Strasbourg, 21 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 Germany
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
There is not one specific model. Procedural law provides requirements of form and substance (see below answer to question 4).
Can each individual judge choose his own style of drafting his decision?
Within the framework of these provisions and certain legal traditions a judge can to a certain degree choose his own style of drafting his decision, especially as far as the reasons for the decision are concerned. If a body of judges ("bench") takes the decision special traditions of this bench may play a role.
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?
Where the court is composed of more than one member a unanimous decision is not necessary. A majority decision is sufficient. Under certain conditions a qualified majority (2/3) is necessary in criminal cases.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
In such a panel (frequently consisting of three or five judges) the president or most senior member does not have a second or casting vote. In this context there is also no difference between professional and lay judges.
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?
The court has to consider all points raised by the parties or their lawyers. They are entitled to a hearing in accordance with law (article 103 para. 1 Basic Law). In principle it is sufficient, however, that the decision addresses relevant points 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?)
sec. 313. [The form and the substance of the judgment]
(1) The judgment shall contain;
1. the designation of the parties, their legal representatives and their attorneys of record;
2. the designation of the courts and the names of the judges who collaborated in making the decision;
3. the date on which the oral hearings ended;
4. the tenor of the judgment;
5. the statement of facts;
6. the grounds of the decision.
(2) The finding of facts, the demands raised and the means of attack and defence, also pointing out the petitions entered, shall be only briefly described. Regarding the particulars of the state of facts and of the matter at issue, reference shall be made to the written pleadings, records and other supporting matter.
(3) The grounds of the decision shall contain a short summary of the considerations upon which the decision is based with regard to facts and law.
sec. 313a. [Dispensing with statement of facts and grounds of decision]
(1) The statement of facts and the grounds of the decision are not required. The parties waive their rights thereto not later than on the second day following the end of the oral haring and it is certain that an appeal may not the lodged against the judgment.
(2) Paragraph (1) shall not be applied:
1. in marital matters, with the exception of decisions declaring divorce;
2. in filiation matters;
3. in matters of tutelage;
4. in case of judgment compelling persons to make recurring payments due in the future;
5. if it is expected that the judgment will be enforced abroad; if a judgment made without the statement of facts and grounds of the decision is to be enforced abroad, the provisions on completing default and admission judgment are applicable.
b) In administrative cases similar rules apply as in sec. 313 ZPO (see above).
c) The relevant provisions for criminal cases in the Code of Criminal Procedure (StPO) provide:
Section 260. [Judgment]
(1) The main hearing shall close with delivery of judgment following the deliberations.
(2) If there is an order prohibiting pursuit of an occupation, the judgment shall specify the occupation, profession or trade or branch thereof, the exercise of which is prohibited.
(3) Termination of the proceedings shall be pronounced in the judgment if there is a procedural impediment.
(4) The operative provisions of the judgment shall indicate the legal designation of the offence of which the defendant has been convicted. If a criminal offence has a statutory title, it should be used for the legal designation of the offence. If a fine is imposed, the number and the amount of daily units shall be included in the operative provisions of the judgment. If the sentence or the measure of reform and prevention is suspended on probation, or if the defendant has been warned with sentence reserved, or if imposition of a penalty is dispensed with, this shall be indicated in the operative provisions of the judgment. The wording of the operative provisions of the judgment shall otherwise be left to the discretion of the court.
(5) Following the operative provisions of the judgment, the provisions applied shall be listed according to section, subsection, number and letter together with the designation of the statute. If, in the case of a conviction imposing a sentence of imprisonment or an aggregate sentence of imprisonment not exceeding two years, the offence or, where there is more than one offence, the predominant offence(s), having regard to their gravity, were committed on the basis of a drug addiction, reference shall also be made to section 17 subsection (2) of the Federal Central Criminal Register Act.
Section 267. [Reasons for the Judgment]
(1) If the defendant is convicted, the reasons for the judgment must show the facts deemed to be proven and establishing the statutory elements of the criminal offence. So far as the evidence is inferred from other facts, these facts should also be indicated. With regard to details reference may be made to pictures which are included in the files.
(2) If special circumstances specified by the penal norm were alleged at the hearing which exclude, diminish, or increase criminal liability, the reasons for the judgment must state whether these circumstances are deemed to have been established or not.
