Strasbourg, 18 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Iceland
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
Can each individual judge choose his own style of drafting his decision?
The law on civil procedure Act no. 91/1991, para. 114 commands that a judicial decision must include certain items, see answer to question no. 4. In the law on criminal procedure Act. no. 19/1991 para. 135. there are similar guidelines, mutatis mutandis.
Within the limits stated above, each judge writes in his or her own style. One may be more detailed as to the facts of the case, another may be better at arguing the court’s conclusion, but on the whole one decision does not differ very much from another.
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 a two or even more member panel, does the president or most senior judge have a second or casting vote?
A majority decision is effective and binding.
A panel is always composed of 3, 5 or 7 judges. The vote of the president or the most senior judge counts the same as any other vote. He or she votes last and can join either the majority or the minority, if there is not a unanimous vote. The vote of the minority is published as well as the binding decision of the majority.
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?
A judicial decision is supposed to deal with all relevant arguments of the parties. However, if the case can already be resolved on one of these, the general approach is that the argumentation should end there and nothing should be said about the rest. There is not an absolute consensus among lawyer on this point.
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?)
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?
At the very beginning you have the date of the judgment, the name of the court, and the number and name of the case at hand. Then it should state the dates when the formal process of litigating the case started, and when the parties rested their case. Thereafter the names and addresses of the parties and the claims they raise. Then a short portrayal of the facts of the case and what the main disagreement is about. Next there should be an account of the main arguments of each party and of the legal grounds they rely on. Thereafter there should be an argued conclusion of the court on matters of proof and the law. In case any comments are called for concerning some procedural mishandling by the parties, or if there is a decision of penalty fees (this is very rare), that should now be stated. Then there is a decision concerning the legal costs of the case. Finally, the name of the judge or judges is to be stated. At the very end there is a conclusive passage, called „Word of the court“ in which the result is summarized: e.g. A shall pay B 1000 kronas with interest xxx, or A is acquitted of B’s claim. A/B shall pay xx kronas to B/A in legal costs. In addition to these specific instructions above, the law states that a judicial decision shall be short and clear. In small claim cases factual data and conclusive reasoning can be cut down substantially, in a criminal case where the accused has pleaded guilty and the offense is not of a serious nature, argued reasoning is not required.
At the Supreme Court there are three main versions. If the Supreme Court agrees with the district court it may simple refer to its arguments and confirm its conclusion. If the Supreme Court agrees with the conclusion of the district court but is unhappy with one or more of its arguments, it shortly states its observations before confirming the district court’s conclusion. If the Supreme Court finds the district court has come to a wrong conclusion, then its decision states the facts, evidence, and the law supporting its conclusion. The argument of the minority (if that is the case) is also stated. The guidelines of the procedural law cited in answer to questions no 1 and 4. also apply at the Supreme Court. Thus number of case, name of parties and their claims, and names of judges are always a part of the decision.
The Supreme Court of Iceland hears arguments of the legal councils, but does not, as a rule, rehear witnesses; nevertheless the law allows that to be done. As a result, if the Supreme Court finds from reading the transcript of the case that something has gone wrong in the hearing of witnesses or the evaluation of those at the district court, it sends the case back to the district court for retrial. The Icelandic judiciary has two levels only. It is, however, being seriously discussed that an appeal court in criminal cases should be established. This is now likely to come about. It is proposed that such an appeal court will rehear the case.
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
There is no difference in the drafting of civil and administrative cases. In criminal cases there is more emphasis on summarizing the testimonies of the accused and witnesses. Also there are some differences due to the nature of criminal cases, such as the criminal record of a defendant found guilty, but there is not a fundamental difference in the form. See answers to questions no. 1 and 4.
Could you describe precisely how the decision is transmitted to the parties?
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
Does your country acknowledge a difference in judicial decisions in personam and in rem?
The parties and legal counsel in both civil and criminal cases are given a notice of the time and place when the decision is being announced. After the announcement the parties are given a transcript, if present. In a civil case, if neither a party nor his or her lawyer is present the transcript is sent to the lawyer or put in the lawyer’s file at the court. The same in a criminal case, but in addition the judgment is formally taken to the convicted or acquitted party and made know to him or her. The police on demand of the court usually do this. It’s the responsibility of the court to see to that it is done. Decisions both of the district courts and of the Supreme Court are put on the Internet the same day as they are announced, with certain exceptions.
The decision is only binding on the litigants and according to its exact terms.
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?
In criminal cases the Prison Services are in charge of enforcement. In a civil case parties generally have 15 days to fulfil the judgement, if they do not the winning party has to take a legal action to levy on the property of the adversary. This may end in an auction, even bankruptcy. But contempt proceedings, no.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
Yes, the rule is that judicial decisions are to be announced in open court.
The judge can, however, decide to close the trial and only allow the parties and their legal council to be present. This can be done on the request of one of the parties or the judge’s own discretion. This may be done for the purpose of protecting a party, a relative of a party, a witness or someone else the case concerns. It may be done in order to protect evidence the disclosure of which might be harmful to an especially important business or other similar interest. It may be done in order to serve public interests or the interest of the state. Also it may be done for moral reasons, or for the purpose of keeping order in the courtroom. The most common example would be custody cases.
In the criminal sector a similar provision is to be found. The judge can decide to close the doors in order to protect the accused or close relatives to him or her, the victim, witnesses or others concerned. Also if the accused is under 18 years of age. It may be done in order to serve public interests or the interest of the state, also for moral reasons, or for the purpose of keeping order in the courtroom. The most common example in criminal cases would be if the trial concerns sexual assault or abuse. A trial concerning a matter still under police investigation may also be closed and usually is.
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)?
If a judicial decision is concerned with a sensitive matter, e.g. in a case concerning a sexual abuse or child custody, then the names, addresses and personal identification numbers are removed before the transcript is handed out to others than the parties themselves, e.g. journalists, and before they are published on the internet. Also occasionally when a judicial decision concerns a decision relating to cases still under police investigation.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
Judicial decisions are in principle handed down in open court and are accessible to everybody thereafter. Exceptions as stated under answers to questions no. 8 and 9. All are published on the Internet, but names and other discriminating facts may be removed, see answer to question no. 9.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or Supreme Court cases?
Yes, all. See answers 8, 9 and 10. Occasionally, there is a delay in the publication on the Internet, if and only if the decision concerns a matter still under police investigation and a publication might compromise the investigation.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
Only in respect to the efficiency of the courts.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
No, not really.
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:
Does not apply.
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
We have a very good record as to the general timeframe. And in this sense justice is well served.
In order to meet this standard and keep it up, however, the workload is heavy. The quality of individual judicial decisions may possibly suffer because of this, and there is more danger of mistakes being made because of the great pressure on judges. There is, however, not a consensus of opinion among judges as to whether quantity is emphasized at the cost of quality.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
The minister of justice has the power to appoint judges. Repeatedly the minister has made a choice, which opposes a reasoned opinion about who the best candidate is. A different system of appointment might better secure the competence of judges. There is not a consensus on how this should be done.
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? yes □ no x
· professional performance of public prosecution services? yes □ no x
· professional performance of lawyers? yes □ no x
· enforcement of judgments? yes □ no x
· efficiency of ministry of justice services in general? yes □ no x
· quality of legislation? yes □ no x