Chapter 1 1. Introduction When one thinks of the judiciary in a democratic country, instantly the constitutional principles that will spring to lawyers and legal academic minds will be judicial independence. Judicial independence is the central theme in constitutional law, in international treaties relating to human rights and a fair trial, and is also a focus of international organisations in developing judiciaries in member countries. It is a key concern for all parties and lawyers coming before the bench to argue their case: will this judge decide my case without bias? In constitutional courses at university relating to the separation of powers, judicial independence is also a central issue. And until the late 1980s, European democracies had not given much thought as to how access to justice was organized because it was taken for granted that if judicial independence were guaranteed, then access to justice would also be guaranteed. When the Woolf Report came out in England and Wales in 1996 it highlighted organizational barriers to justice and the inequalities faced by many parties who had no recourse to justice because of the costs of lengthy and inefficient litigation. Looking at the Leemhuis Committee report in the Netherlands, the issue of organizational barriers through failures of the judicial organisation to limit backlogs growing in the courts and inefficient organisation was highlighted. Next to these reports was also the growing caseload of the European Court of Human Rights dealing with cases against member states for unreasonable delays in the courts based on Article 6(1) of the European Convention on Human Rights. This introduction will therefore go on to give a brief description of how courts have been seen to be organised to deliver justice. After this, I will give a brief description of the role of Article 6(1) of the European Convention on Human Rights. 1.1. Professional bureaucracy Judiciaries can be classified as professional bureaucracies. 1 According to Mintzberg, a professional bureaucracy is an organisation that hires people who have been through 1 J.B.J.M. ten Berge, Organisatie en individuele rechter in balans (over onafhankelijkheid en professionele autonomie) in De Onafhankelijkheid van de individuele rechter, J.B.J.M. ten Berge and A. Hol (eds), The Hague 2006, p. 6-9. 3
Introduction a process of intensive training to turn them into specialists. 2 These professionals then become part of the operating core that has control over the production and quality assurance process (i.e. the organisation). On the one hand, he says that the complex work of the operating professionals cannot easily be formalized, or its outputs standardized by action planning and performance control systems. 3 On the one hand, quality is assured through extensive educational programmes, which provide the potential professionals with the skills and knowledge needed, and then stability ensures that these skills settle down to become the standard operating procedures of the organisation. 4 The literature would suggest that under these circumstances, the training programme and experience are generally of a high standard and provide the skills needed that go toward guaranteeing quality and that inspire trust. If the mechanism works, quality is assured and consequently quality assurance is not a high priority. Even if it were not sufficient, experience in the literature would seem to suggest that trying to measure the outputs in such conditions is difficult and expensive. There are two conclusions to come from this that can be applied to a judiciary from an organisational point of view. Firstly, quality control should not be an issue because of the highly qualified members of the organisation (i.e. the judges). However, what is also being said is that basically judges are difficult to manage and access to justice cannot be so easily programmed around them because of their nature as professionals, and because of their control over productivity. According to Mintzberg s description, such an organisation relies on the following situational factors to survive: Complex, stable environment, nonregulating, nonsophisticated technical system 5 Therefore, judges are traditionally seen as independent both in their decision-making and within the court organisation. 6 In fact, the court building can be considered to be only a building where they work and not as part of the institution of justice (a concept that may be reserved to describe judges only). However, because they are judges, they 2 H. Mintzberg, Structure in 5 s: A synthesis of the Research on Organization Design, Management Science 1980, vol. 26, p. 322-341, p. 333. 3 Ibid., p. 334. 4 Ibid., p. 334. 5 H. Mintzberg, Structure in Fives: Designing Effective Organisations, New Jersey 1983, p. 189. 6 J.B.J.M. ten Berge, Organisatie en individuele rechter in balans (over onafhankelijkheid en professionele autonomie) in De Onafhankelijkheid van de individuele rechter, J.B.J.M. ten Berge and A. Hol (eds), The Hague 2006, p. 1. 4
Chapter 1 do operate within a certain legal framework, even though it is usually their expertise that is required to interpret that framework. Furthermore, according to Mintzberg, such an organisation has a small administration department to take care of everyday management issues in terms of finances and personnel, but it is small and technocratic, with little or nothing to do with the operating core of the organisation. Having looked at how judiciaries in democracies are usually seen in terms of the way that they are organised, it is now time to look at one of the regulations that judges as members of a constitutional institution are subject to. 1.2. Article 6(1) European Convention on Human Rights 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. Public hearings go to the fairness of a trial and are an established practice in democratic countries. One will also find a very strong framework of laws based on the independence and impartiality of judges in hearing cases in all democratic countries. A concern since the late 1980s for many countries has been achieving reasonable time expectations of parties and the European Convention on Human Rights. In a preliminary draft report to the Council of Europe s Committee on the Efficiency of Justice, Langbroek and Fabri attempt to define court delay as is practised across various jurisdictions in Europe, then to further define reasonable delays as set out in the jurisprudence of the European Court of Human Rights on this clause. According to this report, delay In the court environment means that a case does not move as fast as it could, because of problems that generally are recognized as court problems this does involve judges, public prosecutors and their administrative organisations, as well as lawyers and their offices. 