Handle with Care National Reports Executive Summaries

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1 Handle with Care National Reports Executive Summaries Project partners Research Institute on Judicial System of the National Research Council of Italy (IRSIG-CNR) Lappeenranta University of Technology, School of Business and Management University of Debrecen, Faculty of Law and Political Sciences University of Limoges, Observatoire des Mutations Institutionnelles et Juridiques Utrecht University, Montaigne Centre for Rule of Law and Administration of Justice Website: The research project Handle with Care Assessing and designing methods for evaluation and development of the quality of justice is co-financed by the Justice Program of the European Commission (Actions grants to support transnational projects on promoting the quality of the national justice systems - JUST/2015/JACC/AG/QUAL/8547). Disclaimer: The contents of this publication are the sole responsibility of the project s partners and can in no way be taken to reflect the views of the European Commission. F. Contini (ed.) Handle with Care: assessing and designing methods for evaluation and development of the quality of justice. IRSIG-CNR. Bologna, 2017 Available at

2 ISBN (PDF) Printed by IRSIG-CNR Bologna, December 2017 This work is licensed under a Creative Commons Attribution-NonCommercial- NoDerivatives 4.0 International License. 2

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4 Contents The quality of justice in Finland: Executive summary Classical judicial evaluation arrangements Innovative practices... 6 The quality of justice in France: Executive summary Classical Judicial evaluation arrangements Innovative practices The quality of justice in Hungary: Executive summary Judicial structure overview Classical judicial evaluation arrangements Innovative practices The quality of justice in Italy: Executive summary Judicial structure overview Classical judicial evaluation arrangements Innovative practices The quality of justice in the Netherland: Executive summary Judicial structure overview Classical judicial evaluation arrangements Innovative practices

5 The quality of justice in Finland: Executive summary Petra Pekkanen 0. Classical judicial evaluation arrangements This section provides a short summary of the main judicial evaluation arrangements in Finland. Recruitment, training and evaluation of judges - An independent Judicial Appointments Board makes preparations and a reasoned proposal in co-operation with the court in question in filling of the permanent Judge and manager positions in the judiciary. Before making its appointment proposal, the board requests a detailed and versatile assessment concerning the applicants and an opinion about the nominee from the court that has opened the position. The focus is on the applicants' ability to perform the duties required in the position. A person appointed to a manager position need to have proven leadership skills and previous management experience in addition to judicial experience. In Finland, judicial training has traditionally been based on practical court training in the courts and on the in-service training for Judges based on personal training needs and plans. From the year 2017, there have been special training-positions with comprehensive training program enhancing the career of a Judge. Judicial training board has also been established this year. The board is responsible for designing the in-house and internship training programs. As independent and autonomous professionals, the Judges has the main responsibility for the quality and effectiveness of their work. The managers carry out monitoring activities regularly, but interventions are made only if clear problems or negative trends emerge. Productivity, timeliness and quality of judgments are the main subject of continuous evaluation of Judges. The yearly development discussion between the Judges and the supervisors are central tool for evaluation. In the discussion the work and actions are evaluated and discussed diversely. The evaluation practices are directly linked to training and improvement. The evaluation data is used in assessing training needs and conducting personal training programs. Evaluation of courts - The courts are independent in terms of quality evaluation. The external quality evaluation is concentrated on operational performance and legality control. The quality of court operations is evaluated mainly in the context of the national management by results system adopted for the courts in The budget and the performance targets for the courts are first negotiated and agreed on the level of the administrative sectors. After parliament s confirmation of the annual State budget for administrative fields, the Ministry of Justice is responsible for drafting the overall budget and performance targets for the sectors. After the budget and targets are agreed for the administrative sector, each court has annual face to face budget and performance target negotiations with the Ministry of Justice representatives. The main aims in the annual budget and performance target negotiations are to set performance targets and main actions for the following years, discuss the present state and results of previous year, as well as analyse improvement needs. As a starting point for the negotiations, the court management team prepares an overview and analysis of the results, basic statistics and situation in the court in the previous year and makes a justifiable proposal for the results, budget and resources for the following year. In the individual court performance negotiations, the protocol includes three main sections: 1) strategic framework, 2) performance targets and improvement actions, and 3) resources and budget. F. Contini (ed.) Handle with Care: assessing and designing methods for evaluation and development of the quality of justice. IRSIG-CNR. Bologna, 2017 Available at

