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
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.
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.
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? The number of cases is not decreasing at the moment. Perhaps they are just becoming more complex and it is the same situation at the first instance Administrative court and at the Supreme court as the court of Appeal.
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? The number of administrative judges in Slovenia is 35. In the year of 2008 we registered 4299 cases. And in the year 2009 2516 cases.
3.2. The number of judges is increasing or not ? The number of judges is not decreasing. In the next years the total number of them will be decreasing because of the state’s policy.
3.3. Is there inadequate support staff? The judges have assistants or not? We have the adequate support of staff but unfortunately we are lack of assistants. We have about one assistant per five judges who deals with a lot of technical questions within the file. And just sometimes with the substantial questions of the case.
3.4. Are judges obliged to deal with things that are not really judicial matters, and that other personnel could do instead? The judges have to deal often with the things that are not judicial matters and I am sure that the other personnel could do that instead.
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? There is only one main administrative court in Slovenia with the three external divisions. Each division has only three judges and whether one is ill or absent, it is very difficult to organise the sections as we are deciding in a penal of judges.
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). We have 25 judges at the court in Ljubljana (main court). We judge as first instance judges in a penal of three. If the cases are not complex we can decide in a penal of three that this particular case would we dealt by a single judge. We are the first and the last instance for the majority of cases; and just for some special complex cases (due to a lot of money or complexity) there is an appeal at the Supreme court.
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
5.2. Is there a specialisation of courts or of judges in your country ? Is it a way of avoiding delays? There is a specialisation of Judges in Slovenia but just at the court in Ljubljana. It is absolutely away of avoiding 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? Sometimes it is this situation, for instance when there are too many parties who have the possibility to appeal.
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? The 95% of the proceedings in the administrative court are in writing. My court has not been criticised because of that by the Human Rights Court. When there is the oral hearing taking place it is manly devoted to clarification of the fact and to the questions of law.
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 themselves of legal aid. As we mainly do not have oral hearings, the witnesses are heard by the administration in the previous administrative procedures. The court refers the expertises ordered by the administration. The administration uses both kind of experts. The costs are covered by the administration or by the parties.
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? It is not the situation in our proceedings, but I think it would be an useful think.
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? There is a restriction of time( normal 30 days-a) and b- the restriction of the simple questions or the little amount of money.
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. I think that the use of single judges would definitely accelerate the procedures.
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)? No, it has not. But it is laid down in the Judicial order that if administrative cases are not solved within six month, they are treated separately. That means that the judge has to report on the progress or the case to the president of the court, if the president decides so.
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... Yes, there are. The subjects of such specific cases are immigration case, protection of constitutional rights, interim cases, protection of personal data, free legal help, appointment of a notary...
7.3. If yes, what happens when the time limits are not followed? No sanction is laid down by law, if time limits are not followed.
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? According to the specific law dealing with this matter, if a request for speeding the procedure is filed by a party, presidents of the court can provide several remedies such as to give a priority to a case, determine a deadline for solving a case, decide on supervision procedure... A remedy can also be or an informal character.
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? Yes, it is possible, but only if a president establish that a judge is overworked with cases and that this is the reason for the delay.
9.3. If yes, can this be done without interference with the independence of the judge? I think so, because the criteria is objective and has no meaning of a punishment in any way.
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? In most cases nothing happens. But there is a possibility of a supervision or disciplinary procedure. Judge can be prosecuted by a disciplinary prosecutor although according to the law this is a minor offense.
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.
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? Yes, there is a special law with concrete remedies against undue delays. These remedies are: an appeal or so called supervision appeal, a proposal for setting a deadline for the case and a demand for just compensation.
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? Judges remunerations are determined by law. Each judge is scheduled in a certain grade( that has financial impact) regarding the length of his judicial service, the level of the court where he performances his service and also the successfulness of his previous work measured either by the president of the court, personal Penal or Judicial council.
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? Yes there is an evolution now because of the economic crisis. According to the recent law judges are given reduced remunerations (4%9 from 1.7. 2009. It is not certain yet weather some other texts will be adopted in near future.
13. Do you think that "bonus systems" and “individual subjective salaries” must be regarded as incompatible with the judges independence? I think so, because I prefer objective criteria as more compatible with independence.