Strasbourg, 20 October 2010

CEPEJ-COOP(2010)2

European Commission for the Efficiency of Justice

(CEPEJ)

This report was written on the basis of comments made

 by the CEPEJ's experts appointed by the Bureau

Ms Elsa GARCIA-MALTRAS DE BLAS, Public Prosecutor, Legal Advisor at the Directorate General of International Legal Cooperation, Ministry of Justice, Spain

Mr Jacques BÜHLER, Deputy Secretary General of the Federal  Tribunal, Switzerland

Mr Georg STAWA, Public Prosecutor, Directorate for Central Administration and Coordination, Federal Ministry of Justice, Austria

The experts welcome the effort of the Montenegro Authorities to rationalise their court network, making use of CEPEJ’s works and expertise in the process. Such effort seems to respond to both a general European trend in reducing the number of courts and the alignment of their court network to that of comparable countries, keeping in mind, always, the wish to deliver efficient and quality justice.

I.          PRELIMINARY OBSERVATIONS

A few country facts are essential to keep in mind in order to understand and compare Montenegro in relation to states with similar situations.

1.    Country facts

Population-wise, Montenegro, which has been independent since 2006, counts a little less than 700.000 inhabitants. Montenegro may be compared, on the basis of the number of inhabitants criterion, with the following member states, in particular: Cyprus, Estonia, Iceland, Luxembourg, Malta and the Swiss Canton of Vaud (which has a similar number of inhabitants and its own recently improved judicial organisation).

Montenegro’s gross domestic product (GDP) is evaluated, according to sources, between 3.000 and 5.000 Euros per inhabitant (the average per capita GDP in 2008 according to the CEPEJ report on judicial systems is €4.908). The state has a GDP comparable to the following states: Albania, Bosnia and Herzegovina, Bulgaria, Estonia, "the former Yugoslav Republic of Macedonia", Lithuania, Poland, Romania, Russian federation, Serbia, Turkey, Ukraine.

Montenegro has a rather centralised political system. In particular, justice is organized in a centralised manner. The legal system is inspired by Civil Law.

According to the introduction of the Analysis, “the judicial power is performed by 15 basic courts, 2 higher courts, 2 commercial courts, the Appellate Court, Administrative Court and the Supreme Court of Montenegro”.

2.    The use of the CEPEJ Report on the European judicial systems

The Analysis was prepared with close regard to the works of the CEPEJ namely the report on the European judicial systems.

The Analysis makes comparisons between all member states of the Council of Europe (please see the tables drawn from the CEPEJ report included therein) and compares its own data with the European average. The Analysis states that the comparisons “may sometimes be rendered difficult due to several factors” of general (differences in size, configuration and economic powers) or institutional (scope of the tasks and social functions of courts and judges) nature. On a methodological point of view, it would be advisable for the Analysis to use similar states as benchmarks. Indeed, the introduction of the CEPEJ report specifies that all member states of the Council of Europe can not be compared with eachother. In order for a state to compare its data with data from other states, it must do so with comparable states namely with regard to criteria relating to the number of inhabitants, the topography, the GDP or the legal practice.

Furthermore, the reference to the revised version of the 2004 report is unclear (rather it would be the 2004 pilot project and the 2006 and 2008 reports). Probably the 2003 Recommendation could be mentioned before the reports if a chronological order wants to be kept.

II. CRITERIA FOR ORGANISING THE COURT NETWORK (NUMBERS AND GEOGRAPHIC LOCATIONS)

The Analysis provides a study on the objective criteria for geographical distribution of the court network. It has chosen to separate such criteria in two, primary and secondary, categories. The CEPEJ will comment on those criteria although it does not believe such categorisation should be generally applied to all member states. It is of course for the authorities to select and rank the indicators they consider most relevant.

1.    “Primary” criteria regarding the population field

Montenegro’s Analysis has “concluded from CEPEJ analyses that population, geographical locations and court workload are the most relevant criteria in respect of the number of courts and court distribution”. Yet, there is not general rule and such conclusion was not drawn by the CEPEJ.

The indicators used in CEPEJ reports are a way of presenting data for analysis but do no themselves imply a predetermined ranking in the identified or used criteria. For example, the number of “geographical locations” was in fact introduced to better describe the proximity of the court to population when it became apparent that not all countries had the same concept of a “court” (so, depending on the country, there could be several courts in a single geographical location or vice-versa). Similarly, “geographical distances” could be an excessively “individualized” indicator that might be better expressed, for instance, as the extension of the court’s area of jurisdiction. Not to mention that sometimes it is not kilometrical distances but appropriateness of transport means and infrastructures that can make an important difference.