(3) The reasons for the criminal judgment must further specify the penal norm which was applied, and show the circumstances which were decisive in assessing the penalty. If the penal norm makes mitigation dependent on the existence of a less serious case, the reasons for the judgment must indicate why these circumstances are deemed to exist or are denied contrary to an application filed at the hearing; this shall apply
mutatis mutandis to the imposition of a sentence of imprisonment in the cases under section 47 of the Penal Code. The reasons for the judgment must also indicate why an especially serious case is not deemed to exist when the prerequisites are met, according to which, as a rule, such a case shall exist pursuant to the penal norm; in a case where these prerequisites have not been met but where an especially serious case is nevertheless deemed to exist, the second sentence shall apply
mutatis mutandis. The reasons for the judgment must further indicate why the penalty was suspended on probation, or was not suspended contrary to an application filed at the hearing; this shall apply
mutatis mutandis to a warning with sentence reserved and to the dispensing with punishment.
(4) If all parties entitled to appellate remedy waive their right of appellate remedy or if no appellate remedy is sought within a certain time limit, the proven facts establishing the statutory elements of the criminal offence and the penal norm applied must be indicated; in the case of judgments imposing only a fine or a fine plus a driving ban or withdrawal of permission to drive and in connection therewith confiscation of the driver's license, reference can be made here to charges admitted, to the charges pursuant to Section 418 subsection (3), second sentence, or to the penal order as well as to the application for a penal order. The further content of the reasons for the judgment shall be determined by the court taking into consideration - at its discretion - the circumstances of the individual case. The reasons for the judgment may be supplemented within the time limit provided in Section 275 subsection (1), second sentence, if restoration of the
status quo ante is granted in order to remedy the failure to observe the time limit for seeking an appellate remedy.
(5) If the defendant is acquitted, the reasons for the judgment shall show whether the defendant's guilt was deemed not proven or whether, and for what reasons, the act deemed proven was considered not to give rise to criminal liability. If all parties entitled to appellate remedy waive their right of appellate remedy or if no appellate remedy is sought within a certain time limit, it shall only be necessary to state whether it was for factual or legal reasons that the criminal offence the defendant is charged with has not been established. Subsection (4), third sentence, shall apply.
(6) The reasons for the judgment must also indicate why a measure of reform and prevention was ordered, or was not ordered contrary to an application filed at the hearing. If permission to drive has not been withdrawn or a bar pursuant to Section 69a subsection (1), third sentence, of the Penal Code has not been ordered, although such measure was possible given the nature of the criminal offence, the reasons for the judgment must always indicate why such measure has not been ordered.
d) As required by the above stated regulations, main conclusions and arguments are stated in practice. The term "brief exposition…" in sec. 313 ZPO is not always taken literally. There are different attitudes among judges. Local courts (first instance, "Amtsgerichte") often tend to write rather short judgments, while higher courts and Administrative, Social and Tax Courts of all instances frequently state the reasons on which judgments are based in a more extensive manner. The extent to which reasons are given also depends on the nature of the decision and the circumstances of the case. In the controversial discussion on the subject the argument is put forward that extensive reasons may take too much of a judge's time and cause delay. Others regard thorough reasons as an indication for quality of a decision.
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 the aggrieved party may file a second instance appeal only if the amount in controversy exceeds 600 EURO or if the lower court has given the permission for an appeal. The lower court grants such permission if (1) the case raises an issue of fundamental significance or (2) the development of the law or the preservation of a unified legal practice requires an appellate decision (sec. 511 ZPO). The appellate court ("Berufungsgericht", second instance) is required to accept factual findings of the court of first instance, unless clear indications give reason to doubt the correctness or completeness of the fact determination material and therefore indicate the necessity for a new determination of the facts (sec. 529 ZPO). There are special requirements with respect to appeals to the third instance ("Revisionen") which can only be based on points of law.
In criminal and administrative cases the appeal ("Berufung") leads to a new evaluation of facts and law, the "Revision" only to a control of the application of law. In administrative cases the permission of the "Berufung" by the first or second instance court is necessary.
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?
There are certain differences between judgments in civil, criminal and administrative cases (see above question 4).
Could you describe precisely how the decision is transmitted to the parties?
In civil cases the judgment is pronounced at the appointed session during which the oral hearing terminates or at a session to be fixed immediately (sec. 310 ZPO). This may only be set beyond three weeks if so required by important reasons, especially by the extent or difficulty of the matter. In this case the judgment must be framed in its complete form when it is pronounced.
The judgment is pronounced by reading out the tenor of the judgment. The reading out of the tenor of the judgment may be substituted by making reference to the tenor of the judgment if no party appeared at the session set for pronouncing the judgment.
In administrative cases the pronouncement may be substituted by the service of the judgment (in civil cases only under certain conditions permissible). In criminal cases the judgment is in principle pronounced at the oral hearing. Service of the judgment is prescribed if the accused does not take part in the hearing.
