Strasbourg, 10 November 2008

CCJE(2008)5 PROV3

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE)

Draft Opinion no.11 (2008) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on  the quality of judicial decisions

This draft includes the comments of Bart Van Lierop, Paul Mafféi, Irakli Adeishvili, Raffaele Sabato and Julia Laffranque

In order to facilitate the dissemination of this Opinion, member States should ensure, where possible, its translation in their national languages.

1.    The quality of judicial decisions is a basic requirement of the right to a fair trial enshrined in Article 6 of the European Convention for the Protection of Human Rights and fundamental freedoms (hereinafter ECHR). The Convention requires states to establish independent and impartial tribunals and promote the introduction of efficient procedures. This obligation acquires real meaning when judges are enabled through appropriate state guarantees to administer justice correctly both factually and legally in law and in fact for the ultimate benefit of the citizens.

2.    With this in mind, the Consultative Council of European Judges (CCJE) has already pointed out that judicial independence must be regarded as a citizens’ right; it stated in its Opinion No. 1 (2001) that the independence of the judiciary “is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice”. The CCJE has, in all its opinions since 2001, put forward a number of suggestions enabling each system not only to guarantee that court users have a right of access to the courts, but also to ensure, through the quality of the decisions given, that they can have confidence in the outcome of the judicial process[1].

3.    In this context and in compliance with its terms of reference, the CCJE has decided to devote Opinion No. 11 to the quality of judicial decisions, which is a major component of the quality of justice.

4.    The quality of justice is a constant and long‑standing concern of the Council of Europe, as shown by the conventions, resolutions and recommendations adopted under the Council’s auspices on ways of facilitating access to justice, on improving and streamlining simplifying procedures, on reducing the courts’ workload and on refocusing judges’ work on purely judicial activities[2].

5.    This opinion does not aim to challenge the basic principle that assessing the intrinsic quality of each judicial decision is primarily a matter for the legal remedies established by law. This principle is a key consequence of the constitutional guarantee of the independence of the judiciary judges, regarded as one of the main features of the Rule of Law in democratic societies.

6.    The CCJE considers that judges, having [an imperative duty] [the task] to draw up judicial decisions of good quality, [are in a particularly good position to] [can] initiate a discussion on the quality of judicial decisions and to determine the indicators for such quality and the conditions for assessing it.

7.    The judicial ecision must meet a number of requirements on which some common principles can be identified, irrespective of the specific features of each judicial system and the practices of the courts in the various countries. Indeed the purpose of a judicial decision is not only to resolve a given dispute in a manner ensuring that the parties effectively have the right to legal certainty and to effective action by the courts, but also to establish case law in order to prevent the emergence of other disputes and to ensure social peace.

8.    The report of Ms Maria Giuliana CIVININI (Italy), based on the replies given by the CCJE members to a questionnaire[3], shows that countries have a very wide range of approaches to the question of the quality of judicial decisions and the assessment of that quality. It also emphasises that while the arrangements for assessing quality depend on the particular traditions of each legal system, all the countries are nevertheless similarly determined to continue to improve the conditions under which judges have to give their decisions.

9.    A discussion of the quality of judicial decisions concerns all decisions with which judges settle disputes and hear and decide particular cases, it being understood that judicial decisions are exclusively those given by independent and impartial tribunals within the meaning of Article 6 of the ECHR [ :

§  decisions given in civil (including some administrative matters) and criminal matters;

§  decisions given at first instance, on appeal or by [supreme courts] [higher courts, including constitutional courts];

§  provisional, emergency interim or injunction measures or final decisions;

§  decisions in the form of judgments or orders given by tribunals sitting as a full court panel or as a single judge;

§  decisions given with or without the possibility of minority opinions;

§  decisions given by professional or non‑professional judges or by courts combining the two (échevinage).]

[It concerns in particular decisions given in civil, criminal and administrative matters, provisional, emergency or final, given at all levels of instance, by tribunals sitting as a full court or as a single judge, by professional or non‑professional judges, with or without the possibility of minority opinions.]

