Is There
a Right Judge for Each Case? A Comparative Study of Case Assignment in Six
European Countries
Marco Fabri and Philip M. Langbroek*
I. Introduction
Case assignment is the core-business
of court organisations, because it touches upon some of the essential aspects
of rendering justice: judicial independence and impartiality, organisational flexibility
and efficiency. Organising case assignment properly is a necessary, but in
itself insufficient precondition for public trust in the absence of bias in the
courts, and it is also essential for a timely delivery of justice. The actual organisation
has to make certain that cases are not allocated to judges who have, or appear
to have, an interest in a case, or who may appear prejudiced otherwise; if a
wrongful allocation happens accidentally, the court organisation must have a
way to reallocate a case to another judge. This illustrates that case
assignment practices touch upon both essential principles of adjudication and the practicability of
everyday work in the courts. Would courts not organize case allocation
properly, the general public could maintain the vision that judges are not
impartial, inclined to favour parties they have a personal interest with or
even may be bribed. Media exposure on judicial impartiality in the courts may
have far reaching consequences for public trust. If the general public is of
opinion that judges are not integer, it will be likely to hold the judiciary in
low regard, and may not accept the authority of judgments. It therefore is
essential that case allocation processes are well organized and transparent.
Furthermore, under the rule of law, parties should have the possibility to disqualify
a judge, as an external check on the case allocation process. Nonetheless,
there may be different ways of organizing case allocation processes within these
normative margins.
We started this research on an
assignment from the Council for the Judiciary of the
Our main task was to make an inventory
of applicable rules and practices concerning case distribution among judges
within courts in different European countries. We were aware of the fact that
this question not only refers to the actual organisation of distribution of
cases within the courts. It also refers to the normative side of internal case
distribution within the courts; in other words, to the ways in which values such
as judicial independence, impartiality and integrity are safeguarded in the
case assignment process. This may happen with or without detailed legal norms.
We approached these aspects in our research from a comparative perspective, and
postponed our judgement in the process, in order to be able to describe not
only the applicable rules, but also the self-evident experience of persons
working in the courts.
In this article we will first explain
our research methodology. Next, we will summarize our research using a
comparative perspective, first focusing on the actual organisation of case
distribution and second on the values connected to the allocation process as we
found them. Then, we will show our analysis of the multiple relations between
the practices and values we found. Finally, we will make a reflection on the
usefulness of the traditional classification of legal systems for the
explanation of the ways cases are assigned to judges in courts.
II. Methodology
This research was of a
qualitative, empirical nature. The outcome is indicative of processes in the
countries within our sample. Starting from a possible classification of legal
systems from comparative law,[4]
we selected
countries with a French (France, the
In order to
collect the information to be compared, we made a common research format. This
was discussed and amended in the first research meeting among the partners to
the project.[6] The outcome of
this meeting was that the original research format was adapted to the
explanations of the researchers of the systems of case assignment in their
countries, in order to obtain questions which were answerable and comparable.
It involved explanations of terms and instructions on what kind of and how many
interviews were to be conducted.
Subsequently, the researchers prepared a first case study, the concept of which was discussed during a second research meeting. This allowed us to ask and provide further clarification of some issues and to eventually amend and complete their case studies. Part of the research process was also that researchers filled out a comparative matrix, in order to have an effective comparative tool. Interaction between researchers appeared to be a most powerful research tool, also after they had filled out the comparative matrix. The research questions are:
·
Which
are the rules to enhance and protect judicial integrity and impartiality in
relation to case allocation?
·
How
are the rules concerning internal case allocation applied in practice?
·
How do
judges value these rules and practices?
·
Next,
we asked researchers for their opinion on the case allocation process in the
courts researched.
We present here the answers to those
research questions comparing three main issues, leaving out the subject of the institutional
court settings of
the nations considered in this study, for the sake of length of this paper.[7] The
first issue deals with the principles and general rules applicable to internal case
assignment in the judicial systems included in this examination. We describe
the rules and practices concerning the allocation of judges and the rules and
practices to enforce judicial impartiality. The second issue concerns the main
topic of this research: the internal case
assignment systems used in the six judiciaries considered. It explores in
some detail the information provided by the national case studies about the
practice and opinions of interviewees and researchers on case assignment in the
courts. The last issue deals with some aspects of the internal court organisation
related to
case assignment. Case assignment rules, practices and instruments, the main
point of interest in this research project, are connected to several other
aspects of court organisations that may affect the case assignment process like
judicial specialisation.
