Judicial Evaluation in Context:
Principles, Practices and Promise in Nine European
Countries
Richard Mohr* and Francesco Contini**
I. The institutional context of the research
The evaluation of judges performance takes place in
many ways. Traditionally, there are avenues of appeal and legal accountability
mechanisms. More recently, ministries of justice and judicial councils across
Europe have introduced a range of complaints mechanisms, quality assessment
procedures and other managerial methods of judging judges and the courts within
which they operate. This paper reports on a study of these mechanisms in nine
member countries of the European Union. Our purpose is to survey the possible
ways in which the judiciary can be evaluated, with a view to improving those
practices and, ultimately, contributing to a better functioning of the courts.
The study focuses on judges within the institutional
context of courts. The staffs of courts are commonly employed by a ministry of
justice or some other executive body. A ministry is responsible for allocating
funds and accounting to parliament for their expenditure. In many European
countries (including six of the nine discussed here) the status of judges
(discipline, promotion, transfer, appointment), and in Denmark and the
Netherlands also the management of courts, is under the direct responsibility
of a judicial council which has substantial judicial representation and a
degree of independence from the executive government.[1]
With these intertwined responsibilities for staffing
and personnel matters and for funding and accountability, relationships between
judiciaries and ministries are of particular relevance to the efficacy and
quality of judicial work. Interposing judicial councils has raised other
questions, or more precisely the old questions of judicial accountability[2]
in new forms. The various ways of approaching these issues are at the heart of
this inquiry into the forms of evaluation and quality assessment.
We discovered a great variety of approaches to the
evaluation of judicial performance, some of which are based on the traditional
activities of quality control that are already built into the institutional
practices of courts and justice ministries. The most established and effective
means of accountability or quality control in justice systems conform to the
evaluative activities associated with particular institutional bases: the legal
base of the judiciary and the public administration base of the executive. Our
discussion of evaluation methods begins with those traditions, while pointing
out the limitations of these exercises at the systemic level: judges
predominantly deal with individual cases, and ministries have a limited view of
accountability with a focus on finance and efficiency. The apparent barriers to
reform have prompted us to analyse the theoretical and political foundations of
the judicial role in its institutional context before describing some of the
national experiences.
Evaluation of judges and courts is an aspect of the
normal functioning of justice systems. Justice
ministries account for their use of funds, traditionally simply by monitoring
the legality of the expenditure.[3] Judicial systems have traditionally been
characterised almost exclusively by legal forms of accountability.[4]
Courts of appeal are effective in
reviewing the decisions of lower courts. It appears that difficulties arise at
the points of intersection between administrative and legal systems. As will
become apparent, administrative responses to legal demands, and judicial
responses to fiscal demands quickly become confused in clashes over values such
as independence, accountability and justice. More adventurous approaches to
reform and evaluation can easily be wrecked on these rocks as soon as they are
launched. In this article we identify opportunities for ministries as well as
judiciaries to reinforce their legitimacy by using a broader repertoire of
evaluation methods, going beyond a purely traditional framework.
The research we report here has demonstrated the
growth of new forms of accountability developed to protect and promote other
interests and values. On the one hand there have been increasing numbers of
instances of ministries or judicial councils developing measures to promote
values such as efficiency or cost control. Program
budgeting and management by objectives have been introduced to monitor
responsiveness to government policy initiatives. On the other hand, we
find the public has also entered the scene in direct or indirect ways. As will
be seen in the following pages, there is some evidence that the courts and
justice systems have begun to listen to public demands, ranging from broad and
unspecific reforms demanded of the Belgian justice system by the huge protests
over the Dutroux affair, to the specific proposals for transparent
impartiality of the lobby group Court Watch in the Netherlands.
The judges and managers are already so attuned to the
principles underlying their traditional forms of evaluation, and are so deeply
associated with the institutions and the roles they play in them, that their
very expertise can stand in the way of a more systemic or global evaluation. By
presenting selected cases from nine countries we will demonstrate some of the
difficulties that have arisen from the tensions between the approaches of the
judiciary, the executive and the public. However, since the traditional
principles, institutions and roles are central to the whole system of justice,
it will only be possible to find new approaches by building upon them. Applying
a new discipline, such as total quality management or some other discipline
imported from private enterprise or the academy, is no substitute for the hard
work of understanding the foundations of the justice system as the basis for
its improvement. In France, the international management standards ISO 9000 and
ISO 9001 were explored in the late 1990s,[5]
with ephemeral impact. In other cases, generic quality assurance schemes
sometimes laid the groundwork for more specific elaboration. Portugal and the
Netherlands both used the model of the European Foundation for Quality
Management (EFQM) from which to elaborate a set of quality standards.[6]
The experience of the Netherlands, the country having taken this approach
furthest, is discussed in more detail below.
To understand and evaluate judicial work within its
institutional context, it must be assessed in accordance with judicial,
executive and public expectations. Given the diverse traditions which have led
to each of their institutional evaluative methods, it is important to find
common denominators which relate these systems to each other and which underpin
their legitimacy and acceptability. The following sections do this by exploring
the principles of authority and accountability in their traditional application
as well as seeking new developments in each of these areas. The analysis then considers the legal,
managerial, and public methods of assessing and directing performance, again in
their traditional forms before looking for new forms which have developed in
the interactions between the various institutions and players. Such
examples demonstrate the potential development of newer forms of accountability
and assessment, which might be described as mixed (because they embody diverse
interests) and cooperative (involving more than one of the institutional
players working together). These examples are analysed in order to understand
ways in which the conflicts between the institutional interests have been
worked through and accommodations have been found. We conclude by analysing the
barriers to and conditions for the success of innovative forms within the
institutional and political context of the courts and justice systems.
This discussion draws on the
findings of several research projects financed by different institutions.[7]
The projects focussed a common group of researchers and methods on the broad
research objects of discovering the state of quality evaluation of justice
systems in Europe. The projects were designed to stimulate a dialogue among the
participating researchers, who were selected by the project leaders[8]
through formal and informal networks of scholars and practitioners working in
this field. This led to the involvement of academics, policy makers, public
managers and judges with different perspectives on the issues at stake. To
ensure comparability of the data produced by researchers from such diverse
backgrounds, a first draft framework for analysis was prepared, and the
researchers met to discuss it. Once adapted into a final framework, each
national team[9]
prepared a first draft report which, after comment and discussion among the
researchers, was transformed into the final report.[10]
It is necessary to review the
key concepts on which justice systems are based before considering specific
modes of monitoring and assessment. We argue that accountability and authority
are the key guiding principles of a justice system. While these may be seen as
embodying the foundations of the legitimacy of the executive and the judiciary
respectively, neither of these principles stands alone or is an end in itself.
Ministries have authority as well as judges, and judges too must be
accountable. To appreciate their broader context it is necessary to consider by
what authority a justice system can function, and to whom it is accountable.
This requires a careful analysis of the notions of accountability and
authority, which highlights the role of the public. In later discussion we
consider how the people authorise judicial power and demand accountability of
the courts in these European democracies. These are fundamental political
questions which underpin the evaluation of judges.
We begin this analysis by considering the roles played
by the judiciary, the executive and the public in the traditional methods of
evaluating the performance of judges and the courts. Existing side by side with
the long-standing political and legal principles of authority and
accountability, there are also well-established methods of assessment embedded
in the respective systems of the institutional players. The legal system of
evaluation used by judges focuses on the individual case, applying the law to
the facts (to refer to a classic, if oversimplified formulation). Executive
government traditionally evaluates its performance and that of its agencies
through the principle and practices of accounting and fiscal responsibility:
resources are allocated to administrative units which must justify their use,
either by adhering to spending and accounting procedures or through
increasingly sophisticated methods for relating outcomes to particular policy
areas and funding inputs. The public, finally, has its say on how well these
systems are functioning, and in promoting directions for their future actions,
by various structured and unstructured measures, ranging from opinion surveys
and elections to campaigns, protests and riots.[11]
These traditional forms of assessment may be broadly
mapped onto the three underlying core values of fairness, democracy and efficiency[12]
that Sanders identified in a critique of an English inquiry into the criminal
justice system. There are dangers, however, in too close an identification of
the institutional players -the judiciary, the public and the ministry- with a
particular core value. Each of these values is too important and too
multifaceted to be allocated to a single institutional custodian. If it were,
the competition between institutional players might be reduced to a competition
between values, amounting to a sterile and familiar zero sum game. We hope to
overcome this deadlock by understanding the functioning of the justice system
in a broader context.
Justice and the application of the law are based in
long-standing traditional principles which have been updated by democratic and
managerial demands. The contemporary appeals to judicial, democratic and
managerial values may be traced to a common root in the concept of
representation. Pitkin explored this notions multiple uses in politics
starting from its etymological root as the making present in some sense of something which is
nevertheless not present literally or
in fact.[13] That is to say, the representative
makes present an abstraction or a collectivity which cannot itself act or
make decisions. The modern theory of the state, itself a significant
abstraction, has organs of government representing the people. In its
pre-democratic form this was a relationship of authority: for Hobbes, for
instance, the sovereign is authorised to act in the name of the people.
In its later democratic sense representation is based
on accountability, so that the
representatives of the people can be held accountable for their actions. We
generally think of representation in this latter sense as the way in which
legislatures represent the people. They are accountable
retrospectively at the next election, while having been authorised at the previous election. A representative whose
representativeness rests upon accountability is someone who has to be held to
account, someone who will have to answer to another for what he does.[14]
There is a temporal distinction between these two foundations of
representation: one must be authorised
to carry out a particular role before one can do so; one is accountable for ones actions after the
event.[15]
The concept of representation is generally applied to
the executive and legislative powers. Within the framework of representative
democracy the authority of elected representatives derives from their election
by the people. It is more complex to apply Pitkins analysis to the judiciary,
where we find that judges preserve a pre-democratic version of representation
as authorisation. In the contemporary world, so thoroughly dominated by
democratic ideology, this makes them vulnerable to mockery[16]
and to an even more severe erosion of their legitimacy. The prospective
authorisation of judges as those who may say the law flows from a complex
network of processes and sources. While they are selected by various
authorities (i.e., those authorised
to appoint judges) in different jurisdictions, the explicit source of that
authority is some combination of the law and the people.