10.  The quality of judges’ decisions depends to some extent on the action of each individual judge, but also on a number of variables which are external to the justice process itself.

11.  Judicial decisions are primarily based on laws passed by legislatures. Those not only decide what are the rights that court users have and what are the actions punished by criminal law, but also define the procedural framework in which judicial decisions are taken. Thus the choices of legislatures influence the type and amount of cases that will be processed by the justice system, as well as the ways they will be processed. The quality of judicial decisions may be affected by too frequent changes in legislation by poor drafting or uncertainties in the content of laws, as well as by deficient procedural framework.

12.  Therefore, the CCJE considers it necessary that national parliaments make provision for monitoring procedures to ensure smooth application of existing and prospective future laws by qualitative judicial decisions. The legislator should ensure that legislation be stable and of quality, conforming to the ECHR. In order to facilitate interpretation, preparatory works should be accessible. Whenever draft legislation is discussed concerning the administration of justice and procedural law, an opinion of the Council for the Judiciary or equivalent body should be requested before deliberation by Parliament.

13.  In view of the goal of ensuring quality decisions in a way proportioned to the interests at stake, judges should be provided with legislative frameworks that allow them to decide on e.g. the time resources needed for a proper way of dealing with the case. Further reference is made to the concept of “case management” as appearing in the Opinion No. 6 (2004) of the CCJE[4].

14.  Quality of judicial decisions is [directly] conditioned by the financial means attributed to the justice system, allowing courts to [immediately] [directly] have human and material resources that are necessary. The assistance of qualified administrative staff, as well as the collaboration of legal assistants and court clerks and legal secretaries relieving the judges from routine work, can evidently favour the quality of decisions delivered by a court.

15.  The CCJE underlines the importance of a smooth harmonious co-operation between the judiciary and the other powers of the State competent for budget spending, in particular with the legislature and the relevant ministries, in order to ensure that adequate financial resources are given to the courts; in fact, if such resources are lacking, adjustment of the functioning of the judicial system in view of reaching a quality product is impossible.

16.  The CCJE wishes to emphasise the [quality] [importance] of legal education and judges’ training. Indeed it is important that a training in law is offered apt to provide legal professionals not only with the skills that may make them able to perform their respective tasks in litigation, but also to acquire ethical attitudes and professional abilities such as to allow them to efficiently solve disputes in society also by way of negotiation and ADR instruments.

 

17.  This includes a high level legal training[5] and the need for a continuous improvement of professional techniques which do not only include legal abilities for implementing the changes in domestic and international legislation and practice, but also advancement of other complementary skills and knowledge about non legal matters thus enabling [defence lawyers and] judges to appreciate properly the facts. There should also be a training Of particular importance is the new trainings about ethics, communication skills for dealing with the participants in the procedure, but also with the public and the media. Of particular importance is the new trainings for improving the organizational capacities for efficient case preparation and management (IT, case management, working techniques, judgment/decision writing techniques - introducing guidelines with general models for drafting decisions, normally with possibility for the judge to choose his/her  individual style), all these with the aim of managing trial cases without unnecessary delays and avoiding unnecessary actions. Brochures, case studies of good and bad practices, standard models for writing judgments together with methodology, fact sheets – bench book, which will come out as a result of the training, will be broadly disseminated among judges.

18.  Furthermore, court presidents should be trained on management of human resources, strategic planning to regulate and manage case flow, as well as efficient planning and use of the budget and financial resources. Administrative staff and court assistants should be especially trained in preparing the hearings and following the dynamic of the case in the course of the whole procedure (IT, case and time management, drafting of judgments, foreign languages, communication with the parties and the public, legal research) in order to relieve judges of administrative and technical duties and allow them to [focus their time] [concentrate] on the intellectual and administrative aspect of the process and decision making.