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
In principle, the judgment is binding only on the specific litigants and to their legal successors.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
There are such differences. A judgment concerning a right based e.g. on a mortgage is binding also to the legal successor if the real estate is transferred (according to sec. 325 para. 3 ZPO).
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 the event that the debtor acts in violation of an obligation to abstain from an act or to permit an action, he or she shall, for each violation, on the motion of the creditor, be compelled by the trial court of first instance to pay a fine and, in the event it cannot be collected, be sentenced to detention for civil contempt, or detention for civil contempt up to six months (sec. 890 ZPO).
In the event that an act cannot be performed by a third person, then, in the event that it depends exclusively on the shall of the debtor on motion it should be determined by the trial court of first instance that the debtor be compelled to undertake the act by fines and, in a case where such cannot be exacted, by coercive detention or only by coercive detention (sec. 888 ZPO).
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
In principle, judicial decisions are announced in open court. The public (including the press) is normally allowed to be present. Television broadcast is not permitted (except at the beginning of the court hearing when the judges enter the court room).
In some proceedings the public (including journalists) is in principle excluded (e.g. family matters). In certain situations the public may be excluded in other proceedings (for instance to prevent dangers for a witness).
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 judicial decisions are published or given to third persons personal data (e.g. names and other personal data of litigants, witnesses and other persons) have to be deleted (for exceptions see question 10).
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
For a request to obtain information about details of judicial proceedings on principle the rules concerning access to judicial files apply.
In civil matters such an access is permitted only under narrow conditions. Sec. 299 para. 2 ZPO requires a legal interest of the requesting party. If this prerequisite is fulfilled the presiding judge will decide according to his or her discretion; conflicting interests – including secrecy interests of the parties concerned – must be balanced. In principle the same rules apply when a public authority requests access to a court file.
A court decision that permitted access to divorce files for disciplinary proceedings was set aside by the Federal Constitutional Court (Bundesverfassungsgericht) because the constitutional right of privacy had not been sufficiently considered. There is no rule that at a certain stage of proceedings information may be made public. Similar principles apply in administrative matters.
The above stated restrictions shall protect legitimate interests of parties. They do not impede the publication of decisions without personal data. The Federal Administrative Court (Bundesverwaltungsgericht) has held, that all courts decisions must be made accessible to the public if there is or may be a public interest in the publication (Decision of February 26, 1997 - BVerwG 6 C 3.96 – Neue Juristische Wochenschrift 1997, 2694). The court derived this from the principles of the rule of law (including the right to have recourse to a court) and of democracy. It stated that court decisions put the law in concrete terms and that thereby the publication of decisions is of comparable practical importance to citizens as the publication of norms; that means that the chances of success of judicial remedies shall be foreseeable for citizens. In this context the media must be treated equally (principle of neutrality of the state). The publication shall be organised such that information is sent at the same time to different publishing houses.
Names or pictures of persons involved in the case (parties, witnesses) may not be disseminated; exceptions may be made if the case and the name of a party (e.g. politician) is known by the public. There are no restrictions, however to the dissemination of names of judges.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
Most of the supreme court decisions (judgments) and decisions of the courts of appeal and an increasing part of first instance decisions are published on the internet as soon as they are available. Many courts (especially appeal and supreme courts) courts also offer a summary by internet facilities immediately after a judgment has been pronounced. Sometimes this summary serves also as a statement to the press (especially in the case of higher courts). These facilities are increasingly used.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
There is not such a system "in force". Some aspects of of quality of justice are evaluated in practice.
The notion "quality of justice" is not always used in the same way. Comprising several aspects it is based on constitutional requirements as the general right of judicial recourse and on the guaranties of Art. 6 of the European Convention of Human Rights. These principles imply the quality of justice and especially of judicial decisions.
The Deutscher Richterbund, the judges association with most members, has listed a number of quality standards referring both to the quality of judicial decisions and to quality of justice in a wider sense (Deutsche Richterzeitung 2003 p. 8):
- Judges are bound by law and justice and decide on the base of independence and impartiality
- Precise knowledge and exact application of material and procedural law
- Achieving just results as a base of public peace and certainty of the law
- Compliance with the principles of equality before the law and fair procedure
- Transparency of procedure
- Decisions within a reasonable time
- Observance of legitimate interests of the litigants, especially the right to be heard
- Preservation of the right of personality of persons concerned
- Team-oriented cooperation with staff of registry and other employees in order to optimize work flow within the court
- As much transparency of the court's work as possible towards the public
- Saving resources if possible while respecting the above stated quality standards.
