Strasbourg, 17 June 2014
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
Opinion No. 17 (2014)
“Justice, evaluation and independence”
A. Objects of the opinion: the basic requirements: the rule of law in a democracy; independence of decision making; quality of the decisions and the institution making them; efficiency in making decisions
1. The rule of law in a democracy requires not only judicial independence but also the establishment of competent courts rendering judicial decisions of the highest possible quality.
In the interest of citizens, (not the judges it must be emphasised) the CCJE has paid constant attention to two fundamental matters. First, the protection of judicial independence (Opinion 1) and secondly, ways of maintaining and improving the quality and efficiency of judicial systems (Opinions 3, 4, 6, 11). The individual evaluation of judges concerns both these issues. The individual evaluation of judges concerns firstly the protection of judicial independence (Opinion 1) and secondly the ways of maintaining and improving the quality and efficiency of judicial systems (Opinions 3, 4, 6, 11). then to split the para into two or three parts (Austria). In accordance with the terms of reference entrusted to it by the Committee of Ministers, the Consultative Council of European Judges (CCJE) resolved to focus this Opinion on the evaluation and independence of justice. This opinion mainly addresses the individual evaluation of judges who have already been appointed to office for their period of tenure; it does not discuss either judges’ first appointment (see for that Opinion No. 1 para 17-56) or their initial training (see Opinion No. 4 (2003). Though it touches upon the relationship between disciplinary proceedings and evaluation, the opinion does not primarily address questions of discipline or criminal responsibility (see for that Opinion No. 3 (2002)).
2. The Opinion has been prepared on the basis of previous CCJE Opinions and the relevant instruments of the Council of Europe: the Magna Carta of Judges adopted on 18 November 2010; Recommendation Rec(2010)12 of the Committee of Ministers on judges: independence, efficiency and responsibilities and the Basic Principles on the Independence of the Judiciary, adopted by the 7th Congress of the United Nations in 1985. This Opinion also draws on the Report 2012-2013 of the European Network of the Council for the Judiciary (ENCJ): “Development of Minimal Judicial Standards III” and the OSCE Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia (2010). It takes account of the member states’ replies to the questionnaire on the individual evaluation and assessment of functioning judges and of a preparatory report drawn up by the expert appointed by the CCJE, Ms Anne SANDERS (Germany).
B. The key tasks of the judge (object of the evaluation) (Austria).
3. Judges perform indispensable duties in each democratic society that respects the rule of law (see Recommendation CM/Rec(2010)12 para 59 – 65). Judges should protect the rights and freedoms of all persons equally. Judges must take steps to provide efficient and affordable dispute resolution (CCEJ Magna Charta of Judges (2010) para 15) and decide cases in a timely manner and independently and must be bound only by the law. They must give clear reasons for their decisions and must write in a clear and comprehensive language. Moreover, all binding decisions of judges must also be enforced effectively (Opinion No 13 (2010) Conclusion A; CCEJ Magna Charta of Judges (2010) para 17). Then to join this para with the para 4 as below (Austria).
4. Independent judicial authority is exercised not in the interest of the judges themselves but in the interest of litigants and the public generally. However, jJudicial independence does not mean that judges are not accountable for their work. The CCJE has laid emphasis on maintaining and improving the quality and efficiency of judicial systems in the interest of all citizens: (Opinions No. 3, 4, 6, 11). Where it exists, the individual evaluation of judges should aim at improving and maintaining a judiciary of the highest quality possible. That exercise must be done in the interest of the public as a whole.
C. Primacy of independence: the problem of reconciling evaluation with judicial independence
5. Judicial independence is a pre-requisite to the maintenance of the rule of law and the fundamental guarantee of a fair trial (Opinion Nor. 1 para 10; Recommendation CM/Rec(2010)12 para 3,11; CCJE Magna Charta of Judges (2010) para 2). As the CCJE has indicated in its previous opinions, judicial independence can be compromised by various matters which may have an adverse impact on the administration of a judicial system (CCJE Magna Charta of Judges (2010) para 3,4) such as a lack of financial resources (see Opinion No 2); problems concerning the training of judges on their appointment; unsatisfactory elements regarding the organisation of the judiciary and also the possible civil and criminal liability of judges (see Opinion No. 3 (2002)).