Field research on judicial
administration is scarce in
The research findings are based on a
heuristic interpretation of the data. As this is a description of facts
primarily, on which we have based our analyses in the following paragraphs,
readers not interested in these facts can skip the following paragraph.
III. Case assignment: Rules and practices
A. Principles and general rules: Legal judge, immovability, disqualifying judges, sideline jobs
1. The legal judge
We explored the ‘principles and
general rules’ related to the case assignment process adopted in each country.
Some of them may also be embedded in the Constitution, such as the ius de non
evocando, meaning
that no one may be denied the court to which he is legally or ‘naturally’
entitled, and which also comprises the prohibition to establish special courts
to meet a single situation. As a consequence, special tribunals may not be set
up to try a special subject; neither may a case be transferred to a court other
than the competent court, unless prescribed by law. This civil right is not
known as such everywhere. It is non-existent in
Summarising the case studies, the
principle strengthens the perception of the impartiality of the courts as also
stated in Article 6 of the European Convention on Human Rights which provides
for an ‘independent and impartial tribunal’.
2. The immovability of judges
Another significant principle for the
study of case assignment is the principle of the immovability of judges and its practical application, which can be
found in all the constitutions of the countries considered except in
It is a logical possibility that where
cases can be moved from one judge to another we can also move judges to where
they are needed most. The possibility of having a certain flexibility in moving
judges from one court to another, is an issue of some importance. Such
flexibility may add to the efficient deployment of judges in courts at
different locations and to the timeliness of judgements within the area of
those locations.
Procedures to move judges from a fixed
position at a court to another court are cumbersome and formalised in most
countries. Generally speaking, the transfer of a judge is only possible with
the judge’s consent, but exceptions may occur related to court reorganisations
or disciplinary proceedings. The process is guided by the Judicial Councils in
The legal protection of the
immovability of judges for the sake of their impartiality may create tensions
concerning an efficient deployment of judges in courts where they are
(temporarily) needed most. Based on our research we can conclude that in most
countries of our sample, except
3. Disqualifying judges and
judges resigning from cases
The country studies also provide
information about the possibility to disqualify
a judge and the possibility for judges
to resign from a case. All the countries, except
A special rule exists in
In
Especially in
In all countries, it is primarily up
to the judges themselves to prevent any suspicion of bias arising, and there
are no explicit rules on this other than the indication that judges may do
this. This means that judges are expected to scrutinise their assigned cases
themselves for any appearance of bias, and if bias is likely or there may be an
appearance thereof, they should ask for the case to be assigned to another
judge. Hence, the prevention of (any appearance of) bias is primarily an
individual judicial responsibility and only at second instance a possibility of
disqualification is given to the parties to a case. Only if judges do not
maintain these values by themselves, other such mechanisms can be used.
4. Sideline jobs
We also collected some information
about sideline jobs of judges. These may cause (appearances of) bias and
therefore may relate to their resigning or disqualification from a case.
Interestingly enough, only in
B. Internal court organisation: Specialisation, allocation of judges, task forces
1. Specialisation
The kind of compartmentalisation in
the courts may differ from country to country and also depends on the size of a
court. Together with judicial specialisation,
and the case assignment system adopted, this may affect the case assignment
process. In order to compare information we introduced a distinction between
courts, court divisions (e.g.,
civil law, criminal law, family law and administrative law), and court units (often
called chambers) within
a division. Units may be specialised parts within a
division, for example within a civil law division
there may
be units for movables, children’s cases,
succession cases and real estate cases.
As throughout this study, the simpler
situation is found in
The court units in North
Rhine-Westphalia are quite specialised, e.g.
in the civil sector: legal aid, cases related to ownership of houses,
international family affairs (children), real estate, movables, insolvency
cases, etc. As a consequence, judges
sit in such a unit for at least one year. It is possible, however, for a judge to
be assigned to more than one unit. In
2. Allocation of judges
In principle it is possible to move
judges from one specialised division or unit of a court to another, but the
levels of discretion of the heads of court differ from country to country. In
In the countries considered, judges
perform their services primarily in the courts to which they have been
allocated, but there are exceptions to this practice. In Italian courts, in
order to gain some flexibility in the allocation of judges, the law provides
for so called district
judges,
who may serve in all the offices of the judicial district when needed. However,
this initiative has not provided the expected benefits in terms of flexibility.