Judges associations (including Neue Richtervereinigung and Bund Deutscher Verwaltungsrichter und Verwaltungsrichterinnen <administrative court judges>) mention decisions by a panel of judges instead of one judge in the context of securing quality of decisions. Appeals are also considered as a traditional instrument. The standards concerning the appointment and promotion of judges are certainly an essential factor in this context. In addition, the importance of in-service training as a means for achieving quality is emphasized.
One of the aspects of quality of justice is – as already mentioned - a decision within a reasonable time (Art. 6 ECHR). Efforts have been taken to reduce occasional delay which is not representative for the judiciary as a whole (e.g. delay in certain cases involving real estate property in East Germany). While progress is made in this context the question about the relationship of quality of judicial decisions and the quantity of cases decided by judges is generally discussed. Ministers of Justice and some court presidents are focusing on the importance of fast decisions. Reports evaluating a judge's performance (frequently written by courts presidents) which are important for decisions concerning promotion are increasingly emphasizing the number cases finished by a judge. Even if other points relevant for qualification are covered, too, there seems to be a clear tendency. While everybody accepts the necessity of a decision within reasonable time, this increasingly quantity-oriented viewpoint is put in question in the discussion. Judges associations emphasize the importance of achieving just decisions as the result of fair proceedings (see above). Other statements deny a real conflict of values alleging that judges can make fast decisions and take care at the same time of other quality requirements. This may depend on additional resources, however.
A frequently used method to achieve the termination of proceedings after a short time - and a more peaceful situation among litigants than by judicial decisions - are amicable settlements. Procedural law obliges judges in civil cases to try to reach an amicable settlement at every stage of the proceedings (sec. 278 ZPO). In practice amicable settlements are wide-spread (also in administrative cases).
Statistics traditionally measure workload of courts, length of proceedings and other data (also on Land level). Computerized systems have created more efficiency. Based on these data annual reports are published. A new type of statistical data processing has started in the last years: Judges write down how much time they work on every individual case. That means that for a certain period of time every day notes about every minute of the daily work – broken down to cases - are taken. The study is carried out by a private consulting firm. The (strictly anonymous) result is the average time spent by judges on certain types of cases (for example divorce case, contracts case) as a base for planning of personal resources.
Some measures mainly on court level aim at quality standards in a wider sense: "Quality groups" (Qualitaetszirkel) – consisting of some judges, often in addition of court employees – are working on a voluntary base in a number of courts on subjects as efficient cooperation within working units and among judges and court employees and "client orientation". These groups may make suggestions for certain improvements. In addition, "client surveys" have been carried out by several courts (for example by the Federal Administrative Court (Bundesverwaltungsgericht). The intention is that litigants (mainly lawyers) shall evaluate for instance the judges' performance during the public hearing, acceptance of decisions, length of proceedings, service/friendliness of court staff. The questionnaires offer for example an evaluation on a scale from 1 (= very good) to 6 (= insufficient).
In addition, there is a controversial debate about "Neue Steuerungsmodelle" (new guidance models) for the judiciary as endorsed and partly practised by Land ministers of justice. That means a transfer of modern principles concerning organisation, management and budgeting used in the context of business administration (for example benchmarking, controlling, certain budgetary methods) to the judiciary. The consequence is the definition of the result of judicial work as a "product", the key element of the guidance model. In the controversial debate the objection is made that these methods which cannot be described in detail are not suitable for the judiciary. The opinion is also stated that at least part of them violate judicial independence (for example an agreement between a minister of justice and a court president that a court will obtain additional human resources for a certain period of time and shall in return decide a fixed number of cases of a certain kind <e.g. asylum cases> during that period). There are elements of these new methods, however, as the types of quality management stated above ("quality groups" and "client surveys") and suggestions with respect to the optimization of workflow within courts which are less controversial.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
See above question 12
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:
See above question 12
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
There are different opinions among judges. Frequently the opinion is stated that there are no precise and reliable standard to measure the quality of judicial decisions. See also above question 12.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
Additional resources in parts of the judiciary and improvement
of the availability of relevant information (specially in first instance courts)
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? yes □ no □
· professional performance of public prosecution services? yes □ no □
· professional performance of lawyers? yes □ no □
· enforcement of judgments? yes □ no □
· efficiency of ministry of justice services in general? yes □ no □
· quality of legislation? yes □ no □
In most cases quality questions are considered. Formal systems do not seem to be "in force". With respect to public prosecutors similar issues are discussed as in the case of judges. The legal background is different because prosecutors have no independent position (there is a controversial discussion with respect to their position).