19.  Even if one restricts the scope of the analysis to the role of the actors within the justice system, the quality level of judicial decisions is clearly the result of interactions between the performances of many actors, namely the police, prosecutors, lawyers, clerks, etc., the judge being only one ring in the chain of co-actors, not necessarily the final one as the enforcement stage is of equal importance.

20.  The professionalism of the judge is the first guarantee for the quality of a decision.

21.  In order to give decisions of a higher quality, in line with national and European norms, the judge should as much as possible have easy access to new technologies, information and documentation on all relevant legal instruments in the field concerned (legislation and case-law, both at the national and international level, and both in paper and electronic versions). The judge should have the support of documentation centres providing digested, indexed and annotated materials[6].

22.   In accordance with Opinions No. 1 (2001) and 3 (2002) of the CCJE, developing the culture of independence, ethics and deontology within the judiciary will strengthen the judges’ role, thus contributing to the quality of the decision. The CCJE recalls that the economic independence of judges is the guarantor of its functional independence. This implies an appropriate remuneration which reflects the importance of the social role of the judges and their responsibilities.

23.  The decision will not only take account of the legal rules but will also reflect the non‑legal concepts and realities specific to the context of the dispute and relating to, depending on the case, ethical, social or economical facts. This requires the judge to be particularly aware of these different areas when considering the case and giving his/her decision.

24.  The evaluation of the judges’ work is also necessary (annual performance evaluations of the professional and ethic qualities, organizational capacities and production requirements, skills, operational transparency), namely to increase their personal motivation for more productive and more qualitative judicial work.

25.  If the outcome is to be a good‑quality decision which will be accepted both by the litigants justice users and by society, the procedure must be clear, transparent and predictable. Needless to say, it must satisfy the ECHR requirements. All the member countries currently have legislation providing for such procedures in civil, administrative and criminal matters.

26.   (former 27) However, the mere existence of a procedure meeting these requirements is not sufficient. The CCJE is of the opinion that the judge must be able to organise and conduct the proceedings actively and swiftly. The proper conduct of the proceedings will be conducive to the quality of the final product – the decision[7].

27.  A decision given in a reasonable time according to Article 6 ECHR is a main element for the quality. However a conflict can arise between the speed swift way in which the procedure is conducted and other factors of the quality such as the right to a fair trial also safeguarded by Article 6 ECHR. It is important to safeguard social peace and legal certainty: the time must there obviously be considered, but is not the only factor to be taken into account. The CCJE refers to its Opinion No. 6 (2004) where it underlines that “quality” of justice cannot be considered as a simple performance mere productivity. The qualitative approach shall also taken into account the capacity of the judicial system to deal with the action, in conformity with the general objectives of the judicial system, in which speedness constitutes only one aspect.

However, the mere existence of a procedure meeting these requirements is not sufficient. The CCJE is of the opinion that the judge must be able to organise and conduct the proceedings actively and swiftly. The proper conduct of the proceedings will be conducive to the quality of the final product – the decision[8].

28.  Some countries have established standard models of good practices in case management and conduct of hearings. Such initiatives should be encouraged if they promote good case management by each judge.

29.  The main role of consultation meetings between judges must also be stressed, which enable to discuss case management, difficulties met while applying legal norms and possible conflict in the interpretation of case law.

30.  The hearing process should comply with all ECHR requirements, thus providing litigants justice users and society at large with the minimum standards of a proper and fair trial. The proper conduct of the hearing will have a direct impact on the litigants users’ and society’s understanding and acceptance of the forthcoming decision. It must give to the judge all the elements necessary for the proper assessment of the case. Therefore it has a decisive impact on the quality of the judicial decision. The CCJE recommends that, excepted under exceptional circumstances or in cases strictly stipulated by law, a hearing be held in all cases.

31.  Transparency and openness of the hearing as well as compliance with the adversarial principle are a necessary prerequisite of accepting the decision as just and fair both by the litigants users themselves as well as the general public.