7 This in itself directly links the ability to decide cases without delay to factors other than an independent judge, such as the courts organisation and external players. However, the framework developed by the European Court of Human Rights on the reasonable delay clause further described by Lanbroek and Fabri takes on a more societal angle: 7 P.M. Langbroek and M. Fabri, Delay in Judicial Proceedings: a preliminary inquiry into the relation between the domains of the reasonable time requirement of article 6, 1 ECHR and their consequences for judges and judicial administration in the civil, criminal and administrative justice chains, Council of Europe, Committee on the Efficiency of Justice, 2003, p. 2, see also C.H. van Rhee, The Law s Delay: An Introduction in The Law s Delay: Essays on Undue Delay in Civil Litigation, C.H. van Rhee (ed), Intersentia, Antwerp 2004, p. 5. 5
Introduction There has to be an end to every dispute, so that everybody s life can go on. On the other hand, parties should also be given enough time to prepare their defence timeliness requirements are not directed towards speed alone. 8 The human rights element comes from The idea that citizens are entitled to legal certainty parties and suspects should not be left in uncertainty about their case endlessly. 9 However, according to this report, delay is very difficult to define. On the one hand, Usually delay deals with expectations and subjective perceptions of the local legal culture, which is different in every environment. A delay that could be acceptable in one community could be unacceptable in another one. 10 Due to this difficulty in defining unreasonable delay therefore, the framework of the court does not contain any fixed time limits [it] depends on external boundaries of applicability of the reasonable time clause and on case-related criteria. 11 Therefore, the European Court has offered up no real solutions or definitions to the problem of unreasonable delay. It offers only the possibility to redress and order damages to be paid to parties deemed to have suffered an unreasonable delay in court proceedings. 8 P.M. Langbroek and M. Fabri Delay in Judicial Proceedings: a preliminary inquiry into the relation between the domains of the reasonable time requirement of article 6, 1 ECHR and their consequences for judges and judicial administration in the civil, criminal and administrative justice chains, Council of Europe, Committee on the Efficiency of Justice, 2003, p. 4. 9 Ibid., p. 3. 10 Ibid., p. 2; see also C.H. van Rhee, The Law s Delay: An Introduction in The Law s Delay: Essays on Undue Delay in Civil Litigation, C.H. van Rhee (ed), Intersentia, Antwerp 2004, p. 1. 11 P.M. Langbroek and M. Fabri Delay in Judicial Proceedings: a preliminary inquiry into the relation between the domains of the reasonable time requirement of article 6, 1 ECHR and their consequences for judges and judicial administration in the civil, criminal and administrative justice chains, Council of Europe, Committee on the Efficiency of Justice, 2003, p. 4. 6
Chapter 1 1.3. Concept for a thesis Unreasonable delays, though difficult to define, have always been a problem and are still regarded as such according to van Rhee. 12 The question dealt with next to definition is how to tackle them. Van Rhee points out that Various measures have been suggested over the centuries to fight delay. Some of them aim at preventing litigation altogether. 13 However, in looking at the factors named in contributing to unreasonable delays, they can be summarised into: actors involved in litigation, court organisation and budget. 14 The title for this thesis is Quality of Judicial Organisation and Checks and Balances. When I first read the proposal for this thesis, I was shocked. It talked about applying quality theories and standards to court organisations, and indeed as a legal academic my first thought was geared towards the protection of judicial independence. In such a professional bureaucracy, the professionals themselves control quality, either through appeals or through collegiate hearings. The thought of applying organisational solutions through applying quality standards and management to the courts had not occurred in the Woolf Report, for example. Many procedural changes were recommended in that report. In reading van Rhee s piece, he also recommended alternative solutions to the problem of undue delay. Even when he referred to court organisation, it did not refer to judicial administration, and his solution to organisational problems was to invest more resources in the courts. This thesis looks at whether it is possible to for judges to work in an organisation that is not defined as a professional bureaucracy. It looks at whether the organisational autonomy enjoyed by judges is connected to the judicial independence of decisionmaking. Can a judicial organisation be subject to the same principles of management and governance within the constitutional framework? Can organisational solutions of quality theories help the judicial organisation face the problems of growing unreasonable delays, and consequent legitimacy problems of transparency and accountability? Whilst the reasonable delay clause of article 6(1) European Convention on Human Rights provides a legal impetus for change, quality of justice also considers questions of service quality, the comportment of judges, and the transparency of the organisation. The remainder of this PhD thesis will be dedicated to addressing these issues. 12 C.H. van Rhee, The Law s Delay: An Introduction in The Law s Delay: Essays on Undue Delay in Civil Litigation, C.H. van Rhee (ed), Intersentia, Antwerp 2004, p. 3. 13 Ibid., p. 18-20. 14 Ibid., p. 6-17, see also P.M. Langbroek and M. Fabri Delay in Judicial Proceedings: a preliminary inquiry into the relation between the domains of the reasonable time requirement of article 6, 1 ECHR and their consequences for judges and judicial administration in the civil, criminal and administrative justice chains, Council of Europe, Committee on the Efficiency of Justice, 2003, p. 4-7. 7