Strasbourg, 28 September 2007

CEPEJ(2007)11

European Commission for the Efficiency of Justice (CEPEJ)

Explanatory note to the scheme for evaluating judicial systems

2006 – 2008 Cycle

EXPLANATORY NOTE

I. Introduction

Background
At their 3rd Summit, organised in Warsaw on 16 and 17 May 2005, the Heads of State and government of the member states of the Council of Europe "[decided] to develop the evaluation and assistance functions of the European Commission for the Efficiency of Justice (CEPEJ)”.

Relying on the experiences gained from the pilot evaluation process (2002 – 2004) and the first regular process (2004 – 2006) - unanimously welcomed by the Committee of Ministers of the Council of Europe and which was given large echoes among policy makers and judicial practitioners in the members states - the CEPEJ decided, at its 8th plenary meeting, to start the next evaluation process in 2007 on the basis of 2006 data.

The CEPEJ is convinced that, by using the methodology developed in the previous exercises and with the help of the national correspondents, it is possible to obtain a general evaluation of the judicial systems containing recent data. This will enable policy makers to act on the basis of that information. Therefore the CEPEJ wishes to pursue the evaluation on a regular basis.

The present Scheme was adapted by the Working group on evaluation (CEPEJ-GT-EVAL) in the light of the problems encountered over the 2004-2006 period, and taking into account the comments submitted by CEPEJ members, observers, experts and national correspondents during this previous evaluation round. The exercise for adapting the Scheme was confined, however, to questions that were problematic or of little relevance, so as to consolidate the body of data collected at regular intervals and to make it easier to draw comparisons and assess trends. The Working group's aims were to identify any gaps in the collection of judicial statistics and facilitate the collection of common, uniform judicial statistics across member states.

The CEPEJ adopted this new version of the Scheme at its 9th plenary meeting (13 – 14 June 2007).

General recommendations

The aim of this exercise is to compare the functioning of judicial systems in their various aspects, to have a better knowledge of the trends of the judicial organisation and to propose reforms to improve the efficiency of justice. The evaluation Scheme and the analysis of the conclusions which can result from it should become a genuine tool in favour of public policies on justice and for the sake of the European citizens.

Because of the diversity of the judicial systems in the member states concerned, not every state will probably be able to answer all questions. Therefore the objective of the Scheme is also to stimulate the collection of data by the states in those fields where such data are still not available.

It must also be noted that the Scheme neither aims to include an exhaustive list of indicators nor aims to be an academic or scientific study. It contains indicators which have been considered relevant when assessing the situation of the judicial systems and to enable the CEPEJ to work more in depth in promising fields for the improvement of the quality and the efficiency of justice. At the same time, the data collected will enable the CEPEJ to continue to work in depth in new and essential fields for the improvement of the quality and efficiency of justice.

In order to make the process of data collection and data processing easier, the Scheme has been presented in an electronic form, accessible to national correspondents entrusted with the coordination of data collection in the member states. National correspondents are kindly requested to forward the national answers to the Scheme by using this electronic questionnaire.

II. Comments concerning the questions of the Scheme

This note aims to assist the national correspondents and other persons entrusted with replying to the questions of the Scheme.

a. General remarks

The year of reference for this Scheme is 2006. If 2006 data are not available, please use the most recent figures. In this case, please indicate the year of reference used under the relevant question.

Please indicate the sources of your data if possible. The “source" concerns the institution which has given the information to answer a question (e.g. the National Institute of the Statistics of the Ministry of Justice) in order to check the credibility of the data.

All financial amounts should be given, if possible, in Euros. For the countries which do not belong to the euro zone, the exchange rate should be indicated on 1 January 2007.

For the purpose of this Scheme, and unless specified otherwise in a specific question, "civil law cases" refers in general to all those cases involving private parties, including namely family law cases, commercial cases, employment cases.

When the choice between ‘yes’ or ‘no’ is offered, please tick the appropriate box. It may, however, not always be possible to choose between these answers. Please feel free to give a more elaborated answer of your choice. If certain information is not available or not relevant, please use “N.A” (not applicable).

Where appropriate, the corresponding number to the question of the previous Scheme (2004 – 2006 cycle) has been indicated in brackets at the end of a similar question appearing in this new Scheme, to facilitate the work of the national correspondents. When a qualitative answer to a specific question remains unchanged from one evaluation process to the other, the answer can be simply "cut and paste" from the previous exercise. It can also be indicated: "see 2006 answer".

Complementary comments on the answers

In general, if certain questions cannot be answered or if you need to give details in particular due to the specificity of your judicial system, please comment on it.

A specific area has been left at the end of each chapter to briefly make, on the one hand, any useful comments for interpreting the data given in the chapter, and, on the other hand, the main characteristics or even make a qualitative description of your system if your state has chosen specific system to cope with a specific situation.

You are not required to fill systematically in this area. On the contrary, please feel free to add comments on certain questions where you deem it useful, even if no specific area for “comments” has been foreseen. Your comments will be useful for the analysis of your replies and for processing data.

If the data indicated for the year of reference (2006) differ significantly from the same data given for the previous evaluation round, please give the explanation for this difference after your answer.

Help desk

Should you have any question regarding this Scheme and the way to answer it, please send an e-mail to Pim Albers (pim.albers@coe.int), Stéphane Leyenberger (stephane.leyenberger@coe.int) or Muriel Décot (muriel.decot@coe.int).

b. Comments question by question

I. Demographic and economic data

For the data requested in this Chapter, please use if possible the data available at the Council of Europe or, for lack of data at the Council of Europe, the OECD data to ensure a homogenous calculation of the ratios between member states. If the data concerning your country are not available at the Council of Europe (or the OECD), please use another source and specify this source.

Question 1

The number of inhabitants should be given, if possible, as of 1 January 2006 (the year of reference). If this is not possible, please indicate which date has been used.

Question 2

The Scheme requires an indication of the amount of public expenditure (all expenses made by the state or public bodies, including public deficits) instead of the amount of the “budget” which is not precise enough and would not include certain “extra expenditure” which does not fall within the budget. The expression territorial authorities has been added in order to include federal states or states where power is shared between the central authorities and the territorial authorities. The reply to this question will enable ratios to be calculated which would measure the total real investment of member states in the operation of justice.

