European Commission for the Efficiency of Justice (CEPEJ)
European juridical systems - Edition 2010 (2008 data):Efficiency and quality of justice
1. EVALUATION PROCESS
The Scheme for evaluating judicial systems
In comparison with the previous exercise (2008 Edition of the Rapport, based on the 2006 data), the CEPEJ wished to settle the scheme meant to gather, from the member states, qualitative and quantitative information on the daily functioning of judicial systems. The main goal in keeping such consistency was to ensure the collection of homogeneous data from one exercise to another, thus allowing for comparisons over time, on the basis of the compilation and analysis of initial statistical series. Hence, the evaluation scheme used for this current cycle remains very similar to the one used for the 2006-2008 cycle. Only a few questions were clarified and more room was given to the national correspondents to comment on the information provided. In addition, the explanatory note was completed to minimize as far as possible the difficulties of interpretation and to facilitate a common understanding of the questions by all national correspondents, allowing therefore to guarantee uniformity of the data collected and processed. To answer each question, a careful reading of the explanatory note has been recommended to all national correspondents.
The Scheme for understanding a judicial system was designed and used by the CEPEJ on the basis of the principles identified in the Resolution Res(2002)12 which establishes the CEPEJ, and relevant Resolutions and Recommendations by the Council of Europe in the field of efficiency and fairness of justice.
This report is based on figures from 2008. As the majority of the states and entities were only able to issue judicial figures for 2008 in the autumn of 2009, the CEPEJ was not able to gather figures before the beginning of 2010. This left only three months for member states to collect and consolidate their individual replies to the Evaluation Scheme and less than four effective working months for the experts to process them and prepare the report.
Methodologically, the collection of figures is based on reports by member states and entities, which were invited to appoint national correspondents, entrusted with the coordination of the replies to the Scheme for their respective states or entities.
The national correspondents were considered to be the main interlocutors of the Secretariat and the experts when collecting new figures, and the first to be held liable for the quality of figures used in the survey. All individual replies were recorded in a database by the scientific expert.
The scientific expert has done extensive work to verify the quality of data submitted by the states. Therefore, she was frequently in contact with national correspondents to validate or clarify the figures and their adjustment continued until shortly before the final version of the report. The CEPEJ experts agreed that the figures would not be changed ex officio, unless the correspondents explicitly agreed to such changes. Thus, all data changes have been approved by the relevant national correspondents. Yet, following discussions with the national correspondents, the experts have decided to exclude some data that seemed insufficiently accountable to be worthy of publishing.
By May 2010, 45 member states had participated in the process. Only Germany and Liechtenstein have not been able to provide data for this report. Germany has in fact pointed out, before the start of the cycle that, given the workload multiplied by the federal-based organization of the country (each state is responsible for collecting legal data), it could not register in the process established on a biennial time-limit. Hopefully they will be included in the next exercise, as they did for the previous cycle.
All the figures provided by individual member states have been made available on the CEPEJ website: http://www.coe.int/cepej. National replies also contain descriptions of the legal systems and comments that contribute greatly to the understanding of the figures provided. They are therefore a useful complement to the report although not all of this information has been included in it, in the interest of conciseness and consistency. Thus, a genuine data base on the judicial systems of the Council of Europe member states is easily accessible to all citizens, policy makers, law practitioners, academicians and researchers.
This report does not claim to have exploited exhaustively all the relevant information that has been put forward by member states, given the large amount of data submitted. As for the previous editions of this report, the CEPEJ tried to address the analytical topics bearing in mind, above all, the priorities and the fundamental principles of the Council of Europe. Beyond the figures, the interest of the CEPEJ report lies in the display of the main trends, evolutions and common issues for European states.
This report is part of an ongoing and dynamic process carried out by the CEPEJ. Throughout the elaboration of the report, experts and national correspondents were encouraged to bear in mind the long term objective of the evaluation process: defining a set of key quantitative and qualitative data to be regularly collected and equally processed in all member states, bringing out shared indicators of the quality and efficiency of court activities in the member states of the Council of Europe and highlighting organisational reforms, practices and innovations, which enable improvement of the service provided to court users.
