The Independence and Efficiency of Administrative Justice : Summary Report
Meeting of Administrative Judges in Würzburg
SUMMARY REPORT
General remarks:
This report has been drafted by those participants who acted as speakers in the meeting, summarizing the national reports that answered to the respective questionnaire elaborated by the working group "inde-pendence and effeciency of administrative justice" that has been in-stalled by the Association of European Administrative Judges.
A./ Questionnaire on the Independence and Efficiency of adminis-trative Justice
I./ Personal Independence of the administrative Judge:
Presentation: Heinrich Zens, Vienna:
1. Indicate the ways in which judges are selected/appointed for/to administra-tive Justice as well as the terms and nature of the judicial selec-tion/appointment:
1.1. Describe the selection/appointment procedure that is applied in your country
1.2. What are the terms of this procedure?
1.3. Is there specific professional background such as previous work record in the administration or general legal training included?
1.4. What are the possible contents examined during this procedure?
1.5. Who meets the decisions in the course of the selection/appointment pro-cedure and who selects and appoints the aforementioned decision –makers?
1.6. Does the law provide for judicial remedies against decisions concerning appointment/selection?
1.7. Does there exist any difference in the way the selection/appointment of judges of the civil/penal courts takes place?
1.8. Is it possible for “external candidates” to be appointed as judges at dif-ferent court levels and instances?
1.9. Are those legal provisions concerning the ways of selection/appointment of judges constitutionally entrenched?
Presentation: Annika Sandström, Stockholm:
2. Describe in brief the conditions of service and tenure (security of tenure, suspension and removal, transfers etc.) of the judges:
2.1. Is the term of judicial appointment for life?
2.2. Is it possible to extent the term of service of judges beyond retirement age? In this case who has the power to take the decision?
2.3. Is it possible to appoint temporary judges?
2.4. Is it possible for the judge to be removed or transferred and under what specific terms?
2.5. Where does the power of removing or transferring judges from one office to another lie?
2.6. Is it possible to transfer between the different divisions and types of courts?
2.7. Is it possible to transfer to government administration and back?
2.8. Does a transfer to the administration have a career-promoting effect?
2.9. Is incompetence a ground for removal of a judge from the bench?
3. Financial security (salaries, remunerations, pensions etc.)
3.1. Who decides about judges’ salaries?
3.2. In what way and under what conditions are the salaries of judges in-creased? Are they accompanied by annual cost-of-living ad-justments?
3.3. Is there a need for executive approval or executive decision to initiate the increase?
3.4. Is it possible for the judges to initiate judicial proceedings against the State with regard to their remuneration and which are the competent courts in this case?
3.5. Is there a uniform salary scheme for all courts, divisions and types?
Presentation: Pierre Vincent, Nancy:
4. Career prospects (promotions etc.)
4.1. Describe briefly the ways in which the promotions of judges are made. What kind of procedures are to be applied in this context?
4.2. Indicate the competent body for the promotions and the criteria ap-plied thereto.
4.3. Are judges of the administrative courts promoted to the Supreme Ad-ministrative Court and under what conditions (seniority etc.)?
4.4. Can judges accept any government assignment after retirement?
5. Standards of conduct (professional and service Code, public activities, law-related activities etc.)
5.1. Can a judge be involved in law-related activities (arbitration, law prac-tice, writing books)?
5.2. Can a judge be involved in business activities?
5.3. Is the judge entitled to sideline employment?
5.4. Is there a Code of conduct of judicial behaviour?
5.5. Is there a Commission on Judicial Conduct or any other body to su-pervise the behaviour of a judge?
5.6. Describe the restrictions - if there are any - on judges’ right to express their views?
6. Inspection of judges and disciplinary proceedings
6.1. Who is in charge of the inspection of judges and in what way is this inspection conducted?
6.2. Are there specific criteria for the evaluation of the performance of judges?
6.3. Who holds the legal power to initiate disciplinary proceedings against the judge?
6.4. Who decides the disciplinary tribunal and its composition? Is it per-manent or ad hoc?
6.5. Is there a legal remedy against the decisions of the disciplinary body provided for by law?
6.6. Is there a special procedure for investigating and prosecuting a judge?
II./ Functional and Institutional Independence of administrative ju-risdiction:
Presentation: Prof. Dimitris Raikos, Patras:
II.a./ General aspects
1. Separation of powers and judicial independence
1.1. Indicate who is responsible for the central administration of administrative ju-risdiction
1.2. Individual and collective independence of the judiciary
1.3. Is it possible for sanctions (of any kind) to be imposed on a judge based upon the content of his/her decision?
1.4. Can a judge face disciplinary charges solely on the basis of the substance of his/her ruling? Is this the case when a judge declines to follow a supreme court’s decision?
1.5. Do you think that accountability of judges threatens judicial independence?
1.6. Can a judge be held liable in civil actions for his/her judicial acts (e.g. be sued for damages for actions taken in his/her judicial capacity)?
1.7. Are judges immune from prosecution in other courts for their judicial acts?
1.8. Can criminal charges be brought against a judge for actions on his/her duties?
1.9. Do judges face sanctions for “decisional conducts”?
2. Judicial administration at the Court level (division of work among judges and assignment of cases etc.)
2.1. Is the division of work among judges and the assignment of cases to each judge or panel done according to a predetermined rigid plan or is it flexible and may be changed easily?
2.2. Who is in charge of case assignment?
3. Self - administration of justice
3.1. Is judicial administration effected through independent judicial self-governance?
3.2. Describe briefly how the governing body/committee is elected?
3.3. Is there any restriction for the members of the above body to participate in other syndicalistic bodies?
4. Human, financial and material resources necessary for the performance of ju-dicial functions
4.1. Who is responsible for the administrative staff employed in the courts?
4.2. Who is competent to make available the necessary funds for the performance of justice?
4.3. Who has the power to execute and spend the budgetary allocations?
Presentation: Panagiotis Danias, Athens:
II.b./ The relation between administrative jurisdiction and other powers:
1. Relations with the executive (the influence of the Administration on the judge etc.)
1.1. Have there been cases of executive pressure on judges in any form?
1.2. Can judges be members of the Government?
1.3. Is it allowed for judges to participate in administrative bodies having decisive or consultative competences?
1.4. Do the administrative courts have the power to challenge adminis-trative acts of general character (presidential decrees etc.)?
2. Relations with the legislature (retroactive legislative reversals of cases etc.)
2.1. Can the legislature override a decision of a court if they disagree with the way the latter has applied or interpreted a law?
2.2. Have there been retroactive legislative reversals of court decisions?
2.3. Has there been legislation abolishing courts with results of statutory removal of judges and if so, how was it received?
2.4. Pending cases?
2.5. Can judges be members of the legislature?
2.6. Do the administrative courts have the power to challenge laws?
3. Interest representation of administrative judges
3.1. Are judges organised in associations for furthering their rights and interests?
3.2. Are there separate professional representations for administrative judges, or a joint association of judges?
3.3. What are the specific activities of the aforesaid association? De-scribe them in brief.
3.4. Do judges have the right to strike or to hold a demonstration?
Presentation: Janne Aer, Helsinki:
II.c./ The relation between administrative jurisdiction and the society:
1. The administrative judge and the media scrutiny (the press, the judiciary and the courts, criticism of judicial decisions etc.)
1.1. Is criticism of judges, judicial decisions and judicial conduct in the press existent, frequent, rare? What are the relevant grounds for this? Could you give major examples?
1.2. Are trials open to T.V.?
1.3. Do you think that press reporting and commenting on judges, courts, judicial decisions and matters pending before the courts poses a challenge to judicial independence?
2. The administrative judge and the public opinion
2.1. Do you think that a judge’s engagement in politics or speaking his/her mind in favour of a political party compromises the public confidence in the judi-ciary?
2.2. Are there institutions that favour strong public opinion in defence of the idependence of the judiciary?
3. Judges and politics
3.1. Is it allowed for judges to become member of political parties?
3.2. Are there any major restrictions for judges with regard to their political ac-tivities? What are the consequences in case of breach?
3.3. Are there any other restrictions for judges as far as their public activity is concerned?
3.4. Have there been cases where political leaders attacked the judges and criticised their decisions?
Presentation: Graf zu Pappenheim, Munich:
III./ Efficiency in the internal organisation of an administrative jurisdiction.
1) The judge and his work
1.1 Describe briefly the kind of the initial training and the qualifications of an administrative judge prescribed by law and his further education and/or formation, inter alia in European law, emphasizing more par-ticularly the aspects which might help the judge to improve the effi-ciency of administrative justice.
1.2 Do you think that a higher salary paid to the judge and, more specifi-cally, other (material) advantages which may be granted to him in consideration of the output might help to improve the efficiency of administrative justice?
1.3 Please indicate the number of administrative judges in your country and compare it to the population being under their jurisdiction (an av-erage number can be indicated per country).
1.4 Please indicate the number of legal or other assistants (including clerks, secretaries …) working for the administrative jurisdictions, in-dicating more particularly the average number per judge working at an administrative court.
1.5 Describe briefly the working conditions of an administrative judge in your country, emphasizing more particularly the technical means which are at his/her disposal, as well as legal or other assistants help-ing him/her in his/her duties, his/her access to libraries and data bases, access to internet and so on…
1.6 Describe briefly the internal working regulations of an administrative court and more particularly the way in which the work is distributed among the judges, the person in charge of the distribution of the work to be done by the respective judge and of the control of his/her work, indicating inter alia the criteria according to which the way of distribu-tion is decided as well as the criteria according to which the work of the administrative judge is controlled, as well as the possible sanc-tions which may be taken against the judge who does not fulfil the le-gal or internal requirements concerning the quality of his/her work. Describe in this context internal control procedures (if there are any).
Presentation: Carlo Schockweiler, Luxemburg:
2) The jurisdictional procedures
2.1 Describe briefly the access to administrative justice, indicating more particularly whether the complaint or file has to be introduced by a lawyer or any other professional and the conditions under which the plaintiffs may have access to legal assistance. Can you also indicate whether the procedures are accomplished only on a written basis or whether also oral hearings take place, indicating in which cases such oral hearings are organised and the persons who, at these occasions, are allowed to make oral submissions to the court.
2.2 Describe briefly the different types of procedures which can be intro-duced at an administrative court, insisting inter alia on the differences existing between those procedures.
2.3 Describe briefly the different steps of the procedures to be followed at an administrative court of your country, starting with the date the file is introduced until the date the judgment is pronounced, insisting more particularly on the deadlines which may have to be respected by the parties in order to introduce written notices, briefs, pleadings, state-ments as well as on the deadlines to be respected by the judge to pronounce the judgment.
2.4 Describe briefly the internal organisation of an administrative court, and indicate whether the judges are working in chambers or if they are acting as individual judges, as well as the criteria according to which a case is dealt with either by a chamber or by an individual judge.
2.5 Which kind of procedures do apply in case an urgent matter of any kind is introduced with an administrative court? Indicate also what kind of decisions may be taken by the judge dealing with this kind of urgent matters.What kind of interim measures or measures of suspensive effect may be granted by
your Court upon the receipt of a complaint?
a) suspension of the administrative act complained against,
aa) becomes effective when served to the parties,
bb) may also have retroactive effect,
b) my Court may order any interim measure deemed necessary when the interests
of justice so require.
What are the legal criteria for a decision to give an order of suspensive ef-fect or
order an interim measure?
a) Does the prospective outcome of the proceedings have any relevance?
b) Please give a short description of the content of the legal provisions concerned.
2.6 Indicate the types of control the administrative court may exercise over the activities of the administration or over the decisions taken by it: is it a control only of the legality of its decisions or can the judge also control whether the discretion was used by the authority in the spirit of the law? Is the judge allowed to take a decision instead of the administrative authority? Do there exist other types of control proce-dures?
2.7 Indicate the delays of the procedures introduced with an administra-tive court, starting from the date of introduction of a complaint until the date the judgment is pronounced (average delays).
Is there any remedy against undue length of the proceedings for the parties of the proceeding before courts? Is this
a) a remedy provided by law (please give a quotation of the legal provi-sion)
b) a remedy of informal character (please give a short indication of its content).
What may be the result of such a remedy?
a) actual acceleration of an individual proceeding
b) payment of just satisfaction
c) reduction of a penalty imposed
d) disciplinary measures against individual judges
Which authority is responsible to deal with such a remedy?
a) the president of the Court
b) a supervising judicial body
c) an administrative authority
2.8 Which kind of means are at the disposal of the administrative judge (or the parties) in order to provide for a correct execution (enforce-ment) of the judgment. Does the judge have the possibility to give in-junctions to the administration? Do there exist specific procedures which the parties may use in case the administration does not volun-tarily execute the judgments?
2.9 Which kind of new technologies are at the disposal of the administra-tive judge and do the procedures to be followed at the administrative court provide for the possibility to use standard forms or electronic transmittal techniques (for example, are the parties allowed to intro-duce the briefs by way of mail or other electronic transmittal systems) ?
2.10 Do the administrative courts in your country possess central computer systems to which all judges are linked, and comprising inter alia data bases, general information, laws, procedural acts, access to electronic files and so on
2.11 Indicate whether you think that the facilities used by the adminis-trative courts and the means put at the disposal of these courts by the State are appropriate and, if this is not the case, indicate the problems you have noted in this context and the possibilities to remedy.
2.12 Indicate the total amount of money spent by the State to ensure the functioning of administrative justice, compared to the total amount of the State budget
2.13 Do there exist alternatives to the contentious proceedings, for example mediation, arbitration procedure and so on in your country?
2.14 Which kind of effective legal remedies can be used against a judgment of an administrative court of first instance?
Presentation: Bengt Almeback, Malmö:
IV./ Efficiency in the relations of an administrative jurisdiction towards third parties
1) Access by the public or the parties to the information held by the administra-tive courts
1.1 Do the administrative courts in your country have a person in charge of the relations with the press (press speaker)?
1.2 Do the administrative courts in your country prepare annual reports about their activities? Is this report available to the public? To whom/ or to which body this report is it addressed?
1.3 Does there exist a possibility to access by internet or by any other means the judgments pronounced by the administrative courts and other docu-ments which might be relevant for the public/parties?
1.4 Do the parties of the case pending at an administrative court have the possibility to get information, by electronic or other means, about their file and the state of the proceedings
1.5 Do the administrative courts of your country have the possibility to ex-change information or experience with other national or international courts or with courts situated in other countries and, if this is the case, could you give more information about this kind of exchanges?
Presentations: Giuseppina Adamo, Bari and Rosa Perna, Rome:
2) Control of the activities of the administrative courts
2.1 Do the administrative courts prepare statistics about affairs settled dur-ing the judicial year, about the stock of affairs pending and about the number of affairs dealt with by individual judges?
2.2 Do the administrative courts possess electronic systems to ensure the follow-up of the affairs pending (e.g. electronic file system…)?
2.3 In your country, are there mutual or internal evaluations (on periodical basis) of the quantity and quality of the work to be done by the court? Which is the body which is competent to prepare this kind of evalua-tions, are they done by the court itself or by any other bodies, authori-ties or courts? Do there exist control procedures of the judicial work done by the administrative judges and, if this is the case, by which kind of authorities (national or international) are these procedures accom-plished?
2.4 Which kind of sanctions may be taken against individual judges in case of misbehaviour or in case the work to be done by judges has not been delivered in certain delays
2.5 Do there exist compensation procedures in case of errors committed by the court or individual judges or in case of delays in the proceedings? If this is the case, could you briefly describe the kind of compensation procedures which may be used by the victims of such errors or delays.
2.6 Do there exist possibilities for the public or the parties to introduce com-plaints against the way the administrative courts work
2.7 Do there exist studies about the feed-back of “customers” (in a broad sense of meaning) of administrative justice, on the bases of inquiries made among the public, the parties or their lawyers, about the function-ing of the court?
V./ Conclusion
1. Could you indicate, according to your opinion, which are the factors (con-cerning organisation or rules of process) that cause malfunctions in the ad-ministrative judicial system in your country?
2. Could you indicate which, in your opinion, might be possible remedies?
3. Have you noted whether effective measures have been introduced in recent times to improve the system in your country?
B./ THE ASWERS
I./ Personal Independence of the administrative Judge:
I./1./ Selection and appointment of judges (Dr. Heinrich Zens)
In most of the countries administrative judges are appointed by the monarch, resp. head of the state f.e.: by the Grand Duke in Luxemburg,
by the President of the Republic: Poland, Estonia, except Supreme Court, France, Finland, Greece, Austria Administrative Court
In other countries nomination is enacted
by the Parliament: Slovenia, Latvia, Estonia (Supreme Court)
by the Government: Sweden, Austria (independent tribunals)
by the Minister of Justice: Germany (some Länder)
by a Judicial Council: Croatia
by appointing commissions: Germany (some Länder, deputies and judges; federati-on: ministers and deputies)
The formal nomination is mostly enacted upon proposals; these proposals are co-ming from:
Judiciary Councils: Poland, Slovenia, Greece, France (far as it concerns the so called “external way” and civil servants temporarily assigned)
Judicial appointment board: Finland
Courts: Luxemburg (Administrative Court: for its members and the Presidents and Vi-ce-Presidents of the Administrative Tribunal), Estonia (Supreme Court; partly), Latvia (President of the supreme Court),
Austria (Administrative Court; the Court proposes to the government and the go-vernment to the head of the state), Germany
Minister of Justice on basis of a suggestion of Justice Qualification Board, belonging to the government: Sweden (partly)
Required qualifications, training and tests:
generally legal studies (no formal requirement in France)
Schools (National School of Judges in Greece, ENA in France, far as the position as an “auditeur” in the Council of State or the way of “statutory recruitment” to admi-nistrative tribunals is concerned). To be admitted to these schools it is necessary to succeed in an exam. Exams also take place at the end of the instructions. Concer-ning ENA, the “top few” have access to the Council of State.
Competitive exams: Italy (far as it concerns the Regional Administrative Tribunals and ¼ of the members of the Council of State) and Estonia
“Interview”: Germany
Profession as a lawyer: is not a formal requirement in Luxemburg and Poland, but it is such a requirement in Austria, Italy, Slovenia, Croatia, Latvia
Practise in administration: France (“tour exterieur” to become maitre de requête or to become councillor; “tour exterieur”
and temporarily assignment to administrative tribunals), Slovenia,
Austria (1/4 of the members of the Administrative Court)
Court practise:
as a judge (Austria 1/3 of the members of the AC must have the qualificati-on as a judge in the normal justice), Slovenia, Croatia, Latvia (for higher Courts)
as a candidate or during a probation period: Sweden, Estonia, Germany
as a legal assistant: Sweden, Finland
Can decisions in the context with appointments be challenged?