The judge may only be appointed through a lawful
process and once appointed is the authorised interpreter of the law. This is
found in a strong form in the common law tradition whereby the judge makes
law by setting precedent, but is also clear in Montesquieus notion of the
judge as bouche de la loi.[17]
Contemporary French discussions of quality measurement continue to see the key
function of the judge as being to pronounce law in an exact and reasoned
manner.[18]
The judge has authority as long as he or she pronounces the law as it applies
to a specific case. This is legitimate in the root meaning of the term,
having enormous legal content, but little public appeal.[19]
This pre-modern version of authority is challenged and
re-worked by democratic regimes, so that before being accountable to the
public, judges must be authorised by the public as well as by the law. The
authorisation of the law and of the people comes together in the constitutions
of a number of countries where legitimate authority flows from the people. This
assumption, taken for granted in many democracies, is explicitly written into
the constitutions of several Latin countries: Justice is administered in the
name of the people,[20]
or emanates from the people and is administered in the name of the King by
judges.[21]
Judicial power is thus formally representative of the people, even if in
different ways and within specific institutional settings.
We may find further insight into the complex role of
the people in the authority relations of the courts in another of Pitkins
distinctions. If the elected representative must be responsible to the
represented as people with interests, the people that the judges represent
are rather the unattached interests of the people in whose name the
Constitution authorises judges to apply the law.[22] As guardian of the law and its proper
application, the judiciary can be considered to be a representative institution
in the sense that it represents those unattached interests of equality,
consistency and other such guiding principles of the constitution and the rule
of law.
If both forms of representation
persist in the case of the elected representatives, so that they must be
authorised while being primarily accountable, the role of the people in the
authorisation of the judges brings with it certain contradictions or
confusions. In the judicial context the people play a dual role. On the one
hand they are the authorising source of legitimacy for judicial power, either
in the strong legal sense of the Latin constitutions or the weak common law
sense that judicial authority derives from the confidence of the community.[23] The judge acts in the name of the people, who
may be considered as an abstract or unattached interest. On the other hand the
people are parties appearing in court before the judge, the very people with
interests from whom the judge must be aloof to maintain impartiality. Thus,
the people are present in a dual role, both as actually existing persons
before the court, and as that abstraction which authorises the judge to
represent them. The judges position, at that interface, is identified by
Agamben between the people as the poor and the popular masses on one
hand, and the sovereign People of the modern democracy on the other. In their
relations with the public the judiciary must continually straddle this
fundamental conceptual pair of the original political structure: naked life
(people) and political existence (People).[24]
Judges may thus be authorised
by and even accountable to the People as an abstraction, but must be quite
detached from actually existing people as parties to the case. When real people
come before the judge they are subject to authority; they are bound by the
judicial decision.[25]
Garapon expresses the ambivalence of
the judge to the paradox of publicity, without which there is no justice, but
which at the same time introduces anger and irrationality to the courtroom.[26]
The judges complex relationship to the
authority of the People is consequently tinged on the one hand with a
dismissive authority based in law which is above popular opinion and the
interests of the parties before the court, and on the other with recognition
that the law itself is the will of the People. The judge maintains authority by
making present and speaking in the name of a People who would otherwise only
be an abstraction.[27]
To this point we have tried to overcome the
unproductive allocation of values among institutional players who claim to
represent one or the other: fairness to judges, democracy to the public and
efficiency to the administration. We have sought their common sources of
authority in a notion of representation by which the people are seen to be
represented in different ways by ministries and by the judiciary. This analysis
offers a means of understanding the complex and often difficult relations,
which we discuss later, between the judiciary, the executive and the public,
each one of them vital to the effective operation and assessment of the
judiciary. However, since authority alone cannot justify or form the sole basis
for this assessment, we must first consider the other form of representation.
The research carried out in the nine countries
identified numerous attempts to introduce managerial systems to increase the
accountability of judges and the courts. These were often opposed by the judges
who responded that the use of such systems would violate the principle of
independence. This generates tensions between the divergent values (legality versus
managerial controls) and conflict among the actors who espouse them (judiciary versus
executive). In various cases these conflicts led to zero sum games in which a
gain by one party, for instance in terms of greater managerial efficacy, was
seen as a loss by the other (of independence).
As will be seen in the instances documented in the
following sections, in some countries this conflict obstructed processes of
reform while in others we have been able to observe constructive feedback and
positive sum games. In the latter cases interactions among the various actors
promoting different values and interests have led to creative solutions, not
only in terms of greater efficiency and improved management of the judicial
system, but also in reinforcing certain values specific to that system, such as
impartiality. By analysing such cases we try to identify possible approaches to
unlock the traditional tensions between independence and accountability.[28]
Approaching this issue first from the point of view of accountability, we have
been forced to reconsider the ways in which debates on quality and the
functioning of the judiciary have conceived of accountability. While
traditionally the judiciary has focused on the discretion and political choices
involved in judicial decision-making,[29]
more recently managerial approaches have been introduced, which are seen as
instruments of managerial control.[30]
By distinguishing between the methods of evaluation traditionally associated
with the executive and those legal methods associated with the judiciary, we
hope to clarify an increasingly amorphous concept.[31]
Accountability is the combination of methods, procedures
and forces determining which values are to be reflected in administrative
decisions.[32]
If, as is commonly held, public officials acting in the name of or on account
of the State are responsible to the citizens for their actions, accountability
becomes the instrument which expresses this responsibility.[33]
This is characterised by a mass of formal and institutional procedures as well
as by various unanticipated intrusions from political and social forces making
claims and demanding responses in ways which are both unprogrammed and
unprogrammable.
Accountability can thus be characterised on the one
hand as those systems which instil the values and interests of the appropriate
stakeholders[34]
within organisational behaviour. On the other hand, accountability can be
characterised as the mechanisms by which one can analyse or assess whether
the organisation builds those values and interests into its own actions and
decisions. In this way accountability can be considered as a two way channel of
communication. First, it must convey information about the functioning of the
organisation to those having the right to know. This information may include
its objectives, its fundamental values, and the interests it is dedicated to
protecting. Second, it must
provide for methods and techniques to ensure that the members of the
organisation act consistently with those values and interests. Thus,
accountability is that complex of means which reinforce the responsibility of
public actors.
It is evident that the concept of accountability,
defined inclusively as above, cannot be limited simply to verifying
productivity or efficiency, but includes a broader complex of values which
public organisations must adopt based on the fundamental values of democratic
regimes. These include legality, equality and impartiality. This inclusive
notion of accountability is at a different and perhaps higher level than the
individual values specific to a single unit of public administration.
Accountability is conceived of in such a way as to enable the democratic
process of establishing respect for those values, whether of efficiency or
independence, efficacy in achieving objectives, or impartiality in the
treatment of citizens.
From this point of view neither the judicial system as
a whole nor any particular court or individual judge can be seen to be above
the demands of accountability. There must be some channels of checking and
transparency in order that each may account for their actions. The difficulties
arise in understanding which forms or mechanisms of accountability are
compatible with and appropriate to the functions of the judges, the courts, the
judicial councils and the ministries of justice. To do without them would lead
to a judicial system whose absolute independence would be difficult to
reconcile with the fundamental values of democratic and representative regimes.
Even those control systems that have been developed
throughout the laws long history in order to ensure the legality of judicial
procedures represent forms of this broad concept of accountability. Measures
such as reasoned decisions, public trials and channels of appeal are available
to check whether the judicial processes respect substantive and important
values and interests such as impartiality and legality. The role of these
measures as foundations of a specifically legal system of evaluation or quality
assurance is discussed in the next section. They represent the traditional
approach to accountability which has been developed in the legal environment to
promote certain important interests and values which should underlie judicial
evaluation. There is, however, a broader range of interests and values to be
served.
Following a discussion of the traditional forms of
legal accountability, we trace the development of other forms of accountability
which may be described as managerial and public. From this point of view the
tensions commonly generated by the introduction of any new form of
accountability may be seen as unavoidable if justice systems are to incorporate
means of assessing their performance based on a broader range of values and
interests than those of a narrow legal tradition. It may also be seen that each
of these demands for accountability come from specific interests and may itself
be one dimensional unless it can be balanced by recognising the others which
also promote their own legitimate demands.
A. Judicial
Judges have a long history and experience of internal
evaluative mechanisms as means for testing claims and determining rights and
wrongs, based on law and the appellate process. Indeed, the very raison dՐtre of the judiciary is
assessment, based on particular values associated with justice and the law,
such as fairness and the impartial and
proper application of established law. In addition to these values, it is
important also to consider the institutional context in and through which the
judiciary operates.
This environment includes the
court registry where files are kept for each case and where the key procedural
events are recorded and organised. These practices and files constitute the
memory of the proceedings, making it possible to retrace the steps, the acts
and events and so providing the means to check that proper procedure and law
have been applied in every case.[35]
The institutional context also
includes legal and conventional principles which are so strongly
institutionalised that they are taken for granted without necessarily being
codified. These include giving reasons for decisions, and the principle of the
public trial which brings the public and the media (excluding cameras and
microphones in some jurisdictions) into the heart of the judicial process.[36]
These too are means of checking that the judicial process has been fair and
just. The reasoned decision records the law and the facts relevant to the case
and how these led to the result.[37]
As to the records of events and decisions, these assume a particular
significance in the context of the appellate system which is the most important
evaluation mechanism within the juridical framework.
The assessment of cases according to procedural law
applies not only to the courts assessment of the specific case but, through
the appellate process, may also be seen to reflect back on the courts
themselves. In other words, each court must assess the cases before it, but
since every decision is potentially open to appellate challenge, the court
itself is liable to assessment. However, deliberations at each stage of the
process are directed to specific cases and have few repercussions at the
systemic level; i.e., decisions
overturned on appeal are only that: decisions in specific cases, and not
evaluations of the judge making the original decision.
The nine countries considered here had implemented a
variety of other measures for the assessment of individual judges and courts.
These included internal complaints mechanisms, criminal and/or civil liability,
and some versions of an ombudsman system. Without assessing the efficacy of
these systems, which are of course only as good as the procedures and practices
for implementing them, we simply comment here on some of the complex
interactions between the legal and other principles and systems at work in
judging the judges. Complaints mechanisms in France and Spain have received some
2,000 and 1,000 complaints per year (respectively), but limited evaluative data
suggests that very rarely have these resulted in action against a judge. What
is of particular interest here is that the complaints are overwhelming about
unjustifiable delay (France) and the only two cases of sanctions against judges
in Spain were in response to very serious delay.[38]
This is an area which is susceptible to both legal and administrative
assessment, as will be seen in more detail below, but which is fundamentally a
quantitative measure of time lapse. The very limited number of cases resulting
in sanctions suggests that it is difficult for citizens to take action against
judges through a disciplinary system controlled (as in both these cases) by the
judiciary. That successes have been limited to matters involving delay suggests
that this is the major concern of court users (for which there is some
corroborating evidence)[39]
and also that it is one of the few areas in which disciplinary committees can
or will find against judges.
