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CCJE-GT(2014)2

Strasbourg, 11 March 2014

WORKING GROUP
OF THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE-GT)

NB_CE

Summary of replies to the questionnaire
for the preparation of the CCJE Opinion No. 17 (2014)
on justice, evaluation and independence

Introduction

The questionnaire aimed at collecting information on the individual evaluation of judges. 25 questionnaires were handed in. Those questionnaires answered the question with respect to the following member states: Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Luxemburg, Macedonia, Moldova, Monaco, Poland, Rumania, Sweden, Turkey and the United Kingdom.

In 19 member states, systems of individual evaluation of judges are used. Seven member states denied using such a system, even though some of them (Finland, Sweden) apply evaluation tools in order to prepare career development discussions.

In member states which use such a system, the individual evaluation of judges can be an important factor in relation to a judge’s chances for promotion and – for a young judge - for obtaining life appointment. Evaluation may also play a role in determining performance oriented salaries and pensions. Moreover, in some member states, poor performance can lead to the initiation of disciplinary procedures, pay-cuts and even a judge’s dismissal from office.

In almost all member states, judges are responsible for the evaluation process and decision. The evaluation might either be conducted by a commission appointed by a national Council of judges or by the president of the court where the evaluated judge performs his or her duties. In some countries, evaluation is conducted in the form of a career orientation discussion which is supposed to help a judge in his or her future development. In other countries, the evaluation is undertaken in a more formal way.
While the ratings used to classify judges are roughly comparable in the different member states, the method of ascertaining those ratings differ. In some countries, the performance of each judge is appraised against a benchmark of fixed expectations. The judge’s performance is illustrated in points or a percentage, which makes the work of each judge comparable to other judges.

In almost all countries, however, the evaluated judge is heard in the evaluation. In most member states, a judge who is unsatisfied with the result of the evaluation has a right to demand a review of the decision, be it through judicial review or by appealing to a special review board.

Though member states do report problems with their evaluation systems, such as a tendency that judges are evaluated too positively, or that the system used could be improved, fundamental doubts in the evaluation of judges were only reported sporadically.

A. Individual evaluation and assessment of judges: purpose and regulatory framework

1. Does individual evaluation and/or assessment of judges exist in your country?

In the majority of member states which replied to the questionnaire (26), a formal system of individual evaluation of judges does exist (19). Especially in eastern European countries, the evaluation of judges seems to be an important issue. Macedonia and Rumania explained that judicial independence (Macedonia) and the trust of the public in the judicial system (Rumania) could be promoted through the individual evaluation of judges.

The remaining seven member states (Czech Republic, Denmark, Finland, Iceland, Luxemburg, Sweden, UK) denied using a system of individual evaluation. Denmark explained that individual evaluation of judges were incompatible with the principle of judicial independence. Therefore, a judge’s conduct may only be judged in the course of disciplinary procedures. In the Nordic countries and the UK, countries experienced practitioners become judges later in their professional (see questionnaire Denmark), which might be another factor in considering evaluation of judges problematic and – given the professional experience of even newly appointed judges - unnecessary.

However, Sweden and Finland use certain evaluation tools in order to ascertain performance-linked wages (Sweden) or in preparation of career development discussions (Finland). In the UK, informal evaluation takes place when a judge’s promotion is in question.

Estonia only evaluates young judges before their life appointment.

2. If yes, what is its purpose and rationale?

The purpose and rationale of the different evaluation systems differ.

In the majority of cases, evaluation aims at maintaining and improving the quality of the work of judges and the judicial system, the professionalism and efficiency of judges and ensure that judges perform their duties adequately (Albania, Austria, Belgium, Bosnia and Herzegovina, Croatia).

Some member states just gave the assessment of the quality and efficiency of their judges’ work, performance as a reason for evaluation (Cyprus, France, Georgia, Germany, Greece, Moldova, Poland, Rumania, Turkey).

Many countries explained that evaluation aimed not only at assessing achievements and skills but also at identifying training-needs and providing feed-back (Albania, Belgium, Hungary, Poland).

