Questionnaire - Austria
Meeting of the working group Independence and Effectiveness
in Beaulieu sur mer on 9th and 10th October 2009
Subject: Fastening of procedures before administrative courts and possible tensions with fundamental rights : draft agenda and questionnaire
The meeting will start at 10:00 a.m. on Friday and last till Saturday noon.
We might start with an introduction, then present the answers to the questionnaire, then discuss several issues in sub groups. You will be informed about the topics of the subgroups at the beginning of September.
Here is the the questionnaire to the attention of all participants. We ask you to respond until 15th of September. In countries with only one participant (Estonia, United Kingdom, Netherlands, Luxemburg) it is clear that this participant is invited and responsible to present the case. For the other countries I ask the following participants to organize the answers internally in time:
Susanna Gamauf-Boigner for Austria
Werner Heermann for Germany
Anders Alenksär for Sweden
Giuseppina Adamo for Italy
Pedro Marchao Marques for Portugal
Georgia Sakarelou for Greece
Alenka Praprotnik for Slovenia
Ljiljana Karlovcan-Durovic for Croatia
Fani Naydenova for Bulgaria
Marion Jaffré for France
Introduction
We have to follow the topics that we have promised to the European Commission (GD Justice, Freedom and Security, within the Fundamental Rights’ programme), to study for funding.
The questionnaire prepared for this WG-meeting refers also to a double base :
1°)-The report from the European Commission for Efficiency of Justice (CEPEJ), “Length of court proceedings in the member states of the Council of Europe based on the case-law of the European Court of Human Rights”, CEPEJ 2006. You can find the report on the CEPEJ web-site.
In the case law of the European Court of Human Rights – a case law which is very large – you can find the following tendencies (according to the CEPEJ report) for defining “reasonable time” within the meaning of Article 6.1 of the European Court on HumanRights:
For administrative cases a length of proceedings in simple cases of 2 years was generally regarded as reasonable (including all instances). As a general rule no case should be waiting more than 12 months in one instance.
When proceedings have lasted more than two years, the Court examines the case closely to determine whether the national authorities have shown due diligence in the process.
In priority cases the Court may find violation even if the case lasted less than two years.
In regular and complex administrative cases the Court may allow longer time - up to 5 years - but pays special attention to periods of inactivity.
The only cases in which the Court did not find violation in spite of manifestly excessive duration of proceedings were the cases in which the applicant’s behavior had contributed to the delay.
All the member states, represented in AEAJ, have problems with long proceedings and may have been criticised by the Court.
2°)-The issues of the CJ-S-JUD, the Group of Specialists on the Judiciary who is responsible to revise Recommendation No R (94) 12 on “The independence, efficiency and role of judges” before the end of this year 2009.
Of the 6 issues that CJ-S-JUD is focusing, two general questions seem to be compatible with our topic, namely:
the balance between independence and effectiveness of the judiciary;
the responsibilities of judges in terms of the independence of judges.
The other four issues of CJ-S-JUD – the role of independent authorities in the administration of the courts; the status and responsibilities of judges in relation to the development of modern societies; the principle of the tenure of judges and training of judges – are a bit on the side for the meeting in Beaulieu in October but might be of interest later on.
What might be interesting to discuss at the WG meeting are common reasons for lengthy proceedings and what we can do about them, with a purpose to find solutions that are not interfering with fundamental rights, nor for judges or for the applicants.
Questions
1. The proportion and the number of cases in the administrative courts who have been waiting longer than the time limits set down by the European Court on Human Rights.
On the Austrian legal system, mention must given to the special legal situation of the administrative jurisdiction and administration:
The Austrian Administrative Court is the only Court level according to national administrative legislation. Since 2008 only in asylum cases there exists specifically an Asylum Court, which is competent only in these matters, on a first jurisdictional and also in principle on last jurisdictional level.
After a decision by administrative authorities, appeal may be made to Independent Administrative Tribunals (which are tribunals according to Art. 6 ECHR) or in taxation law matters to the Independent Finance Board. However, there still exist fields of administrative law, in which no independent administrative tribunal is competent to deal with, in theses cases an appeal, bound by instructions and not independent, administrative authority decides.
After the decisions of the independent administrative tribunals, independent finance board or also administrative authorities a complaint may be lodged before the Austrian Administrative Court (or under specific circumstances before the Austrian Constitutional Court).
