and absence of violence: this measures the perception of the likelihood that the government will be destabilised or overthrown by unconstitutional or violent means; it includes domestic violence and terrorism. Government effectiveness: this measures the quality of public services, and the degree of its independence from political pressures, the quality of policy formulation, etc. Regulatory quality: this measures the ability of the government to formulate and implement sound policies and regulations. Rule of law: this measures the extend to which agents have confidence and abide by the rules of society, in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime and violence. Control of corruption: the measurement of the extend to which public power is exercised for private gain. The methodology for data collection is primary based on the demand side of governance (and rule of law). Governance is measured by using data sources from: surveys of firms and individuals, the assessments of commercial risk rating agencies, non-governmental agencies, multilateral aid agencies and other public sector organizations. In the 2006 around 33 different sources were used produced by 30 organizations (in total 310 individual variables). It must be noted that as a result of the choice for this manner of data collection not the real level of governance (in objective terms) is measured but the perceived level of governance (based on the subjective opinions of citizens, experts, etc.). This explains why there is sometimes a large difference between for example a specific score on the rule of law indicator in the governance studies (and ranking of countries), and the level of rule of law based on other information sources. The statistical methodology that the researchers of the governance indicators are using is known as the unobserved components model. This model is applied to construct aggregate indicators for the six dimensions. The aggregate indicators are weighted averages of the underlying data, reflecting the precision of the individual data sources. When it comes to the individual sources to measure the rule of law the governance matters report III indicates that 15 different sources are used, varying from representative sources like the Country Risk Service (Economist Intelligence Unit), the Economic Freedom Index (the Heritage Foundation/Wall Street Journal), Human Rights Report (US State Department, Amnesty International) and non-representative sources such as the Business Enterprise Environment Survey (World Bank), the Voice of the People Survey (Gallup International) and the Global Competitiveness Report (World Economic Forum). The Rule of law indicator used by the researchers of the Governance Matters study is based on a mixture of elements. Some of them are related to the independence of the judiciary, fairness of judicial proceedings, speediness of proceedings, judicial accountability and trust in the judiciary as well as the enforceability of contracts; others are related to crime and law enforcement. For example for the aggregate data on the rule of law sources are used on the topics: losses and costs of crimes, kidnapping of foreigners, violent crime, organized crime, fraud and money laundering, trafficking, etc. 47

48 In the thinner conception of rule of law especially perception information on crime is not included. On the other side some sources that are mentioned in the other dimension of the governance indicators would normally fall under the definition of rule of law. Examples of indicators for measuring the requirements and conditions for rule of law found in other dimensions are: freedom of association, political rights, freedom of the press, political participation (Voice and Accountability), administrative burden of legislation, complexity of the tax system, (worsening) of import and export regulations (Regulatory Quality), the perceived corruption of judges and magistrates (Control of Corruption). From this point we can conclude that the Governance Matters study uses a specific approach and definition concerning rule of law, which does not completely match with the thinner conception as defined in the Hiil inventory report. Certain elements that do fall in this conception however, can be found in other dimensions of the governance indicator. Another conclusion is that the measurement of the rule of law (as defined in Governance Matters ) is based on information sources from the demand-side. (Opinion) surveys and assessment of (private) agencies are used to determine the perceived rule of law. As a result of this, the governance matter study has one major limitation: it does not measure the rule of law from an institutional point of view. The second study is the Doing Business survey of the World Bank. The main aim of the study is to measure business regulation and the protection of property rights, including their effect on businesses especially small and medium sized business firms. The results of the various Doing Business reports show how easy or difficult it is to start (and close) a business in a country. One of the assumptions used in the Doing Business methodology is that the security of property and the enforcement of contracts are essential for investment, trade and ultimately economic growth. The enforcement of contracts can be seen as one of the indicators that may be useful for measuring (some aspects of) the rule of law. A proper enforcement of contracts will influence the rule of law positively. The Doing Business study is not created with the aim to measure the rule of law, but to assess the level of attractiveness for companies to invest in certain countries around the globe. That is why the outcomes of the study are only of limited use for measurement of the rule of law. However, on the other side it must be noted that the study on enforcement of contracts is a good example of how this element of the rule of law can be measured. This is the main reason why it is included in the article. In the Doing Business study there is a positive relation between the courts and the judiciary and the investment climate of enterprises. The authors of the various reports stated that businesses are best served when courts are fast, fair and affordable. Corruption in the judiciary will have a negative effect on the public trust of enterprises (and citizens) and the level of investments. Countries are ranked and rated on the issue of enforcing contract on the 48