Moreover, many member states use evaluation as a basis for decisions on the promotion of judges (Austria, Bulgaria, Croatia, Germany, Monaco, Poland, Turkey, informally: UK).

For some member states, evaluation is especially important when deciding on the lifetime appointment of young judges (Estonia, Georgia, Germany).

3. Is it compulsory or optional, and does it apply to all judges in the country?

Evaluation is compulsory for most judges in all member states that use a formal evaluation system. Exceptions are often made for judges at the highest court(s) (Albania, Bosnia and Herzegovina, Croatia, France, Greece, Sweden).

Some legal systems use special rules for the evaluation for newly appointed judges or after a judge has been transferred to a new position (Austria, Rumania).

4. How it is established and regulated:

    by legislation;
    by subordinate legislation;
    by internal institutional regulatory instruments.

Usually, evaluation is established by legislation. In most member states, legislation provides basic principles of evaluation while details of the evaluation process, methods and criteria for the evaluation are regulated in subordinate legislation or internal institutional regulatory instruments (Albania, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, France, Germany, Moldova, Poland, Rumania). In some member states, evaluation is regulated by legislation alone (Austria, Estonia, Georgia (evaluation of newly appointed judges) Greece, Hungary, Macedonia, Turkey). In some member states, even the constitution provides the basis for the evaluation of judges (Belgium, Cyprus, Turkey). Only in Georgia, evaluation is regulated by subordinate legislation alone.

In Sweden, for all civil servants including judges, part of the salary is determined by the results of an individual evaluation. The framework for this evaluation is negotiated by Swedish Agency for Government Employers and central employees' organisation.

B. Criteria for evaluation and assessment

5. Are there quantitative performance indicators that have to be taken into account, such as:

    the number of cases in which a decision has been made by a judge;
    the average time spent on each of these cases;
    the average number of hearings per case;
    clearance rate (number of the cases, where a decision has been made, vis--vis the total of the cases forwarded to the judge);
    the average time to judgment (the time required to deliver a judgment by a judge after the completed hearing);
    any other quantitative indicators.

In many member states, a number of such quantitative criteria play an important role in the evaluation of judges. Especially the number of cases, the time spent on each case and the average time to judgment is taken into account (Albania, Austria, Bulgaria, Croatia, Cyprus, France, Germany, Greece, Poland, Rumania, Turkey). In other member states only one qualitative criterion, the number of decided cases, is considered (Bosnia and Herzegovina, Estonia, Hungary, Macedonia). Other criteria are: settlement rate and the observance of statutory time lines for deciding cases (Moldova).

The way such criteria are used in the evaluation differs widely. In some member states, data on such quantitative criteria, as for example the number of cases decided, is concerted into a percentage or points reflecting the performance of each individual judge compared to other judges (Albania, Bulgaria, Croatia, Estonia, Macedonia, Turkey). In other states, such quantitative factors only provide the starting point for an individual assessment (Austria, France, Germany).

Other member states do not use a fixed set of criteria in the evaluation (Belgium, Monaco).

6. Are there qualitative performance indicators that have to be taken into account, such as:

    analysis of the type, subject and complexity of the cases dealt with by a judge and his/her decisions;
    the number of appeals vis--vis the number of the cases, where a decision has been made;
    the number of decisions reversed and/or cases remitted by the appellate court;
    the types of cases where decisions were reversed and/or cases remitted (criminal, civil, administrative or other);
    the grounds for reversal and/or remittal;
    any other qualitative indicators.

Some member states stated that all listed criteria were used in the evaluation process (Albania, Austria, Bulgaria).

In many member states, the quality of the judge’s analysis and the complexity of the cases he or she has worked on is considered of great importance in the evaluation process (Albania, Belgium, France, Georgia, Germany, Greece, Poland, Rumania). In many member states the number of decisions reversed on appeal or the percentage of decisions reversed on appeal are considered of great importance in the evaluation process (Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Georgia, Greece, Hungary, Macedonia, Moldova, Poland, Rumania, Turkey).

In France and Germany, because of the principle of judicial independence, neither the numbers of decisions reversed on appeal nor the reasons for the reversal are taken into account, unless they reveal gross mistakes.