Question 3

Please indicate the Gross Domestic Product (GDP) of your country in 2006 (i.e.: the value of all final goods and services produced in a country in one year. GDP can be measured by adding up all of the economy's incomes (wages, interest, profits) or expenditures (consumption, investment, government purchases and net exports - minus imports). This data will be useful to calculate several ratios enabling a comparative analysis.

Question 4

Please indicate the average gross annual salary and not the disposable salary. The gross salary is calculated before any social expenses and taxes have been paid; it is the amount that the employer has actually to pay per employee, but not to the employee.

Please use the same definition for “gross annual salary” in question 96.

The annual gross average salary is an important piece of information in order to calculate ratios which would measure and compare the salaries of the principal “players” involved in the judicial system, in particular judges and prosecutors.

Question 5

The exchange rate of the national currency related to the date of reference is important for situations where countries are not able to convert their national currency into the Euros. It should be given on 1 January 2007. Information on the exchange rate may be used in the analysis of the replies.

Question 6

Question 6 aims to establish the total amount of the budget covering the functioning of the courts, whatever the source of this budget is. The figures presented must be the figures of the approved budget, e.g. the budget that has been formally approved by the Parliament (or another competent public authority), but not the one effectively executed.

This amount does not include:

- the budget for the prison and probation systems;

- the budget for the operation of the Ministry of Justice (and/or any other institution which deals with the administration of justice);

- the budget for the operation of other organs (other than courts) attached to the Ministry of Justice;

- the budget of the prosecution system;

- the budget of the judicial protection of youth (social workers, etc);

- the budget of the Constitutional courts;

- the budget of the High Council for the Judiciary (or similar organ).

Contrary to the 2004 – 2006 cycle, it has been decided that the budget of the judicial training structures should be included.

Where appropriate, this amount should include both the budget at national level and at the level of territorial entities.

If it is not possible to separate the budget of the courts from the budget for the public prosecution offices, please indicate this and give an estimate of the court budget (compared with the prosecution budget) if possible.

Question 7

The budgets to be addressed for the purpose of this question concern only those used for the operation of the courts ((gross) salaries, computer equipment, justice expenses, court buildings (investments in new buildings as well as maintenance costs’ of the court buildings, training and education or other). Contrary to the previous process, it has been decided that the costs of training and education should be included into this amount (this evolution will be taken into account in the comments of the final report).

Salaries are those of all judicial and non-judicial staff working within courts, with the exception, where appropriate, of the prosecution system (and the non prosecutor staff working for the prosecution system).

IT (Information Technologies) includes all the expenses for the installation, use and maintenance of computer systems, including the expenses paid out for the technical staff.

Justice expenses borne by the state refers to the amounts that the courts should pay out such as expenses paid for expert opinions. Any expenses paid to the courts by the parties should not be indicated here.

Court buildings' budgets includes all the costs’ that are related to the maintenance and operation of court buildings (rental costs, costs for electricity, costs for security, cleaning, etc.)

Investments in court buildings includes all the costs that are connected with investments in new court buildings.

Training and education includes all the costs that are related to training courses or the education of judges and court staff. If the training of judges cannot be separated from the training of prosecutors, please indicate it.

Questions 8 and 9

These questions are posed to identify trends at a European level in the budgets spent on the judiciary over the last five years. If budgetary data are available, please provide the figures (in Euros).

Questions 10 and 11

There may be a general rule in some states according to which a party is required to pay a court tax or fee to start a proceeding at a general jurisdiction court. This general rule can have exceptions - please indicate these exceptions. This tax does not concern lawyers' fees. Please also indicate if this court tax applies in criminal cases only or also to other case.

A portion of the budget of courts can be financed by incomes resulting from the payment of such court fees or court taxes by the parties. The figures concerning the total amount (in euros) of court fees or court taxes received by judicial systems must be included under question 11.

For the purposes of this question, courts of general jurisdiction means those courts which deal with all those issues which are not attributed to specialised courts according to the nature of the case.

Question 12

The total approved budget allocated to the entire justice system (which may include: the budget of the prison system, the operation of the ministry of justice or other bodies, the judicial protection of youth, the public prosecution system, the judiciary, high councils for the judiciary, schools for the judiciary, etc) will enable, for instance, to assess the part of this budget dedicated to the judicial system proper (court system), as stated in question 6.

Questions 13

Annual public budget allocated to legal aid refers to the amount of the public budget allocated by the Ministry of Justice or the institution dealing with the administration of justice and/or the territorial authorities to legal aid in its widest sense. This includes both aid given for representation before the courts and legal advice. Further information can be given in Chapter II.A. The total should include only the sums directly paid to those benefiting from legal aid or their lawyers (and not include administrative costs).

Please indicate separately the sums allocated to criminal cases and those allocated to all other cases.

Question 15

In certain countries the budget for legal aid forms an integral part of the court budget. To make a better comparison between the countries, an identification of the countries where this is the case is necessary.

Question 16

Public Prosecutor is to be understood in the sense of the definition contained in Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system: "(…) authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system".  

If there is a single budget for judges and prosecutors please indicate, if possible, the proportion of this budget intended for prosecutors. If part of the Public Prosecution’s budget is allocated to the police budget, or to any other budget, please indicate it.

Question 17

This question is inserted so as to identify those countries where the budget for the prosecution is included into the court budget.

Question 18

The aim of this question is to identify the institutions involved in the various phases of the process regarding the global budget allocated to the courts. This question does not concern the management of the budget at individual court level, to be addressed under question 55. Various answers are possible for this question, because in certain countries the management and the allocation of the budget to the courts is for example a combined responsibility of the ministry of justice and of a council for the judiciary. Where there is a combined responsibility, please give a description of how the responsibilities for the allocation of the budgets to the courts are organised. If available, please insert an organisation scheme.

II. Access to justice and to all courts

As the European Convention on Human Rights guarantees legal aid in criminal matters, the questionnaire specifies legal aid in criminal cases from legal aid in other than criminal cases.

For the purposes of this Scheme, legal aid is defined as the aid given by the state to persons who do not have sufficient financial means to defend themselves before a court. For the characteristics of legal aid, please refer to Resolution Res(78)8 of the Committee of Ministers of the Council of Europe on Legal Aid and Advice.

