Strasbourg, 31 January 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Austria
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
The procedural law contains provisions on the content of judgments. On the basis of these provisions, there are specific models for drafting civil and criminal judgments.
Can each individual judge choose his own style of drafting his decision?
Within the limits of the provisions mentioned above, each judge can choose his or her own style of drafting.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
In general, majority decisions are equally effective and binding. There is only one exception: In criminal proceedings before a “Geschworenengericht”, which is composed by a jury of eight lay members and a panel of three professional judges, the professional judges may suspend the verdict of the jury. This decision, which leads to a new trial, must be taken unanimously.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
As abstention is not allowed in judicial deliberations, the question of a casting vote can only arise in panels with an even number of members. Such panels only exist in criminal proceedings (the jury in the “Geschworenengericht” with eight lay members, and the “Schöffengericht” with two professional judges and two lay members). In these cases, there is no casting vote; if the votes are equally divided, the opinion which is more favourable for the accused will prevail.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
In principle, judicial decisions have to deal with all points raised by the parties. However, this can be done in a concise way.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
The actual order (the “Spruch” or “Tenor”) is separated from the reasons. The reasons are usually drafted in the following way (civil judgment):
1. Undisputed facts
2. Arguments of the Parties
3. Facts as found by the court on the basis of the evidence
4. Evaluation of the evidence (reasons for the finding of facts)
5. Application of the law to the facts in the sense of 1. and 3
How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?
In civil cases, appeal courts do not rehear the case; they only examine whether the court of first instance made mistakes concerning the procedure, the finding of facts or the application of the law. The parties are not allowed to produce new facts (“Neuerungsverbot”).
In some criminal procedures, there may be a complete rehearing.
The Supreme Court only decides on questions of (substantive or procedural) law.
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
In principle, there are no differences between civil and criminal judgments. However, the “order” (the “Spruch”) in criminal cases contains not only the sentence as such, but also a concise description of the criminal act the accused had committed. In the reasons of a criminal judgment, the arguments of the parties are usually not presented.
Could you describe precisely how the decision is transmitted to the parties?
It is served upon them (see question 8).
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
In general, a decision is only binding on the parties of the procedure and on their successors. However, some judgments may have an erga omnes effect, e.g. decisions on the status of a person or on the validity of an intellectual property right.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
These terms of art are not used in our legal terminology. However, the concepts behind them do of course exist (see above).
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
Judgments are enforced according to the rules of the “code of execution”. “Contempt proceedings” do not exist as a term of art in our legal terminology. However, if a party does not comply with an injunction, the court will, on application of the other party, impose fines. This seems to be equivalent to some sort of contempt proceedings in other legal systems.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
Decisions in criminal proceedings are always announced in open court. Civil judgments are usually served upon the parties in a written form; public announcement is possible.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
When judgments are published, the names and other personal details of the parties and other persons mentioned in the judgment are anonymized.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
Judicial decisions are available to everyone who has a “legal interest”. Moreover, all decisions of the Supreme Court and some decisions of other courts are published in the internet:
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
See above 10
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
Yes, some aspects of quality of justice are systematically evaluated.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
No. It deals only with questions of quantity and time.
The court registers are completely computerized on a nationwide level. This does not only provide data on the number of proceedings instituted, and judgments given, in each court; it also shows how many proceedings are pending before a particular judge and how long those proceedings have already lasted. On this basis, lists on pending proceedings are generated every month. Once a year, judges who have significantly more long lasting proceedings than their colleagues have to report to the judicial administration on the reasons for their backlogs.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
· legal basis:
· identification of the agencies that are responsible for the process:
· parameters that are evaluated:
· methods by which each parameter is evaluated:
There is no systematic evaluation of “quality” of judgments. However, using the data mentioned above, it is possible to see how many judgments of a particular judge have been reversed on appeal, but the use of such ratio is seen as quite sensitive.
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
· advantages: The system more or less assures that civil cases are decided in a reasonable time.
· disadvantages: As the present system only deals with questions of quantity and time, the quality of a judgment and the fairness of the proceedings seem to have less weight than the time in which the judgment is given.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
Judges should have more time for each individual case. The only way to achieve this goal seems to be a significant increase of their number.
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? yes o no ý
· professional performance of public prosecution services? yes o no ý
· professional performance of lawyers? yes o no ý
· enforcement of judgements? yes ý no o
· efficiency of ministry of justice services in general? yes o no ý
· quality of legislation? yes o no ý