For the Administrative Court:
There was an average length of proceedings of 20 months in 2008. This length corresponds to the length of proceedings of the years before. In 2008, there were 463 cases out of 12.000 cases pending in total, which were already pending for more than 3 years.
For the Independent Administrative Tribunals:
As these tribunals are predominantly dealing with matters of so called administrative criminal law (i.e. criminal charges according to Article 6 ECHR), expiry by the statute of limitation exists. After a period of 15 month pending at the Independent Administrative Tribunals, a sentence must no longer be taken, due to legal limitation limits. All in all, a sentence must no longer be taken after 3 years of the time, when the act had been committed. Therefore in these cases no relevant problems can be reported.
For the administrative matter, in which Independent Administrative Tribunals are competent, mention must be given to the fact, that there exists a legal obligation to decide after 6 months after receipt of the appeal. After this time, there exists a possibility to ask for request for transfer of jurisdiction to the Austrian Administrative Court. Therefore, there exists a legal remedy against delays and in practice no relevant problems can be reported.
For the Asylum Court:
1st July 2008: Asylum Court (AC) had to take over 23.607 cases from the Independent Federal Asylum Review Board
Open cases by end of 2008 (per year of the registered appeal): 1998: 27; 1999: 53; 2000: 186; 2001: 376; 2002: 1070; 2003: 2139; 2004: 2671; 2005: 3157; 2006: 3553; 2007: 4079; 2008: 4810
For the Independent Finance Board:
The average length of the proceedings is 16 months. 9 % out of the 15.940 cases has been pending for more than 3 years. In many of these cases complaints were lodged before the Austrian Administrative Court or the Austrian Constitional Court and so the Independent Finance Board has to wait for the decisions.
The causes of delay
2. Is the number of cases judged by the administrative courts increasing each year ? If, yes what is the evolution during the past years? For the first instance, the courts of appeal, the supreme court?
For the Administrative Court:
The cases judged in 2008: 7203, the number of cases judged stayed relatively constant within the last years.
For the Viennese Independent Administrative Tribunal:
There is only statistical data of the Viennese Independent Administrative Tribunal available. There exist 9 different Independent Administrative Tribunals in Austria.
The number of cases decided by the Viennese Independent Tribunal in 2008 was 10.594. The number of cases decided stayed relatively constant also during the last years.
For the Independent Finance Board:
Yes, the number of cases has increased about 3% each year on the average.
For the Asylum Court:
Independent Federal Asylum Review Board (which existed as an Independent Administrative Tribunal dealing specifically and only with asylum matters before the Asylum Court was founded in 2008) :
2004 + 2005 : 18.112
2006 + 2007 : 26.024 (with 16 more members)
Asylum Court:
01.07.2008 – 31.12.2008: 6.591 (compared to the Independent Federal Asylum Review Board there are now 25 more judges in the AC, but the main decisions have to be done by a collegial of two judges)
3. Lack of resources at the courts, shortage of judges.
3.1. What is the number of the administrative judges in your country and the number of cases registered each year?
For the Administrative Court:
68 judges, 8.334 cases ware registered in 2008. The number of cases registered stayed relatively constant with some peaks.
Independent Administrative Tribunal:
For the Independent Administrative Tribunals: there are approximately 200 administrative judges on this level of administrative justice. Exact numbers are difficult to obtain, as there does not exist one uniform judicial administration of all 9 different independent administrative tribunals, due to extensive independence of the Austrian Laender.
The majority of administrative judges on the level of independent administrative tribunals is located in Vienna (55).
The number of Austrian inhabitants is app. 8 Million.
The number of cases registered with the Viennese Independent Administrative Tribunal in 2008 was 10.217 cases. The number stayed relatively constant within the last years.
Independent Finance Board:
In the case of the Independent Finance Board (IFB) the number of posts, provided by the the staff appointment scheme is 235.
Currently the IFB employs 226 administrative judges
The number of registered cases each year are about 11.200.
Asylum Court:
chief presiding judge, vice-presiding judge and 64 (other) judges;
number of cases registered 2008: 9.000 but 2009 it is prognosed to be 11.000
(2006: 11.831; 2007: 10246)
3.2. The number of judges is increasing or not ?
Administrative Court:
There was an increase of 5 judges in 2008, otherwise constant number within the last years.