The same possibility has also recently been introduced in
3. Task forces
The increasing caseload has pushed
courts to establish task forces in
order to address peaks or backlogs. This may bring some problems in the case
assignment process. In
Task forces may be a solution for a
bulk of pending cases, especially in countries where the strict application of
the principle of immovability of judges makes the process of transferring
judges very cumbersome and formal. Generally speaking, it is possible only with
the judge’s consent, but a few exceptions may occur related to court reorganisations
or disciplinary proceedings. The process of temporarily assignment of judges is
often guided by a central instance: the Judicial Councils in
C. Case assignment: Who does it and how
1. Case assignment and
the responsibility of the head of court
In
When the heads of court in Italy and
Germany do not follow the case assignment system they may, in principle, be
subject to disciplinary measures, since the criteria are established by the
judicial council and are considered binding. In the other countries the heads
of court do not have to follow instructions to assign cases in their courts
issued by a superior authority. In
Some differences have been noted in
the French and Italian administrative courts, where the heads of courts, or of
the heads of units within the largest courts, still play a major role in the
assignment process. This role has only recently been diminished in
2. The heads of court may also
allocate judges to cases
The discretion of the head of court to
move judges is a point of attention. Moving judges easily from one unit to
another, may have a great effect on the case flow of the court (Di Federico,
2005). In the countries considered, only in
3. Judges’ specialisation comes
before randomization
Assignment of cases generally follows
the specialisation of judges. Randomisation is not applied everywhere.
Particularly in
All the court systems do have some
kind of specialisation by jurisdictions (territory) or within the single court organisation
(subject related). Once the case has first been assigned on the basis of the
subject-matter, there is a random case
assignment that can be handled in several ways. In
In the French administrative courts,
the case is assigned according to subject-matter and then at random or
according to geographical criteria. In the Italian administrative courts,
recently a new case
assignment system has
been introduced. In order to balance the distribution of cases among the
administrative judges, the head of court assigns the case to the various units,
if present, by subject-matter, then the head of the unit prepares a number of
balanced sets of cases equal to the number of judges of the unit and
subsequently draws lots to assign them. Exceptions may occur and they have been
managed in different ways from court to court, depending on the role played by
the head of court.
4. Balancing caseloads amongst
judges has the highest priority
According to the research findings,
there is just one priority concerning the case assignment systems in use that
seems to be shared by all the six countries: balancing the caseload amongst
judges. Other aspects are relevant, such as the appreciation of a judge’s
specialisation or judicial continuity in dealing with a case, but they are specific
for each country and are related to the way in which local case assignment
processes work. In
5. Informal exchange of cases
between judges is not allowed everywhere
An informal
exchange of cases between judges is possible in
IV. Values and factors
that affect case assignment: A comparative analysis
In the former paragraph, we have provided a description of rules and
practices concerning assignment of cases to units and judges to courts in six
judicial organisations. An apparent function of case assignment processes is to
balance two sets of values: judges’ impartiality and courts’ organisational efficiency.
The case assignment process must balance these factors. This balancing process leaves
a number of choices open for those who develop and carry out policies regarding
case assignment, due to the different weights
that each justice system gives to the different factors and values. In this
paragraph we explain these factors and values, but we also show how these
factors and values may be balanced differently. Figure 1 graphically summarises the main values and related factors
that affect, and are affected by the case assignment system.
Figure 1: Case Assignment Values and Factors
A. Judges’ impartiality
Judges’ impartiality is pursued through the means of judges’ independence, which can be further divided into external independence and internal independence.[14] External independence refers to the mechanisms established to preserve the judge’s independence -therefore impartiality- from all the possible influence coming from the parties and the other State authorities such as the Government and the Legislative. Internal independence refers to the mechanisms established to preserve the judges’ independence from pressure that may come from the judiciary itself, such as: pressure from a superior judge or from the judicial council. We would like to point out that when judges’ impartiality, and independence, are involved, the matter is not only if they are impartial, but also if they appear to be so before the parties and the public in general. Therefore the way in which independence and impartiality policies are implemented, communicated and perceived are a point of attention.