The appointment itself can be challenged in:
Italy
France (competence of Council of State)
Slovenia
Luxemburg
Croatia
Germany
Steps leading to appointment can be challenged in:
Greece: decision whether a candidate is capable to be appointed as life time judge or prolongation of interim stage for more than one
year
Sweden: appeal of a candidate who is not proposed by the board to
the government
Poland: appeal of a candidate whose application shall not be heard
according to the decision of the President of the Supreme Court to
the National Council of the Judiciary
Estonia: decisions met by the judge examination committee can
be contested before the Supreme Court en banc
The respective legal situation in Austria is not clear.
In Finland and Latvia it is not possible to challenge decisions concerning the nomina-tion of judges.
Identical systems for appointments in normal and administrative justice exist in: Lat-via, Germany, Slovenia, Sweden, Croatia, Greece, Finland
Similar regulations in: Estonia, Poland
Different systems in: Italy, France, Luxemburg and Austria
Nomination of external candidates is possible but rare in Latvia and Germany, it is ra-ther common in Italy, Slovenia, Croatia, Sweden, Poland, Austria and Finland, whe-reas it is not possible in Luxemburg and Greece.
Detailed constitutional regulations concerning appointments exist in Greece and Austria. Some rulings are constitutionally provided in Germany, Italy, Slovenia, Lu-xemburg, Croatia and Estonia.
No rulings on constitutional level exist in Latvia, France and Sweden.
I./2./ and 3./ Conditions of service and tenure, financial security (Annika Sandström)
This presentation is based on the work that has been done by my colleagues in the following (13) fourteen countries: Germany, France, Italy, Luxemburg, Austria, Fin-land, Greece, Poland, Slovenia, Estonia, Latvia, Romania and Croatia. (And by my-self regarding Sweden)
My task is to try and summarise the answers in the qustionnaire that concern the personal independence of the administrative judge when it comes to the conditions of service and tenure and the financial security, part I. 2 and 3 in the question-naire. I wish to thank my colleagues for the ambitious work they have done by an-swering the questionnaire so thoroughly. My summary will not do full justice to the answers since I will not go into details in all areas.
As has been already mentioned, our meeting here today is based on the premise that all democratic states in Europe must exist under the rule of law. A fundamental prem-ise is that under the rule of law there must be a separation of powers so that the judi-ciary and the judicial system must be independent of the executive and the legislative powers of the state. Another premise of the rule of law is that no judge should be subject to the power of another judge in relation to either the procedure or the deter-mination of the merits of a particular case, except by means of an appellate process.
During the years there have been different definitions in the doctrine of the meaning of the independence of a judge. Some talk of substantive independence or functional or decisional independence. In this questionnaire we refer to personal independence. Regardless of the name the meaning of this is that the judge should be impartial and totally free from irrelevant pressures. This is not for the sake of the judge himself but for the citizens that seek justice…They must be granted impartiality in the process, and maybe this is even more important in the administrative process where the indi-vidual not always is entitled to – or in most cases does not have – a lawyer by his or her side but is alone against the state. Not only must the judge be free from irrelevant pressures in practice, he and she must also seem to be free from such pressures in the eyes of the public.
In order to secure the judges’s personal independence the judicial terms of office and tenure must be adequately secured. Executive controls over judicial terms of service, such as transfers, remuneration, retirement and judicial discipline must be regarded as inconsistent with judicial independence.
After this brief introduction I come to the answers in the questionnaires.
1. The term of judicial appointment
The security of judicial appointment is maintained by appointing judges for life. In no country “for life” is interpreted literally but until a fixed aged for retirement. (In Croatia though with the exception for those assuming judicial duty for the first time. After re-newal the duty is permanent). In most countries it is possible to prolong that time and thus work some years after retirement. The time for retirement varies from 60 years for women in Poland until 70 for the judges at the Polish Supreme Administrative Court. In France the retirement age is 65 but 66 for a parent of three children. See Answers.
2. Temporary appointments
In most countries it is not possible to appoint temporary judges but in Sweden and Finland it is. In Greece it is forbidden in the constitution. In Austria in the Independent Administrative Tribunals members are appointed only for 6 years. In France there is a special situation where civil servants are temporarily assigned to judges positions.
3. Involuntary removal of a judge
This question has been intepreted in a different manner by different countries. I read this question as not meaning removal on disciplinary grounds as the question of dis-ciplinary proceedings come later in this questionnaire but as a question concerning the possibility of removing a judge against his or her will in other cases. This is in all countries only possible in cases of reorganisation, such as changes in the structures of the courts, or if a court is abolished. In Luxemburg a transfer is never possible without the consent of the person concerned. Also in France forced removal and transfer is prohibited, even in case of promotion. This is recognised by law as a basic administrative judge’s guarantee.
4. The possibility to transfer between different divisions and types of courts
I assume that transfer with the consent of the judge. This is possible in all countries except in Greece, where this is forbidden in the constitution. In Sweden this happens quite often – in Luxemburg it is possible in theory but it has never happened. In Aus-tria it is only possible within the Administrative Court and the I.A.T.
5. Is it possible to transfer to government administration and back and does this have a career-promoting effect?
Here I will cite the answers directly:
Sweden: Yes and yes
Finland: Yes and probably
Greece: No, it’s forbidden
Estonia: Yes and no
Luxemburg: Yes, in theory, no, you lose length of years
Croatia: Yes, but only to the Ministry of Justice – No, probably no promoting effect
Poland: Yes, but you must be promoted “again” as a judge – Yes, indirectly, you have more experience
Austria: No (?) and no
Germany: Yes and no, not the transfer as such but the -experience gained may have such an effect.
France: Yes – all administrative judges are obliged to serve at least 2 years in an-other branch of the civil service No, it has no promoting effect as it will entail a slow-down in career development
Italy: Yes, to advisory tasks – No
Romania: Yes – Yes or No, it depends on the individual case
Slovenia: Yes and Probably not
Latvia: Yes and Yes
6. Is incompetence ground for removal of a judge from the bench?
Here again I think we have to separate the question from the disciplinary proceedings and only refer to incompetence that is not of a degree to be sanctioned within the disciplinary framework. It seems that in most countries “normal” incompetence of course leads to a slow-down in the career but not to removal. But the following coun-tries have answered yes to this question: Finland, Greece (when mental or physical incapacity), Estonia (only within three years after appointment), Croatia, Austria (in legally specified circumstances), Slovenia and Romania.
3.1 Who decides the salaries? 3.2 In what way and under what conditions are the salaries increased?
If personal independence inter alia means not being subject to pressure from the ex-ecutive and legislative powers of the state, then the financial security is crucial. A way of pressure is of course not rising salaries or even reducing them, or, as we shall see in the Swedish case, to link the rise in salary to the performances of the individ-ual judge.
In Sweden and Finland the salaries are negociated in collective bargaining between the Courts Administration and the Judges trade union with the exception of the high-est courts’ judges. In all the other countries the salaries are based on a statute or law and are increased in most cases according to cost of living evolution, index or other-wise more or less automatically. In Austria though, the law concerning the increase is a result of collective bargaining.
3.3-3-4 Is there a need for executive approval or executive decision to initiate the increase – and is it possible for judges to initiate judicial proceedings against the State with regard to their remuneration?
In Sweden and Finland the answer is no to both questions. But the judges can go on strike which has happened in Sweden (and in France). When the salaries are de-cided by law there is a need for an inititative from the executive or the legislative. Ac-cording to the Swedish National Courts Administration the chief judge or President at the court should decide the salary individually for every judge. The Swedish Judges trade union opposes this, fervently. The negotiations between the parties, which have been going on for years, broke down the day before yesterday after a litigation pro-cedure lead by an official conciliator or arbitrator.
Judicial proceedings: In the following countries a law court is competent to decide in disputes concerning judges’ remuneration, at least in theory: Greece, Estonia, Esto-nia, Luxemburg, Latvia, Croatia, Poland, Austria, France, Italy, Slovenia and Ger-many, that is in all countries except Sweden and Finland.
3.5 Is there a uniform salary scheme for all courts, divisions and types?
All countries have answered that there is a uniform scheme, which does’nt mean that the salaries are uniform or the same for all judges, since they vary according to hier-archy, seniority, the function upheld in court, etc.
The same is true until now in Sweden but if the salaries are going to be individual this will no longer be the case. On the contrary the salaries will vary according to the speed at work, skill (decided by the president at court?), ability to adapt to new ideas or whatever. We have an idea what it would be like since this model for remuneration was introduced at a small scale 5 years ago, concerning 88 judges or 10 percent of all Swedish judges. The reaction among the Swedish judges was violent and since then negotiations between the administration and the trade union have been going on. The judges refuse individual salaries for constitutional reasons. The Swedish Na-tional Courts Administration is determined to introduce an individual system in order to save money and facilitate recruitment of young judges. The question of independ-ence for the judiciary is, unfortunately, not present at all within the administration.
I./ 4./ - 6./ Career prospects, standards of conduct, inspection and disciplinary proceedings (Pierre Vincent)
4.1 and 4.2. : Describe briefly the ways in which promotions of judges are made.What kind of procedures are to be applied in this context?Indicate the compe-tent body for promotions and criteria applied thereto.
Many countries(f.e Croatia,Estonia,Finland,Sweden)apply the same procedures as for judges’appointment.
In some countries,no specific promotion procedures are organized for lower ranks judges. Thus,judges may apply for judicial offices in the court of higher instance like every other person(Poland).
An independant judicial body is involved into the promotion procedures in some countries(f.e France,Italy,Latvia,Sweden),but it’s sometimes not the case for promo-tions to the highest positions of first and second instance tribunals ,for which gov-ernments freely choose promoted judges(Sweden).
Such independent judicial councils usually consist partly of elected judges,but can be composed only by members of the supreme administrative court(f.e Greece).
Judicial bodies usually give only a binding (according relevant law or at least in prac-tise)opinion,final decision being taken by the highest State authority/or ministry of jus-tice/or national parliament(Estonia).
On the contrary,there is no independant judicial board in Austria,Estonia,Germany and Luxemburg.In that last case,opinion of the supreme court’s chief Justice plays a prominent part.
Promotions from lower ranks to higher ones may occur only by personal applications (Poland)or,on the contrary,occur automatically according seniority(many supreme courts as in Austria,France ,Italy)of after previous inclusion on a yearly promotion ta-ble(first and second instance courts in France,except for presidents of tribunals and sections’chairmen of administrative courts of appeal,who must apply for such posi-tions according seniority as well as quality of service).
Seniority seems generally the most important criteria for promotion from the lowest ranks to the middle ones and quality of service plays a major part for promotion to the highest positions.
In Romania,promotion from courts of first instance to courts of appeal and supreme courts need to apply for a specific examination.On the contrary,other countries pro-vide-when necessary- only for a specific training in that case.
4.3 Promotions to supreme courts
Promotions to supreme courts are open to lower ranks judges in all countries,but not always by specific procedure.
All these promotions require officially or unofficially the previous agreement of the chief justice of the supreme court and also often the agreement of the plenary as-sembly of this court(f.e Austria,Estonia).
Promotions to supreme courts are strongly limited in France(One position of”Maître des requêtes”-middle rank position-from among sixteen vacant positions-one position of “Conseiller d’Etat-highest position-from among eighteen vacant positions).On the contrary, fifty per cent members of the italian Council of State are coming from the italian first instance administrative tribunals. The greek constitution provides that 1/10 of Council of State’s members come from administrative courts of first instance and appeal.
In Germany,contrary to other german administrative judges,judges of the supreme administrative court are elected by a joined commission made up by the 16 compe-tent justice ministers of the Länder and an identical number of members of the na-tional parliament.
4.4 Can judges accept any government assignment after retirement?
No specific rules seem to prevent retired judges to accept such assignments.
5.1,5.2 and 5.3 Law related activities-Business activities-Sideline employment
All judges are entitled to run sideline part-time academic activities(Lectures,writing books or articles for legal magazines)usuallly after having informed their chief Justice or required his/her agreement.
Greek,polish and romanian laws expressly provide that didactic activities are the only ones that judges may practice.Violation of such rules are considered as a criminal offense in Greece.
On the contrary,judges are not allowed to deliver legal advice or advisory opin-ions,except for their family members(f.e Latvia),unless if they ask to become tempo-rarily free from duty in order to run such activities(France).
Arbitration may be practised in Croatia and Sweden,is forbidden in Estonia,as for most european countries,except exceptions strictly defined(f.e Italy).
Furthermore,french judges practise quasi-mandatory law related activities as chair-men of various administrative committees or specialized tribunals.
All judges are allowed to manage their own goods.Nevertheless,Greece has recently established restrictions as for the acquisition of stocks is concerned.
On the contrary,business activities are frequently prohib-ited(f.e,Croatia,Finland,France, Greece,Italy,Luxemburg,Romania),except for family enterprises.
Business activities are allowed in Austria,Germany and Sweden, unless they could jeopardize public confidence,and after specific authorization of the high Council of the judiciary(Sweden)or giving notice of such activities to their chief Jus-tice(Austria,Germany).
Estonian rules provide that a judge shall not be a founder,managing partner,member of the management board or supervisory board of a company.
5.4 Is there a code of conduct of judicial behaviour?
Such codes exist in Croatia,Estonia,Latvia,Romania and(dealing only with the topic of sideline employment) in Austria.
On the contrary,there are no written codes of conduct in Finland,France,Germany,Greece,Italy, Luxemburg, Poland(Unless general provisions of the law stating that a judge should have a flawless character) and Sweden.
5.5 Specific body entitled to supervise the judge’s behaviour:
No specific body has been set up in order to supervise the judicial conduct.But,either high councils of the judiciary,when they deal with disciplinary procedures, or judicial disciplinary tribunals/boards/sections,when they exist,play indirectly this part.
Furthermore,it always devolves on the chief Justice and/or the chairman of the court to supervise the daily behaviour of a judge.
5.6 restrictions on judges’right to express their views.
Even though the majority of european countries grant the same rights to judges like to other citizens,all countries seem to impose ,at least unoficially,some reservations to judges as regards expression of their political views,unless they are temporarily free from duty in order to stand for political elections.
Nevertheless,it is forbidden for an estonian judge to belong to a political party until next 1 january 2008 and it’s still forbidden to belong to a management or control or-gan of these parties in Croatia and,from next 1 january,in Estonia.
In addition,all judges may not speak about the processes that are pending before them and express their opinions in a way that could cause doubt about their imparti-ality.
6.1 § 6.2 Who is in charge of the judges’inspection and in what way is this inspection conducted-Specific criteria for the evaluation of judges’performance.
Regular inspections as regards the quality of the work performed by each judge fre-quently devolves on the president of the court(France,Germany,Luxemburg,Poland).
Nevertheless,such inspections are carried out only by chairmen of the upper tribunals in Greece(Council of State and chairman of the administrative court of appeal)or in addition to the control exercised by the chairman of the court(Estonia).
A lot of criterias are used in order to assess this performance,these criterias being very similar as those used for civil servants.Such criterias are generally not set up by statute laws or regulations.
Guidelines are frequently established by ministers of justice, in order to ensure the compatibility of evaluations(f.e Germany).
The high Council of the judiciary is sometimes involved in such control either alone(Italy-Romania)or in addition to the supervision exercised by the court’s chair-man(Croatia).
In the first case,the high Council of the judiciary may carry out this inspection by its own inspectors(Romania)or delegate this supervsion to an another tribunal or a chamber of the supreme court(Italy).
Furthermore,many countries organized-in addition to the assessment of the individual judge’operformance carried out by the chairman of the court-inspections of a tribunal as a whole.Unless serious individual problems,these last inspections don’t deal with single judges issues(France-administrative tribunals and courts of appeal).
Many supreme courts don’t organize a formal inspection of judges(f.e Austria, France,Italy).
Lastly,it’s useful to notice the system organized in some first instance austrian tribu-nals,for which the inspection devolves on a commitee consisting of three members elected by all judges,in addition to the president and vice-president,who decide by majority.
6.3Who holds the legal power to initiate disciplinary proceedings?
Initiative of disciplinary proceedings often belongs to chairman of the court(Croatia,Estonia,France,Germany-only for minor offenses-,Latvia,Luxemburg,Sweden) and most frequently among other persons or bodies.
Ministers of justice are conjointly entitled to initiate proceedings in Croatia and Germany.
On the contrary,initiative of such proceedings devolves only to the chief Justice of the supreme court in Greece and Italy(or to someone under his/her authority(Poland)or conjointly with other persons as chairmen of administrative courts of ap-peal(Greece,for administrative tribunals and courts of appeal),parliamentary om-budsman in Sweden,and ministers of justice(Greece for all judges,Estonia).
Ministers of justice may sometimes take initiative only for judges who don’t belong to the supreme court(Latvia).
Lastly,only a collegial body can initiate proceedings in some countries(High Council of the judiciary in Romania,specialized bodies within the court itself(Germany,for most severe sanctions,elected internal committee for first instance austrian adminis-trative tribunals).
6.4 Who decides the disciplinary tribunal and its composition?Is it permanent or ad hoc?
The disciplinary body is frequently the High Council of the judiciary it-self(Croatia,France,Italy)or a specialized committee within it(Romania).
On the contrary,it may be a specialized tribunal set up in the concerned court(Austrian first instance tribunals,Germany)or acting for all judges in the whole country(Sweden).
Plenary meeting of supreme court(austrian administrative court,Luxemburg)or a spe-cialized tribunal within the supreme court,whose composition is set up by lot(Poland)may be the only disciplinary tribunal.
The disciplinary body may furthermore be made up of judges coming from different degrees of jurisdiction (Estonia,Latvia)or from the two highest judicial levels(greek ad hoc body consisting of members of Council of State and administrative courts of ap-peal chosen by lot).
6.5 Legal remedy against the decisions of the disciplinary body
There is frequently no legal remedy against disciplinary decisions when they are taken by the supreme court(Austrian administrative court,Luxemburg)or by the disci-plinary section of the supreme court(Latvia).