Independent Administrative Tribunals:
The number of judges in the Viennese Independent Administrative Tribunal stayed relatively constant within the last years. There was an increase of several judges (app. 5-10) mainly in the year of 2002 and 2003 due to an extension of competences ex materiae.
Independent Finance Board:
The number of judges in the staff appointment scheme has not changed.
Currently we are filling three vacant posts.
Asylum Court:
No
3.3. Is there inadequate support staff? The judges have assistants or not?
Administrative Court:
There is support staff (i.e. legal assistants), but only for some judges. The support staff has also other duties. Therefore it is no sufficient, judges wish to have more support by legal assistants. The other support staff (i.e. clerical staff, secretaries…) is regarded to be sufficient.
Independent Administrative Tribunals:
There do not exist legal assistants. It would be desirable to be granted legal support staff. However, other support staff is regarded to be sufficient.
Independent Finance Board:
Yes, the supply of support staff is not sufficient. Judges don’t have personal assistants. However, each branch office of the IFB has an adminstrative office. Unlike the other 6 branch offices, each chamber (panel) in Vienna has separate administrative assistance.
Asylum Court:
No, there is no inadequate support staff. Yes, they have assistants.
3.4. Are judges obliged to deal with things that are not really judicial matters, and that other personnel could do instead?
Administrative Court, Independent Administrative Tribunals, Asylum Court:
There is no significant obligation of judges in this area.
Independent Finance Board:
Yes, judges are involved in the preparation of the online courtdecision digest (FinDok, https://findok.bmf.gv.at), for instance in the formulation abstracts or in editorial work. Moreover they write the decisions on the computer themselves. In addition they are involved in continuing education and in different projects within the IFB.
4. An uneven geographical distribution of courts within the country
In your country do some courts have too much workload and others not, due to demographical changes or other evolutions?
Administrative Court:
there is no one, the Court is competent for the whole territory.
Independent Administrative Tribunals:
There exist 9 different Tribunals in the Laender. There is definitely an uneven geographical distribution within Austria, but the tribunals are installed independently of each other by each of the Laender, therefore the question of too much workload does not depend on the geographical situation (e.g. in Viennese Tribunal: 55 judges, in Burgenland: 6 judges).
Asylum Court:
No, as competent for the whole territory.
Independent Finance Board:
Within the IFB the workload is periodically evened out to compensate for geographic variations. The workload compensation has to be approved by the plenary assembly.
5. The organisation of the courts
5.1. The proportion of single judges and collegial judges. Is judging in chambers at first instance regarding as a source of delay? (It has been judged as a source of delay by the Court on Human Rights).
Example : Administrative justice in France was originally exclusively
organised in colleges. But the intervention of single judges is increasing
more and more. These single judges can perhaps work faster, but are they as
independent as collegial judges ? Some of these single judges decide without
an hearing. Are the reflections about this subject similar in the different
European countries?
Administrative Court:
The decisions are always made in senates of 5 judges. In specific cases or procedural questions there decide 3 judges. This number of judges deciding in a senate is regarded to be sufficient and not to high for a Supreme Court. In special cases there exists also the possibility that the 5-judges panel is reinforced by 4 more judges so that decisions to be taken by 9 judges (mainly, if the planned decision of the Administrative Court would mean a deviation from former decisions of the Administrative Court or that the legal issue to be resolved has so far been decided by the Administrative Court in various ways differing from each other).
Independent Administrative Tribunals:
Decisions are predominantly made by single judges. In specific cases (e.g. higher fines) panels consisting of three members decide.
Asylum Court:
Decisions of collegial judges: quality increase but makes the decision process slower
Independent Finance Board:
In the case of the IFB more than 90% of the decisions are taken by a single judge. The Supreme Administrative Court has stated, that the quality of decisions doesn’t depend on whether they are taken by a chamber (panel) or a single judge.
In general, judging in chambers (panels) is viewed as a source of delay.
5.2. Is there a specialisation of courts or of judges in your country ? Is it a way of avoiding delays?
Administrative Court:
Within the Court there exists a specialisation of each judge: He/she is judge in two different fields of law. This is a way to avoid delays and a balanced mixture, as specialisation in only field of law from the beginning onwards might not be ideal. Judges can change senates. However, regarding only the aspect of efficiency, a specialisation of only one field of law would be better.