1. External independence
External independence, according to our study, is related to the case assignment system through the four factors listed in figure 1: resignation and disqualification of judges, judge- shopping, extra-judicial activities, visibility of policies.
The regulation and practices concerning the way through which the self-resignation
and the parties’ disqualification of a judge may be effectuated are
among the strongest mechanisms to enhance and enforce the external independence
of the judges. Resignation and disqualification rules are, generally speaking,
carefully listed in the procedural rules or codes and they look quite similar
in all the judiciaries considered here. Our study shows that the
self-regulating mechanisms work out quite well. Among the countries considered,
we notice a high level of sensitiveness, sometimes, as in
The extra-judicial activities
(sideline jobs of judges) are another factor affecting the judges’ external
independence and therefore the case assignment process. It is intuitive that the
number and the kind of activity (e.g.,
member of the executive board of a corporation, member of a Ministerial cabinet,
etc.) may jeopardize the substance
and appearance of the judges’ independence and then their impartiality. As our
research shows only in
The publicity of these activities brings us to the other factor
listed, which is the policy visibility. We think that the visibility of
court policies helps to enhance the external independence of judges, or better,
the appearance of impartiality. However, generally speaking, the practices to
make the court policies transparent, including the case assignment criteria, are
not really that well developed in the case studies considered here. Information
about court policies, in particular about case assignment, seems hard to find –
except for North Rhine-Westphalia. A point of attention for future research is
the discretion given to each court to implement local practices for its
functioning. This is, of course also relevant for the courts’ policies on
publicity. This possibility seems to be quite relevant in
Judge shopping is the last issue that we
considered within the area of external independence. If the case
assignment system allows some kind of judge’s picking (judge-shopping), it goes
without saying that there may be a serious problem of external independence.
The phenomenon has been mentioned only in the criminal court in
2. Internal independence
After having considered the external factors that affect and are affected by the case assignment system, we will now exploit those that deal with the judges’ internal independence. More in detail, the way through which the principle of judges’ immovability is pursued is certainly a point of interest.
Immovability is a principle shared in
all the judiciaries considered in our study, even though it has been
constitutionalised only in
Partly connected to immovability is the professional specialisation
of judges, and the way in which courts are structured. In this context,
professional specialisation means that judges have acquired a qualification to
deal with specific matters, so they can be considered specialized. Actually, if
the court structure is highly specialized in division, sections and subsections
that deal with specific matters, and the judges are highly qualified to deal
specifically with these matters in a specific section, it is intuitive that
where the immovability principle is applied more stringent, this limits organisation
flexibility in case assignment. This seems to be the case of
The judges’ career path is another point of attention for the
case assignment system. This is related to the common practice to give judges a
balanced caseload. In countries where the judges’ career advancement is
connected to their performance, for example measured through the ‘quality’ and
the number of judgements, the case assignment system used is of paramount
importance. For example, ‘quality’ decisions can be more easily performed if
there is the opportunity to deal with difficult cases in point of law, while
big numbers can be pursued processing massive similar cases such as injunctive
orders or simple social security cases. For this reason, we expected to find in
the judiciaries, which have a so called bureaucratic
setting,[15] the adoption of a weighted caseload system, in order to have a more
balanced distribution of cases among judges. On the contrary, a weighted
caseload system seems to be used only in North Rhine-Westphalia and in the
In this research we also pointed out the importance of the role of the head of court in the case assignment system, which is related to the internal independence of the judges. Automatism in case assignment, a low discretion in the assignment process by the head, such are the cases of Germany, Italy and Denmark, increases the level of internal independence, but it may decrease the capacity of the courts to deal with the case in an effective way. A more managerial role of the head, or of the management board, should call for the assignment of cases in a more effective and efficient way rather than a simple randomization. Theoretically, there is an “efficient allocation” of a mix of cases, which should help the judges’ and court’s productivity.