The CEPEJ has chosen to process and present only the figures which offered a high level of quality and accountability. It decided to disregard the figures which were too disparate from one country to another, or from one evaluation exercise to another, or did not present sufficient guarantee of reliability. The information that was not included in this report has been collected and is available on the CEPEJ website (www.coe.int/cepej).
2 million entries have been taken into account in the data base!
A specific effort of validation has been committed to ensure the coherence and accountability of data and allow to compose and analyse, for the first time within this process, a few statistical series. These series are designed to measure evolutions, if at all possible between 2004 and 2008, and, more often, between 2006 and 2008, depending on the homogeneity of the data available. As regards the accuracy of figures, statistical rules have been applied to compare the 2006 and 2008 data, which has enabled us to identify the answers showing large or small variations which can hardly be explained.
Methodology and procedure for validating data
All data (some 2 million entries, without counting comments) have been submitted to the validation procedure. The methodology chosen, which is specially adapted for this exercise is the "method of time-series mapping on three levels”. This methodology brings together three validation procedures for quantitative data. First of all, significant differences (of more than 20%) between the entries for the same item and for the three exercises have been identified. In order to guarantee the validity of this procedure, data have also been examined according to the Grubbs' test. This has enabled to isolate the true "outliers" (extreme values which, in addition to being different from previous entries, [differences of more than 20%] were difficult to be compared with, or were not comparable at all with the entries for the year 2008 for the other states). If some values presenting differences of more than 20% from one year to another one could be explained by the national correspondents, all other "outliers" have been corrected, without exception. The third validating element through the "time-series mapping on three levels” is the check of the internal validity. This procedure has mainly been applied to complex items, namely those made of several entries. Among the variables submitted to this procedure appear budgetary items and the cases addressed by the courts. For this purpose, a specific validation scheme has been set up by the scientific expert. The elements which are part of the complex variables have been horizontally verified (correspondence between the sum of the elements with the entry corresponding to the total) and sometimes also vertically verified (inclusion or exclusion of the elements within the total).
The validation has been made according to very rigorous methodology. However, it is not possible to guarantee the full reliability of all data. One must take into account the fact that the exactitude of some entries was confirmed by national correspondents without specific explanation as regards the difference which had been noted. Generally, such entries have been either excluded from the analyses, or kept with disclaimers in the text as regards the interpretation of the results of the analyses taking these elements into account.
The CEPEJ has set up in 2008 a peer evaluation process concerning the systems for collecting and processing judicial data in the member states. This process aims at supporting the states in the improvement of the quality of their judicial statistics and the development of their statistical system so that such statistics are in line with common indicators defined through the CEPEJ's Evaluation Scheme. It also allows to facilitate the exchange of experiences between national systems, share good practices, identify benchmarks and facilitate the transfer of knowledge. Thus it contributes to ensuring the transparency and accountability of the CEPEJ process for evaluating European judicial systems.
To date, the systems have been examined by the peers for ten volunteer member states in order to analyze the organisation of CEPEJ's data collection and communication to the Secretariat of the Council of Europe: Bosnia and Herzegovina, France, Malta, Poland, and the Russian Federation. Furthermore, a visit was organized in Norway, bringing together as well experts from Denmark, Finland, Island, and Sweden. During these visits, the experts appointed by the CEPEJ-GT-EVAL precisely analyzed the practical way of responding to selected questions of the Evaluation Scheme and on the content of these answers, namely questions related to budgetary issues, types and number of judges, litigious civil cases and methods of calculating the length of proceedings.
Moreover, the CEPEJ gave its assent to the guidelines on judicial statistics for the services in member states which collect and process statistics in the justice field.1 These guidelines aim at ensuring the quality of the judicial statistics collected and processed by the member states, as a tool for public policy. They should also facilitate comparison of data between European countries by ensuring adequate homogeneity despite the substantial differences between countries (as regards judicial organisation, economic situation, demography, etc.).