6 The operational efficiency targets set and agreed as a part of performance targets and improvement actions in the negotiations are: productivity, economic efficiency and timeliness. There is a weighted caseload system in use, where the different case groups have a weight score depending on the complexity and time/resource requirements. The accomplishment of the targets set are monitored statistically twice in a year. The proportion of changed judgements by appellate court is a background information in the negotiation procedures. Statistic table of changed judgment in all district courts is conducted as an appendix for the negotiation document. Appellate courts controls the judgments by using 12 different codes on if and how the judgments have changed. The set targets and the system must not compromise the independence of the courts. This is why in the negotiations only the targets connected to service level and operational performance are set. The court sets independently other quality targets. Courts of Appeal have central role in evaluating the court activities in their jurisdiction. One is the inspection visit of the Court of Appeal to the courts in its jurisdiction from time to time (approximately every 1-2 years). The content of the inspection is to go through the quality and quality control, conformity of rulings, timeliness of decisions and discuss possible problems areas in the judgements of the given court. The Court of Appeal must make a report on the inspection. The reports are also provided to Chancellor of Justice and Parliamentary ombudsman. Practically all Court of Appeals have a quality improvement projects ongoing in their jurisdiction. Individual courts may also have their own quality projects. The projects vary in length and scope but are important frameworks and tools for court quality control, improvement and target setting. Often, the projects have yearly changing improvement theme and team. The most sustained and systematic quality project has been carried out in the jurisdiction of Rovaniemi Court of Appeal Resource allocation -Resource allocation to courts is conducted under the same system of management by results and it is based on the same estimations of future workload and performance and agreed in the same negotiations. The number of staff (divided by tasks and permanent/temporary) and the amount of staff costs are the central resource negotiated in the process, but also other resources (e.g. equipment, rent, investments, and improvement) are part of the negotiations. Basis for the allocation are the current resources, pending workload situation and the estimation of the workload for the following year (using the weighted scores). The workload situation is relative settled and can be reliably evaluated based on historical data (thus only minor resource changes are usually required). The estimation of the weighted workload score for following year is the primary criteria in resource allocation. The weighted workload scores does not adequately cover the most complex cases, so the work time requirements for these and other possible special circumstances are customized and estimated separately. If large changes to estimated caseload or other circumstances happens between the negotiations, possibility for temporary extra resources is discussed and decided based on a justified application from the court. For Judges the cases are distributed randomly and evenly. In case of distribution the weighted workload scores are not used. 1. Innovative practices This section provides a short summary of three innovative practice carried out in Finland. Quality project in the jurisdiction of the Court of Appeal of Rovaniemi - The quality project in the courts in the jurisdiction of the Court of Appeal of Rovaniemi was launched in 1999 and it is still on-going. All courts and most central stakeholders within the appellate jurisdiction participate in the project. The project has had changing themes throughout the years. Most famous report which presents the project is published in 2006: How to assess the quality in the courts? Quality Benchmarks for Adjudication are a means for the improvement of the activity of the courts. 6

7 The core idea of the Quality project was to influence the most central factor from which the quality of justice depends: the expertise of the judge. As a result of the Quality project, collaboration between the courts in the jurisdiction has increased as well as peer-to-peer interaction between judges. This has increased conversations between judges which helps to broaden horizons, maintain expertise and to advance the unity of judicial practices. During the Quality project personnel s attitudes towards change has become more positive than before. The personnel has started to discuss more about the productivity of their work and the need for development has been assimilated. The Quality project has had the support of the judges and their utilization of the final reports have improved the unity of practices. Overall the Quality project has been successful and it has received both national and international acknowledgments (such as in 2005 The Crystal Scales of Justice Prize). The main reasons for the success have been the wide participation, bottom-up approach of improvement, strong practical relevance of themes and outputs and systematical approach for improvement. Delay reduction projects combining external expertise and internal participation - In 2006, the Finnish Ministry of Justice had the idea that totally new and fresh perspectives and expertise were needed in the battle against delays and for finding novel improvement solutions to the court system operations and processes. This idea was modified as a judicial process improvement and delay reduction projects, where processes are improved by melting expertise from operations management and law. As a result of the improvement projects, the courts have new work and management procedures in use. Examples of the new procedures include: work planning practices applying project control approach, follow-up and control system using time limits for each stage of the handling, procedures to plan and control the flow of complex cases and priorization rules for different case groups. The use of external expertise, systematic procedures for improvement, top management commitment and time given for the personnel to adjust to and influence the changes all helped the implementation of new procedures. Weighted caseload system - In Finland, the estimation of workload of courts is measured through a weighted caseload system through which different time needs of the cases are recognized and taken into account. The weighted caseload system provides opportunities to compare the productivity and resource utilization of different courts more reliably and detailed. Naturally, the system cannot take into account all differences in the case requirements. It has been emphasized that the system can be used as a guideline in allocating resources, but the court specific situations need to be also flexible taken into account. It is also important that practitioners are involved in designing weighted caseload systems and that opportunities to give feedback are provided throughout the designing process. 7