32.  To meet the criterion of quality, a judicial decision must be perceived by the litigants justice usersand by society in general as being the result of a correct application of legal rules, of a fair proceeding and a proper facts evaluation, as well as being effectively enforceable. This will enable litigants justice users to be convinced that their case has been properly considered and dealt with and society to perceive the decision as a factor for restoring social peace. To achieve these aims, a number of requirements must be met.

33.  All judicial decisions must be intelligible, drafted in clear and simple language, a prerequisite for their being understood by the parties and the general public. This requires decisions to be coherently organised and the reasoning to be set out in a clear style that is accessible to everyone[9].

34.  Each judge can choose his/her own style and structure or make use of standardised models established by the national authorities or by associations of judges. The CCJE recommends that [in each member State, juges] national authorities compile a compendium of good practices to be followed by judges.

35.  The decision must be reasoned. The statement for the reasonsmotivation is the main quality of a judicial decision. It is an imperative necessity which prevails on the trend towards judicial performance. Proper reasoning requests that judges have proper time to prepare it.

36.  The statement of the reasons not only makes the decision easier for the litigants justice usersto understand and be accepted, but is above all a safeguard against arbitrariness. Firstly, it obliges the judge to respond to the parties’ grounds of defence and to specify the points that justify his/her decision and make it lawful, and secondly, it enables society to [supervise] [understand] the functioning of the judicial system.

37.  The reasons must be consistent, clear, unambiguous and not contradictory. It They must allow the reader to follow the reasoning which led the judge to the decision.

38.  The statement of the reasons does not necessarily have to be long. A proper balance has to be struck between concision and a clear understanding of the decision.

 

39.  The statement of the reasons must reflect the judges' compliance with the principles embodied in the ECHR (namely the respect of the right of defence and the right to a fair trial). Where provisional decisions concern individual freedoms (e.g. arrest warrants) or may affect the rights of individuals or property (e.g. the provisional custody of a child or the preventive attachment of real property), an appropriate statement of the reasons is required.

40.  The statement of the reasons must be free of any insulting or unflattering remarks about the litigants justice users. It must also avoid disapproval of the manner in which one of the parties conducts its defence, since the parties are free to decide on their defence strategy [, within the limits provided for by the law].

41.  The statement of the reasons must respond to the parties’ submissions, i.e. to their different points of claim and to their grounds of defence. This is an essential safeguard because it allows litigants justice users to ensure that their submissions have been answered (examined) and therefore that the judge has taken them into account.

42.  The judge should only answer arguments that are clearly and precisely stated. They must also be relevant, i.e. likely to influence the settlement of the dispute.

43.  Responding to arguments does not necessarily mean giving a detailed reply, as a proper balance must be found between the conciseness and the proper understanding of the decision.

44.  The obligation for the court to give reasons to the decisions does not mean that this court has to give a detailed reply to each argument gibven by the defence on specific issues. The scope of this task can vary according to the nature of the decision. In accordance with the case-law of the European Court of Human Rights^[10], the various means that can be raised by the party must be namely taken into account, as well as the differences between the member States as regards legal provisions, customs, legal literature, presentation and drafting of judgements and decisions. In order to respect the principle of fair trial, the reasoning shall prove that the judge has really examined all the main issues which have been submitted to him/her^[11].  

45.  The reasons can usefully make reference to relevant and applicable constitutional, legislative and conventional provisions. References to national, European of international case-law, even reference to case-law from supreme courts from other countries, as well as reference to legal literature can also be useful.

46.  In common‑law countries, decisions that settle a legal issue for the first time in a given case serve as precedents in all identical disputes thereafter. In civil‑law countries, decisions do not have this effect but can nevertheless provide valuable guidelines that will inspire other judges dealing with a similar case or issue. This happens in cases that raise a broad social or major legal issue. Therefore the statement of the reasons, deriving from a very detailed study of the legal issues addressed, will have to be drawn up with special care in these two cases in order to meet the parties’ and society’s expectations.

47.  In terms of content, the judicial decision includes an examination of the factual and legal issues lying at the heart of the dispute.

48.  When examining the factual issues, the judge will come up against objections to the evidence, especially in terms of its admissibility. He/she will also consider the weight of the factual evidence submitted.

