International Journal
For Court Administration
Special Issue:
ISSN 2156-7964
Research in Judicial Administration
I ACA
The Official Publication of the
International Association For Court Administration
www.iaca.ws
International Association For
Court Administration
International Journal For Court Administration
IJCA is an electronic journal published on the IACA website (www.iaca.ws). As its name suggests, IJCA
focuses on contemporary court administration and management. Its scope is international, and the Editors
welcome submissions from court officials, judges, justice ministry officials, academics and others
whose professional work and interests lie in the practical aspects of the effective administration of justice.
Markus Zimmer
Executive Editor
mbzimmer_acc@iaca.ws
Andreas Lienhard
Journal Editor
Philip Langbroek
Managing Editor
managing_editor@iaca.ws
Luis Maria Palma
Journal Editor
Linda Wade-Bahr
Technical Editor
Editorial Board IACA Journal
Dr. Pim Albers, Senior Project Leader, Institute for Global Justice, The Hague, The Netherlands
Jeffrey A. Apperson, Vice President for International Affairs NCSC, Virginia, USA, IACA Board Executive CEO
Dr. Carl Baar, Professor Emeritus, Brock University Adjunct Professor of Political Science, York University, Toronto,
Ontario, Canada
Dr. Dacian Dragos, Jean Monnet Associate Professor, Centre for Good Governance Studies, Babes Bolyai University,
Cluj-Napoca, Romania
Dr. Marco Fabri, Director, Research Institute on Judicial Systems, National Research Council, Italy
Vladimir Freitas, Justice, Tribunal Federal a4a Regieo, Brazil
Dr.Péter Hack, Associate Professor Faculty of Law, ELTE University, Budapest, Hungary
Dr. Ingo Keilitz, Principal Court Research Consultant, USA
Daniel Kettiger, Project Manager and Lawyer, Kompetenzzentrum für Public Management, University of Berne,
Switzerland
Barry Mahoney, President Emeritus, The Justice Management Institute, USA
Dr. James (Jim) McMillan, Director - Court Technology Laboratory, National Center for State Courts, USA
Dr. Fan Mingzhi, Vice-Director of China Justice Academy, Beijing, China
Dr. Gar Yein Ng, Assistant Professor, Central European University, Budapest, Hungary
Abdul Karim Pharaon, Justice, Court of Cassation, United Arab Emirates
Andrew Phelan, Chief Executive & Principal Registrar High Court of Australia, Australia
Professor Dr. Greg J. Reinhardt, Executive Director, AIJA, Melbourne, Australia
Marcus W. Reinkensmeyer, Acting Director, Court Services Division, Administrative Office of the Courts, USA
Dr. Johannes Riedel, President, Court of Appeal (Higher Regional Court), Cologne, Germany
David Steelman, Principal Court Management Consultant, National Center for State Courts, Virginia, USA
Dr. Anne Wallace, Head, School of Law & Justice, Edith Cowan University, Perth WA., Australia
Dr. Elizabeth C. Wiggins, Research Division, Federal Judicial Center, Washington, DC, USA
International Association
For Court Administration
OFFICERS
Richard Foster
President
Jeffrey A. Apperson
Chief Executive Officer
Cathy Hiuser
President-Elect
Sheryl L. Loesch
Chief Administrative Officer
Kersti Fjørstad
Vice President, Europe
Norman Meyer
Vice President, North America
Collin Ijoma,
Vice President, Africa
Mark Beer
Vice President, Middle East
Pam Harris
Vice President, International Associations
Hon. Eldar Mammadov
Vice Presiden, Central Asia
Vladimir Freitas
Vice President, South America
Alice Rose Thatch
Vice President, Corporate Sponsorship
Noel Doherty
Historian
Linda Wade-Bahr
Chief Technology Officer
Suzanne Stinson
Membership Officer
Philip M. Langbroek
Managing Journal Editor
Julia Ricketts
Secretary
ADVISORY COUNCIL
The International Journal For Court Administration is an initiative of IACA's Executive
Board and its diverse membership. The Journal is an effective communications
vehicle for the international exchange of experiences, ideas and information on court
management, and contributes to improving the administration of justice in all
countries. The collective international experience of its Executive Board and Editors
has been that every judicial system, even in countries in the earlier stages of
transition, has elements to it that may be of interest to others. The variations in
practice and procedure from one region of the world to another, from one court
system to another, also reveal major similarities across all systems. IJCA serves as a
resource for justice system professionals interested in learning about new and
innovative practices in court and justice system administration and management, in
common law, continental, and Shari'ah-based legal systems throughout the world.
The Editors publish two issues per year.
The Editors welcome submissions from court officials, judges, justice ministry officials,
academics and others whose professional work and interests lie in the practical
aspects of the effective administration of justice. To view the Editorial Policy and
Procedures for Submission of Manuscript and Guidelines for Authors, visit the IACA
website (www.iaca.ws) and chose IACA Journal.
The Journal accepts advertising from businesses, organizations, and others relating to
court and justice systems by way of services, equipment, conferences, etc. For rates,
standards, and formats, please contact one of the editors.