Legal remedy is organized before the supreme court acting in its usual judicial com-position(France)or in a wider panel(nine judges in Romania)or consisting of all judges(Estonia).
Legal remedy is provided for before the plenary meeting of first instance administra-tive tribunals (Austria).
In Croatia,legal remedy is available only before the constitutional court.
Lastly,there is two degrees (right to appeal)of remedies in Greece.
6.6 Is there a special procedure for investigating and prosecuting a judge?
In most countries,there is no specific procedure for investigating and prosecuting a judge against whom a criminal prosecution has been initiated.
In Finland,where disciplinary proceedings don’t exist,the code of criminal procedure don’t deal with criminal offenses of judges separately from the other ones charged against civil servants.The competent court is normally a higher court than this one in which the accused judge is on duty.
In Greece,there is a special jurisdiction for criminal prosecutions against judges (Pe-nal court of appeal).
According to polish constitution, a judge shall not ,without prior consent granted by a court specified by statute, be held criminally responsible nor deprived of liberty.A judge shall be neither detained nor arrested ,except for cases when he has been apprehended in the commission of an offense and in which his detention is neces-sary for securing the proper course of proceedings.The president of the competent local court shall be forthwith notified of any such detention and may order an imme-diate release of the person detened.
As regards disciplinary proceedings,there is usually a special procedure regulated by the judiciary act and/or disciplinary code(f.e Austria, France,Germany,Sweden,Italy,Latvia),but in most cases not substantially different from the general one used for all civil servants.
II./ Functional and institutional Independence of administrative ju-risdiction
II./a./ 1./ bis 4./ General aspects (Separation of powers, Judicial ad-ministration on Court level, Self-administration of justice, resour-ces) (Prof. Dimitris Raikos)
FUNCTIONAL AND INSTITUTIONAL INDEPENDENCE OF ADMINISTRATIVE JURISDICTION Dimitrios Raikos Justice in the Administrative Court of Appeal. Assistant Professor in Administrative Law, Faculty of Law, Democritus University of Thrace
Ι. General aspects: Definition and components of judicial independen-ce
A. The rule of law and judicial independence
Respect for human life and fundamental freedoms belongs together with the prin-ciples of liberty, democracy and the rule of law to the founding principles of the Euro-pean Union and its Member States (art. 6 EU Treaty). However, all the aforesaid car-dinal rights and freedoms are meaningful and truly respected only on the proviso that the legal order makes them enforceable especially against the public authorities, that is to say when the affected individual is entitled to initiate legal procceedings against the State in case of infringement . It is not enough merely to place limitations on the power of the various organs of the state, but it is also necessary to ensure that these limitations are observed and there is no abuse or misuse or excess of power. Indeed, in countries where the rule of law prevails, disputes as to the legality of acts of government are to be decided by judges who are independent of the executive .
This is especially true in terms of the administrative judiciary, whose solemn function is to curb and control the illegalities of the executive (and if need be that of the legis-lature) and ensure the rule of law by protecting the affected rights and interests of the individuals and secure the application of the principle of the legality of the administra-tion .
This function of the administrative courts becomes all the more important and essen-tial in a modern welfare state where there is a vast increase in the range and detail of government activities . The aforementioned expansion of the state power affects in-dividuals –all of us- in every single aspect of their daily lifes, since administrative po-wer becomes an instrumentality for the achievement of these purposes, and inevi-tably, there is a vast increase in the frequency with which ordinary citizens directly encounter the invasions of public power in the sphere of their constitutional or legal rights.
By exercising the power of judicial review, the administrative judiciary stands bet-ween the citizen and the state and stops executive excesses of misuse or abuse of power either by quashing or modifying the administrative act (or omission), when it comes to an ulawful administrative jurist act or by granting damages for injury sustai-ned in case of an illegal and harmful conduct of the public authorities. This jurisdicti-on of the administrative courts is also extended to cover under their protective cloak the so called “social rights”. These are those human rights which need affirmative state action for their enforcement. So, when the State fails to implement its duties, the judiciary has to step in and compel such affirmative state action in order to make these human rights effective .
It is, therefore, absolutely essential that the judiciary must be totally free from the o-ther brances of government, especially the executive pressure or influence and must be fiercely independent. It is for this reason that in almost all the countries which ha-ve adopted the democratic form of government, great importance is attached to the independence of the judiciary. Sir Winston Churchill, while stressing the need for an independent judiciary, observed: "The principle of complete independence of the ju-diciary from the executive is the foundation of many things in our island life. . . . The judge has not only to do justice between man and man. He also - and this is one of the most important functions considered incomprehensible in some large parts of the world - has to do justice between the citizens and the State. He has to ensure that the administration conforms with the law and to adjudicate upon the legality of the exercise by the executive of its power."
B. Definition and ingredients of judicial independence
The abstract principal of judicial independence ranks high on the scale of democratic values. As already mentioned, without an independent judiciary, many of our rights and liberties would amount to little more than hollow promises . Judicial independen-ce means that a judge has the freedom to make a fair and impartial decision based solely on the facts presented and the applicable laws, without yielding to political pressure or intimidation or influence, whatever . As such, the judicial independence is "the crown jewel of a democratic system of government".
Moreover, independent courts protect the rights of the powerless against the the dangers and excesses that can occur when the majority in government controls virtually all matters, a situation James Madison referred to as the "tyranny of the majority". To prevent those dangers, the contemporary constitutions have painstakingly designed a balanced government with a wall of separation between the branches, an independent judiciary, and a Constitution that is supreme in all respects.
The independence of the judiciary is constitutionally established for two reasons. On the one hand, decisional (or functional) independence to ensure the impartiali-ty of the judicial decision and the objectivity of judge’s behaviour in general , and insitutional independence to check over-concentrations of power in the political branches . Decisional independence is the ability of the individual judge to make decisions based on the facts and the law without undue influence or interferen-ce .
In Greece, the independence of the judiciary is expressly declared by the Constituti-on (articles 87 par.1,2), providing that: “Justice is administered by…..judges, who en-joy functional and personal independence. Judges shall in the discharge of their du-ties be subject only to the Constitution and the laws….”. Functional (or objective or organic) independence of the judge refers, first of all, to the freedom from interferen-ce from the Legislature or Executive. Moreover, it means lack of any hierarchical control of the inferior courts by the superior . While, personal independence, i.e. the independence of the persons who act in a judicial capacity, is the aspect of judicial independence, which concerns primarily the status of judges and is aimed at secu-ring functional independence . It is entrenched through a series of constitutional provisions in relation to the selection, appointment, promotion, tenure etc. . In this way, the Greek Constitution lays down and intensifies its endeavour to guarantee the impartiality of judges . Amongst the aforesaid guarantees of the personal judicial in-dependence run high: a) the provision of article 88 par.1 of the Constitution, accor-ding to which the judge is appointed for life, in the sense than he/she remains in of-fice even if their post is abolished, and b) aricle 88 par.4 of the Constitution, which postulates that judges are dismissed only on the basis of a judicial decision in the ca-se of a criminal sentence against them, a grave disciplinary fault, sickness, invalidity or inefficient service. The dismissal can be decided only by a court of law .
According to a different distinction drawn by some scholars , the essential operatio-nal elements of judicial independence’ fall into two groups: the individual and the col-lective. The concept of individual independence looks at the terms of appointment of the judge, as independent of the civil service and of parliament, and autonomous, although a minister of the state might appear in court and argue for a result preferred by the executive and parliament might legislate to override the decision of a judge. Collective responsibility concerns the role of the judiciary in ensuring the effective operation of the judicial system.
In the legal theory and praxis are also used the terms “individual” and institutiοnal in-dependence. In this respect, the jurisprudence of the Supreme Court of Canada has highlighted extremely interesting parameters of the independence of the judiciary. So, according to this jurisprudence, there are two aspects to judicial independence and impartiality: an institutional aspect and an individual aspect . One concerns the status of the administrative tribunal and its members, its relations with the govern-ment, and the other, the state of mind or attitude of the tribunal members with respect to the parties and the case before it (for example, members must not be in conflict of interest, biased, prejudiced or hostile toward either of the parties).
In specific, individual independence involves being free from all outside interference: the core of the principle of judicial independence has been the complete liberty of in-dividual judges to hear and decide the cases that come before them: no outsider - be it government, pressure group, individual or even another judge - should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence . A judge must be sheltered from all undue pressure, both in-ternal and external, that would prevent him or her from making a conscientious deci-sion. This might involve institutional or systemic pressure, as the Supreme Court of Canada noted in Consolidated Bathurst and Tremblay . In this case the Court consi-dered the decision-making process of administrative tribunals of a collegial nature. The consultation mechanism, the intervention of a third party or of the tribunal’s legal advisers must not "constitute undue influence such that it deprives them [the decision makers] of their intellectual independence and gives rise to a feeling in the parties that their case will be decided by someone other than the judges and for unknown reasons". This does not mean that they are not subject to all kinds of influences like any other individual: "the test of independence is not a lack of influence, but rather the freedom of a judge to decide in accordance with their conscience and opinions". To maintain the impression of independence that a judge or arbitrator must convey, "professional principles must be observed".
Institutional independence is "a question of status" based on "objective conditions or guarantees". The case law has set out "three essential conditions of independen-ce": these are security of tenure, financial security and institutional independence. In Valente , the Court defined security of tenure as follows: "the office is free from all discretionary or arbitrary interference by the Executive or the authority responsible for making appointments". The office itself may be held for an indefinite term until the person reaches the age of retirement. Security of tenure means primarily and essen-tially "that a judge may be removed only for cause related to the capacity to perform judicial functions . . . for cause and that cause be subject to independent review and determination at which the judge affected is afforded a full opportunity to be heard".
According to Valente, the essence of financial security "is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive". The Supreme Court finds it theoretically preferable for salaries to be set by the legislative branch and to be paid out of the Consolidated Revenue Fund, but they may be left to the initiative of the Executive. The essential thing is that the right to remuneration is provided for in the Act and that "in no way may the Executive impinge upon this right in such a way as to affect the independence of a judge indivi-dually or collectively". However, in another judgement (concerning the judges of the ordinary courts) the same Court ruled that the law must provide for an independent commission to determine the remuneration of the judges, and its recommendations would for all intents and purposes be binding on Parliament.
Conclusively, the modern concept of judicial independence cannot be confined to in-dividual judges and to their substantive and personal independence but must also in-clude the collective independence of the judiciary as an institution. Thus, conceptual-ly, as well as from the point of view of practical reality, the independence of the judi-ciary comprises two basic postulates, i.e. "independence of the judiciary as an institu-tionalized organ" and "independence of the individual judges," and no judiciary can be said to be independent unless these two essentials are present.
Finally, in a broad sense, the components of independence are, amongst others, fairness, impartiality, and good faith. Thus, an independent judge gives every party a full and fair opportunity to be heard without regard to the party’s identity or position in society. An independent judge presides impartially, free from extraneous influences and immune to outside pressure. An independent judge rules in good faith, determi-ned to follow the law as he/she understands it, unmindful of possible repercussions. Within this context, although it may be appropriate for politicians to consider public opinion and the views of special interest groups when drafting laws and regulations, it is never appropriate for judges to do so when deciding cases. Judges must remain impartial. In this respect, the judiciary is very different from the other two branches of government. Judges are accountable to the Constitution and the law—not political pressure. And in this way the courts are always accountable to the people.
II. Separation of powers and judicial independence: Administration of justice
The theory of the separation of powers aims at combating tyranny by dividing the functions of government between groups with different interests so that no power centre can act without the co-operation of others . There are different kinds of sepa-ration of powers. The classical doctrine favoured by Asistotle would divide power ac-cording to the class interests of monarchy, aristocracy and democracy. However, the most influential version of the separation of powers is that proposed by Montes-quieu who, broadly following Aristotle, argued that government powers are of three kinds: a) the legislative power of enacting general laws, b) the executive power con-cerned with policy-making, foreign affairs and law enforcement, and c) judicial power concerned with the settlement of disputes arising out of the application of the law.
In view of the fact that the contemporary state, which is an administrative state, has a variety and complexity of targets, applied strictly, this austere version of the separation of powers would lead to a cumbersome government. This is the reason why nowadays, in the context of a pragmatic compromise, the principle of the sepa-ration of powers is perceived more as a system of “checks and balances” . Each branch of government is subject to some degree of control by another branch but without that other branch being able to dominate completely. Thus the exercise of power requires the co-operation of at least two branches of government and each branch is kept within its proper sphere of action.
Nonetheless, at this point, it should be stressed out that, in certain countries (Ger-many, Greece etc.) administrative courts are considered to belong to the judicial po-wer, while in other countries (i.e. France) they seem to have closer ties with the (function of the) executive power (“juger l’administration c’est encore administrer”) . The acceptance of the one or the other view has many ramifications.
Answers to the Questionnaire in relation to the administration of Justice:
1.1.Indicate with whom the responsibility for the central court administration lies?
We have to make a distinction between administration of justice at the cent-ral level and administration of the individual courts. As far as the administra-tion of justice is concerned, in most of the European countries the central administration belongs to the executive (Minister of justice), while the admi-nistration of the individual courts lies with the President of that court or a col-legial body or committee.
In Greece, Germany, Finland, Croatia, Slovenia: The central admi-nistration of justice lies with the Ministry of Justice.
In Luxemburg: It lies with the president of the Cour administrative un-der the supervision of the Minister of Justice
In Austria: As far as the Independent Administrative Tribunals are concerned: it belongs to the government of the respective Land (the president of the Tribunal is submitted to its instructions). As far as the Administrative Court is concerned: it belongs to the president, without the latter being submitted to instructions from the Federal Govern-ment or its members
In Sweden: It belongs to the Swedish National Courts Administration which is an authority directly under the Ministry of Justice, accoun-table to the government.
In Poland: It belongs to the President of the Supreme Administrative Court.
In France: It belongs to the vice-president of the Council of State, who acts on behalf of the ministry of justice and enjoys therein a full dele-gation of powers.
In Italy: It belongs to the President of the Council of State under the high supervision of the Prime Minister office.
In Estonia: The Minister of Justice and the Chief Justice of the Su-preme Court are responsible for the central administration. Courts of the first instance and courts of appeal are administered in co-operation between the Council for Administration of Courts and the Ministry of Justice. “Courts shall perform court administration duties if so provided by law. The Minister of Justice may transfer the court administration duties which fall within his or her competence to a court. The Minister of Justice has no right of command or disciplinary authority over the judges”.
III.The relation between judicial independence and judicial accountability
Judicial independence should never be used as shelter against incompetence and under-performance, nor should it be used as a shield against legitimate criticism. Ju-dicial independence is not valuable in and of itself. The mechanisms of accountability do not damage judicial independence, since the latter is merely a means to an end, i.e. it is the mechanism established to ensure the rule of law . It is an instrumental value designed to sustain the rule of law and constitutional and democratic values. And it is to these values that judges, whose status (tenure etc.) are often protected by the Constitution, are ultimately accountable .
The judges should be "accountable," because a broad consensus of the public ex-pects judges to be answerable, one way or another, for broad categories of miscon-duct that include misuse of office, undignified behavior, bias or prejudgment, harmful or offensive conduct, dereliction of duty, or disrespect for the law (including, of cour-se, lawbreaking). There can be no serious argument that independence is compro-mised when a judge faces reprimand or suspension for using his office to coerce the payment of a debt, fixing traffic tickets (or attempting to). Nor would fairness and im-partiality be threatened when a judge faces discipline for vulgar sexual harassment (or worse), public intoxication, or interference with law enforcement.
There is no conflict between judicial independence and judicial accountability, provi-ded the two concepts are properly understood. A judge speaks through his/her judg-ment, and being accountable can never mean that a judge should justify him-self/herself to anybody, any institution or group of people beyond that point. An at-tempt to cause a judge to do so would undermine the independence of the judiciary. Therefore, judicial accountability and judicial independence are complementary. The final product that comes out of the combination of judicial independence and judicial accountability is quality justice.
Usually, the contemporary systems of government are carefully designed to foster fair and impartial courts while maintaining strict judicial accountability through a se-ries of checks on judicial power. Here are some examples of established procedures that keep courts accountable.
If a party believes a judge made a wrong decision or error, the party may ap-peal to a higher court to review the judge’s ruling. This is an appropriate and effective check on judicial power .
If the legislature disagrees with the way a court has applied or interpreted a law, it may pass legislation to amend the law and prospectively change the impact of the court decision. This is another appropriate and effective check on judicial power.
When citizens disagree with a court’s interpretation of a constitutional provisi-on, they have the power to amend the Constitution to undo the court’s inter-pretation. Without question, amending the Constitution is an appropriate check on judicial power and on legislative power as well.
In addition to these checks on the appropriate exercise of judicial power, there are usually procedures to address judicial misconduct or substandard perfor-mance. So, when a judge engages in unethical conduct, habitual intemperan-ce, or persistent failure to perform duties, the supreme court can discipline the judge and even remove the judge from office.
It is argued that to the public whose support is required to maintain an independent judiciary, judicial cries of invasions of their independence that are directed largely at legitimate institutional mechanisms of accountability sound curiously like a power struggle rather than an aspirational statement about the role of the judiciary in the sy-stem of government. “The notion that established mechanisms of institutional ac-countability to the political branches (and thereby to the people) constitute infringe-ment on appropriate judicial authority is potentially a very hazardous perspective for the judiciary. For it the public is to continue to grant authority to the courts, it will be on the basis of decisional independence accompanied by accountability. First and fo-remost is accountability to the law, that justifies judicial independence”.
No one in good faith, could call into question the previously mentioned observations. On the other hand, however, it sounds correct that there is a tension between the principle of judicial independence and accountability of judges . The friction bet-ween accountability and judicial independence occurs primarily, largely in conse-quence of disciplinary measures taken (or potentially taken) by the disciplinary autho-rities . Undisputably, there are significant areas of discipline — many of which are truly burdensome and some which are quite controversial — that have no palpable impact on judicial independence. Accountability and independence are not mutually exclusive; most often, we can have both. But there are situations in which the possi-bility of discipline most definitely does endanger the independence of the judiciary. There is little doubt, for example, that judicial independence is most gravely threate-ned when judges face sanctions for "decisional conduct," which may be defined as discipline based upon the merits of a ruling.