Independent Administrative Tribunals:
The system is quite similar to the one for the Administrative Court.
Asylum Court:
There are six chambers: one for each of the geographical areas (Africa, Balkan, Asia, Russia, Nearer East) and one additional for “Dublin II-cases” (Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national)
Independent Finance Board:
Yes, there is. According to our mandate the IFB specializes in deciding on appeals in the field of taxes, customs and penalty law.
Within the IFB there is specialisation in the big branch offices in order to avoid delays.
6. Inadequate procedural rules.
6.1. Are the procedural rules themselves creating delays, for instance by giving the parties too much time to answer?
Asylum Court:
No; but the asylum seeker can reapply for asylum after being turned down
Independent Finance Board:
The procedural rules (Federal Fiscal Procedures Act, BAO) don’t lay down time limits for the submission of new facts and evidence. In general, the parties can do so until the service of the decision. However the judge has the right to establish a time limit for answering written questions.
Independent Administrative Tribunals:
The same situation exists as mentioned for the Independent Finance Board. No other relevant delays because of existing procedural rules exist, under the given circumstances, that the independent administrative tribunals are tribunals according to Art. 6 ECHR in the course of the whole administrative procedure. Therefore there exists an extensive obligation to hold oral hearings and to make clear all facts only in oral hearings, especially in administrative criminal proceedings.
Administrative Court:
The procedure before the Administrative Court itself is relatively efficient. However, the Administrative Court is only competent to quash a decision. This leads to delays in the whole system, because the administration re-starts then again from the beginning.
6.2. Oral hearings - Are the proceedings in the administrative courts mainly in writing (percentage)? If there are possibilities for oral hearings, are these hearings, in your opinion, too many or too few? Has your country been criticized by the European Court of Human Rights for not holding oral hearings? What is happening in oral hearings (are they prepondaretly devoted to take evidence (witnesses and experts) or to the question of law?
Independent Finance Board:
Yes, the proceedings are mainly exercised in written form. Only 12% of the cases are decided after an oral hearing. Basically it depends on the appellant whether an oral hearing is held or not (oral hearings are primarily held upon the request of the appellant). The judge or the panel is not obliged to hold oral hearings. The low percentage of applications for an oral hearing testifies to the fact, that appellants don’t consider oral hearings as a guarentee of an higher level of legal protection.
None of our decisions has been appealed to the European Court for Human Rights.
The primary function of oral hearings is to discuss the facts of the case or to take evidence .
Asylum Court:
Oral hearings - Are the proceedings in the administrative courts mainly in writing (percentage)?
Depends on the case (country of origin; quality of decision of the Federal Asylum Agency; appeal)
If there are possibilities for oral hearings, are these hearings, in your opinion, too many or too few? AC: It’s the decision of the judge to hold an oral hearing or not.
Has your country been criticized by the European Court of Human Rights for not holding oral hearings? AC: No
What is happening in oral hearings (are they prepondaretly devoted to take evidence (witnesses and experts) or to the question of law?AC: Mainly to take evidence
Independent Administrative Tribunals:
Procedures are predominantly not in written form, especially in criminal administrative cases. Oral hearing must be held in administrative cases mainly in case the judge decides it to be necessary in order to take evidence. In administrative criminal cases, the judge is generally obliged to hold an oral hearing, with few exceptions, given by law. However, the majority of cases decided in their substance, are decided after an oral hearing.
In oral hearings new evidence is taken; witnesses, experts heard as well as all parties to the case, with the possibility to give new evidence until the end of the oral hearing.
Administrative Court:
In those cases, in which no Tribunal decides before, the Administrative Court is the only and last court instance. In these cases the Administrative Court is obliged to hold an oral hearing, if Article 6 ECHR rights are involved plus if the party applies an oral hearing, plus if no simple jurisdictional questions of law or highly technical questions are involved. Maximum in 10% of all cases, oral hearings are held.
In those cases, in which tribunals decide before the Court procedure, no obligation to hold an oral hearing exists before the Administrative Court.
6.3. In order to accelerate proceedings, do you think that the using of witnesses and experts ought to be encouraged? Are witnesses heard by the courts themselves or by the administration during the previous administrative procedure? Does the court nominate experts of its own or does he usually just refer to the expertises ordered by the administration? Which kind of experts does the administration use (civil servants who are employees of the administration or independent experts)? Which kind of experts are nominated by the court? Who has to cover the costs of all these experts? Are there rulings concerning recovery of these costs if the administration or the party wins the case? Can such costs be covered for parties who enjoy themeselves of legal aid.