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9 The quality of justice in France: Executive summary Caroline Foulquier-Expert For historic reasons, the French judicial system makes a summa divisio between ordinary justice and administrative justice. The ordinary courts order is made of 168 first instance courts, 36 courts of appeal and a High Court ( Cour de cassation ), plus a number of specialized courts, while the administrative courts order is made of 42 administrative tribunals, 8 administrative courts of appeal and a Council of State ( Conseil d État ). The Ministry of Justice is responsible for the management of the two orders but actually the Council of State is the real manager of all the administrative courts Classical Judicial evaluation arrangements 1.1 Individual evaluation: Selection: Professional judges of the ordinary order are recruited as trainees to attend the National School for Judges ( Ecole nationale de la magistrature ). The selection is carried out by panels composed of ordinary judges and presided over by a Counsellor of the Cour de Cassation. The members of the administrative courts are recruited according to different processes. The members of the Conseil d Etat are generally selected once they have graduated from the National school for administration ( Ecole Nationale d adminsitration ). Members of administrative tribunals and administrative courts of appeal are recruited through external or internal competition, or once they have graduated from the National school for administration. The nature of the procedure is not uniform and varies according to the method of selection. Concerning administrative courts, for instance, all competitions include eligibility tests, written tests and oral admission tests. Eligibility tests cover public law, economics, general culture, social issues and public finances. Admission tests are oral. They concern European Union law, international law, foreign languages and are complemented by an interview with the jury panel and a collective test of interaction. The aim is to ensure a satisfactory balance between the reviewing of knowledge, the evaluation of competencies and the detection of the aptitudes of the candidates. It is quite the same for ordinary judges. There is, in the two orders, a new trend concerning specifically the selection. To be sure of the human quality of the selected judges, some psychological questions are introduced for administrative judges and a psychologist is member of the panel for ordinary judges. Continuous evaluation: All the judges of the two orders are subject to a regular individual evaluation: every two years for the ordinary judges and each year for the administrative judge. In all cases, the assessment of judges takes the form of a professional interview. The interview gives rise to a discussion between the evaluation authority (heads of the court for sitting judges or general prosecutors for accusing judges ) and the evaluated judge. It is then mainly the professional activity of the judge that is evaluated. For instance, in ordinary justice, the first step is to measure general skills such as common sense, strength of character, sense of responsibility, ability to decide, efficiency, initiative, respect for the litigant, availability, quality of relations with other judges, capacity to represent the judicial institution, etc. The evaluation authority shall then measure the legal and technical professional skills such as accuracy and extent of legal knowledge, ability to use and update legal 1 The vice-president of the Council of State is considered as a «Minister of Justice bis». 9

10 knowledge, analytical and synthesis ability, written expression, computer skills, etc. Skills that are specific to certain positions (head of court for instance) are measured by more specific criteria such as the capacity to implement judicial policies, organize and conduct meetings, etc. The results of the continuous evaluation have an impact on the assignment, promotion, transfer, mobility or secondment, and even, in some cases, the payment of performance bonuses in ordinary as in administrative justice. One can regret that the individual evaluation in France is only a managerial evaluation, even if the manager (head of court) is also a judge. A few years ago, some judges try to introduce peer review but it was a failure due to the absence of will to spread the practice by the Ministry of Justice. Judgments evaluation: There is no evaluation of the content of the individual decision apart from the appeal way, but the evaluation made by the managerial authority on professional skills lead indirectly to an evaluation of the quality of decisions. Indeed the individual evaluation of the ordinary judges assesses the overall appreciation of the analytical and synthesis abilities or the quality of the judge s written expression. It is the same in aadministrative justice where the authority in charge of evaluation assesses how the law is applied, the quality of the written expression, the ability to decide, the understanding of the context of the contentious activity or even the efficiency and work capacity. 1.2 Courts evaluation: The evaluation of court activities in France is also of a managerial nature. The evaluation of courts by the litigants themselves is not a tradition in France. A users satisfaction survey was carried out in 2001 by the Mission of Research Droit et Justice (under the supervision of the Ministry of Justice and the National Center for the Scientific Research) and made by the Institute Louis-Harris. The objective was to determine the level of satisfaction of people who had to deal with justice (only citizens, not judges or lawyers) and to identify the hierarchy of factors that contributed to their final opinion. Another survey was carried out only 12 years later. Moreover, the courts evaluation process is lead by the budgetary process: every year, the Ministry of Justice must describe in an annual performance project ( Projet annuel de performance ) the performance objectives to reach by the courts as a whole, then an annual performance report ( Rapport annuel de performance ) describes the performance objectives set out by the courts. At the local level, the evaluation process is based on a larger variety of objectives and indicators that are essentially quantitative, focusing on the speed of justice and the productivity of the courts, like in the annual performance project. Actually, the first objective of this evaluation is the budgetary rationalization of the functioning of the courts. It is part of the resource allocation process, to the point of being totally integrated to it (see infra). Each head of ordinary or administrative court has to reach these objectives and is accountable before the Ministry of Justice or the Council of State. Two authorities are also implied in the courts evaluation: the Directorate-General for Justice ( Inspection Générale de la Justice ) for ordinary courts and the Permanent Mission of Inspection of Administrative Courts ( Mission Permanente d Inspection des Juridictions Administratives ) for administrative courts (only tribunals and courts of appeal, not the Council of State). These two authorities operate according to similar processes: sending questionnaires to the heads of courts, onsite visits (after a preliminary interview with the head of court for the administrative justice), interviews and verifications, discussions after sending to the heads of courts a pre-report containing recommendations and finally a final report distributed within the inspected court. For ordinary justice, this final report is also addressed to the Ministry of Justice. In this process, the qualitative approach is not an essential lever and there is weak room for manoeuvre at local level to develop qualitative policy insofar as there is no money surplus. 10