Questions 20 and 23

In certain countries the public budget for legal aid is not only aimed at the payment of the lawyers' fees in situations where clients have insufficient financial means, but can also be used for the payment of court fees or court taxes – or be granted through the exoneration of such fees. Legal aid might also be granted to cover the costs related to the enforcement of judicial decisions (for instance to pay the fees of an enforcement agent).

Question 24

This question concerns the annual number of cases for which legal aid have been granted to persons going to court. It does not concern legal advice regarding questions that are not addressed by the court.

Question 26

If the reply to the question is “yes”, you can indicate in your comments the maximum annual income (if possible for a single person) for which legal aid can be awarded.

Questions 27 and 25

These questions require from the states to give an indication on whether it is possible, according to the law, to refuse legal aid in other than criminal matters for specific reasons and on the competent body deciding on this issue.

Question 29

This question does not refer to insurances offered to companies. For the purposes of this question, “legal expenses insurance” covers the costs of legal proceedings, including lawyers' fees and other services relating to settlement of the claim. If possible, please give some indications on the development of such insurances in your country. Please also specify whether this is a growing phenomenon.

Question 30

For this question, please indicate whether the judicial decision given by the judge has an impact on the allocation of judicial costs. In other words, states should indicate whether, for instance in a civil case, the party which has lost the case has to bear the costs of the winning party. In the affirmative, please indicate whether this concerns criminal cases and/or other cases.

Judicial costs include all costs of legal proceedings and other services relating to the case paid by the parties during the proceedings (taxes, legal advice, legal representation, travel expenses, etc).

Question 31

The web sites mentioned could appear in particular on the internet web site of the CEPEJ.

Question 32

This question can apply to all types of cases.

A mandatory provision of information to individuals on the foreseeable timeframe of the case to which they are parties is a concept to be developed to improve judicial efficiency. It can be simple information to the parties or for instance a procedure requiring the relevant court and the opposing parties to agree on a jointly determined time-limit, to which both sides would commit themselves through various provisions. Where appropriate, please give details on the existing specific procedures.

Question 33

The question aims to specify if the state has established structures which are known to the public, easily accessible and free of charge, for victims of criminal offences.

Question 34

This question aims to learn how states protect those groups of population which are particularly vulnerable in judicial proceedings. It does not concern the police investigation phase of the procedure.

Specific information mechanism might include, for instance, a public, free of charge and personalised information mechanism, operated by the police or the justice system, which enables the victims of criminal offences to get information on the follow up to the complaints they have launched.

Specific hearing modalities might include, for instance, the possibility for a child to have his/her first declaration recorded so that he/she does not have to repeat it in further steps of the proceedings.

Specific procedural rights might include, for instance, in camera hearing for the victims of rape or the obligation to inform beforehand the victim of rape, in case of the release of the offender.

Please specify if other specific modalities are provided for by judicial procedures to protect these vulnerable groups (for instance, the right for a woman who is a victim of family violence to enjoy the use of the common house).

In this context, ethnic minorities must be addressed in line with the Council of Europe’s framework convention for the protection of national minorities (CETS N° 157). It does not concern foreigners involved in a judicial procedures. Special measures for these groups can be, for instance: language assistance during a court proceeding or special measures to protect the right to a fair trial and to avoid discrimination.

This question does not concern compensation mechanisms for the victims of criminal offences, which are addressed under questions 35 to 37

Questions 35 to 37

These questions aim to provide precise information on the existing compensation mechanisms for the victims of criminal offences. These details concern the nature of the compensation mechanisms, the type of offences for which compensation can be claimed and the quality of the recovery of damages awarded by the court.

Question 38

In certain countries the public prosecutor can play a role in the assistance of victims of crimes (for example to provide them with information or assist them during judicial proceedings, etc). If this is the case, please specify it.

Question 39

This question is related to situations where public prosecutors can discontinue a case (for example due to the lack of evidence, when a criminal offender could not be identified or, in some legal systems, for reasons of opportunity). It aims to know whether victims of crimes may have the possibility to contest such a decision, to ‘force’ the public prosecution to move forward on a criminal case.

Question 40

This question concerns every user of justice and the compensation for damage suffered because of dysfunctions of the justice system. Where appropriate, please give details on the compensation procedure and the possible existing scales for calculating the compensation (e.g. the amount per day of unjustified detention or condemnation).

The cases before the European Court of Human Rights show that some member states experience specific difficulties as regards the execution of court decisions rendered against public authorities (at national, regional of local level). If specific mechanisms have been introduced in your country to cope with this situation, please specify it.

Questions 41 and 42

These questions concern the surveys aimed at the parties (citizens, lawyers, other legal professionals – court experts, interpreters, representatives of governmental agencies, etc.) who had a direct contact with a court and are directly involved in proceedings. It does not concern general opinion surveys. It contains also appreciation surveys from the persons employed in courts (judges and non judge staff) or the public prosecution agencies (prosecutors and non prosecutor staff).

You can give here concrete examples by indicating the titles of these surveys, the web sites where they can be consulted, etc.

Questions 43 and 44

These questions refer to the existence of a procedure enabling every user of the justice system to complain about a fact that he/she thinks to be contrary to the good functioning of the judicial system. If such a procedure exists, please specify the modalities for managing these complaints in the table under question 42. It must be specified what is the competent body for addressing the complaint to and, where appropriate, if this body must, on the one hand, answer this complaint in a given timeframe (to acknowledge receipt of the complaint, to provide information on the follow up to be given to the complaint, etc.) and, on the other hand, address the complaint in a given timeframe.

One specific type of complaint can be a situation of (possible) corruption of a judge, prosecutor of staff of courts and public prosecution agencies. If there are situations known in your country (underlined in particular in the reports by the Group of States against Corruption - GRECO), please specify it. If possible, you could indicate in particular the number of complaints against judges, prosecutors or staff in potential situation of corruption, the characteristics of the corruption cases and the number of persons convicted for corruption.

If possible, please give details on the efficiency of these procedures, indicating for instance the timeframes or the number of complaints filed.