49 basis of three criteria: the number of procedures from the moment a plaintiff files a lawsuit in a court until the moment of payment; the time in calendar days to resolve a dispute; the cost in court fees and lawyer fees, were the use of lawyers is mandatory or expressed as a percentage of the debt value. The information regarding the enforcement of contract is based on surveys that are send to experts in the various countries, including lawyers, business consultants, accountants, government officials, etc. Quite similar to the Governance Matters approach the researchers of the Doing Business studies are oriented towards the demand side when it comes to the collection of data. As a result of this there can be a large difference between the perceived level of enforcement of contracts and the real adjudication. Due to their methodology of data collection, reliable information on the duration of proceedings and other relevant aspects of the functioning of courts is not retrieved directly from their sources: the courts and other judicial institutions. The Doing Business study is not only criticized on the choice to rely only on demand side sources, but also for its methodology in general and the use of ranking. Some of the critical scientists are of opinion that indicators used in the reports are poorly explained, that there is a large gap between the figures evaluated ex-ante and the results observed and that the choice for a survey to measure doing business (as well as some part of the rule of law in the form of enforcement of contracts) is risky. As has been said in the introductory paragraph both the governance matters study and the doing business studies are examples of methods for measuring the rule of law from the demand side. It illustrates how (elements of) the rule of law can be measured from the perspective of the user. What about the demand side? Is there an example where the rule of law is measured from the perspective of legal systems or institutions? Yes, in the next paragraph the CEPEJ evaluation scheme on legal systems will be presented as an illustration of how some part of the rule of law can be measured from the perspective of the supply side. The general assumption is that a proper infrastructure for legal systems and functioning of systems will positively contribute to the rule of law in a country. Before I explain what the CEPEJ methodology on evaluating legal systems is, I will describe the conception of the rule of law, used by the Council of Europe and the working methods in the legal field. 3 Rule of law and the Council of Europe The core aim of the Council of Europe, founded in 1949, is to protect and promote human rights, rule of law and pluralist democracy. One of the most important cornerstones concerns the European Convention on Human Rights. In this Convention many elements regarding the adequate conditions and requirements for rule of law (as defined in the thinner conception) can be found. A guarantee for an independent and impartial judi- 49

50 ciary and the right to a fair trial is laid down in article 6 of this convention. The governmental power exercised through or via laws can be derived from many other articles of the Convention. When you look at the sub articles of the Convention you can see that most of them start with a sentence explaining that the rights and duties of citizens and the government are protected by and based on the law. Examples are article 2.1 (right to life) everyone s right to life shall be protected by law, article 7 no punishment without law and article 10.2 the exercise of these freedoms [PA: of expression] ( ) may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law. The conditions for rule of law, concerning freedom of expression, association and assembly can be found articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the Convention. To promote the rule of law (as defined by the Council of Europe from an intergovernmental perspective) the Council uses two working mechanisms, namely the intergovernmental and co-operation activities: the intergovernmental activities, on which all the member states work together on the drafting of conventions and recommendations. the co-operation activities to strengthen the rule of law, involving the Council of Europe and one or more member states. The intergovernmental activities are carried out by various steering committees, which monitor the work of specialised expert committees. In addition to this there are also ad-hoc committees on public international law, terrorism and the protection of asylum seekers and refugees. The legal co-operation programmes are designed to help beneficiary countries with their institutional, legislative and administrative reforms. They mainly involve in working with government authorities to prepare and introduce legislation as well as an operational framework which match the country s specific needs and features (in conformity with the rule of law principles) to ensure that reforms are carried out. For example: by providing in-service training for professionals at all levels of the justice system. As a part of the intergovernmental activities of the Council of Europe, the European Commission for the Efficiency of Justice (CEPEJ) periodically evaluates the legal systems of the 47 Member States of the Council of Europe. 4 Rule of law and legal systems: CEPEJ study on judicial systems The creation of the CEPEJ was one of the outcomes of the 23rd Ministerial Conference of Justice Ministers of the Council of Europe (London 2000). Its main tasks is: to examine the results achieved by the different judicial systems in the light of the principles [access to justice and efficient court proceedings, the status and role of legal professionals, administration of 50