The experience of introducing an ombudsman in the
Netherlands and in Austria has been particularly interesting with regard to the
line between legal and administrative or publicly-driven procedures. In the
Netherlands complaints may only go to the ombudsman after they have been dealt
with internally by the courts. Even this involvement of an ombudsman is
intended as a temporary solution only while more internal checks are
implemented by the courts themselves. In order to preserve the independence of
the judicial procedure, on-going proceedings may never be investigated by the
ombudsman.[40]
Similar provisions exist in Austria to avoid any possible interference in an
on-going matter. These have extended to preclude the ombudsman investigating
any judicial proceeding other than administrative cases. Having originally
argued that the scheduling of hearings is a function of court administration,
and thus within his domain, it has been decided that the Austrian ombudsman may
not investigate any judicial proceedings.[41]
These brief comments on attempts to introduce
innovative elements into the assessment procedures of the legal system indicate
some of the difficulties involved in relating the assessment process to the
performance of the judicial system or the judge rather than to the outcome in
an individual case. As some of these instances suggest, insulating the judges
from outside influences during the course of a trial is among the most deeply
held principles in the legal system. Where this issue may be open to challenge
is at that point after a trial where action may be appropriate retrospectively,
and at the interface between judicial and administrative matters characterised
by delays in decisions and in the scheduling of hearings. In these matters the
judiciary closes ranks and insists that due to their being of a judicial
nature, any outside involvement would transgress the principle of judicial
independence.[42]
The legal processes of quality control through
judicial and appellate processes are generally so well established and so
deeply ingrained in the nations constitution and laws that they are almost
invisible from the point of view of quality assessment in relation to reforms.
Where they have been conspicuous is in the jurisprudence that has grown out of
decisions of the European Court of Human Rights (ECHR). A number of the
countries reported that decisions involving appeals under Article 6 (right to a
fair trial) of the European Convention of Human Rights had repercussions for
the quality assurance of their justice systems. Article 6(1) includes the
provision that everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
Findings that trials had exceeded a reasonable time
were more commonly cited than any of the other grounds, reflecting the pattern
of complaints reported above. Finland, priding itself on average handling times
of 2 to 13 months, was surprised by an ECHR finding of excessive delay (3
years) in an appeal case, but this was seen as a statistical outlier and no
systemic approach was taken to address delay.[43]
The report from France also notes successful appeals to the ECHR on grounds of
exceeding reasonable time, and of the independence and impartiality of the
judges (the relations between the prosecutors and the court). In these and
other cases the Cour de cassation has taken steps to ensure future
compliance.[44]
From 2000 to 2005 Finland had among the fewest appeals to the ECHR on the
grounds of delay, while France was at the opposite pole.[45]
The capacity of ECHR decisions to go beyond the
individual case to influence the overall functioning of the judicial system
depends on the particular institutional setting in which it is located. Various
agencies of the Council of Europe (COE), notably the Committee of Foreign
Ministers of Member States, have responsibility for overseeing compliance with
decisions of the Court and monitoring the adequacy of measures taken by
national judicial systems to avoid repetition of such violations.[46]
This approach has demonstrated its capacity to produce
systemic changes which may not necessarily be desirable. The Italian case
illustrates this point. Until 2000 Italy was the country with the highest
number of appeals and violations on the grounds of excessive delay in court
proceedings, whose sheer number were practically blocking the decision-making
capacity of the ECHR. Consequently the Committee of Foreign Ministers asked the
Italian government to take steps to speed up judicial proceedings and to reduce
the number of appeals to the court. Even if the Italian government was not able
to achieve satisfactory results in case processing times, it was able to reduce
appeals to the Court, thanks to passage of the so-called Pinto legislation.[47]
This placed a judge within the courts of appeal to hear appeals against
excessive delay and also provided for compensation. Thus before being able to
appeal to the ECHR, a claim must first be screened by the Italian judicial
system which may eventually offer compensation. It is clear that this system
treats the symptoms rather than the disease, thus it has reduced the number of
appeals to Strasbourg but not the length of trials.[48]
The COE and the Council of Foreign Ministers nonetheless keeps the Italian
judicial system under observation, requesting annual reports and action plans
on the state of justice in order to examine the results in delay reduction.
This follow through on findings of the ECHR to
interventions at the systemic level represents a stimulating exception rather
than the rule. The legal decision, whether in a first instance court or on
appeal, is a prospective order applied to a specific case. The prime goal of
the judicial system is to uphold the authority of the law by ensuring the
recognition of the judicial decision. It is through this recognition that the
law reaches beyond the confines of the legal system itself, to the other
branches of government and to the public. However the judges have few
opportunities and fewer formal channels through which to gauge the efficacy of
their authority. In legal terms it can only be assured through conformity with
the procedures and substance of formal law, subject to checking by the
mechanism of the appeal. If an appeal points to systemic failures, as in this
Italian example, the judges interest in maintaining authority suggests
prospective legal action. This distinguishes it from accountability which can
also act retrospectively.
More commonly judicial decisions do not have systemic
implications. Legal accountability is not limited to the purely procedural
aspects we have been discussing above. In every legal system there exists
disciplinary responsibility with more or less effective procedures,[49]
which enable them to be checked, and also provide a type of fiscal
accountability which is usually limited to ensuring that processes for spending
and recording expenditure conform to formal requirements. The legal processes
which ensure conformity to the law reflect the importance the judiciary places
on protecting and reinforcing the fundamental principles and authority of the
rule of law, but tell us little about how they utilise the resources that the
State makes available to them. The many attempts to introduce systems of
managerial accountability are a response to this need. They include a wider
range of checks on the day to day activities of individual judges
B.
Managerial
All nine of the countries considered here have tried
to introduce systems of managerial accountability into their justice systems.
The results have not always been satisfactory.
Rather than try to give a full account of these
attempts we will describe only some of them in order to identify the
distinctive features of such an approach. We will note certain tensions between
these new approaches and the purely legal methods traditionally applied to
courts before trying to analyse some of the difficulties.
As organs of executive government answerable to the
legislature, ministries are the bearers of a culture and a tradition of
accountability and responsible government. As such they must ensure that public
funds are spent appropriately, and they also have responsibility for policy
implementation. This is also true of those judicial councils (such as the
Dutch)[50],
or court services (such as the Danish) that allocate human and financial
resources to courts and are answerable to the parliament or to the ministry for
this function.[51]
Policies implemented by these organisations in relation to courts range from
those areas close to judicial decision-making, such as the establishment of
time standards for handing down decisions, to areas involving administrative
and support services (e.g., those
which are increasingly provided to victims of crime). The line between judicial
decisions and managerial responsibility is well understood in theory, but in
practice there are numerous points of contact and, potentially, conflict.
Before considering examples of this contested
territory, it is worth commenting on an important difference in perspective.
While judges, as noted above, deal in decisions in specific cases, managers
deal in aggregates. Even those conscientious managers who understand and
measure case processing times with care and attention can be surprised, as were
the Finnish team, when an individual case is overturned for excessive delay by
the ECHR. To the manager or the statistician, this is an outlier, an
extraordinary piece of data which simply disrupts normal calculations. To the
court, this is an injustice which must be remedied in the specific case. The
gulf between the judicial and the managerial cultures may be illustrated by
further examples from the study.
Following the wave of interest in the new public
management,[52]
recent approaches initiated by government agencies such as ministries and
judicial councils seek to understand and evaluate the judicial system in terms
of outputs (such as the number of cases resolved). They can even be designed to
put pressure on judges and staff to achieve specific objectives, in the style
of management by objectives (MBO).
For instance in Finland the Ministry of Justice[53]
has collaborated with the court offices to introduce systems of MBO that apply
both to the individual judge (still being trialled) as well as at the national
level, following the introduction of this approach across the whole national
public administration[54]
in 1995. The system assesses the courts performance using indicators of their
productivity, economy and efficacy. Productivity is calculated in terms of the
number of decisions per judge or per unit of administrative staff. The
principal indicator of the economy or efficiency of the courts is the cost per
decision, calculated by dividing the annual budget of a particular court by the
number of decisions made by its judges. The calculation of efficacy is more
complex. It is based on the assumption that the length of proceedings is
fundamental to the judicial process and the rights of the citizens.
Consequently case processing times are taken as the key measure of efficacy.[55]
Even though these indicators were developed in order
to allocate resources to particular court offices, their use for this purpose
does not follow automatically. The indicators instead form a source of
knowledge on which to base discussion around the negotiation of the budget of
each individual court. They are also used during annual meetings to help the
Ministry of Justice and the heads of each court office to define the objectives
to be met. Although this soft approach should allow even handed negotiation
between competing values, it has been criticised by the judiciary. Some have
argued that the definition of objectives by officials of the Ministry would
violate judicial independence which is protected by the Constitution. Others
maintain that with the introduction of the system of management by results the
judges attention would shift to the number of cases and their processing
times, thus reducing the quality of the decisions.[56]
It was also suggested that the system of measurable objectives could not be
implemented by the courts. The Ministry of Justice replied:
The judiciary through its
management by results system may not interfere with the objective and
subjective independence of the courts in their decision making and other
application of the law, which is the real essence of the independent judicial
power safeguarded in the constitution. The fact that general information about
handling times, [] is written in documents of courts dealing with management
by results does not in itself lessen or endanger the independence of the court
in reaching a decision in individual court cases. [57]
The Finnish Ministry of Justices gentle and
collaborative approach, while avoiding open conflict between the judiciary and
the executive, may nonetheless provoke a judicial reaction. The executives
introduction of a system of management by results that emphasises the courts
productivity and efficiency promotes values and interests identified as
managerial. This has the potential to create equal and opposite reactions from
the judiciary who for their part emphasise the legal and normative values of
the judicial process. In this situation zero sum games may arise between the
judiciary and the executive so that the final outcome depends almost
exclusively on the relative strengths of the main players.