Comparing data and rules
The comparison of quantitative figures from different countries revealing varied geographical, economic and legal situations is a delicate job. It should be approached with great caution by the experts writing the report and by the readers consulting it and, above all, by those who are interpreting and analysing the information it contains.
Particular attention has been paid to the definition of the budget allocated to courts, so that the figures provided by member states correspond to similar expenditures. However, the particularities of some systems might prevent achieving shared concepts. In these cases, specific comments have been included with the figures. Therefore only an active reading of this report can allow analyses and conclusions to be drawn; figures cannot be passively taken one after the other, but must be interpreted in the light of the subsequent comments.
The report aims to give an overview of the situation of the European judicial systems, not to rank the best judicial systems in Europe, which would be scientifically inaccurate and would not be a useful tool for the public policies of justice. Indeed, comparing does not mean ranking. However, this report gives the reader tools for an in-depth study which would then have to be carried out by choosing relevant clusters of countries: according to the characteristics of the judicial systems (for instance civil law and common law countries; countries in transition or with old judicial traditions), geographical criteria (size, population) or economic criteria (for instance within or outside the Euro zone).
Monetary values are reported in Euros. Because of this, some problems have occurred while using exchange rates for states outside the euro zone. Exchange rates vary from year to year. Since the report focuses mainly on 2008, the exchange rates of 1 January 2009 were used. For states experiencing high inflation rates, this choice may generate very high figures which must be interpreted within their specific context. The high variation of the exchange rate might have a considerable effect on the figures for the countries outside the euro zone. For some of them, a more favourable exchange rate than in 2007 has strengthened the growth of budgetary or monetary increase once expressed in Euros. Therefore, it is necessary to pay attention to this issue while comparing monetary figures of the 2008 and 2010 editions.
II. MAIN TRENDS AND CONCLUSIONS
The series of judicial data between 2004 and 2008 show, after analysis, that the European judicial landscape has evolved. The CEPEJ has tried, on the basis of statistical data and qualitative information which appear in this report, to describe this landscape and its main trends.
ACCESS TO JUSTICE
· In all member states or entities, systems of legal aid are made available, at least in criminal matters, in the form of legal representation or legal advice.
· The European trend, which is being confirmed, is to go beyond this requirement and offer legal aid for non criminal cases too.
· Budgets for legal aid in Europe are generally increasing (+ 23% between 2004 and 2008). The amount of legal aid per case that is made available by the state or entity varies in Europe from a small contribution (7 € per case) to a high one (3.742 € per case).
· Equally, the number of cases that are granted with legal aid varies among member states or entities. Some states have chosen to allocate high amounts of money to a limited number of cases, whereas other states have made the opposite choice. A limited number of states are generous both as regards the amounts allocated per case and the volume of cases concerned.
· It is worth mentioning that five states apply, in addition to their legal aid system, the principle of free access to courts.
· Several states of Central and Eastern Europe which did not have legal aid systems a few years ago are strongly involved in developing such systems, which is an encouraging trend since the last evaluation exercise.
It is difficult to perceive a strong trend as regards the organisation of the judicial map:
· a majority of states have not modified their court organisation between 2004 – 2008,
· some of them have decreased the number of courts and other have increased this number
o the main trend for court organisation in Western and Northern European states or entities would be rather in favour of limiting the number of courts, mainly for budgetary reasons, but sometimes also for seeking more efficiency and / or increasing the court competences
o on the contrary, the main trend in the Eastern European states, which are embarked on major judicial reforms, goes towards an increase in the number of courts: access to the court for the highest number of users is then promoted.
· The development of e-justice and e-courts is a strong trend, and states that were late in the previous surveys have recently invested in ICT.
· Recent and ongoing reforms can be noted in many states or entities in fields such as electronic registers, databases for judicial decisions, electronic court files and electronic signature or case management systems.
· Reforms have a clearly visible impact on the improvement of computer equipment used for the direct assistance of judges and court clerk as well as for a better communication between the court and parties.