Markus B. Zimmer, Chair
Founding President of IACA
Hon. Charles Case
U.S. Bankruptcy Court, USA
Hon. Judith Chirlin
Superior Court Judge, Ret., USA
Hon. Lawal Hassan Gummi
High Court of the Federal Capital
Territory, Abuja, Nigeria
Hon. Paul Magnuson
U.S. District Court, USA
Mary McQueen
National Center for State Courts, USA
Hon. Diarmuid O’Scannlain
U.S. Court of Appeals, USA
Hon. Karim Pharon
Justice of the Supreme Court,
Abu Dhabi, UAE
Professor Gregory Reinhardt
Australian Institute of Court Administrators,
Australia
Hon. Irina Reshetnikova
Arbitrazh Court, Russia
Hon. Ales Zalar
Minister of Justice, Ret., Slovenia
In this issue:
General Themes
Editorial: The EGPA Study Group on Justice and Court
Administration: European Cooperation in Court Administration
Studies
By Philip Langbroek, Markus Zimmer, Andreas Lienhard, Luis Palma (Editors)
and Marco Fabri, Daniel Kettiger (Guest editors)
The European Commission for the
Efficiency of Justice (CEPEJ)
By Jon.T. Johnsen, Norway
………………………………….……… 1
Management Responses to Multiple
Rationalities in Courts – A Review
By Angela Eicher, Kuno Schedler, Switzerland
…………………………….……...…... 20
Better Administering for Better Judging
By Loïc Cadiet, Jean-Paul Jean, Hélène Pauliat,
Aurélie Binet-Grosclaude and Caroline Foulquier,
France
…………………………….………….. 35
Status of Court Management in
Switzerland
By Andreas Lienhard, Daniel Kettiger, and
Daniela Winkler, Switzerland
………………………………….…….. 41
Specific Subjects
Caseload Allocation and Special Judicial
Skills: Finding the ‘Right Judge’
By Anne Wallace Kathy Mack, Sharyn Roach
Anleu, Australia
………………………………….…….. 68
Defining a Performance Measurement
System for Court Management
By Luigi Lepore, Concetta Metallo, Rocco
Agrifoglio, Italy
……………………………….……….. 82
Designing and Implementing Delay
Reduction Projects in Courts
By Petra Pekkanen, Maija Eronen, Pauliina
Seppälä, Timo Pirttilä, Finland
……………………………….……….. 94
Electronic Data Exchange Within
European Justice: A Good Opportunity?
By Nadia Carboni, Marco Velicogna, Italy
………………………………………... 104
Justice and Court Administrations, Their
Workings and Efficiency in Switzerland.
Aspects of Sentencing and Its Outcome
in Swiss Cantons
By Daniel Fink, Christophe Koller, Switzerland
………………………………………... 121
With this issue of the Journal, the editors inaugurate the first of what over time will be
a series of special issues of the IJCA. We take considerable pride in having
organized this special issue reflecting recent research and scholarship by members
of the European Group for Public Administration (EGPA) study group. We gratefully
acknowledge the work of our reviewers, most of whom are members of ICJA’s
Editorial Board; our English-language proof-readers: and our Technical Editor, Linda
Wade-Bahr, for compiling this special issue.
The EGPA Study group on Justice and Court Administration conducted its inaugural
conference in Bergen, Norway, in September. In response to our call for session
papers, we received an unexpectedly large and fruitful yield, including a
retrospective on court administration reform and modernization in Switzerland.
Andreas Lienhard and Daniel Kettiger, from the Center of Competence for Public
Management in Berne earlier received a significant grant for research on court
administration. The Sinergia project, financed by the Swiss National Foundation,
ongoing since 1 May 2012, will generate dissertations, articles, and other
publications. The Sinergia project on court administration in Switzerland is
connected to the EGPA Study Group.
Academic Research on Court Administration
For researchers and academics interested in justice and court administration, this
special issue confirms that their research is not simply an academic exercise.
Ideally, research in court administration should yield results with a practical
orientation, results that have the potential to be applied in court- and justice-system
environments. Courts function as key components of civil society’s institutions of
justice, administering civil and criminal justice as well as promoting conflict
resolution. Civil societies benefit from optimally functional court systems; they
enhance the civic stability that undergirds the freedoms we value.
The Shift from Law to Organization and Governance
Apart from the USA, courts in most countries functioned as the domain of judges and
lawyers until about 15 years ago when western-oriented democracies, traditional and
newly forged, began a fundamental transition process from courts as governmentsanctioned legal forums with restricted access to more open and publicly-oriented
institutions. The discipline of public administration had traditionally excluded courts
from serious consideration as public institutions. In Europe and elsewhere, small but
growing cadres of academics have spurred this transition, promoting the
development and elaboration of court administration as academic and professional
specializations. They persuasively argued that as institutional components of justice
system frameworks, courts accommodate myriad operating procedures and
safeguards, are structured on specific organizational development assumptions, and
function on the bases of procedural, operational, and juridical knowledge. Courts and
justice administration are disciplines not only integral to civil society; they also can
be fascinating objects of study and research because they operate in socially
sensitive normative contexts that support and embed the collective jurisprudence
refined over time by successive generations of judges presumably committed to
upholding the rule of law.