Another critical question that arises is whether judges should be liable for his/her ju-dicial acts? First of all we have to draw a distinction between personal liability of jud-ges and liability of the State for their judicial activity, i.e. their activity as organs of the State.
In this cotnext, judicial independence requires that judges should be protected a-gainst attacks on their conduct in court. Judges must be immune from personal ac-tions for damages in respect of their official actions and an order made by a judge ac-ting within the scope of his powers or jurisdiction is conclusive.
From a comparative perspective, in Britain a superior judge cannot be personnally li-able even when acting outside his/hers powers except possibly when acting in bad faith.An inferior judge is protected only when acting within jurisdiction, and in the ca-se of magistrates only if acting in good faith (Justices of the Peace Act 1997 Part V) .
In the United States of America, more than a hundred years ago, by judicial fiat, the judges were declared not to be liable in civil actions for their judicial acts even where it was alleged to have been done maliciously and corruptly . Accordingly, judges cannot be sued for damages. However, in Pulliam v. Allen 104 S.Ct. 1970 (1984) the Supreme Court reaffirmed the principle that judicial immunity was not a bar to per-spective injunctive relief against state judicial officers acting in their judicial capacity. Pulliam went a step further and allowed an award of attorney fees and costs against a judge under the civil rights act. Pulliam traced the history of judicial immunity to the Star Chamber of early 17th century England. The objective was to preserve the King’s authority. The judges of the Star Chamber led by Lord Coke declared the jud-ges of the King’s Bench immune from prosecution in other courts for their judicial acts which included any alleged corruption. The objective was not to slander or bring scandal on the justice of the King and so, the judges were made "only to make ac-count to God and the King, and not to answer to any suggestion in the Star-Chamber." Eventually, this judicial immunity was extended to protect judges of all courts, for actions within their so-called jurisdiction.
The objective of judicial immunity was redefined at a later date by the English courts which was followed in Bradley v. Fisher, on the quoted ground that judges "should be permitted to administer the law under protection of the law, independently and freely, without favor and without fear”.
This jurisprudence has not been developed for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.
As far as the liability of the State is concerned, judges may be regarded as servants of the State in the sense that they hold office granted by the latter. On the other hand it is a cardinal axiom that judges are independent, i.e. there is no legal right of the Government to give them instructions. They do not therefore satisfy the test of the re-lationship of master and servant. The nature of their office justifies the fact that in cer-tain countries the State bears no liability for acts of the judiciary, and the judiciary themselves have an extensive immunity .
In a constitutional sense it is nevertherless evident that the judges supply one of the most important services of the state. The word “servant” in public law has a different meaning from that which it has in private law. The test of control is anappropriate, since servants of the state on the plane of public law means persons by whom the functions of government of a state is carried out .
Answers to the Questionnaire in relation to the liability of judges:
2.1. Is it possible for sanctions (of any kind) to be imposed on a judge ba-sed upon the content of his/her decision? Or 1.3.
2.2. Can a judge face disciplinary charges solely on the basis of the sub-stance of his/her ruling? Is this a case when a judge declines to follow a su-preme court’s decision?
Or 1.4.
It can be concluded from the answers that it is not possible for judges to face discipli-nary charges because of the content of their decisions. They are subject only to the provisions of the Constitution and the relative statutes, which are in accordance with them.
Furthermore, it is very interesting to point out that, when a judge declines to follow a supreme court’s decision he/she runs no risk of disciplinary charges, provided that his/her deviation is reasoned.
Italy: “Yes, under some circumstances. The main rule is very general and may be interpreted in several senses. It sounds: “The judge, who fails to do his own duty or behaves, in office or outside, in a way that makes him/her unworthy of trust or of esteem that he/she must be held in, or prejudices the prestige of the judicial body, is subject to the sanctions, provided for by law” . So, he/she may be charged if the substance of his/her ruling reveals a not excusable negligen-ce or ignorance and then there is proof that he/she fails to do his/her own du-ty”.
France: “Collective independence from central and local political authorities is guaranteed, for Council of State’s members by their membership to this bo-dy,which enjoys a great consideration coming from parliament and political authorities and for other administrative judges, officially by the high council of administratrive judiciary and practically also by the vice-president of the Coun-cil of State”.
Estonia: “This is possible if the judgement was knowingly wrong”.
Latvia: “Judicial Disciplinary Liability Law, section 1 part 1 provides that: a judge may be subjected to disciplinary liability for intentional violation of law during the ad-judication of a matter in court or allowing gross negligence in the adjudication of a matter”.
Germany: The judge could face sanctions if a decision constitutes a “perversion of justice” (Rechtsbeugung) which is a criminal offence. Rechtsbeugung is only acti-onable if a judge intentionally breaks the law. Judges are bound by the decisions of the Federal Constitutional Court. Under certain circumstances, failure to follow such deci-sions may be regarded as an actionable “Rechtsbeugung” and result in disciplinary charges”.
2.3. Do you think that accountability of judges threatens judicial independence? Or 1.5.
We could formulate as a general rule that in the view of judges accountability (of jud-ges) doesn’t imperil judicial independence as long as there are transparent rules and fair proceedings. Nevertheless, we sense a kind of reservations in the given answers.
Austria: “Accountability of judges poses a threat to judicial independence with regard to the decision itself, although it doesn’t have such effect on the fullfil-ment of duties in general”.
Italy: “It depends on the criteria used to estimate a judge’s “not excu-sable negligence”, which is the case that a judge can be held discipli-nary liable”.
2.4. Can a judge be held liable in civil actions for his/her judicial acts (e.g. be sued for damages for actions taken in his/her judicial capacity)? Or 1.6.
Greece: Article 105 of the Introductory Law on Greek Civil Code (EisNAK) imposes liability on the State on account of the objectively unlawful behaviour (act or omission in the exercise of a public office) of its officials Unlike civil servants (judges are not considered as such), judges are personally liable for damages caused to the citizens (litigants), when performing their duties. But this is the case in special circumstances (malicious act or erroneous negligence). Under these conditions, the affected litigant is entitled to sue a judge for damages before a Supreme special court composed of judges and lawers. Mo-reover, under Greek law and according to settled case-law it is not possible for the affected litigant to initiate legal procceedings (i.e. ac-tion for damages) against the State, since the judge is not characteri-zed as a servant of the latter, meaning a person who obeys orders or follows instructions.
Remarks: Needless to say, that the parameter of the independence of the judicia-ry should not be raised in the context of rules governing the liability of the State, irrespective of the relevant problems in the context of the establishment of rules governing the personal liability of judges. This is especially true when it comes to the application of EC Law (See, opinion of Advocate General LÉGER delivered on 8 April 2003 Case C-224/01 Gerhard Köbler v. Republik Österreich, VB2a). As the Court (ECJ) has repeatedly held, the principle of liability on the part of a Member State for damage caused to individuals as a result of breaches of Com-munity law for which the State is responsible is inherent in the system of the Trea-ty (Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, par. 35; Brasserie du Pêcheur and Factortame, par. 31; Case C-392/93 British Telecommunications [1996] ECR I-1631, par. 38; Case C-5/94 Hedley Lomas [1996] ECR I-2553, par. 24; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845, par. 20, Case C-127/95 Norbrook Laboratories [1998] ECR I-1531, par. 106 and Haim, par. 26; Case C-224/01, Köbler [2003] par.30, 51; Case C-63/01 Evans [2003], par.83; Case T 364/03 Medici Grimm KG [2006]). From this point of view it is not critical the specific nature of the state organ that caused the damage by impigning upon E.C Law (Case C-224/01, Kobler).
France: “Financial accountability or eventual criminal charges against judges could jeopardize judicial independence. But this is not the case as regards disciplinary actions carried out by an independant body. In addition, in France all civil servants are immune from any kind of civil actions when it comes to the performance of their duties (acts or ommission in their professional capaci-ty).This rule takes also effect for administrative judges since they belong to the civil service. Anyway, if a civil court imposes on the French State a liability for damages, the latter will be entitled to ask from the responsible judge reimbur-sement of eventual losses and damages, if it comes to a “behaviour manifestly unlikely to be related to the normal accomplishment of his/her professional du-ties”. But, such kind of judicial procceedings against the State before the ordi-nary courts never happen as regards judges. Furthermore, the French consti-tutional court declared unconstitutional a statute law which provided liability for damages in case of serious and obvious infringement of procedural rules which are aimed at protecting essential parties’guarantees.The Constitutional court stated that, even though it’s not forbidden to extend judges’liability when they commit serious and obvious infringement of such procedural rules, dis-ciplinary proceedings cannot occur unless this infringement has been previously recognized by a final judicial decision”.
Remarks: I would like to remind the recent decision n. 2007-551 DC- 1er mars 2007 of the Constitutional Council of France (Conseil Constitutionnel), with regard to article 21 of “Loi organique au recrtutement, a la formation et a la re-sponsabilite des magistrats”, which provided that every person could submit a claim to the Ombudsman “Le Mediateur de la Republique”, if he thinks that the behaviour of a judge in relation to a pending case constitutes a disciplinary offen-ce. The Constitutional Council held that the aforesaid article is incompatible with the principle of the independence of the judiciary and the separation of powers.
Finland: The judge could be held liable.
Austria: “There must be drawn a distinction between Independent Tribunals and Administrative Court: A) Concerning the Independent Tribunals: In case of heavy faults the respective Land is liable for damages suffered by the parties of the procedure ("Amtshaftung"). The claim for compensation is dealt before civil courts. In serious cases, the Land can then have recourse to the respecti-ve judge. B) Concerning the Administrative Court: Due to the position of the Court as a supreme jurisdiction it is not possible to get compensation for (af-firmed) mistakes of the Court concerning the application of national law (no "Amtshaftung" before civil courts). Nevertheless heavy faults concerning the application of community law by the Administrative Court can make the state liable according to the jurisdiction of the European Court of Justice (case Köbler). Such a procedure falls within the competence of the Constitutional Court ("Staatshaftung"). It has not yet been decided whether in case of liability of the Federation for decisions of the Administrative Court that infringe community law the Federation can have recourse to the respective judge”.
Sweden: “Only when the judge has committed a crime through actions taken in his/her capacity as such”.
Poland: Only the State can be sued.
Italy: “Yes, in case of malice, gross negligence and denial of justice”
Croatia: No
Estonia: “The affected individual can sue only the state to make good damage caused in the course of judicial proceedings under the condi-tion that the judge has committed a criminal offence therein”.
Slovenia: Yes.
Latvia: “No, a judge can not be held liable in civil actions for his/her judicial acts. It is clearly prescribed in Law on Judicial Power section 13 part 6: a person, who considers that a judgment of a court is un-lawful or unfounded, may appeal it in accordance with the procedures provided by law, but may not make a claim in court against the judge who has adjudicated the matter”.
Germany: Only in case of a criminal offence (“perversion of justice”.
2.5. Are judges immune from prosecution in other courts for their judicial acts? Or 1.7.
2.6. Can criminal charges be brought against a judge for actions on his/her duties? Or 1.8.
Greece: Judges are not immune for acts or omissions taken in their capacity. They might be charged with the crime of breach of duty, if the prerequisites of this crime are met, or possibly with other crimes.
France and Poland: The same situation (no immunity of judges, if a crime has been committed).
Sweden: “Judges are immune from prosecuton in other courts. But, there is a crime under the term “misuse of office”, which has been u-sed as a basis for prosecuting judges in certain cases. In this context some judges have been prosecuted for mistakes such as miscalcula-ting the days for someone in custody”.
Luxembourg: “Judges are immune for acts done in their capacity, but “in theory they could be punished”.
Croatia, Germany, Slovenia: Yes
Estonia: “The courts shall be independent in their activities and shall administer justice in accordance with the Constitution and the laws. Judges shall be appointed for life. Judges may be removed from of-fice only by a court judgment. Justice shall be administered solely by the courts. No one has the right to interfere with the administration of justice. Acts which are directed at disturbing the administration of ju-stice are prohibited in courts and in the vicinity thereof. Judges may be removed from office only by a court judgment. Criminal charges against a judge of a court of the first instance and a court of appeal may be brought during their term of office only on the proposal of the Supreme Court en banc with the consent of the President of the Re-public. Criminal charges against a justice of the Supreme Court may be brought during his or her term of office only on the proposal of the Chancellor of Justice with the consent of the majority of the mem-bership of the Riigikogu (Parliament)”.
Latvia: “A criminal matter against a judge may be initiated only by the Prosecutor General of the Republic of Latvia. A judge may not be de-tained or be subjected to criminal liability without the consent of the Saeima (parliament). A Supreme Court justice specially authorised for that purpose shall take a decision concerning the detention, forcible conveyance, arrest, or subjection to a search of a judge (Law on Ju-dicial Power section 13 part 2). An administrative sanction may not be applied to a judge and he or she shall not be arrested pursuant to administrative procedures. A judge is subject to disciplinary liability for committing administrative violations in accordance with the provisions of Chapter 14 of this Law (Law on Judicial Power section 13 part 4). This means that no one (among them prosecutor’s office and police) can threaten judicial independence”.
2.7. Do judges face sanctions for “decisional conducts”? or 1.9.
Clarification: The term "decisional conducts" of the questionnaire has a broad meaning that comprises mainly jurisdictional orientations ("orientati-ons jurisprudentielles"). Apart from this, it has to do with the usual judicial at-titude of a Judge (i.e. a judge who seems to follow more conservative direc-tions through his judgements).
In the anglo-amerikan system of law the aforesaid term seems to be used as identical to the term “functional independence”.
IV. The indivisible ties between institutional and decisional (functional) independence
There is a critical relationship between decisional independence and institutional in-dependence. A major part of the discussion about judicial independence focuses on decisional independence. However, full decisional independence requires institutio-nal independence as well. In consequence, although the autonomy to make impartial decisions is at the heart of judicial independence, the concept extends further. Is has to do with the core problem whether the courts must be in control of their own gover-nance.
The approach of theory and praxis to that delicate issue differs from one country to another. For some scholars, it is important that we not confuse perceived attacks on institutional independence as directly affecting the decisional independence that is the sine qua non of the judicial role in the democratic mechanism of a country. There is a relevant reproach that judges fail to make this distinction. So, it is argued, that, although diminution of institutional independence may, by definition, have a detrimen-tal effect on decisional independence, the historical record is not so clear. “The ar-gument that administrative independence is a necessary condition for the exercise of decisional independence is a forceful one, but support for it comes from sources o-ther than the text of the Constitution or the history of the judicial administration” .
However, in our view, it is typical, but correct argument, that any incursion on institu-tional independence is by definition a potential threat to decisional independence. For this reason, any institutional attacks or restraints call for the argument of decisional independence, due to the indivisible ties between them .
In the aforementioned case Valente, the Supreme Court of Canada dealt with this problem. In particular, the court spoke of a third ingredient of judicial independence, namely institutional independence with respect to administrative questions which ha-ve a direct effect on the exercise of the judicial functions, and the Court distinguis-hed between what is desirable, namely the acquisition of greater administrative auto-nomy or independence, and what is essential.
These essential aspects of institutional independence “may be summed up as poten-tial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function." Chief Justice Howland described these questions as follows: "assignment of judges, sittings of the court and court lists as well as the rela-ted matters of allocation of courtrooms and direction of the administrative staff em-ployed in carrying out these functions." . Thus, i.e. it is not consistent with institutio-nal independence for one and the same representative of the Executive to summon the court.
Answers to the Questionnaire in relation to the judicial administration at the Court level (division of work among judges and assignment of cases etc.)
A. General:
3.1. Is the division of work among judges and the assignment of cases to each judge or panel done according to a predetermined rigid plan or is it flexible and may be changed easily? Or 2.1.
3.2. Who is in charge of case assignment? Or 2.2.
The answers lead us to draw the following conclusions: A) there is flexibility in the assignment of cases to judges of the administrative courts depending on the discre-tion of the President of the Court or the presiding judge. B) the number of cases to be dealt with is defined by the internal organisation of the court or the president of the court in a predetermined monthly plan. C) As to the rest there aren’t distiguishable differences between the various systems at this point.
Greece: “It is flexible and depends mainly on the Presiding Judge, who has to comply with the general rules provided for in the Regulation of the Court, laid down by the plennary Session of each Court (when it comes to big Courts like those of Athes, Thessaloniki, Piraeus, Patra)”.
Poland: “The cases are assigned to judges at random, according to an alphabetical list of the serving judges”.
Austria: “Regarding the Independent Administrative Tribunals specific Commit-tees are installed by different laws of the Laender, being in charge (where e.g. in Vienna 3members are voted by majority of the plenary assembly, including the president and the vice-president). This Committee decides by majority on the distribution of cases, according to an internal regime. This regime provides that different members are specialized in different areas of law. Regarding the Administrative Court the case assignement is enacted by the plenary as-sembly for each year in advance. The President decides which member of a certain division has to act as reporter”.
Italy: “The division of work among judges and the assignment of cases to each judge are done according to predetermined guide-lines, fixed by the Council of Presidency for administrative Justice, so we have a compromise between rigid methods und flexibility. The president of TAR or the president of a chamber in the Council of State and in Regional Administrative Tribunals divided into chambers”.
Estonia: “Every court shall comprise a full court which is comprised of all the judges of the court. A full court shall approve the division of tasks plan of jud-ges; make recommendations to the chairman of the court concerning organi-sation of work; perform other duties arising from law and the internal rules of the court. The aim of the system is to guarantee the randomness of the as-signment. Some flexibility is possible but of secondary importance. The divisi-on of tasks between judges of courts of the first instance and courts of appeal shall be prescribed in the division of tasks plan. Tasks shall be divided bet-ween judges on the basis of the following principles: each matter received by the court for hearing shall be divided between judges according to the division of tasks plan; matters shall be divided between judges at random and on ba-ses determined in the division of tasks plan. The division of tasks plan shall prescribe the procedure for formation of court panels and for the substitution of judges. The division of tasks plan shall be approved for one calendar year. During a working year, the full court may amend the division of tasks plan only with good reason. Everyone can access the division of tasks plan in the court office”.
Germany: The assignment is done according to a predetermined rigid plan. A general plan of assignments to the panels is decided upon by the presidential committee of each court (Präsidium). Each panel has to draw up a special plan concerning the assignments to individual judges.
B. Judicial self-administration:
The self-administration of the courts is frequently cited as a mark of their indepen-dence.