The fundamental rule for any individual evaluation of judges must be that it maintain s (Austria) total respect for judicial independence (see Opinion No. 1 (2001) of the CCJE, especially para 45, Opinion No. 6, para 34). When an individual evaluation has consequences for a judge’s promotion, salary and pension or may even lead to his or her removal from office, there is a risk that the evaluated judge will not decide cases according to his or her objective interpretation of the facts and the law, but in a way that may be thought to please the evaluators. Accordingly an evaluation of judges by members of the applicable legislature or the executive arms of the state is especially problematic. However, the risk to judicial independence is not completely avoided even if the evaluation is undertaken by other judges. Judicial independence depends not only on freedom from undue influence from external sources, but also requires freedom from undue influence internally, which might in some situations come from the attitude of other judges (Opinion No. 1 para 66, Recommendation CM/Rec(2010)12 para 22-25).
D. Why have evaluation at all and what types of evaluation are there – two ends of a spectrum - to delete the Chapter D except perhaps the para 7 (Austria)
7. Evaluation of judges will be undertaken in order to assess the abilities of individual judges and the quality and quantity of the tasks they have completed. Evaluation can be used to provide feedback, identify training needs, determine performance based salaries and can be used in order to seek out suitable candidates for promotion. In these ways, individual evaluation can, in principle, assist in improving the quality of a judicial system and can thereby also ensure the proper accountability of the judiciary towards the public.
8. The above mentioned ENCJ Report (“Development of Minimal Judicial Standards” 2012-2013 para 10) distinguished countries using “formal” and “informal” evaluation systems. In practice, the line between formal and informal systems cannot be so clearly defined. Rather, each evaluation system can be placed on a continuum between the two poles of informality” and “formality”. Thus:
9. In the case of the most formal evaluations, the aims of evaluation, the criteria used, the composition of the evaluating body, the procedure for evaluation and its possible consequences are all clearly set out in advance of any evaluation exercise. If evaluation is conducted in such a formal way, the rights and duties of the evaluated judge and the evaluating body will be regulated by means of primary or subordinate legislation.
10. An evaluation at the informal end of the spectrum will not use either formalised ratings or criteria. It will have no direct consequences for the evaluated judge. An informal evaluation might be conducted by way of a discussion which allows the evaluated judge to address problems, show his or her abilities and agree on career goals (see e.g. the system in Finland and the Netherlands). An informal gathering of information about a judge who applies for promotion (as in the UK) might also be regarded as an informal evaluation.
E. Why are there different types of evaluation?
11. The decision of whether and, if so how to evaluate judges is inextricably linked to the way in which the judicial structures of different member states have evolved. In particular the stage in their career at which a person is appointed a judge and the criteria by which they may be promoted to higher office would appear to be especially important in determining the type of evaluation that is used. For example, if newly appointed judges have had successful careers as practicing lawyers before appointment as judges (as they are in the Nordic countries and the UK) a judicial system might find less need for formal individual evaluation than a system where judges are appointed immediately or soon after finishing their legal education (as in Germany, France and Spain). In a legal system where promotions are made according to seniority (as for example in Luxemburg), a judge’s qualifications have less need to be assessed by means of individual evaluation.