· It is foreseeable that ICT will keep being used in the judicial systems in order to increase effectiveness and quality. New interesting solutions will be implemented, such as the development of video-conferencing, the possibility of making use of electronic (registration) forms and electronic exchange of documents between litigants, lawyers and courts, or the recovery procedure for uncontested claims through the Internet
· The number of lawyers has increased in Europe between 2004 and 2008 in all the member states or entities - it will be interesting to observe if this trend continues despite the financial and economic crisis.
· However, the number of lawyers varies between the various parts of the continent
o the states of Southern Europe have the highest ratio of lawyers per inhabitant; the level of judiciarisation of the society in such states is usually higher than in the states of Northern Europe,
o this report does not have the means to establish a direct link between the number of lawyers and the volume and lengths of proceedings, but it might be interesting to further analyse the information available and see whether the number of lawyers and their role vis-à-vis the development of judicial proceedings, reported to the role of the judges, have or not a relevant impact on the court workload and the length of proceedings.
· Mediation (recommended, carried out or approved by justice) is a growing field in Europe: more and more states or entities are introducing mediation and the number of accredited mediators is growing.
· Mediation is successfully applied in many states or entities especially in the field of family law (divorce cases), commercial disputes and criminal law (compensation procedures for victims).
· An increasing number of states or entities grant legal aid for initiating a mediation procedure.
· Victims of rape, children, and juvenile offenders are the categories which are the best protected in judicial proceedings. This is done mostly by providing these categories with special hearing facilities, special procedural rights or support in terms of a specific supply of information adapted to their needs.
· To a much lesser extent, disabled persons or minorities receive support in particular thanks to special hearing facilities.
· The role of public prosecutors in assisting victims of crimes becomes increasingly important in Europe (34 states or entities, which is 6 more than in 2006). A majority of states or entities also have a compensation procedure for victims of crime. Often a public fund is set up for that reason.
EFFECTIVE FUNCTIONING OF THE JUDICIAL SYSTEMS
· Until 2008, the European trend was, in general, an increase in budgets for justice and, in particular, the judiciary. The development of the judicial system remains a priority for governments in Europe, even though large differences are noted among the member states or entities.
· The budgets of the judicial systems have increased in most of the European states until 2008 - only 4 member states had experienced decreasing budgets. It is worth mentioning in particular the states that have more recently changed into a democratic system and implemented major structural reforms of their judicial systems. These states are often those that provide a consistent budgetary effort and dedicate for the operation of the systems an important public budget according to the country's level of wealth. For many of them, the funds from international organisations (including World Bank, IMF) or European institutions (mainly the European Union) contribute to this evolution.
· However, it will be interesting to follow-up the evolution of these budgetary efforts devoted to the courts, the prosecution system and legal aid in Europe, in order to assess the effects of the financial and economic crisis of 2009 / 2010. Looking at the first trend indicators, one can fear that, at the European level, the growth rate of justice budgets, like all public budgets, will slow down significantly and perhaps, the curve will invert as well.
· Although it is not for the CEPEJ at this stage to define the proper level of financial resources to be allocated to the justice system, a correlation can be noted between the lack of performances and efficiency of some judicial systems and the weakness of their financial resources. However, the opposite is not always true: high financial resources do not always guarantee good performance and efficiency of judicial systems. Other elements must be considered here (efficient organisation of judicial system, relevance of the procedures, management of the human and financial resources, responsibilisation of the players in the judicial system, training, etc).
· More than half of the member states or entities spend more resources in other areas of justice than the judicial system (e.g. prison system, protection of minors, etc.), while others direct public budgetary efforts mainly to court operation.