Administrative Court:
See 6.2; generally spoken administrative justice should hear witnesses, but this should be done by the first instance courts.
Independent Finance Board:
It’s our experience, that the use of witnesses and experts, besides the high costs which are involved, tends to lead to a delay in the proceedings.
Experts are seldom used, because appointment to the IFB requires special training in the field of taxes, customs and penalty law.
The witnesses are heard either by the administration in the first instance proceeding or by the IFB. As mentioned above, experts are hardly used because of the special training of the judges. If experts are used, for instance to estimate the value of a building, they are independent experts from outside the IFB.
In the field of family allowances an expert medical confirmation is foreseen by law, in case the allowance of disabled children is in question.
If the experts are nominated by a judge, the costs are covered by the IFB. There are no rulings for the recovery of the costs of experts.
In a proceeding before the IFB representation by a tax accountant or lawyer isn’t compulsory. Therefore the appellant isn’t granted legal aid.
Asylum Court:
- -In order to accelerate proceedings, do you think that the using of witnesses and experts ought to be encouraged? AC: Experts are used a lot; witnesses are very rare
- Are witnesses heard by the courts themselves or by the administration during the previous administrative procedure? AC: Witnesses are the exception, but are heard either by AC or by the Federal Asylum Agency.
- Does the court nominate experts of its own or does he usually just refer to the expertises ordered by the administration? Which kind of experts does the administration use (civil servants who are employees of the administration or independent experts)? Which kind of experts are nominated by the court? Who has to cover the costs of all these experts? Are there rulings concerning recovery of these costs if the administration or the party wins the case? Can such costs be covered for parties who enjoy themselves of legal aid.
Independent Administrative Tribunals:
There is a necessity to hear all witnesses and experts because of Art. 6 ECHR, especially for criminal administrative cases. There any evidence can only be taken in an oral hearing. The administrative tribunal nominates experts if it is necessary.
In most cases, there are experts ex officio, who are civil servants who are employees of the administration. For these experts the parties to the case can not be obliged to pay specific costs, therefore no specific costs can be asserted.
In other cases, in which an independent expert is needed and no expert ex officio is available, the court has to cover the costs. The costs must then be covered by the appealing person. In administrative criminal matters only if the appealing person is condemned.
6.4. Appeal - Is leave to appeal required to enable a court of appeal to consider a case? If not, do you think there ought to be?
Independent Finance Board:
No, it’s not the task of an independent court to fulfil supervisory tasks in administration. Assuming this task would mean a violation of the separation of state powers.
Administrative Court:
No leave for appeal exists in the Austrian system. There exists the possibility of rejection of the case by the Administrative Court only in case an independent administrative Tribunal decided before: the Administrative Court may by court order reject to deal with a complaint against a ruling of an independent administrative panel or against the Federal Procurement Authority if the decision does not depend on a legal issue having fundamental significance, in particular if it deviates from previous practice of decisions of the Administrative Court, or if there is no relevant practice of decision or the legal issue has not been resolved by previous practice of decision of the Administrative Court in a consistent manner, and in administrative penal proceedings also only in such cases if a fine not exceeding 750 Euros has been imposed.
Independent Administrative Tribunals:
See answer to Administrative Court. No such leave for appeal exists.
6.5. What kinds of restrictions of judicial review are existing : a./ between the challenged decision of the administration and the first level of administrative jurisdiction? b./ between the different levels of the lawsuit within the administrative justice?
Asylum Court:
Federal Asylum Agency and AC: Interdiction of Novation (in case of deliberate abuse)
between AC and Constitutional Court: only the violation of constitutional rights is reviewed
Independent Finance Board:
In the case of leave to appeal no restrictions on judicial review are provided. The IFB is entitled to amend any section of the contested assessment notice.
Administrative Court:
There exist restrictions of judicial review between the Administrative Court and tribunals or administrative decisions, which are fought against before the Administrative Court: no new evidence or facts may be argued by the parties to the case. The case is deliberated on the basis of facts and laws applied by the last administrative authorities/tribunals.