12. The decision whether and how to evaluate judges is also inextricably linked to the history and culture of a country and those of its legal system. Consequently, the assessment of judicial evaluation differs widely in the member states. The former Yugoslav Republic of Macedonia and Romania explained that judicial independence (The former Yugoslav Republic of Macedonia) and the trust of the public in the judicial system (Romania) could be promoted through the individual evaluation of judges. Slovenia stated evaluation ensured judicial accountability and with it the quality of the judicial service. However, other countries, for example Norway, find evaluation unnecessary to ensure a legal system of high quality. Denmark stated that individual evaluation of judges was simply incompatible with judicial independence. Here, a judge’s conduct may only be judged in the course of disciplinary procedures. Thus, what is regarded as imperative for judicial independence in one country is seen to be counterproductive for it in another. Isn’t the last sentence, especially “counterproductive”, too strong? (Austria).
F. Evaluation as practiced in member states - to think of deleting the Chapter F, but if not, then see below remarks on paras 14, 15, 18 (Austria).
13. Twenty two member states explained in their answers to the questionnaire that they evaluate judges in a more or less formal way (Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Estonia, France, Georgia, Germany, Greece, Hungary, Italy, The former Yugoslav Republic of Macedonia, Republic of Moldova, Monaco, Poland, Rumania, Slovenia, Spain, Turkey). Eight member states (Czech Republic, Denmark, Finland, Iceland, Luxemburg, Norway, Sweden, UK) stated that they did not use a system of individual evaluation. However, Sweden and Finland do 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 application for promotion is under consideration.
14. In the majority of countries that use
more or less formal (Austria) systems of individual evaluation, evaluation aims at assessing, maintaining and improving the quality of the work of judges and the judicial system. Many countries explained that the aim of evaluation is not only for assessing achievements and skills but also in order to identify training needs and to provide feedback. Many member states use evaluation as a basis for decisions on the promotion of judges. For some member states, evaluation is especially important when deciding on the lifetime appointment of young judges (Estonia, Germany). That issue is outside the scope of the Opinion. Regarding the last sentence: is this correct? (Austria).
15. In most member states, a number of quantitative and qualitative criteria are used for individual evaluation of judges. Thus factors such as the number of cases decided by the evaluated judge, the time spent on each case and the average time to complete a judgment are frequently taken into account as “quantitative” criteria. As “qualitative” criteria, the quality of a judge`s analysis and the complexity of the cases (what does the complexity mean and how it is taken into account? Austria) he or she has worked on is considered of great importance in the evaluation process. In many member states, the number or percentage of decisions reversed on appeal are factors that are considered of great importance in the evaluation process: (Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Georgia, Greece, Hungary, Macedonia, Republic of 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. Other factors considered are the ability to mediate between parties, the ability to draft clear and understandable judgments, the ability to cooperate with other colleagues, to work in other areas of law that are new to the judge and the readiness to take on extra activities within the court’s administration such as mentoring and educating younger lawyers (Germany, Slovenia, Austria). Organization skills and work ethic (Germany, Poland, Sweden), or scholarly activities such as publications and lecturing (Croatia, Germany) can also be factors (this is an example that in one of the following parts the CCJE should concretely comment on the criteria like these: Austria). All member states differentiate between the process of evaluation and disciplinary measures. Nevertheless, violations of ethical and professional rules/standards are considered in the evaluation process in almost all member states where there is an evaluation of judges.
16. The way criteria are assessed in the evaluation process differs widely. In some member states, data such as the number of cases a judge has decided, will be turned into a percentage or into a figure which reflects the performance of each individual judge compared to other judges (Bulgaria, Croatia, Estonia, Macedonia, Spain, Turkey). In other states, such quantitative and qualitative factors only provide the starting point for an individual assessment (Austria, France, Germany). In some member states, the opinion of bar associations (Greece), litigants, colleagues and more senior judges (Austria, Germany, Hungary, Monaco, UK) are taken into account.
17. In most countries, evaluations are conducted routinely and regularly. But member states have adopted different degrees of formality of procedure. Thus Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, France, Georgia, Germany, Greece, Hungary, Italy, the former Yugoslav Republic of Macedonia, Republic of Moldova, Monaco, Poland, Romania, Slovenia, Spain and Turkey all use formal evaluation systems. Finland, The Netherlands and the UK use more informal evaluation systems.
