Justice as a public service
Prosecutor, Court of Appeal of Paris,
Associate Professor at the University of Poitiers, president of CEPEJ-GT-EVAL
The debate on public service of justice is extremely sensitive, even more in France where the notion of public service results from a long historical legacy from the State. In Europe, to the concept of "French public service", answers the "service of general economic interest", what the service of justice cannot be.
The specific nature of justice is real and we must therefore distinguish the functions of justice that are common to all ordinary public service, from those who make up the essence of judicial power and maintain judicial independence. This distinction is important because certain public service functions can be delegated without problem to private operators, while others can absolutely not
To better understand the similar concepts of public service whether in an ordinary or judiciary environment. I will take a concrete example. Yesterday evening I came by train. The departure station highlighted information boards for users on the percentage of trains arriving on time for each line on the previous month and indicating the changes over a year. Each could assess performance indicators and quality of service of the station, from an essential criteria that can be related to judicial timeframes, the first concern of users.
The second station, which secured the match for Strasbourg, showed the same type of panels on the performance of each line. But the electronic information board on announced trains, continuously updated, gave mention about it that due to staff movements, a train was removed and that the train to Strasbourg was 20 minutes late. As a user, I was probably very interested in general information on the functioning of the SNCF Service, considered in France as a public service. But what interested me more, was whether my train was rolling and if he would be on time. You have well understood that you can replace "trains" by “courts» and "my train" by "my file before the court."
The first indicator enables to measure usual performance of a service, information that has a crucial impact on trust and general user’s satisfaction. But what interests first the client or the litigant, is his particular case.
So there are two visions of public service. The upper one which should help to drive a company policy or public administration in order to offer the best service for all users, by measuring the overall performance. And the lower one, from users whose perception changes on the basis of their daily experience of public service or the perception they have through the media, thereby disadvantaging principle of justice whose decisions are not aimed to please the public. This necessary comparison can only be allowed by an assessment based on a variety of methods, quantitative and qualitative, to provide sufficient lighting.
Regular public service and specific public service
But what is so special to the public service of justice? What is its specificity?
As with all other public services, the main requirement posed by citizens regarding justice is timeframes and costs. We have gone much more further in CEPEJ on these concepts, bringing forth the notion of foreseeability. What is important for justice users, as for the train passenger, is the expected time, that is explained and on which information is provided all the time. Same thing regarding the estimated cost. There are first class and second class trains, which services and costs are different. There are in the field of justice, simplified procedures, from which individuals can benefit to get a quick decision, at a lower cost. And the European Court of Human Rights acknowledges, on behalf of the principle of proportionality, that people give up certain guarantees given the limited legal issue. There are also first class procedures, litigants choosing to seek expertise and counter evaluation, consultations of lawyers, accepting the costs and additional time given the stake of hits trial.
To summarise, we can estimate that all the administrative environment of justice is a public service remit as the others. At the first level, for example, reception in a court, the time taken to answer the phone or for delivering a document. At another level, the willingness to facilitate the understanding of documents sent to defendants, the case management and information throughout the pre-trial period, assistance in understanding all the terms of the debate, despite the necessary rigorous terms and legal reasoning. Our fellow Belgian judges on this point, have done a remarkable work entitled "To Say the law and to be understood," or even, for example, the waiting conditions and time at which a case is taken at the hearing, although, again, the obvious constraints of legal debate and relationships with lawyers.
Could you believe that everything that depends on the court administration and court clerks, that is to say including the holding of the jurisdiction, records management, preparation and formatting of the decision clearly falls within the public service of justice understood as an ordinary public service, and that everything that depends directly on judges would be a public service of a specific nature?
The court decision
Here we touch the most delicate point of the problem. Of course the judge's decision itself, except the time laps within which it must be pronounced, cannot be included in the debate on public service. The judge's decision has a kind of alienage status, as an embassy. To take a metaphor, an independent judge in his decision would be symbolised by an island in the ocean of public service. The issue is that of water on the beaches, tidal and watertight zones. This debate will be opened by my colleague François Paychère, Swiss judge whose country is not an island, geographically speaking ...
But this is not because we recognize the need to protect the absolute independence of the judges' decision that we are not entitled to raise the level of demand vis-à-vis those below, as much concerning the efficiency of the judicial system than the quality of decisions. It is not insignificant, moreover, following a significant development, that the last CEPEJ report in 2008 took the title: European Judicial Systems, efficiency and quality (1).
In the debate on justice as a public service we must, as in any difficult debate, first return to the concepts and principles.
Across Europe, a financial and quantitative pressure is put on courts and judges. How far the justice administration can go with these pressures? Indeed, justice is the common property of democracies, to which all those involved in the service of justice contribute, leading to a decision by an independent and impartial court, which equally respected the rights of the parties. These principles of fair trial integrated a new dimension on which the authors of the wording of Article 6 of the European Convention on Human Rights were probably not initially gauged: the reasonable time.
It is in the name of this principle that we are witnessing today, across Europe, a reversal of perspective facing congestion due to the increase in demands for justice. The primary purpose of the European Convention on Human Rights, in a democratic society, was the individual decision and guarantees (independence, impartiality ...). Today, we turn towards justice as an institution responsible for millions of decisions. The focus has changed. The need for justice is such, in the social regulation, that it is required from the judiciary and judges to be not only fairly perceived, but also to perform.
Across Europe, the pressure of productivity grows to take more and more decisions. The European Court of Human Rights, confronted to this growing stream, admitted that guarantees of the trial could be proportionate to the interest of the case. Faced with this reality, it authorised simplified procedures, limitation or waiver of certain procedural safeguards with the consent of the individual.