III. Organisation of the court system

A court can be considered either as a legal entity or a geographical location. Therefore it is required to number the courts according to both concepts, which allow in particular to give information on the accessibility to courts for the citizens.

Question 45

Courts (administrative structure)
For the purposes of this question, a court means a body established by law appointed to adjudicate on specific type(s) of judicial disputes within a specified administrative structure where one or several judge(s) is/are sitting, on a temporary or permanent basis.

For the purpose of this question, a first instance court of general jurisdiction means those courts which deal with all those issues which are not attributed to specialised courts owing to the nature of the case.

Please give the list of specialised courts and, if possible, their number.

Should the specific nature of your system require it, you could indicate the criteria used to number these courts.

Courts (geographic locations)
For the purposes of this question, please indicate the total number of geographical locations (premises or court buildings) where judicial hearings are taking place, numbering both the courts of first instance of general jurisdiction and the specialised courts of first instance. Please include in the data the various buildings belonging to the same tribunal in a same city, if these buildings have court rooms (for court sessions).

Should the specific nature of your system require it, you could indicate the criteria used to number these courts.

Question 47

This question enables to indicate possible changes in the ‘judicial map’ for example as a result of a reduction of the number of courts (or geographical court locations) or the merge of different courts (for example the integration of commercial courts into civil courts). If this is the case, please provide information on the type of changes.

Question 48

This question aims to compare the number of courts (geographic locations) with jurisdiction for specific and standard cases. It should enable a comparison between member states in spite of the differences in the judicial organisation.

Small claims are not specified to take into account the differences in the living conditions in European states. Please specify the maximum amount to define a "small claim" (i.e. a civil case where the financial value of the claim is relatively low) in your country, which is generally used as criteria of procedural jurisdiction.

Should your system require it, you could indicate the criteria which are used to number these courts.

Questions 49 to 56

These questions aim to count all persons entrusted with the task of delivering or participating in a judicial decision.

For the purposes of this Scheme, judge must be understood according to the case law of the European Court of Human Rights. In particular, the judge decides, according to the law and following an organised proceeding, on any issue within his/her jurisdiction. He/she is independent from the executive power.

Therefore judges deciding in administrative or financial matters (for instance) must be counted if they are included in the above mentioned definition.

Question 49

For the purposes of the question, professional judges means those who have been trained and who are paid as such. Please indicate the number of actually filled posts at the date of reference and not the theoretical budgetary posts. The information should be presented in full time equivalent and for permanent posts.

Question 50

This question concerns professional judges but who do not perform their duty on a permanent basis.

In a first phase, in order to measure to what extent part time judges participate in the judicial system, the gross data could be indicated.

In a second phase, in order to compare the situation between, member states, the same indication could be given, if possible, in full time equivalent.

Question 52

For the purposes of this question, non-professional judges means those who sit in courts (as defined in question 49) and whose decisions are binding but who do not belong to the categories mentioned in questions 49 and 50 above. This category includes lay judges and the (French) ‘juges consulaires’..

If possible, please indicate, for each category of non-professional judges, the average number of working days per month. Neither arbitrators, nor those persons who have been sitting in a jury (see question 53) are subject to this question.

Question 53

This category concerns for instance the citizens who have been drawn to take part in a jury entrusted with the task of judging serious criminal offences.

Question 55

The whole judicial (administrative or technical) non-judge staff working in all courts must be counted here, in full time equivalent for permanents posts. This includes Rechtspfleger, court clerks, secretaries, technical staff, etc. Precisions according to the various categories of non-judge staff can be given under question 56. The information should be given, if possible, in full time equivalent.

Question 56

This question aims to specify the various functions of non-judge judicial, administrative staff and technical staff working in courts.

The Rechtspfleger is included in the list of staff only for those states which experience this quasi judicial function. The Rechtspfleger must be defined as an independent organ of jurisdiction according to the tasks that were delegated to him/her by law. Such tasks can be connected to: family and guardianship law, law of succession, law on land register, commercial registers, decisions about granting a nationality, penal cases, execution of penal cases, order to execute prison sentences as replacement or replacement of this punishment by doing community service, prosecution at district courts, decisions concerning legal aid, etc.

Non-judge (judicial) staff directly assisting a judge with judicial support (assistance during hearings, (judicial) preparation of a case, court recording, judicial assistance in the drafting of the decision of the judge, legal counselling - for example court registrars). If data have been given under the previous category (Rechtspfleger), please do not add this figure again under the present category.

Administrative staff is not directly involved in the judicial assistance of a judge, but is responsible for administrative tasks (such as the registration of cases in a computer system, the supervision of the payment of court fees, administrative preparation of case files, archiving) and/or the management of the court (for example a head of the court secretary, head of the computer department of the court, financial director of a court, HRM manager, etc.).

Technical staff means staff in charge of execution tasks or assuming technical and other maintenance functions such as cleaning staff, security staff, and staff working at the computer departments of courts or electricians.

Question 57

For the purposes of this question, prosecutors are defined according to the Recommendation R(2000)19 of the Committee of Ministers on the role of public prosecution in the criminal justice system, as public authorities who, on behalf of society and in public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system. The information should be given, if possible, in full time equivalent.

Question 58

In some countries, some persons (private workers or police officers) are specifically entrusted with duties similar to those exercised by public prosecutors. Please specify whether these persons are included in the data concerning the number of public prosecutors. Please also give information on these categories (statute, number, functions). This excludes lawyers who are bringing an accusation in a criminal hearing. This excludes also victims who can go directly to the judge without intervention from the public prosecutor.

Question 59

For the purposes of this question, please number the non-prosecutor staff working for the prosecution system, even when this staff appear in the budget of the court (where appropriate, and if possible, please give an estimate of the number of non-prosecutorial staff). Please make sure (in case the staff of the prosecution services cannot be separated from the court staff) that the figures presented in question 50 exclude staff which is working for the prosecution. The information should be given, if possible, in full time equivalent.

Question 60

Contrary to question 18 which concerns the elaboration of the budget before it is actually allocated between the courts, this question concerns those persons within the courts who enjoy specific powers as regards the budget. Multiple answers are possible. If available, please give a description of the responsibilities of the various actors regarding the individual court budget.