18. In some countries, the evaluation process is in form of a career development discussion which may be more or less formal in nature. In this discussion the evaluated judge and the evaluator/the evaluating commission decide, (is “decide” really the right word? Austria) with the judge, on career and development goals (Belgium, Finland, France, Monaco, Rumania). Often (is “often” really the right word? Austria), the evaluation process starts with a self-assessment of the evaluated judge (France, Romania). In other countries, a judicial council, or a subgroup, gathers information on the work of the evaluated judge and will decide on the evaluation (Albania, Austria, Bulgaria, Austria, Croatia, Estonia, Italy, “the former Yugoslav Republic of Macedonia”, Republic of Moldova, Slovenia, Turkey). Usually, the evaluated judge can give his or her views on both the draft opinion and the final decision.
19. In other member states, a single evaluator, usually the president of the court where the evaluated judge performs his or her duties, gathers the relevant information on the judge’s work. This will often involve reading the judge’s decisions, visiting hearings chaired by the judge and interviewing the individual judge. Often, the evaluator makes the final decision after the judge has had the opportunity to comment on a preliminary draft (Germany, Greece, Hungary, The Netherlands).
20. In most member states, the individual evaluation of judges is an important factor in relation to a judge’s chances for promotion and – for a young judge - for obtaining security of tenure. In some member states, evaluation also plays a role in determining performance related 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.
G. The choice in principle: to evaluate or not to evaluate: for and against in principle; where to go in the spectrum – in particular the public element: legitimacy and “democratic control of judicial power” - If Chapter F is skipped, then E and G could be put under a common heading (Austria).
21. Whether or not to evaluate judges at all and, if so, what form the evaluation procedure should take is a choice every legal system must make in accordance with its own judicial system, traditions and culture. As already noted, not all countries find it necessary or even desirable to evaluate judges. This may be so if it is reasonably judged that the key goals of proper judicial accountability in a democratic system and of a legal system of high quality are both ensured by other means.
H. If there is evaluation: how to do it:
22. Where it exists, evaluation should aim at maintaining and improving the quality of the work of judges and thereby the whole judicial system.
23. Assisting judges by giving them an opportunity for self-assessment, providing feedback and determining their training needs can be an effective way of improving the skills of judges and thereby improving the overall quality of the judiciary.
24. Legal systems should use information gathered in evaluation procedures not only to evaluate individual judges but also to provide material which can assist in improving the organisational structure of courts and the working conditions of judges. It is particularly unjust that an individual judge be evaluated negatively because of problems caused by poor working conditions that he or she cannot influence, as for example delays caused by massive backlogs, because of lack of judicial personnel or an inadequate administrative system.
25. The CCEJ (Opinion 1, para 17, 29) and the UN basic principles (paragraph 13) both state that the appointment and promotion of judges should not be based on seniority alone but on objective criteria, in particular ability, integrity and experience. If promotions are made according to such objective criteria, it follows that when judges apply for promotions they must at that stage at least be evaluated in some form. Therefore, gathering information on the suitability for promotion of a judge can be an important objective for the individual evaluation of judges.
26. In some member states, a judge’s remuneration is influenced by his or her evaluation results. However, using individual evaluation to determine the salaries and pensions of judges can endanger judicial independence (see: ISC General Report 2006 para 12, ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 55). The core remuneration of a judge should not depend on performance (Recommendation Rec(2010)12 para 55).
If at all, evaluation results should only influence a small percentage of a judge’s remuneration. (Austria)
(f) Discipline. In para 27, are we clear what we advocate and can poor results in evaluation lead to disciplinary responsibility? In para 43, we also state that dismissal is out of question (Croatia).
27. Though violations of ethical and professional rules/standards can be considered in the evaluation process, member states should clearly differentiate between evaluation and disciplinary measures. The principles of security of tenure and of irremovability are well-established key elements of judicial independence. Therefore, a permanent appointment should not be terminated simply because of an unfavourable evaluation but only in case of serious breaches of disciplinary or criminal provisions established by law (Recommendation CM/Rec(2010)12 para 49, 50).
