11 October 2011
JUDICIAL TRAINING IN A GLOBALISED WORLD:
Fostering confidence and stability
Ecole Nationale de la Magistrature, Bordeaux, France
31 October – 3 November 2011
ASSESSING THE QUALITY OF JUSTICE
President of the European Commission for the Efficiency of Justice (CEPEJ),
Council of Europe
Ladies and Gentlemen,
I am delighted to be with you today as a representative of the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe and my warmest thanks go to l'Ecole Nationale de la Magistrature for inviting us to take part in your discussions.
As you know, the efficient functioning of a high quality judicial system depends on a complex and subtle interaction, where each of the authorities concerned and each of the protagonists within these authorities has an essential role to play. This interaction and the accountability of policy-makers and of all judicial practitioners is the key to a high quality judicial public service, since, to hear and decide cases well, it is not enough merely to give judgment, nor even to give judgment in an impartial manner within an independent system. To fully perform their role, which is to create a social bond, all judicial practitioners must be resolved to serve the community with court users' interests in mind.
Council of Europe member states must, together, seek concrete means to ensure that judicial systems fully meet the requirements of the European Convention on Human Rights and the legitimate expectations of the public (and taxpayers) as to what a public service should offer. The independence of judges and the efficient functioning of a high quality judicial system are obviously two sides of the same coin. The aim should therefore be to strike the best possible balance between these principles.
The Council of Europe rightfully has a role in this fundamental debate on how to establish the rule of law in modern societies. Here it is a matter of constantly repositioning the cursor to take account of changes in society and in public expectations: what was acceptable in the past is not necessarily acceptable in today's world where there is exponential growth in the demand for justice while at the same time the fundamental principles themselves remain inviolable.
Justice is a public service but one which is admittedly quite different from other public services, given that it is based on the principle of independence. The function of administering justice may be shared among representatives of the executive, legislative and judicial authorities, but judgments can only be handed down by judges. This distinctive feature does not, however, exempt the justice system from certain requirements arising from its relationship with the political system and the public.
The issue of the quality of justice is bound up with a public policy approach, which involves policy-makers, judicial institutions, judicial practitioners and court users, and which concerns resources (budgets, staff and amenities), processes and relations between the various players.
In setting up the European Commission for the Efficiency of Justice, in 2002, the Committee of Ministers of the Council of Europe therefore sought to establish an innovative body, required to work on a different basis from more traditional intergovernmental committees, so as to take account of the complex reality of judicial systems. The work of the CEPEJ now helps to ensure that all players in the judicial system are confronted with their share of responsibilities.
If the different players in the judicial system are to behave in a responsible manner, they absolutely must be fully familiar with the context in which they are working. The CEPEJ therefore now conducts a regular (two-yearly) and thorough assessment of the daily functioning of judicial systems in all its member states. Although many bodies regularly address the issues of delay in judicial procedures, difficulties of access to the courts, or, more generally, the "crisis of the judicial system", to date such studies have seldom been supported by concrete figures, as there are no sufficiently precise and comparable statistics in the different countries.
The judicial systems of the Council of Europe member states are of course different: each State has its own history and its own social and economic organisation, which is reflected in the way its judicial system is organised and which should be respected – it is not for the Council of Europe to try to harmonise the judicial systems of its member states. But this diversity – which is a great asset for Europe – is not a valid reason for making no attempt to solve the problems. The backlog of cases in the registry of the European Court of Human Rights shows that judicial systems throughout Europe suffer from similar ills. The scheme for evaluating judicial systems set up by the CEPEJ is applicable to all European states and now includes over 200 questions concerning financial and human resources, the organisation of the courts, judicial procedures, case-flow management, the organisation of the judicial professions and relations with court users. The CEPEJ has now succeeded in stabilising this common reference scheme (there are over 2 million entries in the database), which facilitates comparisons between countries and helps identify changes over time in a specific country or group of countries. It is the first initiative of this kind and of this scope in the field of justice. The process is unique in Europe, both in terms of the methods used – which are now widely recognised by the legal and scientific community – and in terms of the breadth of the information collected and analysed.