7. Are there any other indicators that are taken into account in assessing the judge, such as the opinions of the court users, the judicial hierarchy, court experts and others concerned in the judicial process, as well as press articles?

In some member states, the opinion of bar associations (Greece), colleagues, more senior judges (Austria, Germany, Hungary, Monaco, UK) are taken into account. Other factors to be considered in certain member states is the judge’s conduct towards litigants (Germany, Poland), organization skills and work ethic (Germany, Poland, Sweden), the ability to mediate, draft clear and understandable judgments (Germany) and use information technologies (Croatia) or scholarly activities such as publications and lecturing (Croatia, Germany).

8. Does the evaluation take into account possible violations of ethical and professional rules/standards adopted for judges?

All member states differentiate between evaluation and disciplinary measures. Nevertheless, violations of ethical and professional rules/standards are considered in the evaluation process in almost all member states which evaluate judges (except Georgia, Monaco, Sweden).

9. Is there any set scale of importance or of priority between various performance indicators? (please specify)

The answers in the questionnaires to this point were not particularly clear and helpful. Often, the number of cases decided or the percentage of decisions reversed on appeal were considered decisive.

C. Procedures and mechanisms

10. Who is responsible for individual evaluation and/or assessment of judges? Please specify all institutions and officials taking part in this process (including the Ministry of Justice, presidents of courts, Council for the Judiciary, bodies for the inspection of courts), and indicate their specific roles.

In almost all member states, the evaluation of judges is conducted by members of the judiciary. In many member states, the president of the court is responsible for the evaluation (Bosnia and Herzegovina, Finland, France, Germany, Hungary, Monaco).

In other countries, a committee of judges elected or appointed by a national council of judges conducts the evaluation (Albania, Belgium, Bulgaria, Croatia, Estonia, Georgia, Macedonia, Moldova, Poland, Rumania, Turkey). In some member states, the president of the court is a member of this group (Belgium, Rumania) or is at least involved in the evaluation process (Albania, Bulgaria). In Estonia, not only judges but also one representative of the Faculty of Law of the University of Tartu, one representative of the Ministry of Justice and one representative of the Bar Association.

In Austria, a group of judges at each court (Personalsenat) conducts the evaluation. In Greece, the Ministry of Justice is responsible for evaluations; in Cyprus the Supreme Court. In Poland, inspector judges visit each court to inspect the court and its judges.

11. Are there different evaluation procedures for different judges, depending on their position in the judicial hierarchy, their experience or any other aspect?

In general, the same evaluation criteria and procedures are applied to all judges. However, in some member states, members of the highest courts are exempt from evaluation (Bosnia and Herzegovina, Croatia, France, Greece, Sweden) or special rules apply for them (Albania, Bulgaria). In some legal systems, there are special rules for the evaluation of court presidents (Albania, Bosnia and Herzegovina, and heads of panels of judges which allow the evaluation of leading skills (Belgium, Hungary).

Some legal systems use special rules for the evaluation for newly appointed judges or after a judge has been transferred to a new position (Austria, Belgium, Bosnia and Herzegovina, Estonia, Georgia, Germany, Hungary, Rumania). Judges who have been evaluated poorly are sometimes reevaluated after a shorter time than the usual period (Albania, Austria, Moldova)

In Turkey, judges are subdivided into four classes according to their qualifications. Most judges are evaluated every second year, judges of the first class every third year.

12. Is evaluation a continuous process or is it done periodically; if the latter, how often are judged evaluated?

The answers to questions 12 and 13 are summarized under the question 13.

13. Are the evaluations done routinely, or only or additionally for specific occasions and/or for specific reasons?

In most countries, evaluations are conducted routinely and periodically in regular intervals. The time frame varies, however. Evaluation can be conducted every 6th month (Georgia), every year (Estonia, Greece, Macedonia, Sweden) every second year (Finland, France, Monaco, Turkey) every third year (Albania, Bosnia and Herzegovina, Moldova, Rumania) every fourth year (Bulgaria, Poland) fourth-fifth year (Germany) every eighth year (Hungary).