28. The individual evaluation of judges must be based on objective criteria published by the competent judicial authority (Recommendation Rec(2010)12 para 58). Objective standards are required not merely in order to exclude political influence, but for other reasons, such as to avoid the risk of a possible impression of favouritism, conservatism and cronyism (or “cloning”), which risks exist if appointments/evaluations are made in an unstructured way or on the basis of personal recommendations (Opinion No. 1 (2001) para 24). Such “objective standards” should be based on merit, having regard to qualifications, integrity, ability and efficiency (see Opinion No. 1 para 25).
29. The Kyiv Recommendations (Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia (2010) para 27) recommended evaluation according to the following criteria: professional competence, i.e. knowledge of law, ability to conduct court proceedings, capacity to write reasoned decisions personal competence (ability to cope with the workload, ability to decide, openness to new technologies), social competences, i.e. ability to mediate, respect for the parties; and, in addition,
for possible promotion: the ability to lead for positions, which require it. (Austria).
30. The ENCJ Report recommended that the criteria for the evaluation of professional performance of judges should be comprehensive, and should include both quantitative and qualitative indicators, in order to allow a full and deep assessment of the professional performance of judges (ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.8). The CCJE stated that the quantitative criteria could never be the only criteria to be used (Austria).
31. In general, the CCJE cautions against expressing evaluation results in points, figures or percentages or numbers of decisions made. Such expressions, if made without further explanation, can create a false impression of objectivity. Thus, although the efficiency of a judge’s work can be an important factor for evaluation, the CCJE considers a heavy reliance on the number of cases a judge has decided as problematic.
A particular focus on the number of decided cases could induce judges to decide easy cases in great numbers in order to please their evaluators, but to the exclusion of the difficult and time consuming cases. (Austria)
32. The “quality” of justice cannot be understood as if it were a synonym for mere “productivity” of the judicial system (Opinion No. 6 (2006) para 42). The CCEJ believes that the quality, not mere quantity, of a judge’s decisions must be at the heart of individual evaluation. In Opinion No. 11 (2008) the CCEJ discussed the importance of high quality judgements. In order to evaluate the quality of a judge’s decision, evaluators should concentrate as much as possible on the methodology (is this a right word? Austria) a judge applies, not simply the content of the decisions. In order to protect judicial independence, one or more individual decisions of a judge should be taken as the basis of evaluation only in exceptional circumstances (to define here what the “exceptional circumstances” may be – Austria) (see Opinion No. 1 (2001) para 65-69). Therefore, like the KYIV Recommendations (KYIV Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia (2010) para 28) and the ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.12) the CCEJ considers it problematic to base evaluation results on the number or percentage of decisions reversed on appeal, unless the number and manner of the reversals demonstrates clearly that the judge lacks the necessary knowledge of law and procedure.
33. Where a system of individual evaluation is applied, its basis and main elements (criteria, procedure, consequences of the evaluation) should be set out clearly and exhaustively by primary legislation. Details can be regulated in subordinate legislation (ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.17-4.18).
34. Evaluators should have sufficient time and resources to permit a comprehensive assessment of every judge’s individual skills and performance. The evaluated judge should be informed who the evaluators are and the judge must have the right to ask for the replacement of any evaluator who might objectively be perceived as biased.
35. In order to protect judicial independence, evaluation should be undertaken mainly by judges, for example by the president of the court where the evaluated judge performs his or her duties or by members of the judiciary appointed or elected for the specific purpose of evaluation by other judges or by a judicial council. Evaluation by the Ministry of Justice should be avoided (ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.13-4.15). The possible competence of the Council for the Judiciary with reference to Opinion 10 should be mentioned (Austria).