11 1.3 Resource allocation: As already mentioned, the judicial evaluation process is highly depending of the budgetary process. The judicial resource allocation is developed in the context of the new legislation governing public finance, in French Loi organique relative aux lois de finances (2001). Each year, an annual law on State Budget is passed by the Parliament and the budget is allocated to the ministries for the following year. The Minister for Justice is accountable for ordinary justice budget (Program 166), whereas the Vice-President of the Council of State is accountable for administrative justice budget (Program 165). Budgetary resources are based on performance objectives and indicators. Variety of objectives and indicators are designed to meet objectives aiming at satisfying the citizen, the user and the taxpayer. These are largely quantitative indicators which do not exclude nevertheless a qualitative approach. Some quantitative indicators may tend indeed to measure qualitative objectives. For example: the objective of improving the quality and efficiency of ordinary justice measured by the average time taken to process a case ; the objective of maintaining the quality of administrative justice measured by the rate of quashed decisions. Resource allocation to the courts is implemented within the scope of management discussion (in French dialogue de gestion ) between the Program manager and the heads of court. Financial resources are not equally allocated among courts as they depend on their specific situation, but they are based on the same criteria and are not dependent on any bonuses, incentives or rewards for best practices in efficiency or quality. 2. Innovative practices Traditionally in France, the management of justice is highly centralized, which implies the courts enjoy very limited autonomy, at the budgetary level but not only. However, for ordinary courts as well as administrative courts, there is a recent phenomenon of taking responsibility for quality actions at the local level because there is no longer a central quality policy due to the lack of money. The Council of Satet is never against local initiatives that allow administrative justice to shine and be exemplary. The Ministry of Justice seems more reluctant, probably because of its impossibility to assume financially their spread to other courts. So the innovative practices are characterized by their bottom-up nature. One can particularly mention the participation of the National School for the Judiciary in legal standardization. This is an example particularly interesting because this school for the training of ordinary judges does not have in principle a role to play in legal standardization, only in legal training. Its guide on the drafting of decision in civil matters has involved a number of judges for the drafting and the validation, and has been a success. What is interesting is the bottom-up approach of the drafting and the Ministry of Justice s consent to its diffusion on its intranet. Local initiatives on the search of well-being at work have also been developed. This is also an interesting practice for the bottom-up approach and because it is a field that has not been explored yet. The aim is to improve the working conditions of judicial and administrative staffs as a condition of the quality of justice for users. In the objective of opening justice and judges to the society, courts councils 2 have been created by the Parliament. It is however controversial in terms of independence of justice because of the reception of political/administrative authorities and civil society. 2 According to the code of the judicial organization: The Court Council [ ] is a place of exchange and communication between the court and the city. It meets at least once a year. 11