The introduction of management by objectives in Italy
has led directly to the realisation of this concern. In this case, instead of
starting with instruments to evaluate the functioning of the judicial system, or
of the individual office, the new system set out to evaluate the results
achieved by the managers of each court office, with consequences for their
remuneration and career prospects. These did not cover the work of the courts
chief judge. In practice, each office manager must, after a frank discussion
with the chief judge, define the organisational objectives to be met.[58]
It is taken for granted that these objectives do not include the outputs of the
whole court, for example the number of civil cases to be dealt with in the
current year, on the grounds that this would violate judicial independence.
Instead the objectives are exclusively those of the individual managers and
their limited areas of responsibility. In contrast, the chief judge, who has
the broader responsibility for the whole courts performance, is completely
excluded from the evaluation process. Consequently the objectives defined by
the manager are strictly limited to administrative tasks such as reducing
filing backlogs and are marginal to the legal and managerial objectives, like
reducing the cost per judicial decision. Clearly responsibility for objectives
of this type must fall squarely on both the heads of the individual court: the
judicial and the administrative managers. In order to evaluate the courts
management, the results achieved by both managers must be considered together
as in the Dutch case.[59]
The Italian Ministrys decision to limit its
MBO-driven evaluation to the administrative managers could be interpreted as a
strategy of stealth which first attacks the point of least resistance (the
administrators). After that position was consolidated one could extend it to
the judiciary. However, we have seen no trace of any argument which would
support that interpretation. The Ministrys official explanation seems instead
to rely on the necessity of developing an adequate information system to allow
monitoring of the objectives of each court office before extending the system
of MBO. More precisely, the system should provide in real time an up to date
picture of the on-going progress in order to permit timely intervention to
minimise the divergence between the stated [objectives] and the current
situation.[60]
Maintaining that this statistical information system is a prerequisite to further
extension of the evaluation appears to be little more than a technocratic
excuse.
As we saw in the Finnish experience, a system of MBO
can be based on a small amount of essential data. This need not be considered
as an objective representation of the true functioning of the court office,
but as base line information from which to negotiate budgets and objectives.
Instead the one-sided Italian solution clearly reflects the logic and the power
relations of the particular historic moment. The Ministry of Justice has not
yet seen fit to extend this system to the chief judges because this would have
led to a battle they could not have won. This is why the system has focused
purely upon the weakest link in the chain: the administrative managers of the court
office.
Instead of opening a broad discussion among the
various institutional, social and political interests, the Ministry used
technocratic means to tackle the problem internally. This involved a search for
informatic solutions deemed indispensable to the development of the system,
which simply put off the need to define its essential elements: its legitimate
objectives, who was to identify them, and the link between outcomes and
financial allocations. This may take into account not only allocations to court
offices as a whole, but also the remuneration and selection of the heads of
those offices. These crucial questions must be confronted to avoid a purely
ritualistic use[61]
of this management tool.
Austria and Spain have developed ways of measuring
output relating cases to numbers of judges. The Austrian approach is based in
the Ministrys computerised personnel information system and can be used to
calculate the number of judges needed in particular courts.[62]
The Spanish measures were developed by the Judicial Council and are intended as
a means of rewarding judges according to their productivity, offering bonuses
or penalties of up to 10% of salary.[63]
Unsurprisingly there has been substantial resistance to the principle of paying
judges according to the number of cases they process.
As far as we know this is one of the few such systems
to have been applied to the judiciary. As in the Austrian case, the Spanish
system has been used originally to establish the number of judges and staff
needed in different courts. The system, based on so-called output measures (mdulos de dedicacin) was quite rough
and gave only a broad indication of the number of cases that each office could
realistically process. The system was criticised by the judiciary on the grounds
that the measures did not take into account weightings for different types of
cases.[64]
In 1997 the Spanish Judicial Council[65]
collected the various critiques in a white paper which also proposed means of
refining the output measures. Groups of expert judges developed new measures
calculating the average times it took judges to dispose of various types of
cases. In 2000 new output measures were approved that, since 2003, have been
used to determine the judges needs and also affect their remuneration. In
practice, those judges who deal with at least 20% more cases than the module
anticipates receive additional remuneration (from 5 to 10% of their salary).
The Judicial Council has decided that for now it will not use the modular
system also to sanction the less productive judges by reducing their salaries.[66]
Not surprisingly, the introduction of this remuneration system has drawn strong
criticism from the Spanish judges. Two of the judges associations, even though
they accept the need to evaluate the judiciary, consider the system
insufficiently reliable to form a basis for remuneration. A third association
has been far more radical in its critique, calling the system
productivity-focussed and mean and incompatible with judicial activity.
Despite these strong criticisms, the Judicial Council continues to apply the
measures to determine a performance based salary, and is working to improve the
methodology. Recently, a consultancy firm has produced a new system to record
the productivity of judges which should permit a more comprehensive evaluation
of their work. The new system is much more complex. It is based on several
clusters of indicators covering five areas of judicial activity: efficacy,
quality, timeliness, commitment and professional development.[67]
In 2006 the Tribunal Supremo decided that the
law which established the mdulos (15/2003) contravened articles 402 and
403 of the Ley Orgnica del Poder
Judicial requiring the state to guarantee the economic independence of the
judiciary, and to base judicial remuneration on objective, equitable and
transparent principles.[68]
Consequently the mdulos are no
longer applied.
France has embarked upon a far more ambitious
programme to link budgets to results. The Loi
organique relative aux lois de finances (1 August 2001) was a national
initiative of the legislature which applied to all ministries: they were
required to submit budgets according to missions and programmes, whose
objectives and results were to be examined by Parliament as part of the financial
allocation process. The Justice Ministry responded with ten objectives, each
with indicators of the courts success in achieving them, under the headings of
socio-economic efficacy (e.g.,
access, involvement with victims), quality of service (e.g., delay reduction, sentencing options) and effective management
(case listing).[69]
The debate in France now concerns the appropriateness of the objectives and
indicators, rather than the principle of budgetary accountability on which the
law is based.[70]
However, since the objectives and indicators were developed by the Ministry
without any transparent process or the involvement of the judiciary, it has
been suggested that opposition to the law may focus on concerns over
independence.[71]
In the Netherlands the process of developing measures
of quality was developed in conjunction with the establishment of a Judicial
Council. On its establishment in 2002 the Council was made responsible for
distributing resources within the judicial system. A program to strengthen the
organisation of the judiciary was established as a judicial initiative, and it
was this group which developed quantitative measures of cases, personnel and
time, originally based on the EFQM model (mentioned at the outset) and updated
through regular research. These measures, together with planning proposals from
the courts responsible for their implementation, now form the basis of annual
resource allocation.[72]
While the Justice Ministry had been reluctant to impose accountability on the
courts, to avoid perceptions of interference with judicial independence, the
accountability has been devolved to the link between the judicial council and
the judges even though the Minister is still responsible to Parliament under
the Constitution.[73]
According to the documents made available to the quality of justice project
there seems to be little substantive difference between the measures used by
the French and the Dutch systems. Indeed, with their emphasis on policy areas
as diverse as victim support and alternatives to custodial sentencing, the
French measures may be less rigid, technocratic and econometric than those
developed in the Netherlands. The difference, according to the judicial
critique, derives from the source of the values that are embodied in the
measures: the ministry or the judiciary. Judicial reactions have had more to do
with process than results.
The Dutch, Austrian, Italian and Spanish measures
considered here are internal management systems which do not achieve external
transparency and which were criticised (in the
Spanish case) for confounding cases of different degrees of complexity.
Whether developed by a judicial council or a justice ministry, to the extent
that they have been successfully introduced, they signal the growing force of a
managerial approach to the administration of the courts.
The systems of managerial accountability in the
participating countries include a number of more or less rigorous mechanisms
for evaluating the functioning of the judicial system. These organisational
management evaluations have consequences, either at the level of the allocation
of resources to various courts and court offices (Austria, France, the
Netherlands and Spain) or in some cases for the remuneration of personnel
(administrative managers in Italy, judges in Spain). These instances highlight
some of the differences between legal and managerial forms of accountability.
Evaluations deriving from models of managerial accountability conceive the
relevant unit of analysis as aggregated data rather than the individual case.
Their methodologies are thus statistical or economic and their evaluation
criteria are no longer established by the norms of the legal system but by the
authority with overall responsibility for managing the justice system: a
justice ministry or a judicial council. Judicial councils, as organisations of
the judges themselves, have been more ambitious (in Spain) and more successful
(in the Netherlands) in introducing managerial measures of the judicial
process. In either case, the values and interests which are protected and
supported are principally those of efficiency and efficacy in achieving
internally defined objectives.
We can draw some tentative conclusions from the
managerial forms of evaluation considered above. The first point to note is
that the cost of using these systems is directly related to their complexity.
The Italian and Spanish cases indicate, albeit in different ways, a worrying
tendency to make the means of monitoring activity ever more complex and
fragmented and, therefore, costly.[74]
This may be due to the technical difficulty involved in measuring such complex
and multi-faceted tasks as those of the judge. It may also derive to some
extent from the judges dissatisfaction with the type of knowledge which is
produced by these systems. As we noted above, managerial systems operate at the
level of aggregated and general data, rather than those individual cases on
which the judge must focus.
In the face of the conflicting approaches to
professional practice of the manager and the judge, monitoring systems acquire
more and more layers of analysis, each one adding to the complexity and
fragmentation of the one before. As long as these fundamentally different
approaches are treated in a technocratic manner, the diverse underlying means
of understanding the job of the courts are unlikely to be reconciled. Rather,
the problem becomes more acute as the economic and statistical knowledge
produced diverges ever further from the way in which judges usually understand
their role, as arbiters in the individual case.
The above discussion has nonetheless shown at least
one way in which the problem may be rendered less acute. The Finnish case shows
the potential benefit of treating the data produced by the managerial systems
as a foundation for discussion in a collaborative process, rather than as
absolute data to be applied automatically. This approach seems more reasonable
in part due to the difficulty of correctly interpreting the meaning of
particular data or of all the information collected by these systems. It also
offers opportunities of avoiding the risk that managerial values may prevail
to the neglect of the other values which must be protected in the judicial
processes. It is of particular importance, where one institutional value may be
seen to trump the others, that the data be interpreted and the outcomes
evaluated from the points of view of all the relevant interests and values.
C.