Independent Administrative Tribunal:
No restrictions with respect to judicial review exist between tribunals and administration.
Within the administrative jurisdiction, limits of judicial review exist between tribunals and Administrative Court: see answer for the Administrative Court.
6.6. What changes in procedural rules may, in your opinion, help accelerating procedures? In particular, what could be a court’s reaction if witnesses (also those who live abroad) do not appear before court or if experts are in delay to deliver their expertise.
Independent Finance Board:
There should be a time limit on the submission of new facts and evidence.
Should witnesses not appear before court the Federal Fiscal Procedure Act (BAO) provides for penalty. If the witnesses disregard the summons, the court could apply the principle of free consideration of evidence. The same could be the case, if experts, who were filed by the parties, are in delay.
Independent Administrative Tribunals:
See answer of Independent Finance Board regarding possibility of penalty. If witnesses disregard summons, finally as last measure, it is also possible to bring them before the judge by force as compulsory measure.
Furthermore, a witness not complying with a summons without sufficient excuse or refusing to testify without giving any reasons (or insisting on his refusal although the reasons he/she submitted have been considered not to be justified), can be charged all expenses caused by his absence or refusal; in case of unjustified refusal to testify the witness may be fined.
Administrative Court:
There should not be change of procedural rules, but a change of the whole system as such: this would mean, that an administrative authority decides with full appeal to an administrative court of first instance, hearing all new facts and evidence. Against its decision, the Administrative Court should have a right of rejection of the case.
7. Goals set up by the Government or administrative authorities or stated by law
7.1. Has your government set up specific goals for how fast the administrative cases should be dealt with (before the administration and before administrative jurisdiction)?
Independent Finance Board:
No, there are no specific goals set up by the government regarding the length of proceedings. However, within the IFB the length of the proceedings is under periodic observation. The internal goal is to achieve an average length of 12 months in the coming two years.
Asylum Court:
For standard cases: six months; there are also summary proceedings
Independent Administrative Tribunals:
See answers to question 1.
Administrative Court:
No.
7.2. Are there time limit rules laid down by law for certain cases? Could you enumerate the subjects ? The custody of mentally ill, children, drug or alcohol misuses, immigration cases...
Independent Finance Board:
No, there aren’t any legal time limit rules for certain cases.
However the IFB gives for instance family allowances priority.
Asylum Court:
summary proceedings for (e.g.): “Dublin-II”-cases; “secure” countries of origins, res judicata cases, delinquent asylum seekers
Independent Administrative Tribunals:
All limitations are foreseen by the legislator. Only in cases of custody for persons to be expelled, there is a time limit of one week. For the other limits see answers to question 1.
Administrative Court:
For this proceedings, no time limits exist. A reform of the structure would be necessary, however, this needed to be done by the legislator.
7.3. If yes, what happens when the time limits are not followed?
Asylum Court:
Time-limit applications; Deportation
Independent Administrative Tribunals:
In administrative criminal cases, Expiry by the statute of limitation takes place, so no further prosecution of the suspect is possible.
In administrative cases, the party to the case can make a request for transfer of jurisdiction, then the next instance is competent to decide, the same applies for proceedings before the independent administrative tribunals; then the Administrative Court in principle is competent and has to take a decision.
Administrative Court:
No relevance
The possible tensions with fundamental rights.
This part of the topic can be connected to the aforementioned general issues of CJ-S-JUD, “The balance between independence and effectiveness” and “The responsibilities of judges in the terms of the independence of judges”. In some countries, the government has taken measures in order to accelerate the procedures, which interferes with the independence of judges.
8. A new system of remuneration partly based on individual salaries for judges : look further questions number 11 to 13.
9. The matter of the responsibilities of the president of the court (or other entities within the courts).
9.1. What may or must they do in order to fasten procedures?
Independent Finance Board:
The establishment of a monitoring system without the infringement of the judges’ independence is useful and necessary. The result of the monitoring should be transparent and discussed by the president with the judges. In addition the president together with the competent comittees of the plenary assembly, which comprises all judges, has to consider measures to even out the work load as well as change of the schedule of competences and what kind of proposals have to be submitted to the plenary assembly for voting.
By means of periodic presentations on the development of the proceeding duration and with appropriate feedback, the shortening of the length of proceedings become a common goal.