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13 The quality of justice in Hungary: Executive summary Mátyás Bencze, Ágnes Kovács, Zsolt Ződi 1. Judicial structure overview In Hungary a four-level judicial system operates. The system is unitary, i.e. there are no specialized courts outside of the ordinary courts. There is a horizontal division of labor amongst judges in each court. This kind of division of labor is reflected in the horizontal organization of the judicial administration: in higher courts criminal, civil, economic as well as administrative and labor judicial departments operate. The departments organize and support judges adjudicating in one of the aforementioned branches of the law. The Curia of Hungary is the highest judicial authority in Hungary. It decides appeals and reviews final decisions of lower courts if these are challenged through an extraordinary remedy (the Curia has no right to select the cases to be dealt with). Besides, the Curia publishes judgements and delivers uniformity decisions in order to guarantee the coherence of the judicial practice at national level. Uniformity decisions are binding for all courts. The President of the National Office for the Judiciary (NOJ) who is elected by the Parliament carries out the functions of central administration of the courts under a weak supervision of a selfelected body of the judiciary called National Committee of Justices (NCJ). As for the current issues, there is an evergreen problem, namely the timeliness of the administration of justice and the case-backlog accumulated before A similar problem is that there have been regions in the country (Budapest and the Central Region of Hungary) which have been tackling with disproportionally high workload. This situation was worsened in 2012, when the legislation forced to retire almost 300 senior judges. In the past few years the NOJ initiated some amendments to the law in force and organizational changes aiming at speeding up the court procedure. As many figures show this effort has proven to be successful. Quality of judgments and understandability of judicial writing is a growing concern amongst judges and court leaders. 1. Classical judicial evaluation arrangements Evaluation of individual judges - In Hungary usually the first step to become a judge is to work as a judge trainee within the judicial system (after graduating from a law school). Although according to the law, every person who passed the Bar Exam can apply for judgeship, the figures show that the vast majority of successful applicants start their judicial career as judge trainees. Lack of work experience outside the judicial administration can be a point of criticism. In the selection procedure of judge trainees and judges there is a growing emphasis on skills and competences (besides legal knowledge). There are some statutory criteria that determine the ranking of applicants. The minister in charge of the judicial system issued the number of points to be awarded for each of the criterion. The key actors in selection and appointment are the Local Judicial Council, the president of the affected court and the President of the NOJ. Another point of criticism may be that it is the judges perspective that dominates the selection process, and societal expectations toward prospective judges do not exert significant influence on it. Judge trainees and apprentice judges have compulsory in-service trainings held by mostly senior judges focusing on competences such as understandability of judicial writing and legal knowledge. A new development is that each apprentice judge has an instructor judge who supervises her work (while respecting the independence of the supervised judge). Judges are assessed firstly in the third and secondly in the sixth years from their appointment and after that in every eighth year. The assessment is conducted usually by the head of the affected 13

14 department (who knows the assessed judge personally). She evaluates the quality of the assessed judge s work from three aspects: the quantitative and the qualitative aspect of the judicial work as well as judicial skills are taken into consideration (a detailed list of assessment criteria exists). According to the relevant law and regulation the proportion of the quashed/changed judgments of the assessed judge is not an explicit quality indicator, but in practice it may have an impact on the outcome of the evaluation. If the result of the evaluation is incompetent, the judge must be dismissed (legal remedy exists against that decision). It can be said that evaluation of judges is also dominated by the perspective of judges (for example, parties satisfaction does not play any role in the evaluation). Besides, evaluation conducted by the immediate superior of the assessed judge can threaten judicial independence. Court leader positions are filled by the way of an application procedure. The key players of this process are the presidents of regional courts (in cases of lower court leaders) and the President of the NOJ (in cases of all other court leaders). Court presidents are not managers, they are judges, but managerial trainings are organised for them by the NOJ. It is hardly a positive phenomenon that a great proportion of the application procedures were declared unsuccessful by the President of the NOJ (in 2015 almost 20%, in % of all calls). Some consider this tendency a sign of an increasing central control over court leaders. Evaluation of court activities - In Hungary a heavy emphasis is put on monitoring the activity of courts. The evaluation is highly centralized: the aim of the evaluation is to meet those long-term strategic objectives (primarily effectiveness and productivity) that were established by the President of the NOJ, and the indicators were determined at the national level. The evaluation process is characterized by a statistical approach which shows that courts work under strict control. A wide range of information on the activity of courts is collected at the court level and sent to the NOJ on a monthly basis. This information encompasses the number of incoming and resolved cases, the backlog (special attention is paid to the old cases that are pending over two years before courts) and the workload (case/judge) of courts, appeal and reversal rates, and data on the length of judicial proceedings. External actors are involved to a very limited extent in the process of court evaluation: the use of customer satisfaction surveys is in its infancy. Recently, new methods for workload measurement have been developed: case weights and socalled ratio tables have been introduced. Case weights are used in the process of case allocation and aim to make the workload of judges within one court more balanced. The figures of ratio tables (incoming cases per authorized judicial staff in each court) provide information about the workload of courts and are meant to be used when decisions need to be made on staff allocation (filling vacancies). The Hungarian judiciary is constantly facing the problem of huge workload imbalances between the central region and other parts of the country: the primary tool for reducing pressure on judges adjudicating in courts belonging to the central region is judicial secondment. There is no direct link between court evaluation and the allocation of financial resources. Only temporary national projects provide some extra resources for well-performing courts. It is the court president who bears responsibility for the performance of the court. The president of the court can be subjected to disciplinary proceedings in case of serious malfunctions in the court. Resources allocation to courts -The annual budget of the court system in 2017 is cca. 321 millions of euros which is 0,67 percent of the annual state budget. Though in the last few years there has been a slight increase in the amount of the budget of the court system, budgetary support for Hungarian courts is rather low compared to the general European level. The budget of the courts is a separate chapter within the state budget in Hungary. The external budgeting (i.e. the determination of the main figures) is formally the task of the President of the NOJ, who prepares the budget plan independently from the government. However, de facto it is determined mainly by the previous year s budget ( base approach ), the political bargains behind 14