The Analysis (on page 7) seems to refer to the reorganisation that took place in Bosnia and Herzegovina and adopt, without any justification, the same criterion for justifying the geographical location of a court. Indeed, according to the Analysis, a community over 55.000 inhabitants is considered to be sufficiently large to justify the geographical location of a court.

The experts believe that a person goes, on average, once in his life to the court. It follows that, considering life expectancy around 75 years, on average, around 750 cases per year are brought before the court. Following the application of the criterion “a court for 55.000 inhabitants”, a large number of small courts would subsequently emerge. On the contrary, when comparing similar states which have a similar number of inhabitants, most of them actually have a relatively small number of first instance courts (source: 2008 statistical data provided for the 2010 CEPEJ report on evaluation of judicial systems): Cyprus (7), Estonia (4), Iceland (8). The Swiss canton of Vaud has a mountainous topography making communication difficult between the different territories and yet, the number of inhabitants, very close to Montenegro’s, just went from 16 to 4 first instance courts.

Montenegro states that its situation is “much higher above the commonly recognised standards for the establishment of the court network […]. This signals the need to rationalise the court network”. As it was previously stated, such deduction is not the opinion of the CEPEJ. Indeed, in order to rationalize the organisation of courts, the CEPEJ has indicated that a more centralised judicial system, in practice that is larger courts in lower numbers, are more cost-efficient and allow better synergy between administrative and logistic services. As stated by the 2010 CEPEJ report on efficiency and quality of justice, generally the number of courts have been reduced, “in Northern and Western Europe (but also in Croatia, Georgia, Armenia and Romania)” in favour of a more centralised and specialised judicial system. The CEPEJ has previously referred to a study by the Netherlands which concludes that a court’s ideal size is around 300 staff. However, of course, this report does not hold the absolute truth and besides other reports have indicated other figures. In fact, CEPEJ’s latest works point in the direction that there is no immediate connection between size of courts and efficiency (although indicators do help to point out deviations in the average functioning of similar courts) and that it is not possible to determine an “ideal” size of courts in an abstract way. Contrary to western Europe, a different trend is observed in the eastern European countries which show higher numbers of court for the main reason that this allows a larger access to justice. Obviously, if Montenegro has a system with numerous courts but if these work efficiently and closer to people, there is not upfront reason for closing the courts. In this report, Montenegro specifies that “the minimum number of judges which justifies the existence of a court and its optimum functioning should be four judges”. Considering the main goal is ensuring an efficient and quality justice, member states must keep in mind that it is essential to optimise and rationalise the means drawn into the judicial systems, whether these are scattered or centralised, large or small.

Regarding the “court workload” indicator, the report indicates several reforms which are expected to have a impact on the influx of court cases (Criminal Procedure Code, Law on Notaries, Draft Law on Enforcement Proceedings).

Within that context, the Ministry of Justice has also mentioned the plan to draw misdemeanour proceedings under the jurisdiction of the courts. The district misdemeanour authorities (59 judges) and the ministries and other administrative authorities (49 authorised officers) will no longer be competent.  The question the authors of the report asked was whether it would be more “rational to vest the competence for conduct of misdemeanour proceedings in the existing basic courts or to make the existing district misdemeanour authorities departments of these courts or to reorganise the existing district misdemeanour authorities into misdemeanour courts and make them a specialised court system parallel to the regular court system”.  Indeed, such decision will affect the organisation and perhaps the number of courts and judges.  The report adds that “at the national level 46 judges are required to conduct misdemeanour proceedings” instead of the 49 current “authorised officers who deal with these cases in ministries and other administrative authorities”. It seems like the current administrative officers will be replaced by judges. These judges will be the ones which have been „cut out“ of the basic courts as a result of the new laws (44 judges less are required). It is not specified where the current 49 authorised officers will be assigned. Knowing misdemeanour proceedings were originally administrative, in any case, whether Montenegro will choose to create specialised courts or to enlarge the competence of ordinary judges, citizens involved in such proceedings should benefit from equal guarantees and quality of jurisdiction. Provided such conditions are respected, the choice can be based on efficiency and resources criteria.  

As mentioned previously, the Criminal Procedure Code entrusts investigation to the state prosecutor and “provides for  wider use of the principle of opportunism in making the decision whether to initiate or not prosecution”. According to the Analysis, “the state prosecutor in a way becomes a judge before the judge”.  Undeniably, this is one of the functions that may be given to prosecutors according to Recommendation (2000)19 on the role of public prosecution in the criminal justice system. Additionally, Recommendation 1604 (2003) on the role of the public prosecutor’s office in a democratic society governed by the rule of law and Recommendation (87)18 on the simplification of justice both agree that it is desirable to introduce universally discretionary prosecution systems allowing to best serve “the interests of justice in effective and efficient disposal of cases, along with the interests of both the defendant and any injured party”[1]. Mediation and plea-bargaining systems could be seen under a similar perspective of a positive simplification of criminal procedures, therefore, relieving the courts’ workload. One could imagine the structure of prosecution offices and possibly the number of prosecutors will be affected.