The Council of Europe, in line with the member states, then developed a strategy regarding the process that led to judicial decisions and their implementation. After its establishment in 2003 to address the fundamental question of the efficiency of justice, CEPEJ worked primarily on the environment of justice, on all steps of the process before and after the judge's decision: the means of courts, staff training, methods of work organisation, the standards of the "production of justice", all critical elements that determine the quality of judicial decision.
We can now begin to measure the impact of the work of CEPEJ, in particular the development of the report "Evaluation of European judicial systems”. The CEPEJ addresses organisation, functioning and performance of public service. This public service of Justice, is at the service of the public, of the user - the client as it is said in some countries. This user is at the centre of the system, with its repeated requests that have not changed for two centuries: the time (slow), cost, difficulty of understanding, the feeling of inequality.
And I return to the beginning of my remarks. The process of judicial institutions in Europe is increasingly that of all other public services, refocusing around the service actually delivered to users for tasks that are similar: reception, information, time taken to respond, clarity of decisions, transparency of the functioning, etc. .. The objective is to ensure a sufficiently high standard on all of these benefits and to achieve quality decisions made in a judicial environment that preserves the independence of judges, whose competence and impartiality must be ensured .
There is the risk that, on behalf of the application of efficiency, the quantitative pressure on judges is too strong, even that these threats may weight on their independence or their ability to judge in conditions of sufficient serenity. Therefore we must put clear limits and determine how far public policy can go into the judicial administration measures related to numbered targets, not to undermine the judge by productivity demands at the expense of quality requirements(2). The Opinions of the Consultative Council of European Judges(3) are references to that effect and I have no doubt that my colleague François Paychère will insist on this point.
The weight of cultural differences
I have just outlined the major trends, but this process progresses quite differently in each member states, given their history and administrative culture, judiciary tradition, the level of their means.
This difference in culture could be quickly illustrated through the work on sociology of organisations conducted by a French researcher, Philippe d'Iribarne.(4). The author has compared the methods of organisation and company culture of three countries, United States, Netherlands and France, both in private and public sector. To summarise his analysis in broad strokes, the U.S. dominates in the field of the culture of contracts. Targets are set very precisely with the expected results. Pragmatism and sanction for non-compliance of the contract are the rule in a continuous cost/efficiency relation. In the Netherlands, the culture of consensus dominates. All actors are involved on the objectives and methodology in an improvement process with sophisticated assessment tools. In this system it is difficult to be opponent, staff being inserted in a dense network with expected behaviours. In France, dominates the culture of honour. Decisions are taken centrally by the representative of the State or by the boss of a company, but then everyone believes he can implement on his own way. In a sense of honour and a well done job, the actors adapt at their level the provided guidance by their own design.
Everyone here will be able to measure, for his country and its judicial system, which brings it closer or separates from the three standard models. But today, in the European judicial area there exists a dominant common culture, that of new public management, benchmarking and case management, now essential to the courts. The influence of the Anglo-Saxon models, rationality management of the Netherlands, the countries of Northern Europe, more largely the pragmatism of Protestant countries, inspired methods for evaluating judicial systems, while the traditional conception of the function of judge historically dominates the model from the Latin countries of southern Europe.
European integration, dissemination of legal and judicial culture by the Council of Europe, networks of lawyers, play of course a role of mixing and acculturation. Again, everyone can measure these cultural influences in his own country or, for example concerning France, in different regions. Frans Van Der Doelen, for the Netherlands, will highlight some of the sociological analysis of organisations, including the "impact-generation". Thus, staff born just after the Second World War, holding the highest positions in the administrative and judicial hierarchies, gradually start to retire. Judges and various court staff experience a high turnover. The Netherlands has measured the impact of feminisation of certain functions, and the evolution of new generations, the younger having fully integrated the new information technologies being more productive. The older generations are inherently more reluctant to change, but we must stress that they are also carriers of core values, including that of the legal culture, that must be transmitted without dissolving in the ideology of management .
The quality of public service of justice
In conclusion, I refer to movements that are underway across Europe, in a view of greater efficiency of systems, of improvement of productivity and efficiency of public service of justice and this, the more in the framework of ongoing budget cuts with the impact of financial crisis, and the necessary deleveraging of public finances.
Measuring the performance of courts and judges' work, was an approach that was unimaginable a few years ago in many countries. Our friend Georges Stawa from Austria, will present its study on the relationship between the size of courts and their performance in handling cases. Our colleague Vyacheslav Panteleev, presiding judge of Odintsovo region of Moscow, the Russian Federation, will present the instruments available to the pilot court he presides, to distribute, measure and evaluate the work of judges.
But beyond the growing sophistication of tools for monitoring and measuring performance due to advances in new technologies, we must at the same time consider their limits. Given the fragility of the function of justice in a democracy, we should carefully move the cursor to find a balance between quantity and quality. Because, beyond the simple quantifiable performance, democracies need respected, competent and impartial judges. It is only in such a balance, in which the public has confidence, that can live a public service of justice of quality, for quality decisions (5).
2. An administration for the Justice, Revue française d’administration publique, N° 125 2009 coordinated by JP and Jean D. Salas, 2009 ,
3. Opinion No. 11 (2008) CCJE, quality of judicial decisions http://www.coe.int/t/DGHL/cooperation/ccje/default_fr.asp
4. The quality of judicial decisions, studies CEPEJ No. 4, Proceedings of the Conference of Poitiers, 8-9 March 2007