15 the scenes, and other determinations, like, that more than 70% of the total budget is spent on salaries, and taxes. The allocation of the freely expendable resources (vacant positions, and some 20% of the budget) within the organisation ( internal budgeting ) is nearly entirely in the hand of the President of the NOJ. She is deciding on the filling or the reallocation of the vacant positions, as well as all other minor budgetary issues, like renovations, extra remuneration etc. 2. Innovative practices 1) As a recent development in Hungarian courts a mentor-judge network operates. Junior judges that need legal-professional support may turn to senior judges registered as mentors. Unfortunately, we have no data on the number of junior judges who use this opportunity. 2) Since 2012 a special organization is functioning under the umbrella of NCJ, the network of EU law consultant judges. Their main task is the consultation Locally in legal matters affected by EU law. This system is not only a tool for improving the judges performance, but is also gives a territorial and per court overview on the everyday EU legal problems of the courts as well. 3) In 2013 a jurisprudence-analysis group was set up to deliver inquiries into the drafting practice of the Curia judges in civil and administrative cases. A similar group was created in criminal matters a year later. Since the structure of decisions and their linguistic and stylistic level varied from one judge to another to a great extent, the objectives of the working group were to improve the drafting-style, the uniformity and the comprehensibility of judgments in order to meet the expectations of the general public. Their report suggested, inter alia, the standardization of the description of the subject-matters of the cases, the rationalization of citing previous decisions, the introduction of an internal numbering to the reasoning part, or compliance with the linguistic demands of the heterogeneous target audience. The report also proposed some changes on the substance of the reasoning, but some of them for instance, avoiding reference to legal literature or the establishment of novel legal doctrines, and refraining from addressing the parties arguments which do not affect the decision were highly surprising. The Stylebook which contains some samples for drafting was published only on the intranet of the judiciary in The Stylebook is not a compulsory tool. 4) In recent years, a new strategy aiming to improve the timeliness and the quality of adjudication has been developed in the District Court of Debrecen in cases belonging to the criminal branch. The project was launched in the early 2014 in a bottom-up way and is built on three pillars: (1) timely and effective administration of justice, (2) staff satisfaction and (3) customer satisfaction. The project targeted a comprehensive change in the attitude of the staff, in all segments of the functioning of the court. A novel method of case allocation was introduced to provide incentives for judges to complete cases and make their work more effective. The former scheme was based on the system of case equalization in the level of individual judges: each judge had to deal with the same number of cases which meant that judges were not motivated to resolve cases as the more cases they resolved, the more they got. This scheme was replaced by a case allocation system which builds on the idea that judges receive the average number of incoming cases in every month with special emphasis on the different difficulty of the cases to be assigned (the guiding principle is equal number of cases with equal weight ). Besides, a complex motivational system has also been elaborated which is directly linked to the performance of the judges. Statistical data reveal that the number of cases pending over 2 years has dropped significantly since the model was introduced, namely from 8,6 % to 2,79% in a two-year time. 15