· Within the framework of the budget allocated to the judicial system
o the highest budgetary amounts are allocated to the salaries (70 % of the budget at the European level), apart from the states which rely in particular on non-professional judicial staff and hire a smaller number of judges, usually very experienced (they are generally Common Law states or entities),
o a larger budget is devoted to the prosecution system in states or entities where prosecutors have traditionally occupied a prominent position in the functioning of justice (namely the countries of Eastern Europe),
o a significant part of the budget (around 15 %) is allocated to premises,
o the part of the budget allocated in Europe to ICT in courts and e-justice (3 %) has not increased in volume since 2006, which can be explained by a decrease in the cost of materials and the writing off of the cost of infrastructures: ICT remains a priority field in which member states must be encouraged to invest in the coming years,
o the part of the budget allocated to judicial training (0,8%) still appears too weak, although the specific efforts made by the member states which have invested more recently in this field can be highlighted.
Court fees perceived by courts
· For a majority of European states, the court fees constitute significant financial resources, allowing some to cover a major part of the court operating costs, or even, for some of them, to generate a net profit which comes mainly from the resources attached to the handling of the business and land registries.
· The judicial systems of the member states of Central and Eastern Europe operate with a ratio of judges per inhabitant higher than in the states of Western Europe.
· A majority of European states or entities tend to have a stable number of judicial staff in the period 2004 - 2008, although structural or organisational reforms tend to reduce the proportion of permanent professional judges in some member states of the Council of Europe (Sweden, Switzerland, UK-Scotland), some of them having occasional judges.
· On the contrary, some member states in transition continue their reforms by increasing human resources devoted to the judicial function (Azerbaijan, Bosnia and Herzegovina, Armenia, Russian Federation, "the former Yugoslav Republic of Macedonia"). The influence of recent membership or application to the European Union may be an explanation for this trend of increasing numbers of judges (Bulgaria, Slovenia, Latvia, Turkey, Slovakia, Lithuania).
· The composition of the judiciary between professional judges, occasional judges and lay judges feature strongly different types of judicial systems:
o some systems are fully professionalised, or rarely use lay judges, while other systems (Northern Europe) rely heavily on lay judges,
o for states experiencing the coexistence of professional and lay judges, the evolution tends mainly towards an increasingly professional judiciary,
o Europe is divided on the use of juries, and a fairly clear division can be noted between Western Europe (in addition to Azerbaijan and the Russian Federation), supporting such a system for specific types of cases (mainly the most serious criminal offences), and Central and Eastern Europe, whose states do not provide such a system.
· The number of public prosecutors has not evolved significantly between 2004 and 2008.
· The highest number of public prosecutors per capita can be found in Central and Eastern European states. The tasks of public prosecutors differ a lot from one member state to another.
· The differences are particularly important in fields beyond the criminal law. In most of the member states the workload of the prosecutors is balanced: globally, prosecutors are able to cope with the volume of cases to be addressed.
Judges’ and prosecutors’ salaries
· Several Eastern European countries have increased considerably judges’ and prosecutors’ salaries since 2004, not only to make these professions more attractive but also to ensure (regarding judges) their impartiality and independence, prevent corruption and guarantee sufficient respect from society.
· However, differences can be noted between the levels of remuneration in both functions, most of the time in favour of judges.
· It is possible that the financial and economic crisis has an impact on the salaries in several states or entities.
Non judge-staff in courts
· Data on non judge-staff in courts are stable between 2004 and 2008.
· Major disparities between the states can be highlighted regarding the non-judge staff in courts. In 14 member states, non judge staff similar to Rechtspfleger is entrusted with quasi-judicial powers, which might influence the organisation of the judiciary.
QUALITY OF THE PUBLIC SERVICE OF JUSTICE DELIVERED TO THE USERS
· An increasing attention is paid in Europe to the needs and expectations of the court users.
· It has been noticed that techniques and methods inspired by new public management and by case management are increasingly implemented and imply the definition of quantified objectives and the evaluation of performances and, sometimes, of the way means are allocated to jurisdictions according to results. Performance and quality indicators are increasingly used.
· A very limited number of European states or entities carry out complete quality systems. Such models measure the satisfaction of the users, but also take into account other elements such as the management of courts, (personnel, financial and material) resources, access to law and justice, processes used in the courts, etc. This trend should further develop in the coming years.