Questions 62 to 64

These questions aim to evaluate the quality of the computerised support to judges and court clerks in their various judicial and administrative tasks.

Please tick the boxes according to the rate of courts which are equipped with the computer facilities indicated in the table. For instance, if it is not possible in your country to file a claim by electronic form, tick the case “-10% of courts” in the row “electronic form”.

Question 65

The CEPEJ recommends that the collection of judicial statistics is centralised within a specific department.

Question 66

The annual report of the court includes e.g. data on the number of cases processed or pending cases, the number of judges and administrative staff. It might also include targets and an assessment of the activity.

Questions 67 to 81

Various court activities (including judges and administrative court staff) are nowadays subject, in numerous countries, to monitoring and evaluation procedures.

The monitoring procedure aims to assess the day-to-day activity of the courts, and in particular what the courts produce, notably through data collection and statistical analysis.

The evaluation procedure refers to the performance of the court systems with prospective concerns, using indicators and targets. This evaluation can have a more qualitative nature.

Question 67

Please indicate the main items which are regularly assessed by the monitoring procedure. The list which is mentioned is not exhaustive and can be completed.

Questions 68 to 75

These questions concern the evaluation of the performance of the courts, such as the number of incoming cases, length of proceedings, etc (see the indicators listed under question 70). It does not refer to the general evaluation of the overall functioning of the court (see question 80).

In question 70, it might be interesting to compare among states what are the most important issues to be considered in view of improving their system and to know if the states define specific targets to the courts.

Questions 75

The aim of this question is to know which authority is responsible for the supervision on the courts' performances. In some countries this may be the Council for the judiciary, whilst in other countries this is the responsibility of the ministry of Justice, the Supreme Court or a combined responsibility between various bodies.

Questions 76 and 77

A recent trend in Europe concerns the introduction of quality systems in courts, for example in the Netherlands (rechtspraaQ) and in Finland (Court of appeal of Rovamieni). It is important to identify these countries and to see if specialised persons working in the courts are also responsible for quality policy.

Question 78

Backlogs are composed of filed cases which have not yet been decided. Please give details concerning your system to measure backlogs.

For the purposes of this Scheme, "civil cases" refer in general to all those cases involving private parties, including namely family law cases, commercial cases, and employment cases.

Question 79

Waiting time means time in which nothing happens during a procedure (for instance because the judge is waiting for the report of an expert). It is not the general length of procedure.

Question 80

This question does not specifically concern the evaluation of performance indicators, but the overall evaluation of the (smooth) functioning of the court.

The supervision of the courts may have here the character of inspection visits. These visits might by organised by making use of a programme cycle, where courts or groups of courts in a certain region are regularly visited, annually, bi-annually or at another frequency, this plan of visits being made known in advance. Please indicate, if appropriate, the frequency of these inspection visits.

Question 81

This question concerns the same types of monitoring or evaluation procedures as those under questions 67 and 68, but applied specifically to the prosecution system.

IV. Fair trial

Question 82

This question refers to situations in which a judgement is given without actual defence. This may occur – in some judicial systems – when a suspect is at large or does not show up for trial. The aim of this question is to find out if the right to an adversarial trial is respected, in particular in criminal cases in first instance. The right to an adversarial trial means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party (see amongst others Ruiz-Mateos vs. Spain, judgment of the ECHR of 23 June 1993, Series A no. 262, p.25, para. 63).

Question 83

This question aims to provide information on procedures which allow to guarantee to the user of justice the respect of the principle of impartiality, in line with Article 6 of the European Convention on Human Rights. If possible, please indicate the number of cases successfully challenged within the year of reference.

Question 84

This table concerns the number of cases regarding (the violation) of Article 6 of the European Convention on Human Rights for the year of reference, specifying civil (including commercial and administrative law cases) and criminal cases. In the first column, please indicate the number of cases communicated by the Court to your government, which is the beginning of the adversarial procedure. The main focus of this question is on cases related to the duration of court proceedings and (for civil cases) the non-execution of decisions.

European Convention on Human Rights - Article 6 – Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Question 85

Such a procedure of urgency can be used so that the judge can take a provisional decision (e.g. decision on the right to control and care for a child) or when it is necessary to preserve elements of proof or when there is a risk of imminent or hardly repairable damage (for instance emergency interim proceedings).

Question 86

Such a simplified procedure can be used in civil matters for instance when it concerns the enforcement of a simple obligation (e.g. payment order).

For criminal matters, the question aims to know whether petty offences (for instance minor traffic offences or shoplifting) can be processed through administrative or simplified procedures. These offences are considered as incurring sanctions of criminal nature by the European Court of Human Rights and shall therefore be processed in the respect of the subsequent procedural rights.

Question 87

This question refers to agreements between lawyers and the courts which can be concluded in order to facilitate the dialogue between main actors of the proceeding and in particular to improve timeframes of proceedings. Such agreements can concern the submission of files, the setting up of deadlines for submissions of elements, dates for hearings, etc.

Questions 88 to 91

In Question 88 to 91 countries are asked to provide information on the caseload of the courts (from the first instance courts until the highest courts). In the table to be filled there are two main categories: non-criminal cases and criminal cases. The non-criminal cases are all litigious and non-litigious civil, commercial and (if applicable) administrative law cases.

In some countries commercial cases are addressed by special commercial courts, whilst in other countries these cases are handled by general (civil) courts. Despite the organisational differences between countries in this respect, all the information concerning civil and commercial cases should be included in this table. Examples of litigious civil and commercial cases are litigious divorce cases or disputes on contracts. Non-litigious cases concern for example uncontested payment orders, request for the change of names, divorce cases with mutual consent (for some legal systems), etc.

In some countries administrative law cases are addressed by special administrative courts or tribunals, whilst in other countries disputes between citizens and (local, regional or national) authorities are handled by the civil courts as well. If countries do have separate administrative law procedures or are able to distinguish between administrative law cases (for example cases concerning asylum or the refusal of a construction permit by local government) and civil law cases, these figures should be indicated in the table.