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17 The quality of justice in Italy: Executive summary Francesco Contini 1. Judicial structure overview The Italian judiciary is split into two major branches. The ordinary judiciary is a classical three-tier court system: Court of Cassation, of appeal (26), and of general jurisdiction (135) plus Justice of the Peace Offices (handled by non-professional judges), and Juvenile Courts. The specialised jurisdiction is not considered in this report. Article 110 entrusts the Ministry of Justice with the organisation and functioning of judicial services (financial provisions, procurement, human resources including court managers, ICT development and deployment etc.). The Judicial Council is the self-governance body of the magistracy (judges and prosecutors). It is composed of 27 members. Two third of them are judges and prosecutors, one third layman. Article 105 of the Constitution entrusts selection, assignments transfers and promotions and disciplinary measures of judges and prosecutors to the Council. In each of the 26 judicial districts operate a Local Judicial Council, with consultative functions in areas like the individual evaluation of judges, appointment to managerial positions, case assignment, court monitoring and organisation. 2. Classical judicial evaluation arrangements Recruitment - The recruitment of Italian judges follows the bureaucratic model: periodical public competitions open to law graduates, based on three written exams and one oral examination. The candidates are mainly tested looking at the knowledge of the law on the books. Previous professional experience is not relevant. Hence apprentice judges are (relatively) young law graduates with limited prior professional experiences. Apprentice magistrates attend a six months training course at the School of magistracy and 12 months as on the job training at courts and prosecutor offices. The length of the training process has been temporarily reduced to 12 months to speed up their entry into service. Individual evaluation - The Judicial council evaluates judges with the support of Local judicial councils, the Ministry of Justice is not involved. The evaluation occurs every four years, based on a schema that is identical for judges, prosecutors and magistrates engaged in non-judicial functions (for instance at the Ministry of Justice). The evaluation considers various sources of information, including a self-evaluation made of the magistrate, case-load statistic, not less than 20 judicial documents (including minutes of hearings and sentences) and side jobs, a report made by the head of the office in which the magistrate works, that must also consider complaints or other inputs received by the Bar. Criteria encompass three "prerequisites" to the fulfilment of the judicial function: independence, impartiality and balance. They must be rated as nothing to remark or the evaluation is negative. Then, the evaluation process considers four other criteria: professional skills, productivity, diligence, and commitment. The Council has approved a detailed definition for each criterion, with the goal of making the evaluation objective and consistent. Judicial writings are evaluated considering the clarity, completeness and synthesis, and their appropriateness concerning the procedural or investigative problems dealt with in such documents. Appeal rate or reversal rate are not considered, except for cases explicitly reported by the President of the Court. 17

18 The Local judicial council considers the information provided in the dossier and expresses an opinion. Then, the (National) Judicial Council expresses the final evaluation that can be positive (in more than 98% of cases, and associated to a salary increase), non-positive (mostly side effects of disciplinary sanctions) or negative (0,6%). Considering such data, it seems reasonable to state that the evaluation is not very severe in filtering poor performing judges (and prosecutors) and that with few exceptions, magistrates collect a positive evaluation every four years. Appointment to managerial position - The appointment of judges and prosecutors to managerial positions requires another evaluation that takes into account merit and aptitude. Merit should look at the whole quantity and quality of the judicial activities of the magistrate and should be a kind of consolidated evaluation of the periodic professional evaluations. Aptitude must take into consideration previous experiences in managerial positions in courts or prosecutor s offices. Several detailed items define merit and attitude. Prospective candidates must attend a course organised by the School for the Magistracy to apply to a managerial position. The Council makes the appointment with the concerto (endorsement) of the Minister of justice that however is not binding. The mechanism in place still lags the capacity to make an appointment based on merit and attitude; political sponsorship by the different components of the Magistrates association represented within the Judicial Council, are still considered very relevant. Court evaluation - The court evaluation system is made of three different components address to design court organisation, and to establish annual plans and goal. Laws, bylaws, and circular notes regulate the entire planning exercise in a very detailed fashion. Every three years each court drafts the organisational chart (tabelle) through which judges are assigned to the sections, the criteria to assign cases to judges are established (natural judge principle) and performance and goals are identified. The establishment of the charts is a lengthy process that requires judges' inputs, the assessment of caseload, and the drafting of a proposal (justified by statistical data and various criteria). Then, Local judicial council evaluate the proposition that, as the last step, has to be approved by the National judicial council (often with considerable delay). Charts are public; the Ministry of Justice is not involved. Every year each court establishes an annual activity programme within the blueprint provided by the charts. Such programme identifies organisational goals, (ex. the number of cases to be handled or closed by each court section or by each judge or case disposal plans to tackle backlog). This second procedure involves just judges. Always on annual bases there is a third step: the definition of the court action plan in which the goals established by the annual activity programme are coupled with human, technological and financial resources provided by the Ministry of Justice as well as policy priority set by the Ministry. This third exercise involves the Court president and the Court administrator, a civil servant appointed by the Ministry that is formally accountable for the use of resources. Such planning is time-consuming and should have clear consequences as the reward for the achievement or the correction of errors, but its the implications are not clear. The exercise does not influence resource allocation and there is no gap assessment; even symbolic rewards are absent. The planning seems self-referential, ritualistic and not linked to consequences. The Strasbourg projects and the statistical monitoring Since 2014 the Ministry implemented a more accurate monitoring of Courts' caseload and procedural delays, adopting some of the best practices established by the CEPEJ. The system looks at effectiveness (time to disposition) and efficiency (case decided by each judge). Furthermore, the system has helped to increase courts' accountability providing, for the first time, caseload data (filing, disposition and pending) correlated with human resources employed by each court. The results of the monitoring are ranks of the Italian courts based on different indicators, and tables with some data about the resources available in each court. 18