3.3. Is judicial administration effected through independent judicial self-governance? Or 3.1.
3.4. Describe briefly how the governing body/committee is elected? Or 3.2.
3.5. Is there any restriction for the members of the above body to par-ticipate in other syndicalistic bodies? Or 3.3.
Greece: A) In the big Courts with many divisions judicial administration is ef-fected through independent judicial self-governance. In smaller Courts it is for the senior President to run the Court. In the first case the court is governed by an elected committee of three judges. B) As to the way the candidates are chosen, 1/3 of the total number of Presidents and Judges serving in the Court, in rank of seniority, are candidates and the Plenary Assembly of that Court e-lects, by secret ballot, one President and two Judges to form the aforesaid go-verning body of the Court. C) It is not possible to participate in the above body and in the Association of Administrative Judges at the same time. Members of the latter (Association) are not eligible for the above body, even for one period of two years after their term.
Austria, Slovenia, Germany: Judicial administration at the court level is effec-ted by the President of the court.
Sweden: “The President or Chief Judge of a court is responsible for the judici-al administration of the court and each court is entitled to judicial self-governance in accordance with administrative statutes and the budget frame decided by The Swedish National Courts Administration. Within the courts -divided into divisions- the Senior Judge is responsible for the judicial administ-ration of his or her division”.
Italy: “There is self-governance of the courts by a body made up of the Presi-dent of the Council of State, 4 external members appointed by the Parliament and 10 members elected among the judges”.
France: “A) As to the members of the Council of State daily judicial administra-tion is carried out inside the Council of State itself, i.e. through its secretary general ,under the authority of the vice-president. B) As to the members of tri-bunals and courts of appeal, daily judicial administration is carried out by a specific department of the Council of State, which is acting under the authority of the Council of State’s secretary general. Furhtermore, the main individual issues (promotions-transfers-appointment of civil servants temporary assigned to the judiciary) as well as main collective issues (setting up new tribu-nals/courts,new court /tribunal divisions,allocation of new posts to each court/tribunal, opinions about new regulations which can influence the worklo-ad of the administrative judiciary etc.) are dealt with by the High Council of administrative judiciary, chaired by the vice-president of the Council of State and consisted of five judges’ elected representatives, two further Council of State’s members (secretary general and chief inspector), one representative of the justice ministry and one representative of the civil service ministry,and three independent persons appointed respectively by the president of the french Republic, the chairman of the Senate and the chairman of the french national assembly”.
Finland: “In Finland the central administration of the courts is a task for the Mi-nistry of Justice (the Department of Judicial Administration). The main duty of this Department is to ensure that the preconditions for the functioning judicial system exist in Finland. The judges are also to some extent directly involved in the field of judicial administration as well. This is the case especially as to the recruitment of judges and the development of the quality of judicial work and adjudication”.
Poland: “Partly and indirectly. According to article 185 of the Polish Conistitu-tion the President of the Supreme Administrative Court shall be appointed by the President of the Republic for a 6-year term of office from amongst candi-dates proposed by the General Assembly of the Judges of the Supreme Ad-ministrative Court. The president and the vice-president in a regional adminis-trative court shall be appointed and removed by the president of the Supreme Administrative Court from amongst judges of administrative courts, after seek-ing the opinion of the general assembly of that court and the Board of the Su-preme Administrative Court. The general assembly comprises all the judges of the court. The assembly decides the number of the members of the Board of the Court and elects its members from judges”.
Estonia: “The Council for Administration of Courts is comprised of the Chief Justice of the Supreme Court, five judges elected by the Court en banc for three years, two members of the Riigikogu (the Parliament), a sworn advocate appointed by the Board of the Bar Association, the Chief Public Prosecutor or a public prosecutor appointed by him/her, and the Chancellor of Justice or a representative appointed by him/her. The Minister of Justice or a representati-ve appointed by him or her shall participate in the Council with the right to speak. Council sessions shall be convened by the Chief Justice of the Su-preme Court or by the Minister of Justice. The person who convenes a session shall also determine the agenda thereof. The Council shall be chaired by the Chief Justice of the Supreme Court”.
Slovenia: “The president of the court”.
C. Human, financial and material resources necessary for the performance of judicial functions
A factor which impairs the independence of the judiciary is the dependence of the ju-diciary on the executive for resources. The purest form of judicial independence would be when the judiciary is in charge of its own budget. Nevertheless, with neither the power of the sword nor the power of the purse, the third branch, i.e the judiciary, has had an enduring vulnerability to attack. The judiciary has to act within the alloca-tion of funds made to it in the annual budget. It cannot spend a euro more even if it is necessary for streamlining the machinery of justice and improving its performance. Yet for the courts to pursue their assigned role in a democratic system of governan-ce, there should be some mechanism by which they can offset this apparent imbalance.
For the above reasons, it is argued that institutional independence of the judiciary is under challenge from reduced government funding and an upsurge in rates of the cases (litigation etc.). If the judiciary wants to introduce modern science and techno-logy in the functioning of the court system or to expand its facilities or to appoint more judges with a view to expediting the disposal of cases, it cannot do so unless the ne-cessary funds are made available by the executive. The executive can twist the arm of the judiciary if the judiciary does not behave to its liking or if judges are too inde-pendent and do not fall in line with the executive on sensitive issues.
Specifically, in most of the countries, the budget is discussed and voted on in the le-gislature, and theoretically, the elected representatives of the people can appreciate the needs of the judiciary and vote for an adequate budgetary allocation. As a matter of practical reality, however, in most countries, it is the executive which controls the legislature. The result is that a backlog of cases piles up; cases take years and years to be disposed of; and the credibility of the judicial institution is affected. Once the credibility and the respect for the institution goes, this has an adverse impact on the independence of the judiciary as an institution.
In this context, it is worth citing the jurisprudence of the Superior Court of Quebec in Canada, which ruled in 1993, in Bisson , that the government must provide judges with "all the human, financial and material resources necessary for them to perform their judicial functions". Besides courtrooms and the registry, the Court assumed "that a parking space at or near the law courts constitutes a security measure and an ad-ministrative support necessary for the performance of the judicial function".
Answers to the Questionnaire in relation to the self-administration of the Courts and the resources necessary for the performance of judicial functions:
Who is responsible for the administrative staff employed in the courts?
Greece: “The staff of the courts are civil servants and serve under the authori-ty of the Ministry of Justice. Neverheless, since they are –so called- judicial ci-vil servants (as opposed to judges who are judicial officials) they depend for their status, except for their appointment, on the relevant judicial councils of the Administrative Court of Appeal or the Council of State composed by majo-rity from judges”.
France: “As to the administrative tribunals/courts of appeal, administrative staff comes from the French home office administration both at central (for Paris) and local levels (for the tribunals/courts located in the provinces).This system often creates problems and conflicts between tribunals’chairmen and prefects at the local level.
Remarks: It seems that there is a friction between the judicial power and the exe-cutive at this point. In Greece, a relevant problem came to the surface only with regard to the clerks of the Audit Court coming from the Ministry of Finance. The case was taken before the Greek Council of State, after an action for annulment was lodged with this court by the President of the Audit Court against the Minister of Finance. The result was that the Council of State, drawing arguments from the constitutionally entrenched functional independence of the judiciary, found that the status of these civil servants, since they serve at this Court, should be deci-ded by the members of the Court and not by the Minister of Finance.
Finland: “All matters regarding the administrative staff employed at the courts, necessary funds etc. are decided on the basis of negotiations between the Department of Judicial Administration and the courts”.
Sweden: “The Chief judge”.
Italy: “The President of the Council of State and the Presidents of Regional Administrative Tribunals (T.A.R.) with the help of General Secretaries who in T.A.R. are not judges, but administrative units”.
Croatia, Germany: The president of the court.
3.6. Who is competent to make available the necessary funds for the perfor-mance of justice? Or 4.2.
3.7. Who has the power to execute and spend the budgetary allocations? Or 4.3.
Greece, Germany, Croatia, Estonia, Slovenia: The Ministry of Justice. In Esto-nia, the budget of the court is prepared by the director of administration with the approval of the President of the court.
France: “Both Council of State and other administrative courts/tribunals enjoy a specific budget together with highest civil service branches entrusted with control of French State/local government authoriries (National revenue court and regional revenue courts, which enjoy both a judicial status).The main dis-cussion about this budget takes place between the French Ministry of Finance and both the secretary generals of the Council of State and of the national re-venue court (Cour des Comptes). As to the execution of the budgetary alloca-tions the relevant power belongs: A) as to the Council of State to the vice-president and the secretary general under his authority. B) as to each admi-nistrative court (tribunal/court of appeal) to its president, who enjoys full dele-gation from the vice-president of the Council of State as regards all usual ex-penditure”.
Sweden:The Parliament decides the budget of all courts. The Swedish Natio-nal Courts Administration distributes the funds among the courts.
Italy: The Council of Presidency for administrative Justice is competent to make available the necessary funds for the performance of justice. The power to spend the budgetary allocation lies with the President of the Council of Sta-te, the Presidents of Regional Administrative Tribunals (T.A.R.), the General Secretaries and other senior servants (Directors).
Poland: The President of the Supreme Administrative Court is competent to make available the necessary funds. This happens in an indirect way: The Mi-nister of Finance includes the draft revenue and expenditures budget in the wording established by the aforesaid President into the state budget draft and finally the Parliament decides.
Answers to the Questionnaire in relation to the factors which give rise to malfuncti-ons of administrative justice:
1. Could you indicate, according to your opinion, which are the factors (concer-ning organisation or rules of process) that cause malfunctions in the administ-rative judicial system in your country?
Austria: The fact that the “system of administrative jurisdiction is not yet fully in existence. The only existing judiciary body according to Austrian Constituti-on is the Administrative Court, by contrast to the members of the Independent Administrative Tribunals”.
Germany: Delays are to be feared mainly because there is no definite deadli-ne for the judge to work up a case.
Italy: “First of all we think that one of the main factors inflating the mass of our cases can be identified with the great number of confusing laws existing in the administrative matter.Therefore organizational efforts should tend to collect systematically cases, in order to solve interpretative questions in a more cer-tain and coherent way.To this purpose the data processing means could play a relevant role in supporting the preliminary activities of selecting and collec-ting cases centred on similar legal topics and, in a following stage, to create and maintain a sure and solid trace - despite the different geographical locati-on of the judges and the lapse of time - of the univocal solution tendentially gi-ven to the various legal topics. Apart from that, the problem of malfunctioning in the administrative judicial system in Italy is also connected to the shortage of administrative judges and clerks (in proportion to pending cases)”.
Finland: “The written procedure and demands from the public causes prob-lems and challenges”.
Sweden: “The greatest problems are too many balanced cases and too long delays. The procedural rules are modern and well functioning but at times the-re have been a lack of personnel”.
Croatia: The fact that there is not a two degrees system of administering ad-ministrative justice. Therefore, “it is necessary to introduce two degrees of administrative jurisdiction. First instance of the Administrative Court and Su-preme Administrative Court”.
Greece: “There are problems as far as the infrastructure is concerned, which is incomplete. There is also a lack of “judicial policy” from the Ministry of Justi-ce and the Council of State. The Administrative Judges are not participating in any way to the decisions concerning matters of judicial organisation. Salaries and promotions are poor”.
Luxemburg: “There are no apparent malfunctions in the administrative judicial system in Luxembourg. The main reason is that the administrative jurisdictions only exist under the current system since January 1, 1997 with a sufficient number of judges and administrative staff”.
2. Could you indicate which, in your opinion, might be possible remedies?
Austria: Installation of Administrative Courts of First Instance
Germany: A certain time limit to summon the parties for the oral hearing after the presentation of the records could be helpful to avoid delays
Italy: “An increase in the numbers of judges and clerks depends on State financial resources, that are not available for the administrative justice at this very moment.Anyway a practicable remedy would be the increasing use of data processing means in trials. Italian administrative judges are all connected through an intranet system, that has a complex structure. It contains:
an E-mail connection among all offices and all judges;
a web-site which makes it possible (also for the public) to:
check the situation of a trial and the dates of hearings;
read all the decisions of the Council of State and Regional Administra-tive Tribunals since 2000 and laws concerning administrative jurisdicti-on;
read the records of the Council of Presidency for administrative Justice;
some libraries and data bases with complete and up-to-date collection of ju-risprudence and laws, with juridical articles and a juridical encyclopaedia;
many links (for examples, to the EU, to the Council of Europe, to the Italian Constitutional Court, to the library to the Italian Court of Cassation).
In some Regional Administrative Tribunals a system that converts all trial paper do-cuments (including judgements and decisions) into data processing ones (project called “data processing trial”) is being experimented at present. Moerover, the par-ties are allowed to introduce briefs by way of fax, according to law; in some Regional Administrative Tribunals a transmission by mail is possible on the basis of a previous mutual consent between the Tribunal and the lawyer”.
Finland: “Improving the procedure”.
Sweden: “More personnel - more funds”.
Luxemburg: “The most effective measure has been introduced by article 5 of the Law, dated June 21, 1999 concerning the procedure in administrative courts and concerns the procedure delays.After a claim has been filed (within a period of 3 months after having taken knowledge of the challenged administ-rative act), the defendant party has a 3 months period at his disposal to file a written reply (mémoire en réponse).The claimant then has another 1 month period at his disposal to file an answer to the reply of the defendant party (mémoire en réplique) and the defendant party has a final 1 month period at his disposal to reply to the arguments of the claimant (mémoire en duplique). As the procedure is exclusively written, all the arguments are known after a maximum delay of 5 months after the claim has been filed and a judgment can be rendered, after a public hearing, approx. 1 month later. As these delays are compulsory, a judgment is normally rendered within a delay of 6 months to 1 year after the claim has been filed”.
Greece: “Increasing the money to be spent for the infrastructure, better educa-tion for judges, development of filtering mechanisms and arbitration procedu-res, to reduce the number of pending cases”.
3. Have you noted whether effective measures have been introduced in recent times to improve the system in your country?
Germany: “As a means to improve the system, in particular to prevent highly important infrastructure projects from being stopped for a long time by interim injunctions, the legislation has recently decreed that actions concerning some specified infrastructure projects (motorways, channels, railways) are to be filed exclusively with the Federal Administrative Court, who has to act here as first (and last) instance court”.
Italy: “Since 2000 some rules have been introduced to accelerate procedures. Among these one of the most effective is the possibility to decide immediately (by means of a concise explanation of the pertaining reasons) the dispute, in occasion of the discussion on interim measures. Such a possibility is allowed when the questions involved are very easy to solve or have already been sol-ved in a univocal way by jurisprudence or concern mere procedural aspects (for example, the claim was untimely, the administration has meanwhile revo-ked the challenged act or the plaintiff has otherwise no longer any interest in a decision of the case). In many courts the decisions’ number has highly increa-sed and the annual ratio between decisions and new filed claims is more than 3 to 1.The use of data processing means and the internet, as described abo-ve, have brought practical positive effects”.
Finland: “Not very much. There are some plans for improvement of the proce-dure”.
Sweden: “The technical equipments are modern and so are the electronic sy-stems”.
Croatia: “Reform process is starting in Croatia and new General Administrative Act is going to take effect as from the end of this year (2007) and after that a new Law on Administrative Disputes will be enacted”.
Greece: “There is under way a legislative initiative of the Government, in order to speed up the process before the administrative Courts. Since it has not be-en introduced yet, the success of it remains to be seen”.
V. Conclusions
The topic of judicial independence has been extensively dealt with by scholars, jud-ges, politicians etc., as can easily be witnessed either by a meticulous search in the relevant huge international bibliography or a quick visit into the internet.
In theory, judicial independence, simply put, means the freedom of the judge to de-cide a matter without external influence or harmful repercusssions. In practice though, the concept is not that easy to apply or realize. Central to this problem is whether there is any such thing as complete independence of the judiciary, or that independence is a relative concept. The daily life and experience proves that the Ju-diciary cannot operate in total isolation from, and independence of, other authorities of the state.
Nevertherless, these conditions do not a priori and in abstracto compromise judges’ independence. It could be argued that this is an expression of the nowadays prevai-ling system of “checks and balances”. Serious problems arise when the Executive is so much in control of the infrastructure on which judges are dependent for the execu-tion of their judicial functions that the latter’s independence is imperiled. Under these terms, although an independent judiciary is ’a formidable protector of individual liber-ty, it is at the same time a very vulnerable institution, a fragile bastion’ because of its dependence on the other branches of government for its financial and material sup-port .
The most serious situations for the independence of the judiciary come forward when that judicial independence can be whittled away through a subtle process. Indeed, in a democratic country there can never be a blatant undermining of judicial indepen-dence. The courts would simply strike down any such measure as being unconstituti-onal. Moreover, a government which lays claim to democracy, would hardly resort to such a measure. But the consequences of blatant interference and a subtle one, e-ven the one in good faith, are the same.
It may well turn out that judicial independence is easier to protect than to define. As it has been successfully observed there has been a ’Janus-faced’ approach to judici-al independence, the independence of the judiciary is lauded but no protections are offered to secure it from the executive.
Nowadays, the courts have become the object of public attention and a favourite journalistic target, due to the demand of immediate coverage and the capabilities of the press, which now include broadcast media and virtually instantaneous coverage. Though attacks may be focused on individual cases or judges, their impact is genera-lised and magnified, because the public makes little distinction among cases and judges or even among different jurisdictions. Yet however harsh and sometimes indi-vidualized the attacks of the press on the judiciary might be, it must not be forgotten that the media remain the public’s primary source of information about the third branch of government. Moreover, in almost all the democratic countries not only is the press protected against government restrictions on speech, but is arguably de-signed precisely to enable people and the media to criticize their public officials .
Sustaining support for judicial independence in this age of political and media scruti-ny is a weighty challenge. It has been argued that central to meeting that challenge is a judiciary that recognizes the importance of communicating with the public in ways that will enhance their legitimacy and justify their independence .
As to the balancing between judicial independence and judicial accountability, some people fear that the Judiciary would be made over-dependent on the Executive, while others fear the abuse of their power. The debates and discussions are still going on. Views do differ, and time will tell where we stand, or who is right.
