Strasbourg, 8 December 2011
Sharing common concepts for evaluating the functioning of the court systems
Workshop 2: Judicial and non judicial staff
Some concerns regarding the concept of judges
NB: a judge must be understood according to the case law of the ECHR. In particular, the judge decides, according to the law and following an organised procedure, on any issue within his/her jurisdiction. He/she is independent from the executive power.
In some countries, misdemeanour cases are addressed by judges whereas in others they are addressed by public officials (administrative decisions). This must be taken into account while commenting on the number of judge and when reporting the number of judges to the number of cases.
The concept of "deputy judges" (judges' assistants) must be considered carefully vis-à-vis the definition mentioned above: in some countries they are full judges (expl: 31 % of the first instance judges in Norway) whereas in other countries they do not have the power of taking decisions.
Trainees should in principle not be taken into account, in particular when they are not paid by the court budget but the budget for judicial training.
Some concerns regarding the various categories of judges: professional, occasional and lay judges
Judges working part time are not occasional judges. They must be counted as professional judges, whose number must be given in full time equivalent (expl: two judges working half time must be counted as 1 fte).
Occasional judges are appointed and paid as judges, but do not work on a regular basis. For instance; retired judges called to reinforce the judicial staff or advocates entrusted with the task of taking judicial decisions in several procedures.
Magistrates (lay judges): in common law systems they must be counted as soon professional judges although they are more numerous than professional judges. This must be carefully reflected in the comments, and the drafters must paid particular attention when making comparisons.
Lay judges, who might be appointed by their peers (commercial or labour cases for instance) differ from members of juries who are regular citizens participating to the decision next to judges. Usually, whereas lay judges can decide on legal issues, members of juries only decide on facts.
Some concerns regarding public prosecutors
In some countries prosecution duties are fulfilled by the police and fall under the budget of the budget of the police. In Norway for instance, they are considered as prosecutors. Particular attention must be paid to this fact in commenting the data.
Prosecutors acting exclusively outside the criminal law field should not be counted among the number of prosecutors, as the definition should follow Recommendation Rec(2000)19 which concerns the criminal law field.
Some concerns regarding non judge and non prosecutor staff of courts and prosecution services
As far as possible the staff working with judges must be specified from the staff working with prosecutors. If this entire staff is part of the same category and the same budget, estimation can be calculated, based on the proportion of prosecutors vis-à-vis judges.
Staff data should be given in full time equivalent.
Court clerks working for registries (commercial or land registries for instance) must be counted among the number of non judge staff.
When calculating ratio including the number of judges and the number of clerks (idem for prosecutors), the drafters must take particular attention to the categories of non judge staff concerned: only direct assistants to the judge? Or including administrative staff? Or including technical staff (drivers, …)? The comments must take into account the issue of outsourcing (IT staff, security or cleaning staff might come from private companies).
Some concerns regarding disciplinary issues
The drafters must be cautious when comparing data on discipline of judges, paying special attention to the disciplinary procedures: such comments must in particular take into account the existence or not of procedure existing before disciplinary procedure (individual inspection of judges for instance) which might have impact on the number of disciplinary procedures.