Public
The public forms the rhetorical apex of the dual
systems of accountability and authority. Both the judiciary and the other
branches of government appeal to their position vis vis the public, either as citizens authorising and
respecting their authority or as the voters and taxpayers to whom they are
accountable. If the ministry justifies the introduction of managerial
accountability to show the taxpayers they are getting value for money (as in
Austria), the judges protect their authority by appeals to judicial
independence (as in Spain or France). That these appeals so often result in the
zero sum games discussed above may be related to a paucity of reliable
information about the wishes and beliefs of the public.
A fundamental difficulty here is the vague meaning of
the term public, including the people or the People, those manifestations
of interested parties and sovereign will that we discussed previously. A great
deal may ride on whether we view the people as taxpayers, citizens, clients
of the court or parties to an action before the court. It is possible to map
some of these distinctions and thus to see the derivation of particular
viewpoints, as we will have occasion to do shortly. The next step however is to
review the traditional forms of public scrutiny of the courts and justice
systems, as we have done with the traditional legal and managerial forms.
The public gaze is a fundamental guarantee of the
fairness of the trial and a condition of justice.[75]
The demand for public scrutiny of the judicial function was elucidated in the
years immediately after the French Revolution when Mirabeau insisted to the
Constituent Assembly that even the most corrupt judge could be trusted la face du public.[76]
It was again defended in response to the crisis in the United States following
the publicity of the O.J. Simpson trial, by the director of the American
Judicature Society: if the rule of law, and the independent judiciary that is
required for it, are to be maintained, the public must support the legitimacy
of these institutions [...] we believe that openness and public access is [sic]
the ultimate guardian of fairness in our justice system.[77]
This approach to public scrutiny is on the one hand a legal version of
accountability: the public must see justice as being done. On the other hand it
is a guarantee of judicial authority, so that the public [...] support the
legitimacy of the courts.
A third possible way to guarantee the openness of
courts is through the direct involvement of the people in judicial decision
making. In the countries considered in this research,[78]
this operates to improve the capacity of the court system to decide cases in
specific matters (e.g., lay members
of commercial or labour tribunals) or to improve the legitimacy of the decision
in the most serious crimes (e.g.,
juries in the courts of assize), rather than to make judiciaries accountable to
the people.
Crises of legitimacy of justice systems may be almost
endemic, as appears to be the case in Latin Europe, or they may be prompted by
specific events. The most spectacular of these which our research encompasses
was the public outcry over the Dutroux affair in Belgium. The bungled
prosecution of Dutroux for child sex offences led in October 1996 to the
massive demonstration known as the marche blanche, considered to be
Belgiums most important protest march since the second World War.[79]
The government and the justice system were obliged to respond to this political
and legal crisis: a parliamentary commission as well as a number of internal
inquiries were charged with investigating the sources of public discontent and
recommending reforms. The diagnosis appears to have been summed up as mal connu, mal aim, leading
to attempts to bridge the perceived gulf between the courts and the public.
While a considerable programme of reforms has been discussed in Belgium, the
tangible results during the study period appear to have been limited to
policies aimed at improving of the position of victims of crime and providing
more information and better orientation to the courts and their processes for
both victims and offenders.
While critical events like the marche blanche
can prompt urgent and unusual responses, the normal functioning of justice
systems are oriented on one hand to fiscal accountability and on the other to soft forms of accountability,[80]
such as transparency measures which often amount to little more than
leaving the courtroom door unlocked. In the absence of any genuine involvement
by or reliable information from the public, the various mechanisms for ensuring
internal accountability and the passive public gaze are deemed to guarantee
adequate measures for reporting back to the people. As institutional checks on
the authority of the people and accountability to the public, these legal and
fiscal mechanisms operate with few means to register any dissenting views or
take any action as a consequence. Parliamentary processes offer occasional
channels for active scrutiny or public direction of the justice system. These
have differing levels of access to the judges, the courts and the policies of
the ministries or judicial councils, as will be seen in later examples.
The experiences of the nine
nations in the study provide useful examples of the need to gain information on
the views of the public as a real, and not simply abstract, collectivity, and
to see what consequences this information may have. In contrast to the well
established techniques of evaluation embedded in the legal and the managerial
traditions, those involving the public are indeterminate in both their origins
and their outcomes. The uses of public opinion polls in evaluations of justice are common examples of research without consequences. Courts
and justice ministries solicit opinions from the public and also use opinion
polls which may be independent of the ministries. Many of the national reports
referred to surveys of citizen confidence in the justice system, such as those
of the regular Eurobarometer surveys of public opinion carried out by the
European Union.[81]
These were most often cited by the Latin countries, where public appraisal puts
the courts at the lowest end of the scale of public institutions. France and
Italy rate their justice systems at or near the bottom of the scale of public
satisfaction. The Spanish report notes that only in those two countries and
Portugal do citizens rank their judiciary lower than they do in Spain, where
only the politicians and their parties are lower on the scale of satisfaction
than the courts.[82]
These broad public opinion surveys, though disturbing for the countries at the
bottom of the scale and, no doubt, reassuring for those at the top, give little
indication of where the problems lie, let alone what to do about them.
Surveys of court users provide more detailed and
potentially more useful information. Surveys in Finland indicate that court
users are less satisfied with the courts than are citizens in general, while
the converse is true of Spain.[83]
Since court users form their opinions from experience rather than by the public
image or media representation of the courts, we would also expect them to be
better informed. Well structured surveys of court users indicate in more detail
just where the problems may lie. Themes emerging from surveys in France,
Denmark, Portugal, Spain and Finland point variously to accessibility (cost and
complexity), delay, fairness and judicial competence as issues of importance or
concern to users.
Of greater interest are some of the findings on
fairness and competence of judges, in part because they begin to give us some
insight into how the users evaluate these qualities. In Portugal court users
were concerned at favouritism,[84]
while French users referred to inequality in the administration of justice (ingalit
devant la justice).[85]
These comments flag somewhat different public perceptions of judicial impartiality
than the independence from executive government to which the judges
traditionally refer. We return to this issue in more detail below.
Respondents in France and Portugal questioned the
competence of judges in regard to the comprehensibility of their written
decisions.[86]
In Spain there was concern that judges did not adequately understand the case
before them.[87]
Data available from detailed surveys in Denmark proved to be useful in a
controversy following a law professors criticisms of the inadequate reasoning
of appeal court judgements. The critique focused on, but was not limited to, a
particular case in which no reason was given for reducing a five year sentence
to four years. A financial newspaper reported interviews with lawyers who said
they were shocked by badly written and incomprehensible explanatory
statements from one of the courts particularly criticised in the law professors
article. The President of that court responded by quoting survey data which
indicated 82% user satisfaction with court services, but only 59% satisfaction
with judges explanatory statements.[88]
Here the data was relevant and available on a court by court basis, so it was
actually available to address a particular controversy. The end result of that
affair has been that the Judicial Council prepared a new language policy
[that] aims at establishing general guidelines for explanatory statements,
which will make them more concise and comprehensible.[89]
Other instances in which informed public opinion has
led to changed practices are seen in the Netherlands and again in Denmark. Both
cases involved public concern over possible conflicts of interest among judges
who were engaged in other employment, either as a sideline job (Denmark) or who
were selected as part time substitute judges from among practising lawyers
(Netherlands). In Denmark public reporting of sideline jobs in 2001 indicated
that judges were earning average additional incomes of 11,000 - 88,000 per
annum (depending on the court), most of which came from private arbitration.
Concern was based on whether such judges are deprived of adequate time for
court work (which was denied by court presidents) or whether there were conflicts
with impartiality.[90]
Impartiality was at the heart of public concerns in the Netherlands where a
pressure group, Court Watch, investigated possible conflicts of interest,
notably where a substitute judge may be hearing a case involving a colleague
from the law firm in which they normally work. Court Watch has forced the
courts to publish the secondary functions of all their judges on the website
for the judiciary.[91]
The ambivalence in judicial
attitudes to public opinion, seen in Garapons characterisation of the public
as both guarantee and menace[92]
is illustrated in confrontations between judicial decisions and public opinion. Controversies over inadequately harsh sentences for
crimes, highlighted in the media, seem almost to be a ubiquitous, if not perennial
phenomenon. National reports from France and Denmark reflect similar patterns
of events and reactions in the two countries. In France this debate followed a
reorganisation in 2000 of the responsibilities of the juges dinstruction and the
juges des liberts et de la dtention (who deal with applications for
alternatives to detention) which saw a marked decline in incarceration rates.
Public reaction highlighted issues of security as a result of this decline,
and, as the national report puts it, the jurisprudence changed: the number of
committals to provisional detention increased significantly, independent of any
legislative change.[93]
In Denmark the debate over sentencing for violent crime was heated, with judges
accused of being flabby humanitarians by a member of Parliament. With the
judges and the government resisting pressure for legislated mandatory minimum
sentences, it was found that average sentences for violent crimes had increased
from 87 days imprisonment in 1995 to 119 in 2000. This data tracks changes
following a 1994 legislative change which allowed harsher sentences.[94]
It is unclear how much of this change is attributable to legislation and how
much to judicial responses to public opinion, as in France. The apparent accommodation of the judges to
public opinion in these instances suggests that while it may be denigrated as
irrational and formally discounted as a source of judicial decision-making,
public opinion may operate in unacknowledged and unofficial ways.
We may draw some tentative
conclusions from this brief summary of the role of the public in assessing and
directing the justice systems under discussion. The public, in its various
guises as citizens, voters, taxpayers and users of court services, has a
legitimate interest in the quality of justice. Up to this point we have
identified few initiatives which bring together that interest with any
effective mechanisms for assessment and reform. Public opinion is often
solicited in forms which have little relevance to policy implications and
therefore few consequences for the reform of justice systems. When there are
perceptions of a crisis of legitimacy or of deep-seated public criticisms of
the justice system, responses are inconsistent. While often purporting to
better inform the citizens as to the processes of justice, the nexus between
information and outcomes remains tenuous. Judges pride themselves on their
aloofness from public opinion while apparently accommodating it almost
surreptitiously. The judiciary may well be as poorly informed about public
opinion as the public is held to be about judicial processes. The information
available to most justice systems (ministries, judges and judicial councils
alike) is based on media reporting of crime, justice and public responses (through
editorials or sound grabs) of dubious validity, and opinion polls of equally
dubious relevance to key policy issues.