In our view, a well-balanced combination of the principle of judicial independence and judicial accountability contributes to the quality of justice. And the achieved quality protects ultimately the independence of the judiciary, since it shapes a community consensus that judicial independence is a quality worth protecting’
II./b./ The relation between administrative jurisdiction and other po-wers (executive, legislature), Interest representation (Panagiotis Danias)
1. Relations with the executive (the influence of the Administration on the judges etc.)
1.1. As far as the first question, whether there have been cases of executive pres-sure on judges, all the colleagues responded negatively, which demonstrates the high level of democracy and judicial independence, shared by the E.U. Member States.
1.2. As far as the second question, whether judges can be members of the Gon-vernment, most parties responded no, with the exception of France, Italy, Sweden and Finland (but not exercising judicial authority at the same time), while in Germany they can participate to local administrative councils.
1.3. As for the question of the participation of judges in administrative bodies, in some countries like in Germany, France, Italy, Sweden that is the case, in other countries like in Austria, Croatia, this is not the case and in other countries like in Greece, Latvia, Luxemburg, Estonia, this participation is limited to certain cases of advisory or quasi-judicial committees.
1.4. In most countries, the judges can challenge administrative acts of general char-acter, directly or indirectly, but in same countries, like in Poland, Croatia, Estonia and Finland, they can not.
2. Relations with the legislature (retroactive legislative reversals of cases etc.)
2.1. In most of the countries the legislature can not override a decision of a court. In Italy, the legislature can issue a retroactive interpreting law, which affects pending cases in front of the administrative courts.
2.2. In all the countries, with the exception of Italy, explained in 2.1 par., there can not be a retroactive legislative reversal of court decisions.
2.3. All the countries responded negatively to the question, whether can be a legisla-tive abolishing of courts, with effects of statutory removal of the judges.
2.4. Accordingly to the previous question, no pending cases have been reported.
2.5. In most countries the judges can not be members of the legislature. In countries like France, Italy, Sweden, Finland that can be the case, but the judges can not per-form judicial duties at the same time.
2.6. In some countries, like in Finland, Romania, Poland, Estonia, the administrative courts can not challenge laws. In other countries, like Austria, Croatia, Latvia, Italy, Germany, the administrative courts can remand the challenged laws to the Constitu-tional Court. In Sweden, Luxembourg and in Greece, the courts can challenge laws, with different effects (the Greek courts have full power of not applying the laws that are considered by them to be unconstitutional). In France, the courts can challenge the laws that are not conformed with the international law.
3. Interest representation of administrative judges
3.1. In all the countries judges are organized in associations for furthering their rights and interests.
3.2. As far as the existence of separate unions of the administrative judges, the coun-tries are divided to those with joint union of all the judges (Romania, Finland, Swe-den, Latvia, Austria, Estonia) and to others with separate unions of the administrative judges.
3.3. In all the cases the unions are dealing with the promotion of the professional in-terests of the judges. They also take part in scientific conferences of legal issues, in-teresting for the work of the judges.
3.4. Generally speaking, there is not a right to strike for the judges in most countries. Nevertheless, in other countries, like in Sweden, Finland, Italy and France, there is such a right and in Austria, it is not forbidden by law, therefore is a debatable issue.
II./c./ The relation between administrative jurisdiction and the soci-ety (media scrutiny, public opinion and politics) (Dr. Janne Aer)
National reports from following countries have been available when prepairing this paper: Austria, Croatia, Estonia, Finland, France, Germany, Greece, Italy, Latvia, Lxemburg, Poland, Slovenia, Sweden.
1. This theme is very wide and is basically sociological one. However the question-naire contains only few questions concerning this topic and answers given by each country were quite short. So it is not very fruitful point of departure only to summarize information given by national reports. I have chosen another way and I will try to make an modest analysis of questions and answers from the point of view of sociolo-gical and political theory.
As a starting point I will argue that the concept of the society as used in headline is problematic one. So there is good reason to ask, what is meant by society. Usually in social theory society is differentiated from state proper. There is an opposition between state and civil society. Civil society covers non-governmental institutions, such as companies, parties and civic organisations – and also media. By concept of state is meant the governmental apparatus.
The independent function of courts can be considered from the point of view of civil society and state as government. Finnish 19 nth century philosopher Snellman re-garded courts as instances of civil society, because courts only apply law, and the creation of law as such is a function of government not courts. The function of admi-nistrative justice is to maintain rule of law and standards of good administration in si-tuations where administration have done something wrong.
2. The questions concerning media scrutiny can be analysed in this context. In mo-dern Europe the media is no considered as representative of civil society, not as a tool of state apparatus, which still is the case in some parts of the world. The criticism of courts by media reflects in some extent the values of civil society, whether jurisdic-tion accords with these values or not.
According to the national reports the criticism of administrative judges and administ-rative judicial decisions in the press is rare (answers to question 1.1) In some reports were referred that criticism is more often targeted to criminal justice (Italy, Poland, France, Greece). Administrative cases are usually of more technical and bureaucratic nature than sentencing, which contains deep moral underpinnings. The criticism of criminal justice reflects the different views concerning sentencing among judges and laymen.
Another reason for the lack of harsh criticism towards administrative justice is that adminis¬trative authorities which make the administrative decisions also bear the pri-mary responsible of decisions, even of unpopular ones. So it is the administration who to blame for bad decisions in the first place. The function of administrative courts aims to review administrative acts not to make these decisions in the first instance. We could call this as the subsidiary nature of administrative justice. The function of administrative courts is closely linked with the administration, and therefore the posi-tion of administrative courts objectively lies more on the side of state than on the side of the civil society.
Modern politics has a close relation to media, politics is done under constant surveil-lance of media. This development has not touched administrative courts in same ex-tent, and according to national reports court proceedings in administrative courts ha-ve not been broadcast even in those countries were such broadcast is possible. In many countries trials are not open to television or broadcasting is restricted or de-mands permit of the court (answers to questions 1.2). Although trials are not broad-cast media can handle cases pending before courts. Opinions in national reports di-vide on the question whether press reporting and commenting on judges, courts, ju-dicial decisions and matters pending before courts poses a challenge to judicial inde-pendence. Most countries answered in negative, and some even reasoned their answers (question 1.3). For instance according to Greek report press reporting strengthens the judicial independence as long as transparency is promoted, and in the same tune in the Luxembourg report is written that press reporting promotes transparency and reporting strengthens the acceptance by the public of the decisions rendered. These answers point to the difficult question of democratic accountability of courts in modern society. As the very idea of democracy is based on free discussion of members of society, discussions on pending cases are inevitable and courts have to accept the pressure of public opinion on judgement. It is the price of openness of justice.
3. Next question 2.1 in the questionnaire is interesting as such. The question hears do you think that a judge’s engagement in politics or speaking his/her mind in favour of a political party compromises the public confidence in the judiciary. The proper un-derstanding of this question requires to clarify what is meant by politics. The concept of politics covers on the one hand certain sector of society, especially connected to state activities so called policies. On the other hand we could mean by politics certain type of action, such as struggle for state power. When considering the position of judge these two meanings of politics are not equivalent. If an judge take a part in poli-tical controversies and struggle for power, this partisanship may endanger his positi-on on the bench. The policy perspective is different. All legislation is connected to po-litics, but for instance when expressing opinions about future legislation judges are not always participating political struggle for power. In most national reports is ex-pressed an opinion that judges engagement in politics compromises the public confi-dence in the judiciary. I suppose that the question 2.1 have been read as emphasi-sing the second meaning of politics: the partisanship in the power struggle between political parties.
The relation between parties is also in the background of question 2.2 whether there are institutions that favour strong public opinion in defence of the independence of the judiciary. Almost all reports stated only that these institutions don’t exist. In the USA these institutions are common and discussion on the judicial independence is much more wider and deeper than in Europe. It is especially the demand of direct po-litical support in the election of state judges that brings forth real threats for judicial independence in the USA. The lack of these institutions shows that the independen-ce of the judiciary is not real problem for civil society.
Different solutions have been adopted in various countries whether judges are allo-wed to become member of a political party. That was asked in question 3.1., and ac-cording to national reports judges’ membership in a political party is allowed in 8 countries and forbidden in 4 countries (Italy, Greece, Latvia and Poland). It is very li-kely that number of judges who are members of a political party when entering the bench is not high. Question 3.2. handled other restrictions for judge’s political activity than membership in a party. Here we can ask again, what is meant by political activi-ties.
According to some answers judges must express their opinion on political and societal issues with restraint. I am inclined to interprete these answers from the con-cept of politics as powerstuggle. Judges must act with restraint in such social issues that raise political conflicts. Question 3.3. concerned other restrictions of judges pub-lic activity. These restrictions are rare and in most countries they are none. So I may conclude that any of the countries there are no express prohibition to judges to be member of such non-political societies as freemasonry. Traditionally some judges have been members of freemasonry and discussions have been whether such mem-bership concords with position as judge. But perhaps freemasonry is not any more considered in as a real political force.
4. The last question of questionnaire brings us back to the criticism of adjudication. At this time it is the criticism of political leaders not the criticism of the media. We have to consider shortly that the political leaders are part of government not part of civil society in the same way as the media is. The criticism expressed in a single judicial case from the part of govern¬ment is easily regarded as infringement in the judicial in-dependence. Some may think, that as judges may not take stand in political contro-versies, so a political leader in government may not express his views of adjudication in a single case. But on the other hand politicians decide on legislation, court system and resources of courts, so political discussion and even criticism of adjudication on general level is part of normal political discourse.
Answers in the national reports to question 3.4. to my mind deal with criticism concerning a single case, and in all ans-wers came out that criticism has occurred. There is no further information what kind of situations criticism concerns in the field of administrative justice. I hope we hear more about these cases in discussion.
III./ Efficiency in the internal organization of an administrative jurisdiction:
1./ The judge and his work (Alexander Graf zu Pappenheim)
| III.1.Country | III.1.1.qualifications/initial training | III.1.2. higher salary? | III.1.3.proportion judges to population | III.1.4. proportion judges to assistants/staff | III.1.5. working conditions, technical means, assistants | III.1.6. 1. distribution of work 2. control 3. sanctions |
| Austria | Independent Administrative Tribunal (I.A.T.): Graduation in law, practical experience; Administrative Court (A.C.): graduation in law or legal and political science, professional appointment | No | about 1 : 28’000 | A.C. 20 legal assistants + secretarial staff for 62 Judges;I.A.T.: different in the Länder | Computers, access to internet and intranet with specialist database for re-search, library; A.C.: 20 legal assistants,I.A.T: No legal assistants, only secre-tarial staff | 1. A. C.: Plenary assembly, re-porter determined by President I.A.T.: Specific committee; 2. A. C.: President I.A.T.: Supervising Committee, 3. Disciplinary proceedings possible |
| Croatia | Law degree, bar exam, plus 8 or 12 years of work experience after bar exam | Yes | about 1 : 136’000 | No legal assistants but court advisers(number?) | Computer with access to internet and specialist database for research, library | 1. According to predetermined rules by computer 2. President of the court, National Judicial Council 3.Special procedure |
| Estonia | Master (or equivalent) in law, 2 years preparatory service with individual preparatory service plan | No | about 1 : 52’000 | 2 judges : 1 assistant, personal secretary | Computer, access to internet and legal database, library | 1. At random by computer, at Tallinn Adm. Court partly ac-cording to subject 2. Chairman of the Court 3.Disciplinary proceedings possible |
| Finland | Law degree, time under articles with an administrative court | No | about 1 : 35’000 | 1 : 1. | Separated study with computer and writer, access to internet, specialist da-tabase, library (assistants ?) | 1. By the chairman of the chamber 2. Control by the chairman 3. No special sanctions for judges |
| France | Different according to recruitment; ENA / “concours com-plémentaire “+ specific training or professional appointment with an administrative authority | No | about 1 : 53’000 | 9 judges : 1 assistant | No separated study, personal laptop, access to internet and intranet with specialist database, library; assistance by legal assistants as-signed to a chamber and secretarial staff assigned to a chamber or more often to the court | 1.Distribution to chambers accord-ing to legal subjects; president of the chamber dis-tributes to reporters following no general rule. 2.Assessment 3. Reduction of a certain part of the salary |
| Germany | Study of law, 2 state exams, time under articles, practical experience with an administrative authority | No | about 1 : 36’000 | Different in the Länder; about 1 : 0.9, legal assistants only at the Federal Administrative Court | Separated study with essential litera-ture and computer, access to internet and intranet with specialist database, library; assistance by clerks and other secre-tarial staff, legal assistants only at the Federal Administrative Court | 1. Specific committee assigns the different legal subjects to chambers /senates; internal distribu-tion according to predetermined rules 2. No direct control, indirectly by assessment 3. Disciplinary proceedings possible but in drastic cases |
| Greece | Law degree, graduation from the National School of Judges-Admin. Section | Perhaps | about 1 : 100’000 | 1 : 1.5 | Individual preparation of cases, 17 cases assigned per month;no legal assistants, but secretarial staff, limited databases, partly from private sector. | 1. Distribution by presiding judge 2. Assessment, yearly inspection by superior judge 3.Removal from the bench only in drastic cases |
| Hungary | ||||||
| Italy | Graduation in law, practical experience in administration, competitive exam for administrative judges, one-week initial course on main topics | No | about 1 : 131’000 | 1 : 2 no legal assistants | Computer at home and laptop+ mobile phone with access to internet and specially structured intranet, specialist database, library | 1. According to predetermined guidelines by Council of Presidency for Administrative Justice; assignment by president of TAR (Regional Administrative Court) or of chamber 2. President of TAR or of chamber 3. Disciplinary proceedings possible |
| Latvia | Higher legal education, qualifying exam,5 years practice in legal profes-sion including time under arti-cles at the court, apprenticeship according to previous qualification , 30 years of age | Yes | about 1 : 47’000 | 1 : 2+ administrative staff | Computer with access to internet and specialist database, access to numerous official registers, legal assistant and court recorder | 1.According to predetermined guidelines drawn up at the beginning of the year (in charge??) 2. Indirect control via Qualification category (periodical assessment by Judicial Qualification Board) 3. Disciplinary proceedings possible |
| Luxemburg | Law degree from French or Belgian University + exam in Luxemburg law, 2 years work as trainee + general exam | No | about 1 : 33’000 | 1 : 0.57, no legal assistants | Computer with access to internet and intranet, specialist database, library equipped with specialist literature from Luxemburg, Belgium, France and Germany | 1. Distribution to chambers by president of the court, interior assignment by president of the chamber, no legal rules 2. No internal control procedures 3. Disciplinary proceedings possi-ble in case of serious fault |
| Poland | Law degree from Polish University or a degree from abroad recognized in Poland, 35 or 40 years of age | Yes | about 1 : 74’000 | with no regard to assessors 1:2.9 with no regard to assessors | Computer with access to internet and specialist database, library | 1.(To the department of the court ??) Interior distribution by presiding judge at random according to alphabetical order of judges 2. Supervision by president of the court, respecting independence 3. Disciplinary proceedings possible |
| Slovenia | Law degree, state exam, 6 years practice as a judge or 9 years practice in other legal profession | Yes | about 1 : 50’000 | 1 judge : 0.3 assistants | Computer with access to internet and specialist database,library | 1. To court departments according to predetermined rules by computer with reference to specialisation 2. Quantity: Monthly and yearly monitoring referring to minimum standards of Judicial Council; Quality: indirect control by evaluation every 3 years 3. Automatic dismissal from office in case of negative evaluation |
| Sweden | Law degree, mostly a judicial career including extended times as court clerk with county and district courts and as a trainee with the Court of Appeal or the Administrative Court. | No | about 1:26’000 | 1:3 | Computer with access to internet and specialist database, library, 2 or 3 legal assistants for each first instance judge | 1.By the president of the court according to predetermined plan laid down in the administrative rules of the court 2. No direct control 3. No sanctions against slow work |
III.2./ Jurisdictional procedures (Carlo Schockweiler)
One of the main aspects of efficiency concerns the way the procedures at an admin-istrative court take place. It is indeed important for the plaintiff to know that his com-plaint will be dealt with by the court in an efficient manner, his main worry being the duration of the procedures, the costs to be beared by him as well as, of course, the result of the proceedings. In fact, the plaintiff and the public in general not only wish justice to be rendered but they would like to have the best possible result within the shortest possible delays and, if possible, free of any costs. It has to be observed that very often it is not so important whether the result of the proceedings is correct and whether the judges have made a correct implementation of the law but that the judg-ment, that means a decision, a result, is made public within the shortest possible de-lays and even these delays are often considered as being too long, since, as one can note from cases being of public interest and thus discussed by the media, the public already has the impression to know what should be the result of the proceedings, the matter having in these cases already been discussed in detail (and in most of the cases, in a way which may be considered as being not very objective) and without considering in detail all relevant legal aspects of the case, by the journalists, either on TV or in the newspapers, these discussions being then continued in an even less scientific way in the pub (this tradition being known in some countries as “Stammtischgespräche”) or at home, depending on local or national traditions.
So, very often, in cases the proceedings have been made public by the journalists, people (in a very broad sense, including many more people than just the directly in-terested parties of the litigation pending at the court) already have a strong feeling or even a final opinion of what the result of the proceedings should be before the judge has opened the file and started to make a legal analysis of the case. This means that from this point of view, the judge always comes too late and his decision either con-firms what people thought already a long time ago what should be the result of the proceedings or is simply considered as being wrong because the public has made it-self another opinion of the case, on the basis of the information made available to it by the journalists. In many cases, the decision of the judge is simply ignored by the public because it comes “too late”, the public being at that time already occupied or being occupied by the press, by other subjects.
All these considerations, of which a judge should be aware, should however not in-fluence him/her in his/her work which he/she should try to organise in the most effi-cient manner, according, of course the rules laid down by law and all other applicable regulations on which he/she has no influence and which are made either by Parlia-ment or the Government.
The short presentation made hereafter aims to develop some ideas and to insist on some aspects related to this theme, without of course being exhaustive, in order to encourage a discussion among the participants about their professional experience concerning this subject and their ideas on how efficiency could be improved in the course of the proceedings in order to render the best possible judgments within the shortest possible delays, taking in due account the rights of the parties as protected inter alia by the European Convention on Human Rights.
2.1
Access to the administrative courts may be considered by many potential plaintiffs as being difficult or at least expensive and in consideration of these difficulties, they may decide not to lodge a complaint with the court. This situation may have as a result that the theoretical legal protection offered by law is considered as being inefficient because the obstacles to get to the judge are considered as being too high and that the people concerned renounce to their right to lodge a complaint with the court with a certain feeling of frustration. In order to facilitate access to the administrative courts, some countries have created specific rules and regulations, allowing either the plaintiff to introduce his/her complaint without the assistance of a lawyer or other counsel (in case such possibility is provided for by the law, it concerns only courts of first instance) or, at least, to have access to a legal aid system in case the plaintiff ful-fils certain legal conditions in relation to his/her financial situation.