Many member states evaluate newly appointed judges in shorter intervals (Austria, Belgium, Bosnia and Herzegovina, Estonia, Georgia, Germany, Hungary, Rumania). In Albania, Austria and Moldova, judges who have been evaluated poorly reevaluated after a shorter time than the usual period.

In many member states which evaluate routinely and periodically, special evaluations can be conducted in specific situations (Austria, Belgium, Greece), especially when a judge applies for promotion.

In a smaller number of countries, only judges who apply for promotion are evaluated (Cyprus, Croatia, UK) or those who fall short on their duties (Croatia).

14. How is the evaluation conducted? (please specify exact procedures, including possible pre-evaluation, interviews, hearings, oral and verbal submissions and the role of the evaluators and a judge).

The evaluation procedures in the member states differ. However, a number of distinct approaches can be identified:

Discussion model: In some countries, the evaluation process is conducted in form of a career development discussion, in which the judge presents his or her work and the evaluator/the evaluating commission agree with the judge on career and development goals (Belgium, Finland, France, Monaco, Rumania).

Council model: In other countries, a judicial council or a subgroup of that council gathers information on the work of judge to be evaluated and decide on the evaluation (Albania, Austria, Bulgaria, Austria, Croatia, Estonia, Macedonia, Moldova, Turkey). In some countries, different levels of the council and/or the president of the judge’s court participate in the process. Usually, the evaluated judge may give his or her views on the draft opinion and the final decision.

Single evaluator model: In other member states, a single evaluator, usually the court president, gathers the relevant information on the judge’s work which often includes reading the judge’s decisions, visiting hearings chaired by the judge and an interview with the judge him- or herself. The evaluator makes the final decision often after having given the judge to comment on a preliminary draft (Germany, Greece, Hungary).

In Sweden, the salary of judges, like all civil servants, is partly determined according to the results of annual salary review talks. Such review talks take place between the head of the respective court and the individual judge and are conducted according to a framework negotiated by Swedish Agency for Government Employers and central employees' organisation.

In the UK, only in the process of deciding on the promotion of a judge, information on his or her performance and skills are gathered informally by asking for the impressions of judges of the next instance.

15. What are the ratings used during evaluations?

Most countries use roughly comparable ratings with four or five grades of marks:

excellent,
very good,
good,
satisfactory
unsatisfactory

Turkey just uses three grades, A, B and C.

Some countries determine the respective grade by adding points for the judge’s performance in different areas. Other countries use percentage systems that allow comparing the judge’s performance with the performance of his or her peers. Some member states use individual written assessments (e.g. Germany).

16. What are the consequences of the evaluation and how may it affect the career of a judge? Can it result in:

    the promotion or demotion of a judge;
    a professional award to a judge;
    disciplinary or other measures;
    a requirement of further training;
    dismissal from office;
    any other actions or measures (positive or negative).

In most member states, evaluation results are of great importance when decisions on a judge’s promotion are made (Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, France, Georgia, Germany, Greece, Hungary, Macedonia, Monaco, Poland, Rumania, Turkey, UK). In Rumania, only judges who have received the highest grade may apply for promotions.

In some countries, a young judge can be dismissed before his or her lifetime appointment because of poor evaluation results (Bulgaria, Estonia, Georgia, Greece). Other legal systems allow the dismissal of judges after a poor evaluation results (Austria, Estonia, Greece, Hungary, Moldova, Poland, Rumania) In Austria, Moldova and Rumania for example, a judge can be dismissed who has received the grade “insufficient” twice. The initiation of disciplinary proceedings might also be the consequence of a poor evaluation (Belgium, Bulgaria, Croatia, Cyprus, Greece, Hungary, Poland).

Evaluation results may also affect a judge’s salary. In Sweden, evaluation is undertaken only for the purpose of salary review talks required by labour law for public servants. In other countries, poor evaluation results may lead to pay cuts and/or cuts in a judge’s pension (Belgium, Bulgaria, Turkey).

Only judges in Bulgaria and Albania may receive a professional award because of positive evaluation results.