B. Efficiency of court organisations
This leads us to the second ‘pillar’ of the case assignment system
which is the search for court
organisation efficiency.[16] Judges’ specialisation, like division of labour in general, is assumed
to be a major precondition for efficient functioning of courts. Case complexity
and the existing caseload of judges call for a better specialisation of judges,
and maybe also of courts, to increase, at least in theory, the average case
processing speed. Judges have a professional interest in having assigned to
them a fair mix of interesting and simple cases in comparison with their
colleagues. Therefore the internal transparency of case assignment and caseloads is a major
issue in courts in all the countries studied. In
The case assignment system also affects the court efficiency through
choosing for or against judicial continuity in dealing with the same
case. In
We have already mentioned that the informal exchange of cases between
judges has been recognized as an informal but effective mechanism of
coordination by mutual adjustment. As shown in our research this is not allowed
in the judiciaries (i.e.,
C. Balancing
values and factors
One of the most striking conclusions from this study is the strong
contrast between the formal approaches in
Whereas in Germany and Italy the law seeks to support the professional values of the judges and the heads of courts, by preventing judicial bias and unequal treatment of judges by the head of court, in Denmark and England the professional values are apparently considered to be self-evident and internalised by the judicial services − and do not seem to have the need to lay down these values in rules. We consider the self-evidence of strong professional values like impartiality an asset for every court. However, when moving from an informal arrangement of internal case allocation to a more formal arrangement, it may seem as if the responsible state institutions give the message that there are no longer sufficient grounds for such self-evident trust in the judicial professionals – in other words, that they cannot be trusted anymore. This is to be avoided. Even so, the increased external transparency of courts as a result of modern means of communications and the increased interest of the press in the courts makes it advisable that the courts develop clear policies on the assignment of cases, so that they can explain the way they apply and achieve a balance between their organisational and professional values and acceptable court performance. Thus, judges can share their professional responsibility in preventing bias from occurring.
Related to the informal or formal approach in dealing with case assignment, we also observed a potential tension between organisation and management on the one hand, and the juridical, normative approach on the other. Formal steering competences, striving for efficiency, flexibility and, to a certain extent, transparency are inevitable in modern organisations. We have shown however, how dominant traditional juridical and judicial values still are in courts, also supported by traditional judicial professional values. These values have been partly summarized in article 6 of the European Convention for Human Rights and are also concerned with case management; they concern judicial impartiality, judicial expertise, equality of arms, timeliness and judicial continuity in a case.
It is an outcome of this study that in
These organisational and juridical values must be balanced in modern case assignment, but a minimum of human rights and juridical quality must remain unchallenged. In this respect, a firm constitutional and/or supranational legal basis of juridical values remains a necessity; the countries in our sample show that this can be achieved in different ways.
The method of
case assignment in
In
In conclusion, the values and the instruments emphasised in this study show that they must be balanced keeping human rights and juridical quality unchallenged. In this respect, a firm constitutional and/or supranational legal basis of juridical values remains a necessity; the countries in our sample show that this can be achieved in different ways. We think that it is a challenge for all judicial organisations to manage their cases not only from the perspective of judicial values, but from efficiency as well. This may need a constant rethinking of working processes within the court organisations – and also the functioning of judicial organisations as a whole. This is a matter of the public accountability of the courts as organisations and a matter of judges avoiding delays in deciding cases.
V. A final word on the relation between the classification
of legal systems and the organisation of case assignment
We started
this study by selecting countries with different legal traditions, assuming
that we would have found some relations and consistency between the main
feature of the legal system and its case assignment. We distinguish between
legalistic legal systems (the Latin or French ones) where reference to codes is
predominant in adjudication, and jurisprudential legal systems where reference
to jurisprudential precedent is predominant (the Anglo-Saxon ones). The role of
legal rules in case assignment (formal/informal) is also a point of attention,
as we expect the informal rules to lead to more flexibility than the formal ones.[18]
From our
research we can conclude that the most rigid system of case assignment can be
found in
Based on this outcome, we question whether a typology of legal systems can contribute to the explanation of the role of law in society and in organisations like courts. As far as case assignment is concerned, the typology explains very little. The exchange between researchers from the countries in our sample gave us more insight into the actual methods of case allocation than only a legal comparative study based on this classical typology would have done. From our research we derived that comparison on the basis of interaction between scholars who studied the functioning of the legal rules that govern court organisations and their application is more fruitful than a juridical comparison on the basis of a traditional typology of legal systems. It is probably about time to abandon this typology as a starting point for comparative work in the field of judicial administration and court administration.