New technical means are more and more often made available to potential plaintiffs or their legal representatives in order to facilitate the filing of their complaint, by using electronical transmission techniques. Some courts also provide on demand the po-tential plaintiffs, in case they are authorised to file their complaint without the assis-tance of a legal representative, with legal or other advices on how such complaint should by transmitted to the court and about other procedural matters.
The rules laid down by law should have as an aim to facilitate the filing of a complaint with a court in order to allow a potential plaintiff, without consideration of his/her legal situation or legal knowledge, to have his/her legal situation analysed by an adminis-trative court, without risking that the complaint is rejected for formal reasons.
2.2
Once a complaint has been lodged with an administrative court, the delay within which a judgment will be pronounced is an important criteria in order to evaluate the efficiency of the proceedings. This leads us to the analysis of the different steps of the procedures which have to be followed at an administrative court. Although in most of the countries, written deeds containing the legal means and arguments of the parties have to be submitted to the court and all other parties, not all legal systems provide for strict delays which have to be observed by the parties in this respect. In case no such rules exist, it should be analysed whether the judge or the president of the court/chamber dealing with the case, can fix such delays in order to reduce the delays of the proceedings and limit the number of such written notices which may be made by the parties, in the respect however of the right of the parties to present their arguments and react to the arguments presented by the other parties. Strict delays and a limitation of the number of notices, deeds or other submissions which may be made to the court may help to reduce the delay within which a judgment may be pro-nounced.
The delays which may be fixed either by the law or the judge, not only concern the parties but they also concern the judge himself/herself, since either the law or internal rules applying to the court may fix certain delays within which the judge/chamber has to pronounce the judgments.
In some countries, on the day the judgment is pronounced, only the decision made by the court itself is made public, the written grounds being delivered to the parties within a delay of up to a few months.
The means which are at the disposal of the judges to accelerate the jurisdictional procedures should also be analysed as well as the role of the parties in this respect, in order to verify whether they have any influence on the speed of the procedures.
2.3
Summary or urgent procedures may be introduced in many countries at administra-tive courts.
Normally, the procedural rules are simplified and in most of the cases, the means and arguments may be presented during an oral hearing.
These kind of procedures represent an important guarantee to assure the efficiency of administrative litigation as they allow the judge to take provisional measures in or-der to avoid unrepairable damages due to the course of time.
Applicable regulations may either give the judge the possibility to only suspend the administrative act against which a complaint is filed with the court until the final judg-ment is pronounced by the court or give him/her even the possibility to fix provisional measures to stop a damaging development.
These procedures contribute in an important way to the efficiency of proceedings pending at administrative courts since they provide for the possibility to obtain a ju-risdictional decision within very short delays.
The competences given to the competent judge, who is normally taking the decision as an individual judge, are very important which explains that normally only judges having a certain experience are dealing with these cases.
2.4
The role of the judge differs from one country to another.
Either the judge is only entitled to decide on the basis of the facts and arguments presented to him/her by the parties or, according to other law systems, he/she is in charge of the preliminary investigation, which means that he/she will first of all have to collect all relevant facts and make the appropriate inquiries before the case can be decided by him/her.
The question will have to be discussed in order to know whether the judge who is also in charge of preparing the file, that means collecting the facts, deciding which witnesses he/she would like to examine and which documents should be submitted to him/her, may still be considered as being impartial.
Considering the question of the efficiency of the procedures, it is important to verify whether there are any delays determined by law within which the judge has to ac-complish his/her inquiries and whether the administrative authorities to which such inquiries may be addressed are obliged to react within specific delays, or, in case they do not react, whether the judge has specific means at his/her disposal to get the information required by him/her.
Under some legal systems and depending of the field of law, judges are not only au-thorized to verify the administrative act submitted to them for control from the point of view of their legality, but they may, in case they come to the conclusion that the act is illegal, replace the act by a decision taken by themselves, taking into consideration not only the legality of the decision but also the opportuneness of it, without however taking political decisions. Such a possibility not only gives the judges important pow-ers and means to control the administration but such a system may also be consid-ered as being very efficient, since in case the judge takes the decision him-self/herself, there is no need to send the file back to the administration for execution, avoiding not only the uncertainty of the manner in which the administration will exe-cute the decision of the court but also supplementary delays.
2.5
Another aspect of efficiency of administrative justice may concern the fact whether the cases are dealt with by individual judges, thus accelerating procedures since the burden of work of each judge will be less, or by chambers composed by three or more judges, thus increasing the work load of the individual judges, this system hav-ing as a consequence that less work may be done by the same number of judges composing the court.
Although a legal system under which judgments are made by individual judges may be considered as being very efficient, it might however be better to limit it to cases of less importance, since matters dealt with by a chamber give more guarantees to the public from the point of view of the correctness of the solution, the appearance being also very important in this respect.
2.6
Efficiency concerns also the question whether an appeal may be introduced with a court of second instance against a judgment pronounced by a court of first instance. Such a possibility however causes supplementary delays until a final decision is ren-dered by the administrative jurisdictions.
The legal protection offered to the parties by a system in which an appeal is possible may however be more efficient from a legal point of view, due to the fact that the case will be analysed twice by different judges, although this will cause a longer de-lay in order to render a final judgment. So, efficiency may have different aspects and does not necessarily concern only the productivity of the court from the point of view of the number of judgments made during a specific period of time.
2.7
The judgment and its execution also play an important role in the context of effi-ciency.
First of all, concerning the judgment itself, it has to be observed that under some le-gal systems and depending on the fields of law, there exist mandatory delays within which the judgments have to be pronounced. However, under some systems, only the final decision (operating part of the judgment) of the court has to be made avail-able to the parties at such date, the written grounds being delivered to the parties only at a later stage.
Apart from the question whether delays should be imposed to judges to pronounce their judgments, it has also to be analysed whether judges give detailed written grounds in their judgments in order to motivate their decision and make themselves understood by the parties and the public which might be interested in the jurisdic-tional decision. Indeed, efficiency of a jurisdictional system also has to be analysed from the point of view of how the judge explains his/her decision in order to convince all interested parties about the appropriateness of the decision. The justification of the role of the judge strongly depends on the way he/she explains his/her decision in order to convince the parties that the decision taken is the only possible way to solve the case and thus gives a coherent reasoning.
Secondly, the jurisdictional decision itself is not sufficient to give satisfaction to the party having won the case, since it still has to be executed, generally, by an adminis-trative authority. It has therefore to be analysed whether the parties have any means at their disposal to force the administration to execute the judgment.
Under certain legal systems, in case the authority does not or does not correctly im-plement the judgment, the interested party may submit a new complaint to the judge who, depending on the national legal system, may either impose fines on the admini-stration, or appoint a commissioner (being either a high civil servant or a member of the chamber having pronounced the judgment) in order to take the appropriate ad-ministrative decision in implementation of the judgment instead of the competent ad-ministrative body.
The way a judgment pronounced against an administrative authority may be exe-cuted is a very important aspect from the point of view of the efficiency of the admin-istrative jurisdiction since it strongly influences the satisfaction the parties may get pursuant to a judgment.
IV./ Efficiecy in the relations towards third parties
1./ Access by the public or the parties to the information held by administrative courts (Bengt Almebäck)
1.1 Relations to the press
Introduction
The courts come into contact with mass media in varying degrees. This contact mostly involves the press, but radio and television contacts also occur in particularly prominent cases. When a prominent case comes to court, it is perhaps noticed that the preparation for dealing with the mass media is not always the very best.
It is important that the public’s confidence in the courts is maintained and developed. The most imported aspect is, of course, high quality in the adjudication activity but also that things done within the courts are reflected in society in a correct and objec-tive manner – this is a responsibility that is placed upon both the courts and the mass media.
For the courts to be prepared in a properly functioning way to deal with the mass media includes, among other things, knowledge of how the media work together with knowledge about how the courts should react in their contacts with the media.
Public knowledge about the organisation and operation of the courts is often very lim-ited. It is therefore important to enhance awareness about how the courts work.
A very much discussed issue is about whether judges should comment upon their own judgments.
According to the Administrative Procedure Act (in Sweden), the courts are thus, as an authority, subject to certain service obligations in relation to individuals and repre-sentatives of the mass media. The Administrative Act (in Sweden) only relates to the courts’ processing of administrative matters and not to the judicial activity.
Some of the states have answered the questionnaire that thy in varying ways have a press speaker or another person in charge of the relations with the press.
Germany: Administrative courts have a press speaker, who is to be informed by the chambers/senates on cases of general interest. In such cases press releases are usually issued.
Austria: The Administrative Court has a person for these relations, but not the In-dependent Administrative Tribunals.
Estonia: All Estonian courts have their own press speaker or a joint speaker with some other court (e.g. Tallinn Administrative Court and Tallinn Court of Appeal have a joint press speaker)
Poland: One of the judges at every court has a function as a press speaker
Croatia: The courts have a person in charge of the relations with the press
Sweden: The large courts have a person in charge of the relations with the press. In Sweden recently a media group have created, consist of judges – both from gen-eral courts and general administrative courts - who had undertake to be accessible regarding the press and other medias. On special cases the media also can contact the individual court or the judge who has given the judgement.
Finland: Supreme Administrative Court has a press secretary
Latvia: The presidents of the regional and district administrative courts have assis-tants – without public authority – who are in charge of the public relations; including the relations with the press. The Supreme Court has a communication bureau and employs the press speaker
Some of the states have answered the questionnaire that they do not have a special person
who is in charge of the relations with the press.
Greece: The administrative courts do not have a person in charge for these pur-poses.
Slovenia: Has answered no on this question
Italy: There is no specific provision on this matter. The Presidents of Regional Administrative Tribunal are usually in charge of the public relations concerning the af-fairs of the single court.
Luxembourg: For the time being, the Luxembourg administrative courts do not have a person in charge of the relations with the press. However, this proposal is being discussed at the court.
1.2. Annual reports of the activities of administrative courts. Is this report available to public? Addressee of this report?
Germany: The administrative courts are not obliged to prepare annual reports about their activities. Nevertheless most of them do so. At the beginning of the year the presidents usually present statistic figures concerning their respective court to the press in the context of an interview.
Italy: According regulating the administrative justice system, the Prime Minister exer-cises the high supervision on all the offices and the judges. Every year he refers to the Parliament presenting a report on the state of the administrative Justice and tasks conferred in accordance with the provisions of the same law. The report is made up by the Council of State.
It is worth mentioning that a report concerning the activity of the court during the pre-vious year is prepared every year by the President of the Council of the State and by the Presidents of the Regional Administrative Tribunals, each within his competence, and is read in public on the occasion of the opening ceremony of the judiciary year at presence of the authorities attending the ceremony.
The reports are not addressed to any particular body but are made public through their reading in public and are often published on the intranet web-site of the adminis-trative justice, accessible to the public.
Sweden: Every court prepares an annual report to the Swedish National Courts Ad-ministration. The reports are available to the public.
Finland: Administrative courts prepare annual reports which are addressed to the public.
Greece: Annual reports are prepared by the General Commissioner of the Adminis-trative Courts. The reports are handed over to the Minister of Justice who may publish the information in any case he thinks suitable.
Luxembourg: The administrative courts (first and second instance) prepare a com-mon annual report about their activities. This report is addressed to the Minister of Justice and published, together with the reports of the other jurisdictions and authori-ties being under the supervision of the Minister of Justice, in a brochure which is available to the public. These reports are written in rather general terms and con-tain more specifically general statistics about the cases dealt with by the two courts during the previous year.
Austria: There exists an annual report in any case, being available to the public. In case of Independent Administrative Tribunals the report is addressed to the respec-tive Land government. In case of the Administrative Court it is addressed to the Fed-eral Chancellor.
Slovenia: Annual reports are prepared and are available for the Ministry of Jus-tice and the Supreme Court.
Poland: The President of the Supreme administrative Court shall inform the President of the Republic of Poland and the National Council of Judiciary about the activity of the administrative courts. Each court prepares annually a report on its activity, but only for official use.
Estonia: The courts prepare annually only a statistical report to the Ministry of Jus-tice. The Statistical report of the whole court system is accessible in the internet.
Latvia: The administrative courts regularly prepare information about their activities. Regional and district courts address their reports to the Court Administration. The Supreme Court has its own administration which prepares public reports. Some re-ports are available at home pages.
1.3 Access by internet or any other means to the judgements pronounced by the administrative courts and to other documents which might be relevant for the
public/parties.
Germany: Only judgements of the Federal Constitutional Court are published in the internet accessible directly via the internet page of the court. Although administra-tive courts have internet pages, too, their judgements are only accessible either in specialist journals or by internet in specialist data base (“Juris”) made for profession-als (lawyers, judges). A copied issue of a judgement can also be obtained from the respective court by individual request.
Italy: The internet website of the administrative justice, which is accessible also to the public, makes it possible to check the situation of a trial and the dates of hear-ings as well as to read all decisions of Council of State and of Regional Administra-tive Tribunals since 2000.
Croatia: Selected decisions are available on the internet.
Sweden: There is not yet possibility to access by internet the judgements pro-nounced by the administrative courts, since the problem with electronic signing of judgements is not solved.
Via website of the Swedish National Courts Administration is it possible to read and print precedent decisions from e.g. the Supreme Administrative Court and the Ad-ministrative Courts of Appeal. On the cases referred are the parties anonymous.
Finland: There is not such possibility. The electronic systems of case management are closed from public and parties.
Greece: There is such (limited in scope) possibility for the subscribers of private elec-tronic databases. The relevant electronic files are not accessible by the public, for the moment.
Luxembourg: The judgements pronounced by the administrative court of first in-stance are available on the website of the administrative jurisdictions as soon as they are pronounced by the court. In addition, once a year, the administrative courts make available to the public summaries about the most important decisions pronounced by the courts.
Finally, each individual may get from the respective court a copy of a judgement in case of specific interest.
Austria: Decisions of the Administrative court are generally accessible via a data-base. Decisions of the Independent Administrative Tribunals are only partly available via that database. However, there exists the possibility for the public to ask for decisions, which are available at the Independent Administrative Tribunal.
Slovenia: Selected decisions are available on the internet.
Poland: There are a few electronic bases of these judgements accessible by the internet. Party has frequently access to professional legal software, which comprises thousands of judgement and to collection of judgements published in “traditional way”, for example the President of the Supreme Administrative Court is obliged to publish an official collection of decisions of the administrative courts.
Estonia: All judgements of administrative courts taken in force are accessible by internet unless access is restricted for privacy reasons, the judgements of the Su-preme Court
are accessible on the website of the Supreme Court, some of them in English. Other documents in the courts information system are not public. Judgements not yet in force are accessible for public only on reasoned requests.
Latvia: The parties are entitled to receive a copy of every dicision made by the court concerning their case. Those decisions announced in open trails are available to eve-ryone. Decisions announced in closed trails are not accessible to the public, except their introduction and resolution part. The judgements pronounced by the courts can be accessed at the home page. Other decisions practically are available only at the court.
1.4 Possibility given to the parties to get information, by electronic or other means, about their file and the state of the proceedings
Most of the states have answered that they have possibility to get information to the parties, but just two states have answered that they have possibilities to give the information by electronic. These states are Italy and Estonia.
Italy: It is possible to check the situation of a trial and the dates of hearings as well as to read all decisions of Council of State and of the Regional Administrative Tribunal since 2000.
(See above 1.3) The internet website of the administrative justice is accessible also to the public. The parties are able to check the situation of a trial and the dates of hearings as well as to read all decisions of Council of State and of Regional Ad-ministrative Tribunals since 2000.
Estonia: The parties can get information about the proceedings by e-mail. In fact many practical questions relating to the organisation of the procedure (coordinating the term and sessions etc.) are solved by simple e-mail, but important procedural documents must have a digital signature. Parties have a right to be informed about the approximate time of making a decision.
The other states have answered that the parties have possibilities to get infor-mation about their file and the state of proceedings in other means than by electronic.
Germany: The parties of a case pending have access to the files at any stage of the proceedings. They are in particular entitled to inspect the records presented by the administration. Usually they are confined to do so personally or by authorized person at the administrative unit of the chamber/senate, where the files are stored. Lawyers, however, often have the files sent to their office.
Sweden: The parties can always come to court and look for themselves in their files or have information by telephone. I had to add that the parties have not the possibil-ity to get information by electronic.
Finland: Parties have right to have knowledge of state of the proceedings and mate-rials relevant to their case and comment on that material
Greece: The parties of a pending case have not for the moment the possibility to get information by electronic or other means about their file and the state of the proceedings.
Luxembourg: The parties of a case pending have access to the files at any stage of the proceedings until the end of the oral hearing and the beginning of the private de-liberation of the judges. They are in particular entitled to consult the files submitted to the court by the administration. They may also get copies of the document included in the files, except if the relevant documents are difficult to copy (for example plans, maps and so on). There does nor exist any electronic means for the parties to get information about their case pending at the court. The parties or their repre-sentatives may also get oral information about their case from the clerk of the respec-tive chamber dealing with their case.
Austria: The parties have a right of inspection of the files.
Slovenia: The parties have the right to get information about their files and the state of the proceedings, but not electronically.
Poland: It is rather impossible by electronic means; the parties can only phone to court,
asking for information.
Croatia: The parties have the possibility to get information about their file and the state of the proceedings, but not electronically.
Latvia: The parties of the case are authorized to get information about their file and proceedings. The court is allowed to restrict the right of the party to look into the re-spective part of the file.
1.5 Exchanges of information or experiences with other national or interna-tional courts or courts situated in other countries.
In general terms most of the states have answered that the opportunities of ex-changes of information or experiences with other national or international courts are very limited. On the other hand some states have answered that judges have possi-bilities to participate in national and international seminaries where the judges are able exchanges information in different areas.
Germany: There is no formal institution to secure the exchange of information or ex-perience with other German administrative courts. Informally exchange takes place mainly during specialized conferences confined particular problems. These are part of further vocational training. On a more general level the Federation of German Ad-ministrative Judges (BDVR)
and its regional associations provide opportunities to get in contact with colleagues.