Asylum Court:
Provide for adequate support staff
Independent Administrative Tribunals:
With respect to members of the Independent Administrative Tribunals disciplinary sanctions are principally foreseen by the different laws in the Laender. The Federal Constitution only notes that Members of the independent administrative tribunals may before expiry of the period of appointment be removed from office only in the legally specified instances and only at the resolution of the independent administrative tribunal.
In general, by different laws in the Laender also a removal of a member is possible under given circumstances. Generally specific disciplinary Committees are established by the different laws, being competent in disciplinary matters. A transfer to another Independent Administrative Tribunal is not provided by law.
Administrative Court:
Disciplinary actions would be possible in principle. A member of the Administrative Court may be removed with respect to certain disciplinary sanctions. The Plenary Meeting of the Court would be the disciplinary court. The disciplinary punishment of removal from office may only be imposed if at least two thirds of the members of the disciplinary court vote in favour of it.
9.2. Is it possible, in your country, that the president of the court can remove a case from a judge that is dealing with the case too slowly?
Independent Finance Board:
No, the removal of a judge from a case by the president, if the judge works too slowly isn’t possible. The removal of assigned cases is only possible in case of a longer absence of the judge or to even the work load and is subject to approval of the judge.
Asylum Court:
No, (but e.g. in the case of long-term illness of a judge the Scheduling Committee allocates the cases)
Independent Administrative Tribunals:
See answer of Asylum Court, only in case of long term absence (by a specific Committee and in accordance with internal laws).
Administrative Court:
no
9.3. If yes, can this be done without interference with the independence of the judge?
9.4. What happens when a case has been unduly delayed – will there be disciplinary measures against a judge who is responsible for the delay? Can the judge be prosecuted?
Example : The Swedish government laid a proposition to the Parliament with a law “Declaration of priority of cases in court”. An applicant should be able to turn to the court and ask for priority if his case has been unduly delayed. Then the president of the court can decide that a certain case should be dealt with with priority and the judge in question must follow this decision. If he does not there can be disciplinary actions against the judge.
Independent Finance Board:
If a judge doesn’t fullfill his/her task over an extended period of time a performance procedure can be initiated by the president. If the judge is not satisfied with the assessment he/she has the right to appeal it before a commission, which comprises judges of the IFB. The consequence of two negative assessments of a judge’s performance is dismissal.
Blameworthy conduct can lead to a disciplinary action.
Asylum Court:
Time-limit applications by the party; administrative penalty (admonition, caution) by the chief presiding judge; disciplinary measures (reducing the salary…) by the Disciplinary Committee
Independent Administrative Tribunals:
See answer to question 9.1
Administrative Court:
See answer to question 9.1
10. Is there a legal remedies against delays in the sense of article 13 EMRK in the respective national procedural laws (see the ECHR’s cases Kudla/Poland and Sürmely/Germany). What kind of legal remedies do we find to be compatible/incompatible with the independence of judges?
Independent Finance Board:
If the IFB fails to issue a (timely) decision, the appellant has the right to lodge a complaint before the Supreme Administrative Court.
Asylum Court:
Time-limit applications
Independent Administrative Tribunals:
See answer to question 1. In administrative criminal cases there exists also an extenuating cause in cases of long duration and thus mitigation of penalty takes place.
Administrative Court:
No means available.
Judges remunerations and its evolution in the new economical context
11. Could you describe the system of the judges remunerations in your country, and give some information about the level of their remunerations?
Independent Finance Board:
The judges earn all-inclusive salary which means, they don’t get extra overtime payment. The level of remuneration lies between 3200-3600 Euro on the average after tax deduction
Independent Administrative Tribunals:
See answer to Independent Finance Board. Remunerations are foreseen by laws, depending on years of service.
Asylum Court:
AC: years of service and function
Administrative Court:
See also answer to Independent Administrative Court: remunerations are foreseen by laws, every 4 years there is an increase. The amount of increase is also foreseen by law very detailed.
12. Is there an evolution now because of the economical crisis? Laws or other texts had been adopted recently or are in discussion in your country?
For all:
Generally no.
13. Do you think that "bonus systems" and “individual subjective salaries” must be regarded as incompatible with the judges independence?
For all:
”Bonus systems” or ” individual subjective salaries” are generally viewed as incompatible with the judges’ independence, because it could convey the unseemly impression of a possible exertion of influence on jurisprudence.