The fourth evaluation cycle, which will lead to the publication of the 2012 edition of the "European judicial systems" Report, provides a precise picture of the functioning of the judicial systems of forty-seven European states and an analysis of statistical series. It includes comparative tables and a commentary on key matters of relevance to an understanding of judicial systems' functioning. The report identifies common indicators for evaluating courts’ ability to manage case-flow, for example the clearance rate and disposition time. By underlining the means and the processes available to the various protagonists, it makes it possible to grasp the main trends, to identify difficulties and to guide public policy in the justice sphere towards more quality, fairness and efficiency, in the public interest. The CEPEJ therefore holds a genuine key to understanding the workings of judicial systems in Europe, with a view to energising public policies in this sphere.
This work on the evaluation of judicial systems is also followed closely by the European Union, as it is fundamental for mutual confidence between the judicial systems of EU member states and essential to the proper application of EU instruments for judicial cooperation.
If the different judicial practitioners are to be able to play their public service role to the full, they must be able to offer court users a certain measure of predictability with regard to the functioning of the system and, in the event of problems, to make a preliminary diagnosis of the reasons why the system is malfunctioning so they can be rectified. Through its SATURN Centre for the analysis of judicial time management, the Council of Europe is therefore in the process of setting up a permanent European observatory of judicial timeframes. Few European states are currently capable of providing detailed figures concerning the timeframes of proceedings for specific types of cases (for example divorce without mutual consent or violent robbery). However, although people bringing court cases are capable of understanding that good justice is not necessarily very rapid, they may legitimately expect to be informed of the foreseeable duration of their proceedings. The issue of judicial time-frames must accordingly be deemed one of the prime concerns for public justice policies in Europe.
To be able to play their own specific role to the full, the different judicial practitioners must also know and understand the expectations of court users and how these users evaluate the service provided to them. The CEPEJ has accordingly produced a handbook for courts which wish to conduct user satisfaction surveys in their jurisdiction. The "Checklist for promoting the quality of justice and the courts", adopted by the CEPEJ in July 2008, is an essential point of reference for this work. Satisfaction surveys are a key element of policies aimed at introducing a culture of quality, both within the ministries responsible for framing such policies and among judicial practitioners who, individually or collectively, are required to apply such policies in their courts. Taking expectations as its starting point, a public-satisfaction approach reflects a concept of justice focusing on the service user. Surveys can be used both nationally, in the context of plans for a specific court, and at European level. The handbook, which was initially tested by the CEPEJ through its network of pilot courts, is now being sent out to a wider range of courts so as to gradually make this process of measuring user satisfaction with the public service of justice delivered in Europe a regular exercise. This exercise will be complementary to the biennial evaluation of the functioning of judicial systems and constitute a "barometer" of Europeans’ satisfaction with their justice system, a further tool that helps public policy-makers and judicial practitioners to understand, analyse and consequently reform the judicial systems for which they are jointly responsible.
Finally, the CEPEJ has just launched a particularly difficult but absolutely essential activity: identifying concrete indicators of quality to help gauge developments in the public service courts offer to users. It is still too early to give a detailed account of this work, but it is possible to identify some of the main issues which are already the subject of intense debate:
§ case management
§ quality of decisions (including the difficult question of the percentage of cases challenged via an appeal)
§ functioning of the court
§ individual evaluation of judges
§ perception by users and rate of satisfaction
§ resource management
§ access to the court
§ communication / information.
And what about training? In my opinion training plays a major role in improving the quality of judicial policies. Curricula should be developed to ensure that these aspects of particular relevance to the efficient management and the quality of the judicial service form part of judges’ everyday concerns, so that they can subsequently strike a proper balance in their professional activities between their main task - hearing and determining cases in an unbiased manner – and their obligation to manage the resources made available for that purpose.
With these considerations in mind, the CEPEJ was last year pleased to take under its wing the Lisbon Network, which is made up of judicial training institutions from the 47 member states of the Council of Europe. The aim is to build and strengthen bridges between training and the concepts of judicial efficiency and quality. This must be done without turning judges into machines for recording statistics and increasing output, while at the same time ensuring that they are aware of their responsibilities with regard to the smooth functioning of the courts on a daily basis, provided appropriate resources are made available by the state.
I firmly believe that with its experts, its networks and its competences, the CEPEJ will continue to be a key player in the debate on the quality of justice in Europe and beyond.
Thank you for your attention.