36. In addition, other professionals who can make a useful contribution to the evaluation process, might participate in the process of evaluation of judges (
for example, i.e. (Croatia) legal academics (as in Estonia), members of bar associations (as in Greece) and psychologists). However, it is essential that such assessors are able to draw on sufficient knowledge and experience of the judicial system to be capable of properly comparing one judge to another and that their role is advisory or that their role is not decisive. (Croatia).
37. Sources of information used in the evaluation process must be reliable (ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.16). This is especially so in respect of information on which an unfavourable evaluation is to be based. It is essential that such an evaluation is based on sufficient evidence which is reliable. The evaluated judge should have access to any evidence intended to be used in an evaluation, so it can be challenged if necessary (ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.19).
38. A legal system that decides to introduce individual evaluation must decide whether to evaluate judges regularly or only for special occasions, for example when a judge applies for promotion (as in Croatia or UK). Regular evaluations permit a full picture of a judge’s performance to be created. It should not take place too often, however, in order to avoid an impression of constant supervision which could, by its very nature, endanger judicial independence.
39. As the CCEJ has stated before, all procedures of individual evaluation should enable judges to express their views on their own activities and on the assessment of these activities that has been made, as well as enabling them to challenge assessments before an independent authority or a court (Recommendation CM/Rec(2010)12 para 58, see also ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.19). The evaluated judge must therefore have the opportunity to contribute to the evaluation process in a way that is useful, for example by commenting on a preliminary draft or by being heard in the evaluation process. Moreover, the evaluated judge must have the right effectively to challenge an unfavourable evaluation, be it by applying to a special review board or by means of judicial review before a court. The more serious that the consequences of an evaluation can be for a judge, the more important are such rights of the effective review (ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.20).
40. The individual evaluation of judges, where it exists, should ensure judicial accountability towards the public and should help to improve and maintain a judicial system of high quality for the benefit of the citizens of member states. In light of these objectives, the CCEJ considers that it is possible, in principle, to introduce a public element into a system of evaluation. What form this public element might take is a matter for individual member states. It might take the form of a “public audit” which is conducted by independent “auditors” and is published. Issues considered in this public element of the evaluation process might include, for example, complaints or opinions of litigants or advocates. However, such elements must not endanger judicial independence or security. This may be especially important for judges who decide criminal cases. Such an element must also not infringe a judge’s right to challenge an unfavourable evaluation.
41. The results of an individual evaluation will probably have a direct effect on a judge’s chances for promotion. Moreover, training needs and the allocation of additional resources (see ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 4.11) may be determined according to evaluation results. A dismissal from office should not be the consequence of an unfavourable evaluation alone but only of a disciplinary decision made following a proper procedure which leads to the conclusion (based on reliable evidence) that there has been a serious breaches of disciplinary or criminal provisions (Recommendation CM/Rec(2010)12 para 49, 50). Using individual evaluation to determine the salaries and pensions of judges should be avoided as that process can plainly endanger judicial independence (see: ISC General Report 2006 para 12, ENCJ Report 2012-2013 “Development of Minimal Judicial Standards III” para 55). Professional awards may be handed out because of a positive evaluation, but nothing more, e.g. cash awards should not form an important element of a judge’s remuneration. They would clearly have a tendency to dependence.
I. Reconciliation of independence and evaluation in the light of this discussion
42. The reconciliation of the principle of judicial independence with the any process of individual evaluation of judges is difficult. But the correct balance is of crucial importance. Ultimately, judicial independence must be paramount at all times.
43. In Summary this means: (1) There must be plain and transparent rules with respect to the procedure, criteria and consequences of evaluation. (2) The evaluated judge should have the right to be heard in the process and challenge an unsatisfactory evaluation. (3) Evaluation should not be based alone on the numbers of decided cases but focus on the quality of a judge’s decisions. (4) Some consequences like the dismissal from office because of a negative evaluation or a reduction of remuneration should be avoided for all judges who have obtained permanent (Austria) tenure of office.