In Finland, where evaluation takes the place in the process of career development discussions, evaluations have no purpose but to provide feedback for the individual judge.

17. How are the evaluation and the recommended measures recorded, where are the records deposited, who may examine them and for how long they are kept?

In member states where the evaluation is conducted by a council of judges, evaluation results and records are often kept at the council. In some countries, the records are kept for a certain numbers of years (Croatia: 10 years, Moldova: 4 years), in others indefinitely (Albania, Bulgaria, Georgia, Macedonia). Often, the evaluated judge receives a copy.

In some legal systems, often those where judges are evaluated by the presidents of their courts or a commission of judges from that court, evaluations are kept with the personal dossier of each judge (Albania, Austria, Bosnia and Herzegovina, France, Germany, Hungary, Monaco, Rumania, Turkey).

In Belgium, the president of the court keeps the evaluation records for ten years while a copy is send to the evaluated judge and the Ministry of Justice. In Greece, records of evaluations are kept at the Ministry of Justice and the Supreme Court.

In Finland, no records are kept on career development discussions.

The questionnaires have often failed to comment on the question of access to such records. In Albania and Poland, information on a judge’s evaluations are protected. Usually, the individual judge has access to files concerning his or her evaluation.

18. Apart from the formal evaluations referred to above, are any informal evaluations undertaken? (for example, in the form of informal consultations and advice from more senior judges).

Almost all countries have answered this question negatively. Some questionnaires commented, however, that informal advice and feedback were common among colleagues in the judiciary (Germany, Finland). In Austria, a peer-evaluation project was initiated by the Association of Austrian Judges. Judges may voluntarily visit each other’s hearing in order to provide informal advice and feedback on a basis of mutual trust.

19. Please provide, if possible, an example (anonymous) of an evaluation/assessment form/sheet/record filled out (if possible, in English or French).

Only a few countries have supplied an example of an evaluation sheet (Austria (in German), Bulgaria (in Bulgarian), Germany (in English), Greece (in English), Turkey (English). The Bulgarian and Austrian evaluations answer a number of questions regarding the evaluated judge with short sentences or single words. The Greek example consists of a short text, reporting impressions from reading the evaluated judge’s files and decisions: it is interesting (and problematic) to note that the evaluator mentions that the judge has reached the "right" solutions in his judgements. The German example consists of a long text that discusses the judge’s abilities, achievements and experiences in detail.

All Examples are very positive, which raises the question of how – if at all – negative impressions are recorded.

The Turkish example shows numbers and percentages but no text.

D. Evaluation and assessment vis--vis the independence of judges

20. By what means is the transparency of the evaluation process ensured? Is the evaluating body clearly defined? Are there published guidelines setting out evaluation criteria and the procedural rules to be applied?

Many questionnaires stress that the evaluation process and evaluation criteria as well as the people responsible for the evaluation were clearly defined by law (Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, France, Germany, Greece, Turkey) as well as the evaluated judge’s right to bring his view into the process (Hungary, Moldova, Poland) and demand a review of the relevant decisions (Albania, Germany).

21. Are there any protective measures during the evaluation process to avoid personalised opinions or political pressures?

The questionnaires either do not answer this question at all or state that no political pressure is put on the people responsible for the evaluation of judges. It is stressed that the political pressure is unlikely to be exercised because the evaluation process is undertaken by judges, not politicians (Albania, Croatia, Germany, Hungary). The Macedonian questionnaire stresses that all relevant data are taken out of the official data bank and cannot be influenced. Moreover, the evaluated judge must confirm the correctness of the relevant data before the evaluation process.

22. How is the participation of a judge in the evaluation procedure ensured and how are his/her views taken into account?

Only in Cyprus and Georgia, the evaluated judge does not participate in the evaluation process. In many legal systems the judge is interviewed as part of the evaluation process (Albania, Austria, Bulgaria, Croatia, Estonia, Greece, Hungary).

In those member states that use a discussion model in their evaluation process, the judge’s participation is ensured by his or her taking part in the discussion (Belgium, Finland, Monaco). In France and Rumania, the evaluated judge presents his or her work to the evaluators.