51 justice and management of courts, use of information and communication technologies: comment PA] referred to in the preamble to this resolution by using, amongst other things, common statistical criteria and means of evaluation. This task should be according to the Resolution 2002 (12) accomplished by the identification and development of indicators, collection and analysis of quantitative and qualitative data and the definition of measures and means of evaluation. The start of the evaluation activities of the CEPEJ on legal systems was in July 2003 when a small expert group (composed of 6 experts and an additional scientific expert) held its first meeting. During that meeting a preliminary draft of a questionnaire on legal systems was created, based on a discussion document with lessons learned from the past and recommendations on how to implement a comparative study successfully. The general outline of the questionnaire was based on the wish to evaluate all the relevant aspects that are connected with the composition and functioning of judicial systems and the need to take the main principles for efficiency of justice (as has been drafted in the Statute of the CEPEJ) into account. The pilot scheme 2005 was composed of 123 questions categorized by the following topics: General country information Access to justice and to all courts Functioning of courts and efficiency of justice Use of information technology in the court Fair trial Judges Public prosecutors Lawyers Enforcement agents and execution of court decisions The first evaluation round in 2004 showed that it was possible to collect qualitative and quantitative data of the judicial systems of the Member States of the Council of Europe. From that point of view it was a success in the sense that it was the first study with a large overview of the composition and functioning of legal systems in the world. On the other side it showed also clearly the problems and limitations of such a study. One of the lessons learned from the pilot exercise was that in future evaluation rounds better and more precise definitions of the basic legal terms, such as courts, lawyers, enforcement agents, cases, must be used. This to avoid or at least to reduce the interpretation problems for the respondents during the process of registration of the data. Another lesson concerned the budgetary data of the judicial branch. To compare countries in a more reliable manner it is necessary to collect more detailed information on this topic. The same can be said about the performance information of courts. For a better comparison more precise definitions on cases and duration of proceedings are necessary. On the basis of the experiences of the first evaluation round on judicial systems an improved version of the questionnaire was drafted and send to representatives of the member states (September 2005). The topics in this questionnaire were based on the following items: 51

52 General (country) information Budgetary data concerning judicial systems Legal aid Users of the courts and victims Organisation of the court system (functioning) Monitoring and evaluation of courts Fair trial (fundamental principles, timeframes of proceedings, civil, administrative an criminal cases) Career of judges and prosecutors (appointment and training, practice of the profession, disciplinary proceedings) Lawyers Alternative Dispute Resolution Enforcement of court decisions Notaries The second report European Judicial systems (edition 2006: 2004 data) was officially presented in October This report contained a more detailed description of the judicial systems in Europe compared with the first one. Despite the fact that more and detailed information could be presented, there are still problems to be solved. Especially, regarding problems to collect and present performance information of the courts of the European member states. Due to definition problems and different case registration methods it is still very complicated to present at a European level comparative information about the performances of courts. Hopefully, the problem will be reduced when the third evaluation round is launched by the end of September During that evaluation round an electronic (web-based) questionnaire instead of a paper based questionnaire will be available for the member states to register the data (including a detailed grid with (common) court case categories). What about rule of law and the CEPEJ-questionnaire? The CEPEJ questionnaire is not created with the aim to measure the rule of law, but to stimulate countries to improve the efficiency (and quality) of justice and to promote an exchange of information between member states in this field. Of course, the underlying values of the questionnaire are based on how the Council of Europe is promoting the rule of law. These values are described earlier in this paper and are mostly referring to the European Convention on Human Rights. When the thinner conception, the conditions and requirements of the rule of law (defined by the inventory report of Hiil) are laid down next to the items described in the questionnaire, I can make the following conclusion. Compared with the two World Bank studies, the main source of the CEPEJ data is not based on the demand side but on the supply side (the judicial institutions, governmental agencies in the justice sector and the (private) legal professionals). Judicial institutions and governmental agencies are requested to send their data to national correspondents. These correspondents mostly representatives of ministries of justice are responsible for the delivery of the replies to the secretariat of the CEPEJ. The choice of the CEPEJ to use the supply side of judicial system does not imply that no questions are asked concerning the users of the courts. Many questions are added to the questionnaire with regards to the rights and position of 52