· The introduction and use of specific tools is being developed in Europe, although quite recent and still limited, to evaluate court users’ level of satisfaction or public confidence in courts. The model survey and the methodological guide provided by the CEPEJ should facilitate future implementation of the surveys conducted among court users to improve the quality of the public service of justice.
Lengths of proceedings
· Violations of Article 6 of the European Convention on Human Rights on excessive duration of judicial proceedings remain the first reason for the European Court of Human Rights to condemn European states.
· A larger number of member states are able to collect the necessary data to analyse timeframes of judicial procedures. The CEPEJ encourages member states to continue on this path, following in particular the recommendations in the CEPEJ's "GOJUST Guidelines". A better understanding of the activity of the courts is indeed necessary to improve the performance of courts.
· The quantity and the quality of the information available from the courts as regards case flow management and timeframes of judicial proceedings must be further improved:
o it remains very difficult to compare the performance of the justice system from one state to another,
o in setting up its permanent European observatory of judicial timeframes, the CEPEJ's SATURN Centre should bring in the near future a better understanding of the problems related to lengths of proceedings.
· From the information available at this stage of the evaluation process, the CEPEJ is able to draw first conclusions of the analysis of the two main indicators that have been set up: the clearance rate and the disposition time:
o the analysis of the data currently available can emphasize that first instance courts in Europe are generally better able to cope with the flows of criminal cases than civil cases,
o the citizens seem to go to court more easily in the Central and Eastern European states, in South-Eastern European states and in Southern European states than in Northern European states and in the states of the Caucasus,
o the court activity varies between the states whether they have or not to address non-contentious civil cases (this is normally associated with the holding or not by the courts of land and commercial registers); the volume of such cases might also vary.
o non-contentious matters which can increase the workload of courts, are rarely the cause of lack of effectiveness of jurisdictions.
o having to handle a high volume of cases is not in itself an obstacle to the smooth functioning of the courts, some states or entities manage to handle relatively quickly significant volumes of cases:
§ some states or entities are able to absorb the flow of incoming cases and / or reduce the backlog, while others see backlogs of pending cases increasing,
§ between these two categories, it is worth underlining those states where the efficiency in addressing cases tends to decrease, although, at this stage, they are still able to cope with the flows of incoming cases; they should follow closely the evolution of the indicators that are currently flashing orange (points of vigilance),
§ a special mention should be made for the improvement of the performance of the courts of several states in transition (including Georgia, Russian Federation) which current reforms and investment in the judiciary seem to lead to encouraging results.
Enforcement of court decisions
· For a limited number of states the non-execution of judicial decisions remains a significant problem, given the relatively high number of violations referring specifically to this issue.
· In half of the member states, the enforcement agents are public officials, whereas in the other half of the states they are either private agents or have a mixed status.
· There is a large variety in the number and status of enforcement agents, often linked to the existence (or non existence) of a specific initial training (which now exists in two third of the European states) and/or a procedure for a final selection.
· Many European states are undertaking court reforms:
o courts are restructured,
o court locations have been changed and
o other working methods have been introduced, including for ensuring a better follow up of the court activity.
· It should result in an improvement of the efficiency and quality of judicial proceedings and a reduction of a number of cases received by the European Court of Human Rights.
PROTECTION OF THE INDEPENDENCE OF THE JUDICIARY AND THE STATUTE OF JUDGES AND PROSECUTORS
· With respect to the recruitment, nomination and promotion of judges and prosecutors, there is in many countries a strong involvement of judges and prosecutors’ representatives in competent bodies. However, it is regrettable that there are still some countries where judges and prosecutors are not represented in such bodies.
· The budget allocated to training, which is indispensable for improving the functioning of justice, is increasing significantly in several central and eastern European states. In most of the states or entities, an initial training for judges or prosecutors is mandatory and its duration can vary from several months to several years. General in-service training is often provided. To a lesser extent, a trend can be noted towards increasing training in the area of administration and management of courts and the field of computerization.
Rapport d'évaluation 2010 de la CEPEJ
1 Document CEPEJ(2008)11