49.  Examining the legal issues entails applying the rules of national and international law. The judge will take particular care to effectively apply the latter, especially Community law and the ECHR[12].

50.  In many cases, examining the legal issues means interpreting legal rules. To do this, the judge will apply the interpretative principles applying in both national and international law. In common‑law countries, he/she will be guided by the rule of the precedent that has settled an identical dispute. In civil‑law countries, he/she will draw guideline from case law, especially that of the supreme court, whose task includes ensuring the uniformity of case law.

51.  In civil‑law countries, where judges are not bound by the rule of precedent, they retain a sovereign right to assess the case on the basis of the particular circumstances. However, a decision would fail to achieve its purpose if he/she applied the law in a completely different manner from the other courts that had settled similar cases. Both the litigants justice users and society would take a poor view of such a difference of approach. Therefore it is recommended that the different courts apply the law coherently.

52.  The judge will have to ensure the legal certainty which contributes to the quality of his/her decision. Indeed legal certainty guarantees the foreseeable nature of both the content of the legal rule and its application.

53.  When the supreme court decides to change the case-law, it has to be clearly mentioned in its decision. In this case, in order not to surprise the users and the lower other courts, some circumstances can imply that the court specifies, as it is already done by some courts and by the Court of Justice of the European Communities, that this new interpretation is only applicable as from the date of the decision in issue or from a date stipulated in this decision.

 

54.  A need for a mechanism to regulate access to the supreme court of cassationcan also be recommended, as well as an appeal selection procedure appropriate to the legal traditions of each country, in order to put a stop to the constant rise in the number of cases, in a spiral which leads to a multiplication of the number of decisions, and therefore a risk of divergence or uncertainty in case-law, leading in turn to appeals, further delays and longer waits for decisions. The number always increasing of cases can entail a risk of divergence in case-law, which also increases the number of appeals, thus leading to always longer timeframes until the final decision is reached.

55.  In some countries judges can give a dissenting opinion. Judges thus express their complete or partial disagreement with the decision taken by the majority of judges who gave the decision (including themselves) and the reasons for their disagreement, or argue that the decision given by the court can also be based on grounds other than those adopted. This can contribute to improve the content of the decision and can be the source for a reflection and the evolution of the law.

56.  Dissenting opinions shall not challenge legal certainty, shall be duly reasoned and shall reflect the judge’s honest opinion as to the state of facts and legal norms.

57.  The decision and its conclusion should be written in clear and unambiguous language, so that it can be easily enforced.

58.  As interpreted by the European Court of Human Rights, the right to a fair trial enshrined in Article 6 ECHR implies not only that the judicial decision must be given within a reasonable time, but also that it must be effectively enforceable for the benefit of the successful party. Indeed the Convention does not establish theoretical protection of human rights, but on the contrary aims to ensure that the protection it provides is given practical effect.

59.  A judicial decision must accordingly have the following major characteristics:

(i) It must first be enforceable in terms of wording: this means that the decision must include operative provisions that clearly state, without any possibility of uncertainty or confusion, the sentences, obligations and orders made by the court. An obscure decision which is open to different interpretations impairs the effectiveness and credibility of the judicial process.

(ii) The judicial decision must also be enforceable under the execution system: that is how it will be effectively executed. Execution may be usually paralysed by the system of legal remedies, at any rate when they have suspensive effect. This suspensive effect is undeniably legitimate in some types of case. But in other matters, it leads to paralysis of the judicial process and gives rise to procedural strategies designed to make court decisions inoperative. To ensure the efficiency of justice, all countries should have procedures for provisional enforcement[13].

60.  A decision (in non criminal matters) of quality would be useless without the existence of a simple and efficient procedure for executing it. It is important that this procedure be supervised by the judiciary, which has to settle all the difficulties that may arise during the process of executing the decision, according to efficient modalities which should not result into an increase of procedural costs for the litigants justice users.