53 the users of the courts. For instance by asking if specific guarantees are given in court proceedings to vulnerable persons, if complaint and compensation procedures are available, court information for users on the internet is present, etc. In contrast with the two World Bank studies, only questions are posed on the availability of specific arrangements for the users of the courts. Perception questions and questions concerning the level of satisfaction or public trust in the judicial systems are not included in the questionnaire. It is assumed that if certain guarantees, proceedings and legal institutions are available (and are proper functioning) this will positively contribute to the efficiency of justice and the rule of law. From the perspective of the author of the Hiil inventory report this is an institutional conception of the rule of law (the rule of law can be considered as a set of institutions). The CEPEJ questionnaire covers certain topics that are defined as the conditions and requirements for rule of law. Many questions are drafted with respect to the (independent) position of the judiciary, fair trial, and reasonable length of proceedings, access to justice and courts, legal aid and the role of the public prosecutor. What is lacking are questions concerning the minimum quality standards of laws practices in a society, the level of understand ability of laws by citizens, freedom of speech and a free press. Due to the institutional setting of the CEPEJ, these areas are not covered by this Commission but are the domain of other institutions or commissions within the Council of Europe. For example the Committee of Ministers is responsible for the monitoring of the member states regarding the level of compliance of states on the legal standards issued by the Council of Europe (Conventions, Resolutions, and Recommendations). The quality of constitutional laws is the responsibility of the Venice Commission and special Human Rights Committees (for example) are responsible for the drafting and promotion of knowledge in the member states on the European Convention on Human Rights. Limitations of the CEPEJ evaluation study As can be derived from the previous passage the CEPEJ study does not cover all the aspects of the rule of law and that its main approach is institutional based. Another limitation of the CEPEJ study is that it relies only on one governmental information source. Compared with the two World Bank studies, the CEPEJ cannot rely on a pool of data sources. Moreover the perception of the rule of law is not measured by taking into account of the demand side. The third limitation of the CEPEJ approach is that the geographical coverage of the study is limited to 47 countries, despite the fact that certain regions in the World (for example in the Middle East) have shown their interest to start a similar exercise. The last limitation that can be mentioned is the fact that the outcome of the CEPEJ evaluation studies is limited to a description of the state of affairs of legal systems. It is not a real evaluation and the CEPEJ have not developed yet sophisticated indicators to measure efficiency of justice or to generate an efficiency of justice index. A future possibility is the use of the current CEPEJ data to create a list of indi- 53