Finally, the CEPEJ regrets the absence in the Analysis of comments on the indicator “geographical distance between the court and the place of residence”.

2.    “Secondary” criteria

The Analysis lists 9 secondary criteria which may influence the number and the geographical location of courts, as follows:

-          “a lack of proportionality between the number of judges, court officers and  clerical staff and work conditions at the court and influx of cases;

-          the efficiency of court management and scheduling of hearings;

-          the realisation of the principle of court independence in relation to the number of inhabitants and the territory;

-          the possibility for new, younger judges to have an older “mentor” in the same court and availability of specialist practice in specific areas to all judges;

-          the court’s potential to develop into an efficient, modern and equally accessible court on the basis of indicators such as: level of development of the IT system, special skills of judges and court staff, use of alternative case resolution mechanisms (mediation and alike), etc.

-          duration of specific types of cases, common to a specific court

-          economic implications of the decision to close or keep a court open;

-          existence of a system to measure satisfaction of beneficiaries with the services provided by the court and a of complaints processing system and

-          existence of minority peoples within the territory of the court.”

 Some of the listed “secondary indicators” seem unclear or appear to describe advantages of larger versus smaller courts rather than objective indicators in themselves. It could be preferable to use them in a descriptive part of the analysis as arguments for preferring larger size courts. Among the 9 criteria mentioned in the Analysis, one of them might be questioned. Indeed measuring the principle of court independence in relation to the number of inhabitants and the territory seems complicated. An assessment of the court system, with the aim to close and merge some of the courts, needs hard facts in order to draw conclusions and make decisions.

The experts regret that no use was made of the indicators drawn from the CEPEJ guidelines, that is to say the GOJUST guidelines and the European Uniform Guidelines for Monitoring Judicial Timeframes (EUGMONT). The GOJUST recommendations, for instance, give a helpful list of satisfactory criteria (indicators of workload, clearance rate, disposition time, relation between cases and judges, etc.) which would have been adequate for measuring the backlogs and waiting time in judicial proceedings and giving Montenegro’s Analysis a clear sight of current and future workload of first instance courts. These concepts are also explained in the 2008 CEPEJ report (2006 data) and will be reiterated in the 2010 report (2008 data).

Moreover, according to the experts, two essential criteria have been missed. First, the complexity of cases may also be an important indicator to take into consideration the difference in workload that can occur in courts of the same size, usually between those situated in cities versus those outside urban areas, as the former are usually confronted with larger and more complex and specialized cases. Secondly, the fight against corruption is essential in Montenegro and is even more relevant in the judicial field according to the Transparency International report mentioned previously. Within such context, relocating courts may contribute to avoiding judges being influenced by corruption. In such case, larger entities may actually help to ensure the judges have no link with the region or the community from which the parties belong to. These simple measures enhance the level of impartiality of courts and may induce a small number of courts, generally larger and further away from the parties’ residences.

III. FINAL OBSERVATIONS

The ministerial report planning a reform of the judicial system in Montenegro and its conclusions aiming to reduce the number of courts are particularly interesting and relevant to the work of the CEPEJ. The experts believe that such report from the Ministry of Justice of Montenegro is the right step towards adequate reforms and shall serve as a positive example for other member states to relate to.

On the formal side of the report, no indications were provided regarding who requested the assessment, the sources of information, the respondents, how the Ministry participated in the assessment, the name of the rapporteur, the name of international organisations which provided expertise and the methodology used. Besides, presenting the figures in tables would have made the report easier to read.

As mentioned previously, certain essential indicators were absent from the analysis or were not elaborated, namely the ones drawn from the GOJUST and EUGMONT guidelines. In terms of the scope of the assessment, the following issues might be considered additionally: institutional arrangements, leadership, ICT and physical resources, business processes and procedures, training, fiscal impact, accountability within the court system and its stakeholders. The estimations on the impact of the Plan of CPC implementation seem useful and proper. It would be worth considering to measure the real impact of the reform. Obviously this will not be possible before the end of 2011.

Additionally, the Analysis needs to provide information on the findings of the existing assessment and it should be followed by the recommendations (not only by conclusions). The recommendations should be broken down into short, medium, and long term recommendations. The report’s entire premise (to make the best use of rationalisation?) is not substantiated by its findings or recommendations.

In fine, it is CEPEJ’s consistent view that the efficiency of justice systems, despite its importance, cannot forget or be to the detriment of quality, a reference which may be considered relevant and worth adding in the Analysis.