61.  Since the nineties, emerges a growing awareness thatit appears more and more that the quality of judicial decisions can not be evaluated properly by assessing solely the intrinsic legal quality of the decisions. The quality of judicial decisions is influenced by the quality of all the preparatory steps that precede them and therefore the judicial organisation as a whole has to be examined. Moreover, seen from the perspective of the court users, it is not only the legal quality stricto sensu that matters; attention should also be paid to other aspects like the length, transparency and the management of the proceedings, the existence of backlogs, the communication of the judge with the parties and the way in which the judiciary accounts for its functioning to society.

62.  The evaluation of the quality of judicial decisions must be done above all on the basis of the fundamental principles of the ECHR. It cannot be done only in the light of [B. Van Lierop] considerations of economic or managerial nature.

63.  The aim of this Opinion is not to comment in detail on the various quality systems that have been developed[14]. However, the CCJE wishes to express that the development and implementation of quality systems must be encouraged as they reflect the need for continuous and systematic reflection of the judiciary on its own functioning and may contribute significantly, if conducted properly, to the quality of the judiciary and to the quality of judicial decisions. Therefore, initiatives aimed at promoting the evaluation of judicial systems deserve strong support.

64.  The CCJE stresses strongly that the quality of individual judicial decisions is primarily controlled by the [guarantees provided for by the national[15] and European[16] procedures] [reviews before national courts and ECHR]. The CCJE underlines that the states should draw all consequences from the decisions taken by European courts in applying the principles provided for by such decisions.

65.  The CCJE underlines that any method of evaluating quality of judicial decisions should not interfere with the independence of the judiciary as a whole or on an individual basis.

66.  Any quality system should strictly aim at promoting the quality of judicial decisions and not serve as a mere bureaucratic tool or an end in itself. It is not an instrument of external control on the judiciary.

67.  It is not appropriate to use a quality system to evaluate the activity of individual judges. The evaluation of the quality of a decision by a court on a specific case, either by an individual judge or by a panel of judges, [must be done through ordinary internal judicial reviews or through reviews filed before the European Court of Human Rights.

68.  The evaluation of the quality of judicial decisions shall neither transform the decisions into standardised models nor oblige judges to follow a specific appreciation of a fact or to decide on the content according to a uniform manner without taking into account the circumstances peculiar to each case. Such an evaluation should not interfere with judicial independence or the consciousness conscience of individual judges.

69.  Any evaluation of judicial decisions could take into account different types and levels of courts or kinds of disputes or expertise of judges and should not be reduced to mere statistical data or be a pure academic exercise without reference to the existing reality.

70.  The procedure for evaluating the quality of judicial decisions must be transparent, which will enable to highlight the lack of efficiency and the dysfunctions of judicial systems.

71.  Excepted where the evaluation can have disciplinary consequences, personal data of judges must remain confidential.

72.  Above all an evaluation method should be a factor or element indicating the need, if any, to amend legislation, judicial proceedings and training of judges and court staff.

73.  The procedures and methods for evaluating the overall quality of judicial decisions shall not be structured as assessments of individual professional conducts, but rather systematised as general evaluations of large scale groups of decisions, e.g. the decisions of one court or one category of judges, such as a juvenile court or a labour court or the decisions taken in the fields of injuries, maintenance, sex crimes, etc.

 

74.  Multiple evaluation methods should be foreseen, related to the various quality indicators, as well as a plurality of information sources to enable the competent bodies to fully accomplish their evaluation function. The drafting of benchmarks by or with the supervision ofthe body entrusted with the evaluation of judicial decisions might be accepted.

75.  The CCJE considers that states should not necessarily adopt the same evaluation system and methodological approach. Nevertheless, on the basis of national experiences, a list of the most suitable methods can be drawn up[17].