54 cators, like access to justice. This indicator can be composed of aggregated data derived from: the budget for legal aid, number of geographical court locations, the number of lawyers (excluding legal advisors) representing clients in courts, the availability of compensation procedures for victims of crimes, court internet portals, etc. Countries can be ordered (or ranked ) by the descending or ascending level of access to justice. Other indicators that may be created are: the level of independence of the judiciary and judges, efficiency and effectiveness of court proceedings (by taking into account the court performance; for example: clearance rate, length of proceedings, costs per case, etc ) and the level of organization of (private) legal professionals (lawyers, enforcement agents, mediators, notaries). 5 The three studies compared with the thinner conception of the rule of law In my opinion the description of the thinner conception of the rule of law, including the conditions for rule of law and the requirements needed, is a first step towards making rule of law measurable. However a further debate on the conception is necessary. On the other side, I have to add to this statement that the elements described in the Hiil inventory report are useful for a first exercise to see at which level indicators for measuring the rule of law already has been developed. Moreover, it can be used to see if it is possible to create a full list of rule of law indicators or even a rule of law index. In this article I have described three studies (two World Bank studies and one evaluation project of the CEPEJ). The World Bank studies are using sources from the demand side, whilst the CEPEJ is using sources from the supply side (the legal institutions, ministries of justice and legal professionals). All of the three studies cover some aspects of the rule of law. For illustrative purposes I have drafted table 1. This table shows only where the added values of the different studies are with respect to the measurement of the rule of law and where the blind spots are i.e. the areas of the rule of law that are not covered by the three studies. Especially the requirements focussing on the judiciary are covered by the Governance matters study, the CEPEJ study and to a lesser extend by the Doing Business study as well. The three studies can have an added value regarding the measurement of the independence and the functioning of the judiciary when the information of the perception surveys (used in the World Bank studies) are linked to the institutional data on judges, prosecutors, courts (and court performance) collected by the CEPEJ. This would generate a perceived and real overview of the (independence) of the judiciary, judges, prosecutors and the functioning of courts. Also for the other aspects of the rule of law, a mixture of perception studies and data derived from legal institutions will give a (more) complete view on the rule of law (because the demand side is linked to the supply side). 54

55 Table 1 Three studies compared Governance matters Doing Business CEPEJ report judicial sys tems Main source of data Perception studies (perceptions of) experts Legal institu tions, ministries of justice Requirements (the law) Laws are prospective Laws are clear Adequately promulgated, published Clear criteria for determining validity of laws Stability of laws Laws have the form of general rules Requirements (the judiciary) Political independent system of courts Level of separation of powers Right to a fair trial within reasonable time Legal professions Role of the public prosecutor Conditions Access to justice and legal aid Basic education and knowledge of laws Freedom of speech (and assembly) For future development of a complete list of indicators for measuring the rule of law and the methodology to be applied I would like to suggest using a mixture of information sources (supply and demand side). The two World Bank studies and the CEPEJ studies gives an idea of what kind of data already is collected and which indicators have been created. However, more research in this field is necessary. This research can be done by making use of a comparative analytical framework, similar to the one I have presented in this paper, based on a detailed (and empirical) definition of the rule of law where empirical studies in the field of justice and rule of law can be compared with each other. Information derived from this comparison may be the primary source for the development of a complete list of rule of law indicators and the development of a rule of law index. References - ABA CEELI and the Arab Council for Judicial and Legal Studies (ACJLS) (June 2007), ACJLS Benchmarking initiative (final report). - CEPEJ (2005), European judicial systems: facts and figures (data 2002), Strasbourg. - CEPEJ (2006), European Judicial systems: edition 2006 (data 2004), Strasbourg. - Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No.: 005). - Council of Europe, Resolution 2002(12) Establishing the European Commission for the Efficiency of Justice (CEPEJ). - Council of Europe (2006), Building Europe together on the Rule of Law, Strasbourg. - Djankov, La Porta, Lopez-de-Silanes, Schleifer (2003), Courts. In: Quarterly Journal of Economics. - Du Marias (2006), Methodological limits of Doing Business reports (working paper AED version 4), Nanterre. - HiiL (2007), Rule of law inventory report; academic part, The Hague. - Hiil (2007), Draft concept paper further conceptualization and practical progress on building coherent and effective rule of law programmes and strategies, The Hague - Kaufman, Kraay and Mastruzzi (2007), Governance Matters VI: aggregate and individual governance indicators , Washington 55

56 - Kraay (2007), Technical documentation for the Worldwide Governance Indicators , Washington. - Samuels (2006), Rule of law reform in post conflict countries (World Bank paper), Washington. - UNDP and Eurostat, Governance indicators: a users guide, New York and Luxemburg. - Uzelac (2007), Public and Private Justice: the challenges of rational assessment of performance in the contemporary justice systems, p. 17. In: Uzelac and Van Rhee (eds.), Public and Private Justice; dispute resolution in Modern Societies, Antwerp Oxford. - World Bank (2007), Doing Business 2007: how to reform, Washington 56