The various forms of public
input to the justice systems we have been reporting do, however, suggest some
common themes and possible directions. When they are able to express views
about substantive issues of justice, through well directed surveys or well
informed pressure groups, public perceptions are more sophisticated than the
irrational or archaic and uncontrollable mechanisms feared by the judges as
the other face of the public guarantee of justice.[95]
Evidence from Portugal, France and Denmark shows that people truly desire to be
better informed about the processes of justice through comprehensibly argued
judicial decisions. This is clearly important to individual litigants, but also
relevant on a broader scale to sentencing decisions. In addition we have seen
that the users of the justice systems of the Netherlands, France, Portugal and
Denmark consider the impartiality of judges to be important and threatened. Of
particular and perhaps surprising interest is the nature of that impartiality
and the source of its vulnerability. In contrast to the frequently expressed
concern that the judiciary must maintain its independence from ministries or
the interference of governments, the impartiality envisaged by the users has
more to do with equality between the parties. This is threatened when judges
have second jobs, which might mean working with other lawyers who may appear
before them, or when prosecutors are perceived to be working out of the same
office as the judge. This is a simple and fundamental conception of
impartiality which serves as a reminder that the separation of powers was never
more than a necessary but not sufficient condition for the more basic principle
of fair judgment.
The foregoing discussion of
some current European practices employed in evaluating the quality of judicial
activity within the context of the justice system has highlighted a number of difficulties.
In conclusion we try to analyse certain factors underlying such problems in
practice, and relate these to any indications of a possible way forward by
reference to the earlier consideration of the principles upon which justice
systems are based. A couple of the more promising examples arising from the
research will again introduce a practical element to the discussion before we
sum up with some tentative general proposals.
The distinctive power bases of
the key players involved in the delivery of justice are explicitly enshrined in
the principle of the separation of powers. According to that doctrine, judges
are to remain independent of the executive power and, a related issue, aloof
from popular influences. As a principle of long official and even
constitutional standing it underpins many of the institutional arrangements, as
well as the habits of thought, obtaining in justice systems. Indeed, with the
proliferation of judicial councils as a bulwark between the judiciary and the
executive, the doctrine appears to be enjoying a period of particular
influence. While powers should perhaps be separated through institutional
internal divisions, evaluative mechanisms do not thrive on them. The research
found many instances of unilateralism and entrenched opposition based precisely
in these divisions of power. We have on many occasions referred to the zero sum
games that result.
The evaluation of quality and
other means for ensuring accountability and conformity to standards of law and
good practice are widely understood to be desirable and even essential to
public management and to justice alike. Whether the pressures come from adverse
findings of the ECHR, from parliaments demanding more formal and specific
accountability, or from cash-strapped ministries, it often becomes obvious that
new evaluative mechanisms must be implemented. When these have failed we have
commonly noted one or two underlying factors: either a ritualistic adherence to
some tenets of evaluative practice, or a more or less cynical justification of
the means by the ends. In the former case the mechanisms and processes take on
a life of their own, so that increasingly elaborate data collection protocols
(or measures, or information technology) are understood as the solution to problems
which really arise in the very conception of the process. Losing sight of the
goals of the evaluation system, as of the justice system itself, attention
shifts to the minutiae of the data and away from the purpose for which it was
required in the first place.
If ritualism mistakes means for
ends, a narrow focus on the quick fix makes the converse error. With sufficient
will, power and cunning, a technological solution may be imposed on many
different problems. The Italian Pinto legislation is illustrative: through a
combination of domestic legal devices and the promise of compensation, appeals
to the ECHR on the grounds of delay were reduced without reducing the delay itself. Less spectacular examples of
technical solutions to juridical, managerial and political problems were seen
in the automatic connections made by some justice ministries (Austria) and
judicial councils (Spain) between evaluative devices and financial allocation.
The Spanish system of output measures as a basis for judicial remuneration
illustrates both ritualism and technologism: on the one hand, the measuring
system becomes an end in itself, losing sight of the purposes for which it
exists. On the other hand, the results of that measurement are applied
mathematically to financial outputs. By focussing the attention of the judges
on their salaries, of the ministry on the measures, and of both interest groups
on the nexus between the two, any broader interests or ends are effectively
eclipsed.
Some potential solutions to
these problems can be illustrated by some practical examples from the research.
Before turning to those we briefly revisit our earlier analysis of the
principles underlying justice systems to see what guidance they may offer. We
saw that both authority and accountability are means of representing interests
which cannot literally be present in a practical setting such as a court or a
ministry. The ministries and courts represent the traditional sources of
authority of the state and of law. Modern democracies also base the legitimate
authority of the state and the judiciary in the will and confidence of the
people, who are also represented as an abstraction, or in a few cases as a jury
or citizen judge. The representation of law, state and a sovereign people
prospectively authorises courts to pass judgment on those real persons before
the court who stand to lose property or liberty as a consequence. The authority
of the entire system must stand above the interests of the parties, including
the victims of crime, while being based in the represented abstraction, the
people. This paradoxical relationship between justice and the public leads to
various devices for keeping popular interests at arms length. Continually
represented only as an abstraction, the will of the people can be formally
canvassed in opinion polls, or informally (and unreliably) deduced from the
media. In keeping a distance between themselves and actual people with
interests, judges and justice systems may lose sight of the legitimate
interests of people as users of the courts. Where those interests have been
able to communicate effectively we have seen demands for timely justice,
competent and communicative judges, and transparent judicial impartiality. We
discovered more vocal citizen concern over judges connections with the private
interests of parties (through their other appointments, as in the Netherlands
and Denmark) than with those of public authorities.
Accountability is a
retrospective check on the representativeness of the justice system. This does
not imply that it should be any less broad in its conception of the interests
to which it must answer. Substantive issues of timeliness, competence,
communication and impartiality are as central to the system of accountability
as to that of authority. Courts are only accountable to the executive as a
means to the end of accounting to the citizens. And as we see in this overview
of citizens concerns, they are accountable for a great deal more than money.
This brief overview of the
principles which underlie the evaluation of judges in context bear out the
issues we identified in practice: the balkanisation of interests within the
justice systems; the ritualism of seeking evaluative mechanisms for their own
sake; and the search for a quick technological fix which will have assured or
automatic outcomes. This syndrome is collectively characterised by an approach
blinkered by partial interests and a hiatus between means and ends, so losing
sight of the underlying aims and principles of the justice system. Evaluative
mechanisms must take into account a complex of interests and values, not losing
sight of their diverse sources in the judges, office and ministry personnel,
citizens, lawyers, victims of crime and other court users. As long as many of
these interests are represented as abstractions, the views and interests of
real persons can only be adduced from the media or as a by-product of technical
data collection. That these interests often enter into the debate only as
representations of overarching demands for accountability versus independence stifles broader debate. If it were possible to
find ways for citizens, lawyers, politicians, judges and public servants to
work together to define the goals and priorities of the justice system, this
may help to reattach the ends of the justice with the means of evaluation.
If that suggestion seems
utopian, it may be opportune to return to some practical examples arising out
of the research which, we believe, point in some positive directions. We must
explore the extent to which various institutional actors may be involved in
assessing and implementing proposals that have a broader base than their own
immediate institutional environment. We see progress in those areas where the
demands of the public are heard, and when judges and managers work together to
respond to those demands as well as to understand each others values,
interests and modes of representation.
In addition to the Finnish experience of national
management by results considered above, it is worth drawing attention to a
local pilot scheme. This was begun in 1999 in the district of the Rovaniemi
Court of Appeal (which includes nine first instance district courts) where
quality targets were set by a Development Committee of the Quality Project
whose members are judges, practising lawyers and prosecutors. The committee
worked through a process that involved frequent communications among the
judges, and between the judges and the various stakeholder groups. These
communications included an increased dialogue among judges on court practices,
the formation of working groups, annual quality conferences and the preparation
of quality benchmarks.[96]
One of the results is the development of a new culture of communication between
all the actors involved in the judicial process.
The targets dealt with substantive legal and judicial
management issues, and were able to be assessed by fairly straightforward
measures. They included increased consistency in sentencing (initially in
theft, drink driving and assault, expanded to narcotics cases the following
year), overcoming impediments to the preparation of civil cases (in
consultation with lawyers), leadership skills in the admission of evidence,
improvement in the quality of written judgements and increasing participation in
judicial training (to 100%) with some expansion of postgraduate study. Not only
was this an innovative local quality assurance pilot scheme, but it was itself
evaluated,[97]
with such positive results that it was recommended for nationwide adoption and
was awarded a European prize for innovative practice contributing to the
quality of civil justice.[98]
In contrast to the various arrangements, noted
throughout this article, by which the judiciary, the ministry and,
occasionally, the parliament act unilaterally and without regard to each others
interests and values, recent developments in Denmark have been dynamic and
exemplary. With the introduction into Parliament of the bill to establish a
Judicial Council there was extensive debate between the Ministry, the
Parliament and the General Public Auditor on the allocation of funds and the
responsibility of the Council. The Parliamentary opposition and the Auditor
(who is independent but reports to Parliament) considered that the Auditors
office should have the same powers and responsibilities in relation to the
courts and the Judicial Council as apply to any public agency. This being
conceded, the stumbling block became the sanctions that could be imposed upon
an independent judicial council in the event that there were irregularities in
its accounting for resources. The Council was established in 1999 on the basis
that the Auditor can criticise and instruct the Council to take any measures
agreed with the Minister, who can dismiss the entire Council if it does not
comply with such instructions.[99]
These arrangements were put to the test soon enough when, in 2000, the Auditor
and the Ministry of Finance criticised the productivity of certain district
courts. In response to these concerns the Judicial Council developed goals and
introduced and evaluated a new district court reporting regime including
productivity measures and targets which led to a 10% productivity increase. The
process implemented by the Council includes qualitative comment back from the
courts, which has allowed improvements in the data collection. This has
consequences in decisions to fill vacancies, models for court staffing, and
flow-through to non-salary expenses. The Auditor is now satisfied with the
arrangements put in place by the Council.[100]
Key issues emerging from these examples revolve around
what is to be measured, who is to decide what those measures should be, and how
to negotiate what consequences should flow from the outcomes. Local
initiatives, as in the case of the Finnish Rovaniemi district, have the
advantage that the objectives are set by the same personnel who are to
implement them. While this makes for optimum levels of commitment and
responsiveness, it does not necessarily ensure accountability. At the other
extreme, then, objectives are set by the Ministry (as in the case of the French
performance measures discussed above) or by Parliament (Finnish national
system) and the courts are required to meet them to maintain their flow of
resources. Between these two systems we find various means of negotiating
objectives between the courts and auditors, ministries or parliaments. Where
these objectives are purely related to managerial accountability, as in the
case of the Danish Auditor, they are limited to quantitative productivity measures.