19 The statistical analysis stated that the delay is associated with the programming of individual calendars, and poor management of caseload. Furthermore, the analysis pointed to abnormal rates of litigation in social security and welfare cases in specific areas and identified a group of underperforming courts. Specific corrective measures have been identified and at least partially implemented. Surveys are the less developed area of court evaluation. Few courts have conducted them on experimental bases. Lawyers and court users remain outside official evaluation of courts efficiency and quality. Resource allocation - Staff planning is the pivotal decision regarding resource allocation in labourintensive organisations as courts and prosecutors. Judges and prosecutors' staff plans are established by decree of the President the Republic based on a proposal of the Minister of Justice that gather requests and inputs from the Judicial Council. Staff plans establish the maximum number of magistrates working in each office. Staff plans are changed every few years but do not correspond to the real number of units operating in a given office at a given time. Indeed, the budget posts and the magistrates in service are regularly below the thresholds established by the plan due, mostly, to the lack of financial resources. To fill the vacancies, the Judicial Council identifies the offices in which new staff units are needed (a selection of the courts in which there are vacancies) and publishes a calls for vacant positions open to all the magistrates with the necessary qualifications. Then, a public competition (primarily based on seniority) is held to select the judges who will take that posts. Since some courts (placed in remote areas or with relevant backlog) are not appealing, there are incentives for judges appointed to those offices. However, such offices tend to remain understaffed. The same mechanism is in place for prosecutors. Staff plans works also for the administrative staff that are recruited and managed by the Ministry. The procurement of ICT, equipment, facilities etc. is centralised. The budget the court can spend autonomously is short, and the outcry about insufficient resources is common. The expenses needed for the conduct of judicial proceedings (wiretapping, experts witnesses etc.) are however dealt with a different set of rules and are considerably under the direct availability of official in charge of the proceeding. The process of resource allocation is the most significant weakness identified. Despite the efforts to provide technical justifications, political criteria seem to be at the bases of staff plan definition. The system creates overstuffed and understaffed courts. The range of court efficiency (cost per case) and effectiveness (time to disposition) is extensive; no clear link between resource allocation and quality dimension can be identified. The lack of resources pushed many courts to look for additional resources asking collaboration to local and regional administrations, bar associations, and other donors including banks and industry associations. Sometimes intermediate such as judicial foundations bodies have been established to receive and manage the additional finances used to recruit staff or to reimburse graduate students in training. With this approach, courts are necessarily pro-active and open to society, but at the same time makes courts vulnerable to external pressures and raises potential issues of judicial independence and impartiality, not well considered in the public debate. 3. Innovative practices Many innovative practices have been promoted and implemented in the last ten years, up to the point that the Judicial Council has made an inventory and established dedicated web pages to upscale local good practices at national level, There are bottom-up actions, launched to face the decrease of human and financial resources and primarily to improve efficiency and effectiveness through organisational and technological 19

20 innovation. There are also some national initiatives financed by EU structural funds. The latter, despite consistent efforts, have not left visible results in most of the offices involved, while bottomup actions seems to be more promising. Among these, the Civil Justice Observatories (Osservatori per la giustizia civile) are court based groups of judges, lawyers, court managers, clerks and academics organised on voluntary bases to analyse various fields of substantive and procedural civil litigation and establish common practices. They manage to upscale from local to national scale thanks to different coordination mechanisms such as national meetings on given topics (family law, judicial writing, ICT) and the annual meeting of all the courts involved in the project. Also, they manage to define and agree shared interpretations of procedural laws, and sentencing grid. The Court of Cassation endorsed the work of the Osservatori as the right sentencing schema to deal with compensation for personal injuries. Other benefits are improved uniformity in various practice areas, streamlined procedure and hence efficiency and judicial consistency. The understanding that justice is primarily the result of cooperation and co-production among judges, clerks and lawyers is a side effect of such action. 20