57 European legal systems: solving the puzzle When you walk in a courtroom of an Italian court you might face many differences in the behavior of legal actors, compared for instance with the situation in a French court or a court in Georgia. There might be professional judges, lay-judges or even temporary-judges sitting behind the court bench. The right for legal aid and the amount of legal aid granted differs from one European country to another one. Sometimes you receive a high financial contribution from the State; sometimes you receive a relative small amount or even nothing. In highly automated societies citizens, legal professionals or legal entities might have the possibility to communicate with courts via the Internet or by means of electronic data exchange, whilst in other countries the tools of communication are limited to the use of the telephone or the postal services. Languages, legal cultures, court proceedings are different as well. With an increasing mobility of European citizens and a growing cross-border trade and exchange of goods and services there is a need for a better understanding how the different legal systems in Europe are composed and functioning. With respect to the latter, some legal scientists noticed in the recent past a European crisis in the courts due to lengthy court proceedings and an inefficient operation of courts in the various European cities. A crisis that must be solved because justice delayed is justice denied. Is this really true, and what are the concrete facts? To get a better understanding of the real situation of the courts in Europe and the legal professionals which are playing a central role in the court proceedings in 2002 the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe was established. The main task of this commission, composed of representatives of the 47 Member States of the Council of Europe, is to promote an exchange of information and a better understanding of the functioning of legal systems, including how the legal maps are structured. Another aim of the Commission is to help Member States in situations that there is a need for information or assistance to modify or to improve their systems. The last task of the Commission is related to the classical work of the Council of Europe; the drafting of Recommendations. One of the challenges the CEPEJ was facing at the beginning of their mandate was to create a methodology for collecting statistical and qualitative information concerning the legal systems in Europe. Some critics said that it is a mission impossible and that the final outcome of such an exercise is a report where apples are compared with pears. Despite the skeptics, a small team of expert drafted in 2002 a first version 57

58 of a questionnaire on legal systems to be send to the Member States. The first comparative (pilot-) report saw the light at the end of the year Notwithstanding the fact that it was a test, the publication of the report was a success. It showed that it was possible to collect at European level information on legal systems. Based on the success of the first evaluation round a second report was published last year. In this report detailed information is presented on the financing of courts, legal aid, the status and role of judges and prosecutors, court performance, lawyers, mediators, enforcement agents, etc. Many tables with facts can be found in the report and descriptions of the current legal state of affairs are visualized with graphs and geographical maps similar to the weather forecast maps where the reader quickly can identify the similarities and differences between countries on a certain topic. If you are curious I would like to invite you to visit the website of the CEPEJ ( where the full report European judicial systems can be downloaded. At this website also other interesting information can be found. Reports on the fight against delays, the use of mediation, relevant Recommendations in the field of justice and other more practical information can be retrieved as well. In the fall of this year a third evaluation round will be launched. Hopefully it will be as successful as was the case with its predecessors and that the report will be used by government officials, legal professionals and scientists to stimulate a debate within the countries on the need to constantly improve the judicial systems and to promote the quality of services delivered by the courts for the sake of its users. With the development of the evaluation methodology the CEPEJ has created a unique instrument, accepted by many European countries. Even outside Europe the awareness about the work of the CEPEJ (for example in the Middle East region) in this field is rising. Another indication for the growing interest in the activities of the CEPEJ is the increase of European and international legal professional organizations actively participating at meetings of the CEPEJ. Two good examples are the representation of the Council of the Bars and Law Societies of the European Union and the American Bar Association Rule of Law Initiative. With the involvement of the legal professionals, like lawyers associations, at meetings of the CEPEJ the quality of the work in the legal field in the European countries can be improved and important principles like article 6 of the European Convention on Human Rights - everybody has a right to a fair trial established by an independent tribunal within reasonable time - be promoted. 58