At present there is hardly any exchange with administrative courts in other countries. The AEAJ- conferences as well as the periodical conferences of the Association of German, Italian and France Administrative Judges hopefully will bring an improve-ment.
Italy: As fare as we know, there is no institutional site for the exchange of information or experience with international courts or with courts located in other countries at present.
The exchange of information with other national courts is not formally provided for: In fact it is practised mainly at the level of professional representations of magistrates in order to discuss common topics on status, career and financial items concerning the different kinds of judges.
Sweden: There is no exchange with international courts but with national courts. Via internet you can connect to the European Courts in Luxembourg and Strasbourg.
Finland: There is exchange of information between administrative courts of first in-stance mainly through e-mail. Main topic in this exchange is whether certain types of cases are solved and what kind of interpretations are adopted.
Greece: There is not such option.
Luxembourg: For the time being, Luxembourg administrative courts do not have the possibility from a formal point of view, to exchange information or experience with other national or international courts or with courts situated in other countries. The only contacts existing for the time being are personal contacts between individual judges.
Austria: No formally installed exchange possibilities exist for Independent Tribunals. The Administrative Court is linked with other Supreme Administrative Jurisdiction via the European Association of Councils of State and Supreme Administrative Jurisdic-tion that has also installed a documentation concerning decisions of their member courts.
Slovenia: There are no restrictions for such exchange. In practice, it mostly takes place through participation of individual judges in international seminars and training events.
Estonia: In Estonia the administrative courts exchange information in joint seminars and in judicial training sessions. The Estonian Legal Centre Foundation disseminates information about the practice of different courts and analyzes the judgement. Of course, it is possible to exchange information with courts in other countries and with international courts, but in fact such exchange is not very common.
Croatia: There are no restrictions for such exchange. In practice, it mostly takes place through participation of individual judges in international seminars and training events.
Latvia: Regular seminaries on administrative law are organized by the Latvian Judi-cial Training Centre. These seminaries are visited by local judges and by specialists in different areas of administrative law as lectures, for example, either local and for-eign specialists in tax law, medicine law, human rights.
IV./2./ Control of the activities of the administrative courts (Giusep-pina Adamo and Rosa Perna)
We eventually come to discuss the last part of the Section IV of the Question-naire.
The fourth Section, considered as a whole, deals with a special aspect of effi-ciency, the efficiency regarded not as a result of the mere internal organisation of the justice but in its projection, we would say, towards third parties.
As we have just seen, the first part is focussed on the enclosure of the adminis-trative jurisdiction system towards the parties of the proceedings, the third par-ties and the public in general, in order to measure and, at the same time, guar-antee the degree of efficiency of the administrative jurisdiction.
The second part, which now I have the pleasure to present, recalls a meaning of the expression “efficiency in the relations towards third parties” which is more connected with the degree of confidence and satisfaction that the citizen can perceive when he is told about the work of judges.
The questionnaire actually draws our attention to two kinds of factors, that can influence the confidence in judicial system.
The first is a factor of “transparency”, that is obtained when the courts carry out a systematic monitoring (and eventually an analysis and evaluation) of their ac-tivity and make the data and studies available to the public.
To this purpose the use of information and communication technology plays a decisive role, making it possible to register cases (both the stock and the flow of them) and decisions as well as to carry out the monitoring of case-load of judges and courts and of length of proceedings: this way figures can be easily known by users and public opinion, too.
The second factor that increases the confidence in the judicial systems is the capability of these systems to give an appropriate and ready reply to the (formal or informal) complaints of users: we could call it a factor of “reliability”.
The complaints may be different: they can point out a dysfunction objectively caused by a wrong rule or by a common, bad practise or they can specifically denounce a fault of the judge; the answers and reactions of the judicial systems can be likewise very different, too: a disciplinary proceeding regarding a judge; a compensation of the violation of the reasonable length of the proceedings; a compensation for unjust damages caused in the exercise of his/her functions or by denying justice as a result of malice, gross negligence or deny of justice; the adoption of measures for improving the organisation.
Going into details, this part of the questionnaire is centred on the control “from inside” of the activities of the administrative courts by means of statistical data, electronic systems measuring the stock and the flows of the affairs pending be-fore the courts, the use of evaluation criteria of the quantity and quality of the work to be done by the courts, the sanctioning system which comes into consid-eration in case of misbehaviour or delay in exercising judicial functions and the compensative remedies to be applied to repair the damage suffered by the vic-tims of judicial errors or delays. The last two questions respectively deal with the possibility of introducing complaints against the way the administrative courts work and, conversely, the possibility of receiving a feed-back of “customers” of administrative justice.
We’ll expose now more in detail the results of the questionnaire, hoping that the necessary summarizing has not changed the sense of answers.
The first question, concerning the preparation by the administrative courts of statistics about affairs settled, pending of dealt with during the judicial year, got a general positive answer.
These statistics in Italy are part of the yearly report on the affairs entered, pend-ing, settled during the previous year in each court; in France they are produced every year in form of multiple statistic tables on the affairs entered, settled, pending in relation to the various kind of procedure, field, judge, and they are regularly recalled to judges; in Latvia statistics concern, inter alia, entered, closed and pending affairs (in total and by individual judges), time required to settle different types of cases, parties and outcome (types of final decisions).
In Germany they are prepared in every court, whilst in Luxemburg are still very general and they mostly concentrate on the number of affairs dealt with by the chambers during the receding year, in consideration of the area of law the case is dealing with. Statistics in Poland are delivered to the President of the court and to the Supreme Administrative Court; in Greece they are not available to the public.
Also the second question regarding the existence in the administrative courts of electronic systems capable of ensuring the follow-up of the affairs pending (e.g. electronic file system…) has met positive reply.
Except for Luxembourg, where such electronic systems do not exist, and apart from Germany, where now they are being tested, we can state that all the inter-viewed countries do possess electronic systems generally operating in the ad-ministrative courts.
In particular, in Italy administrative courts are equipped with personal com-puters connected to the “administrative justice” intranet; the intranet has a complex structure containing, inter alia, a web-site which makes it possible to check the situation of a trial, the dates of hearings and the briefs and documents deposited by the parties.
Moreover, administrative clerks are in charge of electronic file systems in order to manage and check the follow-up of the affairs pending.
The French electronic system registers all the entering affairs, thus enabling the listing of the affairs according to the date of their instruction, the field and so on; this system, however, may present some elements of rigidity owing to its not re-cent origin.
In Latvia the system allows to register the information about the affair and about the actions executed by the court or by the parties as well to upload the elec-tronic files of the decisions (several types, including judgments) announced by the court.
A peculiar case is represented by Greece, where only the big courts of Athens and Thessaloniki have these systems; but a program is being developed by the Ministry of Justice to create such databases in the provincial courts, too.
The answers to the third question, on the evaluation of the quantity and quality of the work of the courts and the competence to evaluate and verify the judicial work, led to diversified conclusions, which can be summarized as follows.
Apart from Finland and Luxembourg, where no institutions or arrangements for evaluation of judicial work are established, in the other countries we find differ-ent forms and grades of control.
A first form of control, although under different conditions, is performed by means of the annual report of the judiciary activity in Austria, France, Greece, Italy, Latvia, Slovenia, Croazia.
In Greece the annual reports, which are submitted to the Ministry of Justice by the General Commissioner of the Administrative Courts, substantiate the only procedure for the evaluation of the judicial work of the whole court.
In the other countries, on the contrary, there are also internal control mecha-nisms, like in Austria, Italy, France, Poland, Slovenia, Sweden, Estonia.
In Latvia the quantity and quality of the work of the court can be demonstrated by way of the statistical data.
In Italy the Council of Presidency for Administrative Justice predetermines guide-lines on the quantity of work to be done by the administrative judges on a monthly basis and on the time of delivery and supervises the accomplishment of such guide-lines.
In Sweden both internal and external evaluations are made on the quantity of the work to be done by the courts, not by individuals, on the basis of the yearly goals set up by the Government.
It is interesting to notice that in Poland the internal control is exercised by the President of the Supreme Administrative Court, the president of the regional administrative court and other persons appointed, by way of the right of access-ing to acts of the court, attending a trial held in camera and demanding explana-tion and elimination of irregularities, in addiction to powers of inspection.
In France a control on the well functioning of the different administrative jurisdic-tions is effected by a Permanent Inspective Mission of Administrative Judges, chaired and composed of members of the Conseil d’Etat, by means of periodi-cal inspections of courts.
In Slovenia individual evaluations of the judges are prepared every 3 years by the Personnel Panels and evaluated by the Judicial Council.
In Estonia only young judges during the first three years of their career are peri-odically supervised in evaluation procedure by Judges Examination Committee. Other judges are supervised by chairman of the court where the judge works and by chairmen of the higher courts.
Lastly, in Germany there are no periodical evaluations or control procedures concerning the activity of administrative courts. As for the quantity of work to be done in relation to the number of judges necessary, a study has been made dur-ing the last years, whose results are actually being implemented by the depart-ments in charge in the different states (usually the department of justice) in co-operation with the presidents of the upper administrative courts.
As for the fourth question, pertaining the kind of sanctions applicable to individ-ual judges in case of misbehaviour or delay in the exercise of their functions, we can state that in all the relevant countries a judge may undergo a disciplinary procedure leading to the application of a disciplinary sanction, generally ranging from a reprimand (in the faintest cases), a reduction in salary up to the removal from office (in the most serious cases).
In some countries disciplinary measures are taken against a judge only in case of important faults in the execution of his functions (Luxembourg) or in very se-rious cases (Poland).
In Italy a judge is subject to sanctions not only when he fails to do his own duty but also if he behaves, in office or outside, in a way that makes him unworthy of trust or of esteem that he must be held in, or prejudices the prestige of the judi-cial body.
In Latvia, the Judicial Disciplinary Board is authorized to administer disciplinary punishments like reproof, reprimand and cut of salary; it can also forward the file to the Judicial Qualification Board to decide against judge’s skill degree (affect-ing his possible promotion) or to suggest judge’s suspension (national parlia-ment can decide the matter).
In Germany, in case of misbehaviour or inactivity of a judge the president of the court can induce disciplinary proceedings.
Lastly, in Finland Parliamentary ombudsman can give an official admonition.
Coming to face the issue, raised with the fifth question, concerning the compen-sation procedures in case of error or delays of the courts or of individual judges, we observe the following.
In Slovenia, Croazia and Latvia, no special compensation procedures are pro-vided for: the usual civil procedure has to be used.
Neither in Finland a compensation procedure exists, though a proposal has been made in order to establish one, in which a board would make a decision on compensation.
In Estonia and in Sweden compensations of judicial errors are possible only if a judge has committed a criminal offence through actions taken in the judicial ca-pacity, in which case he also can be sued for damages.
Both Italian and Greek systems contemplate a responsibility of the judge for un-just damages caused in the exercise of their functions as a result of malice, gross negligence or of deny of justice. The complaint has to be introduced against the Prime Minister in Italy, before a special Supreme Court in Greece.
The described system does not apply also to judicial delays in Greece.
The Italian system, instead, provides for a remedy in the form of a fair compen-sation for property or non property damages unduly suffered by the parties as a result of the violation of the reasonable length of the proceedings; it may result in the payment of a just satisfaction. The dispute is decided by the civil judge (Appeal Court) and, for administrative proceedings, the complaint has to be in-troduced against the Prime Minister.
In France too there is the possibility of a compensation for the abnormal delay of the proceedings.
In Luxembourg the victim of a decision may introduce proceedings at the civil courts in order to get compensation in case it can prove that there was a mal-functioning of the court directly causing the damage.
In Germany in case of judicial errors, the party affected can register a remon-stration, which is regarded as an informal legal remedy and is to be decided on by the judge in question; in case of inactivity, there is not yet a special type of complaint but a regulation is being prepared.
In Austria a judge of the independent Tribunals in case of heavy faults is liable for damages suffered by the parties of the procedure; the claim for compensa-tion is dealt before civil courts and, in serious cases, the Land can have re-course to the respective judge.
For proceedings before the Administrative Court, instead, it is not possible to get compensation for mistakes concerning the application of national law; only for heavy faults in the application of community law the state can be made liable according to the jurisdiction of the European Court of Justice, and the proce-dure will fall within the competence of the Constitutional Court.
In Poland parties can sue the State for damages caused by judicial acts. Be-sides, there is a special complaint against a prolixity of the procedure lodged to the court of the higher instance, so in case of the regional administrative court to the Supreme Administrative Court; one of the results of this remedy may be the payment of just satisfaction.
As for the sixth question, concerning the possibility for the public or the parties to introduce complaints against the way the administrative courts work, we find the following situation.
Apart from Germany, Luxembourg and France, where no possibilities other than the examined legal remedies are given, in the other countries the remedy of a complaint is provided for in the cases in question.
It is simply an internal complaint to the President of the court in Austria, Slove-nia and Croazia; in these two latter, however, the complaint can be introduced also to the Ministry of Justice.
A complaint to parliamentary ombudsman or chancellor of justice is provided for in Finland and in Sweden.
The Greek, the Italian and Latvian systems are alike: the parties can introduce a complaint (respectively: to the Minister of Justice, the President of the Council of State, the General Commissioner of the Administrative Courts, the Presidents of the Courts of Appeal in Greece; to the Council of Presidency for administrative Justice, to the President of the Council of State or to the Prime Minister in Italy; to the Court Administration, the Ministry of Justice, the President of the Su-preme Court in Latvia) in order to get a disciplinary proceeding initiated or, more generally, measures taken for improving the organisation; if the complaints are found to be grounded, disciplinary action may be initiated.
In Estonia, in addition to the ordinary legal remedies against the court decisions or orders, everybody can file an application to the chairman of the same or a higher court or to the Chancellor of Justice, asking to decide, if there is need for a supervisory or a disciplinary procedure.
And now we arrive at the very end of the fourth Section. The last question, con-cerning the existence of studies on the feed-back of “customers” of administra-tive justice, on the bases of inquiries made among the public, the parties or their lawyers, about the functioning of the court, mostly got a negative answer.
Only Finland, Germany, Sweden, Estonia and France seem to have taken posi-tive action under this respect.
In Finland some inquiries have been made; also in Sweden some courts have made surveys among their “customers” to get feed-back.
In Germany several upper courts have ordered studies about the feed-back of “customers” (persons affected by the activity of administrative courts), in the context of a debate about quality labelled “Interior Modernisation”, which is go-ing on at the level of the different states of the German federation.
In the last years, some studies about the image of the courts in Estonia have been carried out and several conferences have been held about the relation-ships between the media and the courts.
In France, an inquiry on the quality of the acceptance in different public services of the state has been made among the public for a period of six months (“La Charte Marianne”); to this purpose a questionnaire and a box have been placed at public’s disposal at the entrance of tribunals but the results are not yet known.
At the end of my intervention I would like to mention, in order to stimulate a de-bate on this issue, that apart from some episodic studies and occasional inquir-ies that in some countries have been recently conducted, quite no member state has organised systematic procedures and methods for assessing and measur-ing the degree of acceptance among the public of the judicial systems, namely in terms of satisfaction of “customers” with the functioning of the courts.
This lack of monitoring can be understood as the obvious result of practical and also financial difficulties possibly hindering the organization of punctual and, as such, necessarily pervasive forms of check.
This lack of monitoring, however, could not be accepted, in our opinion, if it should be the heritage of some rearguard ideological position which, on con-sidering the administration of justice solely in its inner nature of public function, encompassed by its inalienable guarantees, while depressing it in its external necessary expression as a “public service”, a service rendered to customers in order to satisfy their demand of a sure, prompt, just and accessible justice.
Let us consider that the different forms of control that we have examined so far are of substantial relevance in order to qualify a judicial system with the charac-ters of transparency and reliability, and to increase, respectively, the efficiency of the jurisdiction towards third parties and the confidence and the satisfaction of the customers with the judicial systems.
Periodical reports on the “feed-back” of customers could be of great utility, we think, in the different countries, in order to assess the dysfunctions more suf-fered by the public and to identify the best way to intervene, thus approaching the target of efficiency in a more effective way.
Before terminating my intervention, I would like to hint also at another side of the issue which we think of primary and actual interest for us all, for its conse-quences at a European level.
Needless to say that quite no member state has organised systematic and offi-cial exchanges of information or experience with other national or international courts on the issue of the confidence and satisfaction of customers with the ju-dicial systems.
In our opinion, on the spur of the European Union and of the Council of Europe, at the moment bent on strengthening their actions in the field of justice, we ought to take positive action.
Particularly we should monitor and follow that trend toward efficiency of the judi-cial systems with utmost attention.
The Council of Europe namely draws attention to the frequent violation of article 6 of European Convention on Human Rights, that guarantees a fair trial within a reasonable time, thus highlighting the issues concerning the whole efficiency of the justice.
This attitude certainly represents a hanging risk because, generally speaking, it is difficult to find a balance between efficiency and impartiality in the judicial work, between quantity and quality of decisions to be rendered; and it is even more difficult to define appropriate standards which can be at the same time homogeneous and suitable for a series of different, diversified judicial systems, that are globally considered.
From this point of view our task as a professional organisation of European judges is of utmost importance because we are well aware of the fact that the core of our mission is conditioned by our independence and that our present situation vis-à-vis national legislative and executive powers could be jeopard-ized by the introduction of too rigid and strict standards by external and distant authorities, as the European bodies are .
Many answers to the questionnaire in fact have stressed the role of associations of administrative judges in this field.
Their role is important for the exchange of information or experience among administrative judges of different countries but it becomes fundamental when it comes to relations at a European level.
At the moment indeed only the jointed associations of us can be a guide and a support vis-à-vis the more and more organic actions of EU and Council of Europe, that represent for us at the same time
a strong impulse to improve efficiency of the activity of courts;
a testing ground for the actual and concrete protection of independency and dignity as judges;
a great challenge and a chance to broaden our cultural horizons, that we can-not but seize,
even though the necessary effort may also frighten us.
To this purpose I will mention the European Union’s actions on judicial training organised by the European Judicial Training Network. For the first time this year the Exchange Programme for European judges expressly includes the adminis-trative judges.
In this perspective the activity of the Association of European Administrative Judges as well as that of the Association of German, French and Italian admin-istrative judges is precious for seizing these chances without sacrificing our identity and our speciality as judges.