In addition to these types of case, in certain courts, registration tasks and enforcement cases are dealt with by special units or entities. For example: regarding business registers, land registers and enforcement cases. Activities related to business registers could be the registration of new enterprises or companies in the business register of the court or the modification of the legal status of a company. Modifications in the ownership of immovable goods (like land or houses) might be a part of the activities of the courts which are responsible for the land register. The category ‘other’ can be connected with administrative tasks of the courts, for example with the management of insolvency registers (or bankruptcy registers). If these registration tasks are part of the court activities, please mention the number of cases concerned. It must be noted that, in certain countries, activities concerning the business registers, land register or other types of registers might not be a task of a court, but is carried out by a private organisation of a public agency.

The cases mentioned in categories 3 to 5 (enforcement, land registry, business register) are excluded from the total to be indicated under categories 1 and 2 and should be presented, where appropriate, separately in the table. The cases mentioned in category 6 (administrative law cases) are also excluded from the total under categories 1 and 2 for the countries which have specialised administrative courts or units in the courts of general jurisdiction.

For criminal law cases there may be a problem of classification of cases between severe criminal law cases and misdemeanour cases. Some countries might have other ways of addressing misdemeanour offences (for example via administrative law procedure). Please indicate if possible what case categories are included under "severe criminal cases" and the cases included under "misdemeanour cases (minor offences)".

The definition of the total of criminal offences can be derived from the European Sourcebook of Crimes and Criminal justice. The total of criminal offences include all offences defined as criminal by any law, including traffic offences (mostly dangerous and drink driving). Criminal offences include acts, which are normally processed by the public prosecutor, whereas offences processed directly by the police, such as minor traffic offences and certain breaches of public order are not included.

Question 92

In this question, case information is requested for four categories, which are (mostly) common in Europe: litigious divorce cases, dismissal cases, robbery cases and intentional homicide cases. For each category information needs to be provided on the number of pending cases at the beginning and the end of the year of reference, the number of decisions, the appeal percentage and the number of pending cases with a duration of over more then three years. Information is also requested regarding the length of court proceedings in days. If countries only have information on the length of proceedings in months (or years) they need to recalculate the length of proceedings from months/years to days.

The four case categories are:
1. Litigious divorce cases: i.e. the dissolution of a marriage contract between two persons, by the judgement of a court of a competent jurisdiction. The data should not include: divorce ruled by an agreement between the parties concerning the separation of the spouses and all its consequences (procedure of mutual consent, even if they are processed by the court) or ruled through an administrative procedure. If your country has a totally non-judicial procedure as regards divorce or if you can not isolate data concerning adversarial divorces, please specify it and give the subsequent explanations. Furthermore, if there are in your country, as regards divorce, compulsory mediation procedures or reflecting times, or if the conciliation phase is excluded from the judicial proceeding, please specify it and give the subsequent explanations.
2. Employment dismissal cases: cases concerning the termination of (an) employment (contract) at the initiative of the employer (working in the private sector). It does not include dismissals of public officials, following a disciplinary procedure for instance.
3. Robbery concerns stealing from a person with force or threat of force. If possible these figures should include: muggings (bag-snatching, armed theft, etc) and exclude pick pocketing, extortion and blackmail (according to the definition of the European Sourcebook of Crime and Criminal Justice). The data should not include attempts.
4. Intentional homicide is defined as the intentional killing of a person. Where possible the figures should include: assault leading to death, euthanasia, infanticide and exclude suicide assistance (according to the definition of the European Sourcebook of Crime and Criminal Justice). The data should not include attempts.

In the column decisions (on the merits), states are required to count the total number of decisions on the merits which end the dispute at first instance level (provisional decisions or decisions regarding the proceeding should not be counted here). The average length of proceedings concerns the first and second instance proceedings. Only litigious cases are addressed here.

Pending cases by the year of reference 2006 means cases which have not been completed within the year.

If the average length of proceedings is not calculated from the lodging of court proceedings, please specify the starting point for the calculation. Please calculate the timeframe until the judicial decision is given, without taking into account the execution procedure.

Question 95

An explanation can be given on how the length of court proceedings is measured and which definitions are used.

Question 96

The role of the prosecutor varies significantly among member states. Therefore the approach that has been used consists in a non exhaustive list of his/her functions, to be answered by choosing the relevant tasks. You can give further details about such functions.

Question 97

In civil matters, the prosecutor can, in some member states, be entrusted for instance with safeguarding the interest of children or persons under guardianship. In administrative matters, he/she can, for instance, represent the interest of children vis-à-vis the state or one of its organs.

Question 98

This question aims to provide information on the number of criminal cases to be addressed by the prosecutor in first instance. As traffic cases represent a large volume of cases, please specify whether the data indicated includes or not such cases.

Discontinued criminal cases mean cases received by the prosecutor, which have not been brought before the court and for which no sanction or other measure had been taken. If information on the number of cases is not available, it can be given in number of persons concerned (a same case may concern several persons). Please indicate the number of cases discontinued because the case could not be processed, either (i) where no suspect was identified or (ii) due to the lack of an established offence or a specific legal situation (e.g. amnesty) or (iii) for reason of opportunity, where the legal system allows it.

V. Career of judges and prosecutors

Questions 99 to 109

Questions 99 to 102 concern only judges and questions 103 to 106 concern only prosecutors. If judges and prosecutors are designated according to the same procedure, please indicate it.

Questions 99 and 103

With a growing influence of the use of computer technology in courts it is important to know if, in the various countries, specific training is offered to judges and court staff on the use of computer technology.

For each of the four types of training, countries are asked to indicate if this training is compulsory or not, as well as the frequency of the training provided (annual, regular (for example every three months) or occasional (sometimes a training course is given).

In the comment section after question 113, specific information can be provided, in particular concerning the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights as an integral part of the training curricula of judges and prosecutors.

Question 112

This question, which repeats the content of the question above, concerns the training of prosecutors and is accurate in particular for those judicial systems where the training of prosecutors is different from the training of judges.

Question 114

The question concerns the annual gross salary of a full time first instance professional judge at the beginning of his/her career (starting salary), a full time judge of the Supreme Court or last instance judge (maximum annual salary), a full time prosecutor at the beginning of his career (starting salary) and a full time prosecutor working at the Supreme Court or the highest instance (maximum annual salary). If a bonus given to judges significantly increases their income, please specify it and, if possible, indicate the annual amount of such bonus or the proportion that the bonus takes in the judge's income. This bonus does not include the bonus mentioned under question 118 (productivity bonus).