In some member states, the judge’s participation is ensured by a right to comment on a preliminary draft of the evaluators (Albania, Bosnia and Herzegovina, Germany, Macedonia, Poland). Moreover, in Macedonia, the evaluated judge confirms the correctness of the relevant data taken from the court’s data bank.

In Turkey, the judge may demand a reexamination.

23. Is any self-evaluation by a judge or evaluation by his/her peer judges at the same hierarchical level possible?

Most countries answer this question negatively (Bosnia and Herzegovina, Bulgaria, Cyprus, Georgia, Germany, Greece, Hungary, Macedonia, Moldova, Poland, Turkey, UK). In Albania, Belgium, France and Rumania, a self-evaluation of the evaluated judge is part of the evaluation process. In Monaco, an evaluation by a senior peer is possible. The chief judge of penal evaluates his/her colleagues who are necessarily less senior.

24. Can a judge demand the dismissal or removal (temporary or permanent) of a member of the evaluation body from that body? (for example, where there are serious reasons to believe that such member may have an a priori negative attitude towards the evaluated judge).

In many member states, a judge cannot demand the dismissal or removal of a member of the evaluation body (Austria, Belgium, Bosnia and Herzegovina, Cyprus, Estonia, Finland, France, Georgia, Hungary, Macedonia, Monaco, Poland Sweden). In some of those countries, however, the judge may challenge the evaluation report on the basis that a prejudiced person took part in the evaluation-process (Austria, Estonia, France, Poland).

In other countries, the judge to be evaluated may demand the removal of members of the evaluation body (Albania, Bulgaria, Greece, Moldova, Rumania, Turkey). In Germany and Croatia, a removal may be demanded under the same procedural rules regulating the removal of a (possibly) prejudiced judge in a trial.

25. What are the possibilities of review (including judicial) of an evaluation of a particular judge, if a judge does not agree with the evaluation and the measures taken as a result of its conclusions?

In most countries (except Belgium, Finland and Moldova) there are possibilities for the evaluated judge to demand some form of review. Usually, judges may apply to a special body (Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, France, Greece, Hungary) in order to demand a review of the evaluation, for example the plenum of the Judicial Council if the report has been made by a committee of that council (Bosnia and Herzegovina, Estonia, Moldova) or a number of judges at the Supreme Court (Croatia). In Poland, the evaluated judge may present his or her opinion in writing. In Turkey, the judge may ask for a review. In Sweden, salary discussions are regulated by labour law. Disagreements are handled by union and Swedish Agency for Government Employers. In Albania, Georgia and Germany, evaluations can be challenged in court. In Albania, the possibility to demand judicial review of decisions of the High Council of Justice has just been confirmed in a 2013 decision of the High Court of Albania.

E. Achievements and problems

26. Please briefly describe achievements and problems of the evaluation system used in your country.

Not all questionnaires provided answers to this question.

The Macedonian report stressed that evaluation increases the judge’s efficiency and the motivation of judges. Germany and Macedonia argued that a evaluation allowed to promote judges on the basis of merit rather than based on rumours and word of mouth. Germany described its approach as an objective process with clear criteria that respects judicial independence.

In some countries, the evaluation process was described as fairly new, so that experiences could not yet be fully shared (Moldova, Georgia, Monaco, Poland).

It is interesting to note that the problems reported differ widely among the member states. Albania stressed the importance of developing international standards for the evaluation of judges. Germany and Georgia explained that some judges felt controlled and not respected in their judicial independence by the evaluation. The Croatian questionnaire stated that the process might disadvantage free minded, independent judges in favour of more conformist judges.

Austria and Bulgaria reported that too many high marks were given which made a realistic comparison difficult. Some countries criticised details of their respective evaluation systems. Bosnia and Herzegovina regretted that only the number of decisions, not the complexity of the decided cases were considered in the evaluation procedure. The Greek questionnaire explained that the different workload of judges in big and smaller cities made it difficult to compare them. Some countries remarked that personal characteristics of judges became increasingly important in the evaluation process (Estonia, Hungary). In France, the whole system was reported to be under discussion without a clear direction for a reform yet.