76.  The quantitative statistical method involves at court level statistics relating to each judge and to the court as a whole (statistics on hearings cancellation, on the number of hearings for each case and on the processing time). The quantity of the work done by the court is one of the yardsticks for measuring the capability of the administration of justice to meet the citizens' needs. This is one of the indicators of the quality of decisions, i.e. a "judgment" must be issued within a productive organization and must be a result of a system capable of coping with the flow of work and of avoiding backlog generation. Pursuant to Article 6 ECHR, the "time factor", i.e. the length of the proceedings, is one of the main indicators of the quality of the decisions.

77.  In the qualitative statistical method, decisions are classified according to their type, subject and complexity. The method can be accompanied by weighting the different types of cases to determine an efficient and correct work distribution and the minimum workload that can be required from a judge or a court.

78.  The quantitative and qualitative methods can also be used to analyse delays in case management in order to find ways of reducing or eliminating them.

79.  The few number of appeals and overturned appeals can be objectively ascertainable quality indicators which are relatively reliable. However the CCJE underlines that the appeal rate and the overturn rate do not necessarily reflect a bad quality of the decisions subject to the appeal. Indeed an overturned decision can be the result of [procedural factors or] a different appreciation of the case by the appeal judge.

80.  Such statistics can highlight dysfunctions and can then be considered as a quality indicator.

81.  In order to be subject to this kind of evaluation, decisions must be brought together according to their subject or the court taking them. These groups of decisions should be subject either to self-evaluation training workshops, including, depending on the circumstances, judges and prosecutors, judges and officials, or judges, lawyers and prosecutors, or to an evaluation by people of equal status, rank and character, who may be members of a different court.

 

82.  An “external eye” is of utmost importance for checking the presence of recurrent problems, serious and continuing errors and negative quality indicators.

83.  Such missions should focus on transparency, the proper organisation and the flexibility of the procedure as well as on the guarantee for the right of the parties, the independence, the impartiality and the professionalism of the judge. Moreover, they should evaluate the [group of] decision in terms of its lawfulness, its motivation and its comprehensibility.

84.  The study of the opinionof the parties to the proceeding and the general public under by way of satisfaction surveys can be indicators, among others, of the quality of justice.

85.  Can also be taken into account the annual reports of court presidents, statements by courts, media surveys or reports by international organisations and non governmental organisations.

86.  The CCJE acknowledges the role played by universities of law faculties and others in the evaluation of judicial decisions, which contribute to constructive discussion thus helping in the understanding and development of the legal principles involved.

87.  The use of economic methods should not be generally excluded. However they must be considered carefully. Indeed the judiciary is above all bound by the law and cannot be reduced to economic functions forced to meet economic objectives.

 

88.  All these above mentioned methods can be accepted, provided that they are considered with the necessary scientific rigour, knowledge and care and that they are defined according to transparent means. Moreover, the evaluation systems must not challenge the legitimacy of judicial decisions.

89.  Bodies in charge with evaluating the judicial decisions shall be composed in a fully independent way from the political power. In order to prevent from any undue pressure, in the states where a council for the judiciary[18] exists, this council must be entrusted with the evaluation of the quality of the decision. Data processing and quality evaluation departments shall differ from the judicial disciplinary bodies.

90.  For the same reason, where there is no council for the judiciary, the evaluation of the quality of decisions shall be done by a specific body having the same guarantees for the independence of judges as the ones given by afforded by a council for the judiciary. This does not exclude the participation of “outsiders” in the evaluation of the performances of the judiciary.

91.  In any case, national or international bodies in charge with evaluating the judicial decisions shall be composed in a fully independent way from the political power.

92.  The CCJE further wishes to emphasize that the success of a quality system largely depends on the support of and active participation from / by the judges and the staff

93.  By their jurisprudence case-law, the examination they do about judicial practices and their annual reports, these higher courts greatly contribute to the quality of judicial decisions and their evaluation. They can also contribute to ameliorate the quality of judicial decisions by spreading to the lower jurisdictions methodological guidelines to help the drafting of these decisions by reminding the enforceable principles, in light of cases settling the legal difficulties or of procedures revealed by the appeals.

94.  Professional associations of judges and the bar associations can contribute to the analysis of the quality of judicial decisions.

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