They may also be used as tools of policy which again brings us back to the
question of who is to determine the policy directions to be pursued by the
courts.
The traditional lines of
responsibility of judges and managers have been challenged in many of the
instances of evaluation considered by the research projects. This may derive
from the application of new public management principles to the operation of
courts. It has also been stimulated by institutional reforms such as the
establishment of judicial councils (as in the Netherlands and Denmark). These
innovative approaches, in which judges are expected to respond to managerial
criteria, or managers to public criteria (to suggest two of the possible
combinations) are more interesting but also riskier than some of the one
dimensional procedures we discussed earlier. The most successful modes of
evaluation which this research identified were those combining the methods or
claims coming from different institutional positions. A common element in successful evaluation regimes with
positive outcomes has been the communication between players and the respect
for a wider range of values and interests. The involvement of the parliament or
court users has helped to overcome the stalemate between a judiciary relying on
authority and a narrowly conceived independence, confronting a ministry or
judicial council claiming the supreme importance of accountability conceived in
a narrow fiscal and managerial sense. The
role of the public has been most effective when it is represented by a well
informed lobby group (e.g. Court Watch in the Netherlands). Across the various
Danish examples we have mentioned, effective public participation has included
lawyers and a legal academic, the media and the parliament. Public participation
is least effective when the demands are vague and there is little or no follow
through (as in Belgium). The public can act as a circuit-breaker to the usual
zero-sum games.
Analysing the quality of
justice from the different points of view of the institutional and public
interests, it is clear that courts cannot be evaluated according to a single
dimension. The criteria to be applied must recognise the distinctive approaches
to representation which we found underlying both authority and accountability,
and need to be negotiated among these diverse and possibly competing interests.
While each of the criteria or interests has legitimate, and in many cases
established, means of evaluating justice from its specific point of view, we
have discovered the most promising examples to be those in which the
stakeholders represent their own and respect each others overlapping
interests. They negotiate the assessment criteria and the uses to which they
are put, and each has a stake in achieving successful outcomes.
* Legal Intersections Research Centre, Faculty of Law, University of Wollongong, NSW, Australia.
** Istituto di Ricerca sui Sistemi Giudiziari (CNR) Bologna, Italy. While this paper is the result of a joint effort of the two authors, individual sections may be attributed as follows. Richard Mohr: II, III A, and III C; Francesco Contini: I, III B, and IV.
[1] The
only countries without judicial councils at the time the study was carried out
were Austria and Finland. In Belgium, a council was established during our
research. While these councils have various names in their original languages,
all are councils and all refer to judicial power. We use the generic term
judicial council to apply to all those organisations distinct from the
ministries which are specifically responsible for the judiciary. T. RENOUX, Les Conseils suprieurs de la magistrature en Europe, Paris, La
Documentation Franaise, 1999.
[2] J.L. WALTMAN and H.M. HOLLAND, The Political Role of Law Courts in Modern
Democracies, London, Macmillan,1988.
[3] The
origins of public administration are in the inspecting and accounting
procedures mainly oriented to determining whether public money is spent by
courts according to proper procedures.
[4] G. STURGESS and P. CHUBB, Judging the World:
Law and Politics in the Worlds Leading Courts, Richmond, Butterworths, 1988, p. 184.
[5] C. DEFFIGIER et al., Qualit et Justice en France, in M. FABRI, P. LANGBROEK and H. PAULIAT,
The Administration of Justice in Europe:
Towards the Development of Quality Standards, Bologna, Lo Scarabeo, 2003, p. 236; M.-L. CAVROIS, H. DALLE
and J.-P. JEAN, La qualit de la justice, Paris, La
Documentation Francaise, 2002, p. 197.
[6] EFQM Excellence Model, http://www.efqm.org/Default.aspx?tabid=35
[accessed 27 September 2005].
NG, G.Y.,
Nederland, in M. FABRI et
al., Ladministration de la
justice en Europe et lՎvaluation de sa qualit, Paris, Montchrestien,
2005, pp. 305 and
328 [see bibliographical note].
[7] The
projects were: The administration of justice in Europe and the evaluation of
its quality, financed by the Agis programme of the European Union; Case
Assignment to courts and within courts, financed by the Dutch Ministry of
Justice; and Internal case allocation in courts, financed by the Dutch
Judicial Council. The preparation of this article has been supported by a
fourth research project: The quality of justice in Europe: policies, results
and institutional settings, funded by the Italian Ministry of Research and by
an International Strategic Links Grant from the University of Wollongong,
Australia.
[8] The
Research Institute on Judicial Systems of the Italian National Research Council
(IRSIG-CNR), Bologna, and the Institute of Constitutional and Administrative
Law at Utrecht University. Project leaders of the project The administration
of Justice in Europe and the Evaluation of its quality were the Mission Droit et Justice of the French Ministry
of Justice along with the other two Institutes already mentioned.
[9] The researchers were not formal representatives
of their countries, or their justice systems. However, we will, for reasons of convenience,
refer to their reports in brief by the names of the countries concerned.
[10] M. FABRI et al., Ladministration de la justice
en Europe et lՎvaluation de sa qualit, supra note 6; M. FABRI,
P.M. LANGBROEK and H. PAULIAT,
The Administration of Justice in Europe:
Towards the Development of Quality Standards, supra note 5.
[11] A. HIRSCHMAN, Exit,
Voice and the State, World Politics,
1978, No 31, pp. 90-107.
[12] A. SANDERS, Core Values, the
Magistracy, and the Auld Report, Journal
of Law and Society, 2002, No 29, pp. 324-341.
[13] H.F. PITKIN, The Concept of Representation, Berkeley,
University of California Press, 1972, pp. 8-9.
[14] Ibid., p. 55.
[15] Ibid., p. 57.
[16]
Latour observes that, of all the disciplines, the law has least suffered the ravages of modernism [] If we so often
mock the lawyers, it is because they have never really been modern; B. LATOUR, La fabrique du droit: Une
ethnographie du Conseil dՃtat, Paris, La Dcouverte, 2002, p. 267.
[17] But the judges []
are only the mouth that pronounces the words of the law [ne sont que la
bouche qui prononce les paroles de la loi]; MONTESQUIEU, De lesprit des lois, 1748,
http://classiques.uqac.ca/classiques/montesquieu/de_esprit_des_lois/partie_2/de_esprit_des_lois_2.html
[accessed 26 May 2006]; MONTESQUIEU, The Spirit of the Laws, transl., [A.M. COHLER et al., Cambridge, Cambridge University Press, 1989], p. 163.
[18] E.E.A. BREEN, Mesurer la justice? Elaboration dindicateurs de la
qualit de la justice dans une perspective comparative, Paris, Ecole Normale
Suprieure, Institut des Hautes Etudes sur la Justice, 2001, http://www.gip-recherche-justice.fr/recherches/rapports-recherche.htm [accessed 12
October 2005].
[19] J.L. WALTMAN and H.M. HOLLAND, The Political Role of Law Courts in Modern
Democracies, supra
note 2, p. 1.
[20] Italy, art 101 1; Portugal, art. 202 1.
[21] Spain, art. 117 1.
[22] H.F. PITKIN, The Concept of Representation, supra note 13, p. 55.
[23] J. Mc GARVIE, quoted in R.D. NICHOLSON, Judicial
Independence and the Conduct of Media Relations by Court, Journal of Judicial Administration, 1993, No 2, pp. 207-221.
[24] G. AGAMBEN, Means Without End: Notes on Politics,
Minneapolis, University of Minnesota Press, 2000, pp. 30-31.
[25]
Pitkin contrasts this authorisation theory with the accountability theory,
which sees precisely the converse; i.e., the representative is bound,
while the represented is free [supra
note 15].
[26] A. GARAPON, Il Rituale Giudiziario, in A. GIASANTI
and G.MAGGIONI, I Diritti Nascosti:
Approccio Antropologico e Prospettiva Sociologica, Milano, Raffaello
Cortina, 1995, pp. 289-305.
[27] We have followed
Agamben, in the discussion above, in distinguishing the sovereign
People from people with interests by use of the capital P. In the reminder
of the article, we will maintain normal use of the lower case p throughout,
distinguishing between these distinct roles of the people by context or
clarification.
[28] J. DOUGLAS and R. HARTLEY, The Politics of Court Budgeting in the States: Is
Judicial Independence Threatened by the Budgetary Process?, Public Administration Review, 2003, No
63, pp. 441-453.; American Bar Association, An Independent Judiciary: Report of the ABA
Commission on Separation of Powers and Judicial Independence, 1997,
http://www.abanet.org/govaffairs/judiciary/report.html [accessed 17 May 2006].
[29] G. STURGESS and P. CHUBB, Judging the World:
Law and Politics in the Worlds Leading Courts, supra note 4, p. 4.
[30] NCSC, Trial Court Performance Standard and Measurement
System, 2001, http://www.ncsconline.org/D_Research/tcps/index.html,
accessed on 6 June, 2006; NCSC, Court Tools, 2006,
http://www.ncsconline.org/D_Research/CourTools/tcmp_courttools.htm [accessed on
30 May 2006].
[31] A. LE SUEUR, Developing Mechanisms for Judicial
Accountability in the UK', Legal Studies,
2004, No 24.
[32] H.A. SIMON,
D.W. SMITHBURG and V.A. THOMSON,
Public Administration, New York, Knopf,
1961, p. 513.
[33] Ibid., p. 513.
[34] By
this, we mean those stakeholders who have legitimate interests in and
expectations of the organisation and its actions.
[35] The
law protects all the traces of disengagement to tirelessly reattach, by the
perilous tracks of the signature, the archive, the text, the file, the statements
to their speakers [les noncs leurs
nonciateurs]; B. LATOUR, La fabrique du droit: Une
ethnographie du Conseil dՃtat, supra note 16, p. 297.
[36] A. LE SUEUR, Developing Mechanisms for Judicial
Accountability in the UK, Legal Studies,
supra note 31, pp.
80-81.
[37] We will deal in more detail with the principles
underlying publicity and transparency when we come to the topic of public means
of assessment and accountability.