The gross salary is calculated before any social expenses and taxes have been paid.

The net salary is calculated after the deduction of social expenses (such as pension schemes) and taxes (for those countries where they are deducted a priori and automatically from the sources of income; when this is not the case, please indicate that the judge has to pay further income taxes on this "net" salary, so that it can be taken into account in the comparison).

If it is not possible to indicate a determined amount, please indicate the minimum and maximum annual gross and net salary.

Question 115

This question aims to provide information on the advantages that judges and prosecutors might be given because of their functions.

Questions 116 to 120

Teaching means for instance exercising as University professor, participation in conferences, in pedagogical activities in schools, etc.

Research and publication means for instance publication of articles in newspapers, participation in the drafting of legal norms.

Cultural function means for instance performances in concerts, theatre plays, selling of his/her own paintings, etc.

If rules in this field exist in your country, which require in particular an authorisation to perform the whole or a part of these activities, please specify it.

Question 121

This question refers to the productivity bonus that judges could be granted, for instance based on the number of judgements delivered over a given period of time.

Questions 122 and 123

These questions specify the authority entrusted with the initiation of a disciplinary procedure vis-à-vis the authority responsible for deciding on a penalty in a disciplinary case.

Questions 124 and 125

This question, which appears as a table, specifies the number of disciplinary proceedings against judges or prosecutors and the sanctions actually decided against judges or prosecutors. If a significant difference between those two figures exists in your country, and if you know why, please specify it.

In the second column, breach of professional ethics (e.g. rude behaviours vis-à-vis a lawyer or another judge), professional inadequacy (e.g. systematic slowness in delivering decisions), criminal offence (offence committed in the private or professional framework and open to sanction) refer to some mistakes made by judges or prosecutors which might justify disciplinary proceedings against them. Please complete the list where appropriate. The same applies to the type of possible sanctions (reprimand, suspension, dismissal, fine, and withdrawal of a case, transfer to another location or department, temporary reduction in salary).

If the disciplinary proceeding is undertaken because of several mistakes, please count the proceeding only once and for the main mistake.

Specific comments could in particular be developed, where appropriate, as regards the procedures initiated and the sanctions pronounced in the case of corruption of judges and prosecutors, notably taking into account the reports by the Group of States against Corruption (GRECO) and possibly by Transparency International.

VI. Lawyers

Questions 126 to 128

For the purposes of this chapter, lawyers refer to the definition of the Recommendation Rec(2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer: a person qualified and authorised according to national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters.

As some countries have experienced difficulties to count precisely the number of lawyers according to this definition without taking into account solicitors (lawyers who have no competence to represent users in courts), please give a global figure, and specify whether this figure includes solicitors. If you have figures for both categories, please specify them. If possible, please indicate also whether this figure includes trainees.

Question 129

This question aims to get information concerning persons entitled, according to the type of cases, to represent their clients before courts and/or at measuring the scope of the "monopoly of lawyers".

The answer to this question might vary whether first or second instances are considered. If appropriate, please specify it.

Question 130

This question aims to know at which level the profession of lawyer is organised (for instance registration of lawyers, disciplinary procedures, representation of the profession vis-à-vis the executive power). It can be organised both at national and regional/local levels. Where appropriate, please indicate the number of regional or local bars.

Question 131

If a specific training or exam (for example passing the Bar exam) is not required, please indicate however if there are specific requirements as regards diploma or university graduation.

Question 132

A European trend can be noticed as regards the development of mandatory continuous training of lawyers. This questions aims at assessing this trend.

Question 133

Specialisation in some legal fields refers to the possibility for a lawyer to use officially and publicly this specificity, such as "lawyer specialised in real estate law".

Questions 134 and 135

As the systems for defining lawyers' fees vary significantly, and taking into account the principle of freedom for defining fees in numerous countries, the previous evaluation exercises have shown the quasi-impossibility to get detailed information on the amount of lawyers' fees.

Therefore these questions only aim to provide information on the way fees are determined and on the possibility for users to have easy access to prior information on the foreseeable amount of fees (the fees that the lawyer estimates that he/she must request when he/she opens the file).

Questions 136 and 137

Similar to courts or other legal professionals lawyers might use, as developed by (national, regional or local) bar associations, quality standards. Is this is the case, please specify which quality standards and criteria are used.

Question 138

The question refers to the complaints which might be introduced by users who are not satisfied with the performance of the lawyer responsible for their case. This complaint can concern for instance delays in the proceeding, the omission of a deadline, the violation of professional secrecy. Where appropriate, please specify.

Please specify also, where appropriate, the body entrusted with receiving and addressing the complaint.

Questions 139 to 141

The question refers to disciplinary proceedings which are generally introduced, for instance by other lawyers or judges. This question, which appears as a table, specifies the number of disciplinary proceedings against lawyers from the sanctions actually decided against lawyers. If a significant difference between those two figures exists in your country, and if you know why, please specify it.

Where appropriate, please complete or modify the list of reasons for disciplinary proceedings and the type of sanctions mentioned in the second column.

If the disciplinary proceeding is undertaken because of several mistakes, please count the proceeding only once and for the main mistake.

The disciplinary proceedings can be the responsibility of a professional organisation (for example Bar associations), a special chamber at a court, the ministry of justice or a combination of them.

VII. Alternative Disputes Resolutions

A common definition of mediation is difficult to define. States are currently at various stages concerning the development of mediation.

Recommendation Rec(2002)10 of the Committee of Ministers of the Council of Europe gives a definition of the mediation in civil matters: it is a dispute resolution process whereby parties negotiate over the issues in dispute in order to reach an agreement with the assistance of one or more mediators.

Recommendation Rec(1999)19 of the Committee of Ministers of the Council of Europe gives a definition of the mediation in penal matters: it is any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator).

Generally, for the purposes of this Chapter, mediation is to be considered as a judicial process, or a process developed within a judicial context (e.g. required by a judge) in which a third party, who has no immediate interest in the matters in dispute, facilitates discussion between the parties in order to help them to resolve their difficulties and reach an agreement.

