Workshop on the financing of the judicial system
CEPEJ – 7 December 2011
Georg Stawa explained the aim of this exercise in small groups, which is to find new ideas and working methods which could be used in the future.
The brainstorming on "the financing of the judicial system" was intended to reflect on the composition of court budgets and court fees.
To introduce the debate, our moderator has built upon a known fact: there is significant difference between Council of Europe member States in the way they manage financing of their judicial systems.
Georg Stawa asked us to describe the composition of the budget of the judicial system of each country and to what extent the jurisdictions themselves are involved in establishing or organising this budget or in their financing. Should the budget allocated to the judicial system of a country be centralised? Should a judicial system be self-financed? How to evaluate spending by the judicial system? How to verify that the amounts spent are used to improve the efficiency of justice? Can independence in the management of the budget of a judicial system influence independence of the judicial system as such?
A roundtable between the countries present illustrated the disparity between the ways of financing judicial systems and allowed to identify two or three ideas for further reflexion.
In Ireland, courts are independent. There is a department for the judiciary, financed by the Government. This Department is responsible for the management of this budget, while being submitted to a control which allows, in particular, ensuring that the number of employees is limited. The system is partially self-financed by court fees. The fees collected by the jurisdictions are repaid to the State. For the moment, a fee of about 5,000 Euros is foreseen for claims involving significant amounts of pecuniary damages related to business activities (one million Euros or more). But it is the only field where an increase of fees is foreseen. Budgetary cuts and non-replacement of retiring staff do not only produce negative effects, contrary to what one might think. A stimulating effect has been observed in that it requires a better organisation. Finally, the representative of Ireland believes that it would be useful for the judicial system to manage at least a part of its budget in an autonomous and independent manner.
In England and Wales, the Ministry of Justice has at its disposal a budget for financing the judicial system, with some peculiarities in respect of certain types of jurisdictions. For the moment structures are reduced. The investment in new technologies is fundamental. Furthermore, litigants are encouraged to use alternative modes of dispute resolution, to put emphasis on out-of-court settlement. But this is not very efficient.
In the Russian Federation, the government cannot reduce the budget of the judicial system without having previously consulted the Congress of Russian Judges. The budget of the judicial system is thus established in consultation with the Congress of Russian Judges and the Supreme Courts. Court fees are similar to taxes paid into the federal budget, and thus do not serve to finance the court budgets. There is no quota which enables to define, for example, how many cases a judge is expected to process during a certain period of time. The Parliament hasn’t yet adopted the relevant norms.
Spain: The system is quite decentralised. Budgets can vary significantly. For many years, emphasis was made on the use of new technologies, but the economic crisis makes the continuation of the activities underway uncertain.
In Denmark, the judicial system is very independent, in particular as regards the way the budget is spent. The situation is quite stable since it has been introduced in 1999.
In "The former Yugoslav Republic of Macedonia", the budget is prepared with the presidents of the various jurisdictions. There are separate procedures. The budget is negotiated with the Ministry of Finance. In 2010, the budget of the State has diminished. But the budget of the judiciary cannot be diminished. In the future the budget must, on the contrary, increase. Part of the funding will be used for the training of judges.
In Azerbaijan, much attention is paid to the judicial system. A lot of money has been spent on training of judges and judicial staff. The new technologies have also been important. In practice, audit of the needs of the jurisdictions is performed, and the budgetary lines are voted if they are justified. Some jurisdictions as the Supreme Court are totally separated on a budgetary point of view.
In Finland, it is the Minister of Justice who prepares and proposes a budget to the Minister of Finance. The judicial system is part of the public sector. The cost of the new technologies is growing, and the only way to compensate this cost is to reduce staff. Productivity can be improved with the help of the new technologies. A certain number of fields such as the land register have been separated from the judicial system.
In Austria, the land register is an important financial resource. The budget is established and discussed between the Ministry of justice and the Ministry of Finance. The system is financed by fees, though they are directly going into the federal budget. A new followed pronciple is that when money is allocated, it is necessary to prove that it was spent for what it had been foreseen.
This round table was followed by a discussion.
For some people, it is up to the State in fine to decide what should be invested in the judicial system. If the courts are allowed to make all the decisions, they may spend money on posts which are not deemed necessary. There should be a discretionary part, but the government should be informed of the way the budget is spent. In short, a certain degree of independence, yes, but not a total independence.
Concerning indicators, the question of their nature arises, as well as the question of criteria for evaluation of budgetary needs. It is very difficult to obtain reliable indicators, even if this culture exists in some countries like Austria.
Concerning the use that may be made of court fees, for example to finance a jurisdiction, to make it financially independent, or to finance legal aid, the idea which comes out is to say that fees may allow to finance part of the costs generated by the process, but this shall not constitute an end in itself. In fact, there is a risk of infringing access to justice. A distinction can also be made between different types of cases (civil, criminal, business....) where the matters at stake are not comparable.
Another aspect is to question whether jurisdictions themselves should be competent to take care of making themselves financially independent.
It has been admitted that, traditionally, the aim of the judicial system is to administer justice.
For the representative of the European Union, fees help to improve the efficiency of the justice system. If the fees are used to finance the whole system, this creates problems.
The independence of courts presupposes a full budgetary independence and an independent management. From the point of view of the public, limits should be set in order to verify how money from court budgets is spent.
The independence of courts is seen as something important. This presupposes an independent administration, including a direct financing. But we should not go further. Limits should be set by indicators and objectives that take into account efficiency of the justice system.
Reducing court budgets has a negative impact on the efficiency of the justice system.