[38] C. DEFFIGIER et al., France, in M. FABRI, Ladministration de la justice en Europe et lՎvaluation de sa qualit,
Paris, Montchrestien, 2005, p. 268; C. DEFIGGER et al., supra note 5, pp. 152-153.
[39] This
is discussed below in relation to surveys of court users.
[40] Ng, supra
note 9, pp. 310-311.
[41] G.E.KODEK and M. STELZER, Quality and
Justice in Austria in M. FABRI, P.M. LANGBROEK
and H. PAULIAT, The Administration of Justice in Europe:
Towards the Development of Quality Standards, Bologna, Lo Scarabeo, 2003, pp. 14-15.
[42] More
could be said about the transparency of these processes and the importance of
evaluating them, but that would require more specific investigations than those
we are reporting on here.
[43] A. AARNIO et al., Quality and Justice in Finland, in M. FABRI, P. LANGBROEK and H. PAULIAT, The Administration of Justice in Europe:
Towards the Development of Quality Standards, Bologna, Lo Scarabeo, 2003, p. 209.
[44] C. DEFFIGIER,
supra note 38, pp. 267-268.
[45]
Authors analysis of cases brought before the ECHR under Article 6 1 of the European Convention on
Human Rights, from 2000 until 2005.
[46] F.
BUONOMO, Nuove regole per ladempimento
delle sentenze CEDU, Diritto e Giustizia,
2005.
[47] 2001 Law No 89.
[48]
D.CARNEVALI, La violazione della ragionevole
durata del processo: Alcuni dati sullapplicazione della Legge Pinto, in C.GUARNIERI and F. ZANNOTTI, Giusto Processo?, Padova, CEDAM, 2006.
[49] See the
discussion above on the limited effectiveness of judicial discipline; also G. DI FEDERICO, Recruitment, Professional Evaluation and Career
of Judges and Prosecutors in Europe, Bologna, Lo Scarabeo, 2005.
[50] P. LANGBROEK, Changing the Judiciary and Judicial
Administration: The Netherlands and Guatemala, in Empowerment, Security and Opportunity through Law and Justice,
Saint Petersburg, World Bank, 2001.
[51] This
is not the case for the Latin judicial councils -Italy, France, Spain, and
Portugal-, that are only in charge of recruitment, appointment, promotion,
training and discipline of judges.
[52] H. WOLLMANN, Evaluation in Public Sector Reforms: Concept
and Practices in International Perspective, Cheltenham, Elgar, 2003.
[53]
Finland does not have a judicial council or equivalent body.
[54] P. UUSIKYL and P. VIRTANEN, Public Sector Performance Contracting in Finland, Paris, OECD, 1999.
[55] A. AARNIO et al., Finland, in M. FABRI et al., Ladministration
de la justice en Europe et lՎvaluation de sa qualit, Paris,
Montchrestien, 2005, pp. 231-232.
[56] Aarnio supra note 43.,
pp. 176.
[57] Ibid., pp. 177.
[58] M. FABRI et al., Quality and
Justice in Italy, in M. FABRI, P. LANGBROEK
and H. PAULIAT, The Administration of
Justice in Europe: Toward the Development of Quality Standards, Bologna, 2003, p. 278.
[59] NG, G.Y., Quality of judicial organisation and checks
and balances, Utrecht, Intersentia, 2007, p. 110.
[60] F. PIANTELLI, La programmazione strategica e gli strumenti di gestione:
Esperienze a confronto, 2005, http://www.giustizia.it/newsonline/data/multimedia/685.pdf
[accessed on 30 may 2006], p. 2.
[61] J.MEYER and B. ROWAN, Institutionalized Organisations: Formal Structures as
Myth and Ceremony, American Journal of
Sociology, 1977, pp. 340-363.
[62] G.E. KODEK and M. STELZER, Quality and Justice in Austria, in M.FABRI, P.M.LANGBROEK and H. PAULIAT,
The Administration of Justice in Europe:
Towards the Development of Quality Standards, Bologna, Lo Scarabeo, 2003, p. 15; P. BAUER, A Show Case for the Future:
e-Justice in Austria, in M.FABRI and F.
CONTINI, Justice and Technology in
Europe: How ICT is Changing Judicial Business, The Hague, Kluwer, 2001.
[63] H.S. MUOZ, Qualit et Justice en Espagne, in M.FABRI et
al., The
Administration of Justice in Europe: Towards the Development of Quality
Standards, Bologna, Lo Scarabeo, 2003, p. 157.
[64] P. SIGNIFREDI, Misurare la produttivit dei giudici:
Il caso Spagnolo, Bologna, IRSIG-CNR, 2006.
[65] Consejo General del Poder Judicial
(CGPJ).
[66]P. SIGNIFREDI, Misurare la produttivit dei giudici:
Il caso Spagnolo, supra
note 64, p. 8.
[67] Ibid., p. 9.
[68] Tribunal Supremo, Sala de lo contencioso-administrativo, pleno,
sentencia, Votacin, 21 Feb. 2006.
[69] C. DEFFIGIER, supra note
38, p. 269; NG, G.Y., Quality of Judicial Organisation and Checks
and Balances, Utrecht, Intersentia, 2007, p. 235.
[70] J.-P. JEAN and H. PAULIAT, An Evaluation of the Quality of Justice in Europe and
its Developments in France, Utrecht Law
Review, 2006, No 2, pp. 44-60.
[71] J.-P.
JEAN and D. MARSHALL, Francia: Un controverso
progetto per migliorare il servizio giustizia, Questione Giustizai, 2005,
pp. 591-610, at pp. 594-595.
[72] NG, supra note
6, pp. 310-311.
[73] Ibid., p. 308.
[74]
United States experience indicates how quickly such measurement systems can
become so complex and onerous that they become almost impossible to use,
promoting calls for a return to simpler systems; B. OSTROM, Court Tools: A Court
Performance Framework, Williamsburg, National Centre for State Courts, 2006.
[75] A. GARAPON, Il Rituale Giudiziario, supra note 26, pp. 289-305, at p. 302.
Le Sueur refers to judges who appeal to these forms of
accountability as re-conceptualists, since they are reconceiving traditional
legal values and principles under the new demand for accountability; LE SUEUR, supra note
31, p. 76.
[76] Donnez-moi le juge que voudrez, partial, corrupt, mon ennemi mme, si vous
voulez: peu mimporte pourvu quil ne puisse rien faire quՈ la face du public; quoted in R.W. MILLAR, The Formative Principles of Civil
Procedure, Illinois Law Review,
1923-24, pp. 1-36, 94-117 and 150-168.
[77] F.K. ZEMANS, Public Access: Ultimate
Guardian of Fairness in Our Justice System, Judicature, 1996, pp. 173-175.
[78] The
role of lay judges and jurors varies considerably across the countries
considered. As a general trend, juries are used mainly in panels with
professional judges to try the most serious cases. But the involvement of lay
people in judicial decision making also includes the appointment to labour and
commercial courts of people who usually have some degree of knowledge on the
subject to be decided, as in France and Austria, and the district court in
Finland. Finally semi-professional judges, usually with some qualifications or
experience in law, decide minor cases in countries such as Italy and Spain
(justices of the peace). Portugal and the Netherlands have no lay judges.
[79] R. DEPRE and J.
PLESSER, Belgique, in M. FABRI et al., Ladministration de la justice
en Europe et lՎvaluation de sa qualit, Paris, Montchrestien, 2005; R. DEPRE and J. PLESSER, Belgium, 2005, p. 138.
[80] W. VOERMANS, Judicial Transparency Furthering Public
Accountability for New Judiciaries, Utrecht
Law Review, 2007, p. 3.
[82] H.S. MUNOZ, Qualit et Justice en
Espagne, in H. PAULIAT, The Administration of Justice in Europe:
Towards the Development of Quality Standards, supra note 63, p. 158.
[83] Ibid., p. 162; AARNIO, supra note 43, p. 208.
[84] B. SOUSA-SANTOS, C. GOMES and J. PEDROSO, Portugal, in M.FABRI
et al, Ladministration de la justice en Europe et lՎvaluation de sa qualit,
Paris, Montchrestien, 2005, p. 335.
[85] DEFFIGIER, supra note
38, p.266.
[86] Ibid., p. 266; SOUSA-SANTOS, supra note 84, p. 335.
[87] MUOZ, supra note
63, p. 162.
[88] The President also
invited dissatisfied lawyers to lodge formal complaints with the court.
Complaints, and the mechanisms for handling them, form another means of
evaluating justice systems, which fall between legal (including disciplinary)
measures and administrative ones. They are also a means of gaining direct
information from the public and lawyers using the courts.
[89] J. WITTRUP and P. SRENSEN, Quality and Justice in Denmark, in M.FABRI, P. LANGBROEK and H. PAULIAT, The Administration of Justice in Europe: Towards the Development of
Quality Standards, Bologna, Lo Scarabeo, 2003, p. 144.
[90] Ibid.,
pp. 131-132. An ironic aspect of this controversy is found in the remarks of
the Director of the Council of the Judiciary who in 2000 told regional seminars
of judges and clerical staff that one of the reasons for courts to improve
their performance was that they were in competition with private sector
providers of dispute resolution services [p. 140]. These are the competitors
for whom the judges are working in their spare time.
[91] NG, supra
note 6, p. 313.
[92] A. GARAPON, supra note
25, pp. 289-305, at p. 302.
[93] C. DEFFIGIER, supra note 38, p. 274.
[94] J.WITTRUP, supra note 76, p. 144-145.
[95] A. GARAPON, supra note
26, pp. 301-302.
[96] Quality Project
in the Courts in the Jurisdiction of the Court of Appeal of Rovaniemi, Finland,
2005. http://www.oikeus.fi/uploads/wz1uke8tvs.pdf [accessed on 6 March 2006].
[97] This
is a notable exception to the projects general observation of the remarkably
low rate of evaluation of specific reforms; A.SAVELA, Evaluation of the Quality of Adjudication in Courts of Law Principles
and Proposed Quality Benchmarks: Quality Project of the Courts in the
Jurisdiction of the Court of Appeal of Rovaniemi, Oulu, Painotalo Suomenmaa,
2006.
[98]AARNIO, supra note 39,
pp. 181-182, http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Operation_
of_justice/Efficiency_of_justice/Finalists%20E.asp#TopOfPage [accessed in March
2006].
[99] J. WITTRUP, supra note 76, p. 125.
[100] Ibid.,
pp. 128-129.