Question 1142

This question, which appears as a table, aims to indicate, for each type of cases, the possibility to have private mediation (for example conducted by lawyers who are accredited mediators or psychologists with a mediation specialisation), mediation conducted by a public authority (other than a court) or court annexed mediation. In the last case, the mediator is a court employer (this can be a judge or another employer which is accredited to treat mediation cases).

For the purposes of this specific question, "civil cases" exclude family cases and employment cases, to be addressed in the specific rows below in the table.

Question 143

Just as they can benefit from legal assistance by making use of the facilities of legal aid (in case a party does not have sufficient financial means) parties can have, in certain countries, the possibility of receiving legal aid to start a mediation proceeding. If this is the case, please specify.

Question 144

For this question, deliberately presented open, please indicate, if possible, the number of accredited mediators, the modalities of their designation, their specific attributions, etc. I.e. in certain countries there is a national authority or NGO which is responsible for accrediting mediators.

Question 145

This question is mainly directed at those states in which precise figures concerning mediation procedures by types of cases are available. If figures available do not enable you to completely answer the question or, for example, if these figures partially cover civil cases (divorce), please indicate it.

The interest of this question is to understand in which fields mediation is more used and considered as a successful procedure.

For the purposes of this specific question, "civil cases" exclude family and employment cases, to be addressed specifically below.

Question 146

While questions 142 to 145 concern judicial mediation (as part of the proceeding an intervention of a judge is foreseen - even if there might be private mediation), this question refers to all other types of alternative dispute resolution and in particular to cases which, being non litigious, are brought outside the courts' jurisdiction.

This question aims inter alia to identify the type of cases which can be, in some member states, addressed by non judicial bodies (for instance divorce cases addressed by Conciliation Boards in some Scandinavian countries or the use of arbitration).

Please specify the main categories of cases concerned by ADR other than mediation.

IX. Enforcement of court decisions

In accordance with the definition contained in Recommendation Rec(2003)17 of the Committee of Ministers of the Council of Europe on enforcement of court decisions: the enforcement agent is a person authorised by the state to carry out the enforcement process irrespective of whether that person is employed by the state or not.

Please note that questions 147 to 160 only concern the enforcement of decisions in civil matters (which include commercial matters or family law issues for the purpose of this Scheme).

Questions 147 and 148

Some countries have court employed execution officers, some are in the public service outside courts and, in some countries, they work as private professionals (entrusted with public duties).

Question 150

This question aims to know at which level the profession of enforcement agent is organised (for instance registration, disciplinary procedures, representation of the profession). It can be organised both at national and regional/local levels.

Questions 151 and 152

These questions aim to provide information on the way enforcement fees are determined and on the possibility for users to have easy access to prior information on the foreseeable level of amount of fees in order for an enforcement agent to execute the judicial decision.

Questions 153 to 155

Enforcement agents are entrusted with public duties. It is therefore important to know who supervises them, even if their status can be very different. In addition it is important to know if specific quality criteria are used in the profession of the enforcement agents and which criteria are defined.

Question 156

Taking into account the amount of cases before the European Court of Human Rights regarding in particular the non execution of court decisions rendered against public (national, regional of local) authorities, it might be interesting, to better assess the situation in the member states, to comment specifically on this situation, if you consider it as a major issue in your country.

Question 157

The previous evaluation exercises demonstrated that all the countries that answered provide in their legislation for complaints which can be filed by users against enforcement agents. The answers should give more in-depth knowledge of the reasons of such complaints and if there has been a quality policy formulated for the enforcement agents. Please indicate the four main reasons for complaints vis-à-vis the execution procedure.

Question 158

Please indicate, where appropriate, which are the items that your country wishes to improve on, which are the foreseen or the adopted measures undertaken to improve the situation and, where appropriate, which are the difficulties in this field. In other words, please evaluate the situation in the country concerning the enforcement procedures.

Question 159

This question refers to the setting up of a statistical system, which can also be used for measuring the length of judicial proceedings, enabling to indicate, in number of days for example, the length of the enforcement procedure as such, from the service of the decision to the parties. One of the reasons for the difficulty to have statistics in this field can be that, in civil matters, the execution of the decision depends on the wish of the winning party.

Question 160

The aim of this question, which appears as a specific case, is to compare the situation between countries concerning the notification of the judicial decision enabling the beginning of the enforcement procedure.

Questions 161 and 162

This question, which appears as a table, specifies the number of disciplinary proceedings against enforcement agents from the sanctions actually decided against them. If a significant difference between those two figures exists in your country, and if you know why, please specify it.

If appropriate, please complete or modify the list of reasons for disciplinary proceedings and the type of sanctions mentioned in the second column.

If the disciplinary proceeding is undertaken because of several mistakes, please count the proceeding only once and for the main mistake.

Questions 163 and 164

Only few questions have been included in the Scheme as regards the enforcement of court decisions in criminal matters. They are limited to issues directly linked to the functioning of the court system. This issue is further evaluated within the framework of other mechanisms of the Council of Europe.

VIII. Notaries

Questions 165 to 169

The functions and status of notaries are very different in the various member states. These questions aim to define only the status and the judicial functions exercised by the notaries (e.g. drawing up friendly settlements), as well as the nature of the supervision when exercising these functions.

Question 166

In addition to the differentiation between the public and the private status of the notaries, this question aims to differentiate those countries where the notary if a fully private function, with no public nature (first choice), and those where, while exercising the profession as a private worker, the notary is entrusted with public power (second choice), under the supervision of a public authority (for instance the prosecutor or the judge). Please indicate only one possibility.

***

Question 170

As a general conclusion, this open question offers the possibility of indicating general or more specific remarks concerning the situation in the replying countries and the necessary reforms to be undertaken to improve the quality and the efficiency of justice. It could be interesting to indicate whether these reforms are under preparation or have only been envisaged at this stage.

It could be specified in particular whether these reforms concern substantial or procedural law, in civil, criminal or administrative matter (to be specified), or the organisation of the court system, the organisation of legal professions, or any other field.

Though it is not compulsory to reply to this question, concrete suggestions from national experts would be very useful for the future work of the CEPEJ.

Thank you very much for your valuable co-operation!



 Top