The Role of Communication in the
French Judicial System
The judicial function of ruling is legally attributed to the courts in which judges serve.
The tradition of judges having the discretion to rule on their own irrespective of
established jurisprudence and civil society context has largely been discredited.
Judges now serve their adjudicative roles in an institutional context corralled by
By Emmanuel Jeuland and Anastasia
Sotiropoulou , France
Continued...
………………………………………... 132
Editorial: Continued
established jurisprudence and other constraining elements, even in civil law systems. More broadly, all aspects of organizational
management and operations -- budgeting, staffing, facilities, logistics, security, knowledge management, procedural innovation, training
of court staff and of judges, judicial and staff ethics and discipline, and integrity policies are handled within an institutional framework of
which adjudication is the primary product. In this institutional context, judicial independence is now comprehended from two
perspectives – that of the independence of judges to interpret and apply the law without interference from outside interests, coercion or
inducement, and that of the autonomy of the institutions within which judges perform their adjudicative functions. A fundamental
question for constitutionalists with an interest in courts is whether and to what extent judicial decision-making is subject to outside
influence when the institutional framework within which courts operate is overseen and controlled by political authorities outside of the
judicial power of government. Their interests may not completely and perpetually coincide with those of the effective administration of
justice and the pursuit of the rule of law, also when the debate is only about court efficiency. A related question is whether courts are
institutionally capable of establishing their own governance and public administration bureaucracies that function both efficiently and
effectively and that do not intrude on or detract from their primary role as adjudicative organizations. Are judges, given their
professional training and experience, qualified to serve as high-level administrators, competent bureaucratic managers, and innovative
and creative leaders? Or should those roles be the province of professionals with training and experience in those disciplines but
performing their duties within the framework of the judicial power.
Court Needs.
As we survey the international landscape of myriad court systems, the perspective is troubling. Many judicial systems are challenged
with high-volume caseloads. By global best-practice standards, a number remain steeped in practices and procedures that render their
efforts to address those caseloads ineffective and inefficient. Analytical studies in administrative science that seek to respond to these
challenges disagree on where to draw clear lines between judicial and public administration in how to effectively manage court and
judicial systems, but they focus on the challenges as pragmatic and seek to address them by examining public-sector institutions. The
tradition dates back more than 75 years. Willoughby in 1929 recognized courts as complex organizations that can be analyzed in terms
of the characteristics they share with other public organizations.1
Developing Academic Networks with a Focus on Court Administration in Europe
Simultaneously, justice institution and process studies continue to produce numerous studies steeped in the formalistic legal tradition,
which generally prescribes insularity from social science and public administration studies and insists that courts are unique and
functionally dissimilar from their other public-sector counterparts.
Still under-represented in this expanding field of judicial system scholarship are empirical research studies, notwithstanding the
pervasive presence of the law in all facets of society. This is particularly true in Europe, where the embrace of research-based judicial
administration studies has lagged in comparison to the United States, Canada and Australia, notwithstanding efforts to the contrary
undertaken by individual scholars, regional research institutions and international agencies.
The active research institutions include The Montaigne Centre of the Utrecht Law School in the Netherlands; The Research Institute on
Judicial Systems (IRSIG-CNR) of the Research Council of Italy in Bologna, Italy; The Observatory on Justice of the University of
Coimbra, Portugal; The Research Centre for Judicial Studies of the University of Bologna, Italy, The Institute of Law and Technology,
Universitat Autònoma de Barcelona, Spain; and The Center of Competence for Public Management at the University of Bern in
Switzerland. Last but not least we can refer to the EU-funded Menu For Justice project on the training needs of lawyers and -judges in
Europe with more than 30 participating institutes.
The permanent Study Group on “Justice and Court Administration” within the European Group of Public Administration (EGPA)
referenced above is another tile in the developing mosaic of European judicial administration studies. This Study Group is a renewed
version of the one established in 1999, when EGPA dedicated its annual conference to “Delivering and Managing Justice in the 21st
Century.” This event was a milestone for judicial administration studies in Europe, where, finally, public administration paid attention to
the judiciary; since that time, however, interest has vacillated.
The Swiss Sinergia Project on Justice Management and the EGPA Studygroup.
In order to enhance scholarship in court administration it is also necessary to enhance and enrich exchanges between judges, court
administrators and scholars. IACA organises such platforms in its conferences and encourages such exchanges in this Journal.
Switzerland is a country with considerable diversity in language, tradition and local cultures: Germanic in its north; French in its west;
and Italian in its South. Organised as a federation of small and fiercely independent states, it has a long-standing tradition in both
representative and direct democracy stretching back to the 16th Century. Any form of public management in Switzerland, therefore,
may be regarded as a challenge for policymakers.
Developments in modern public administration, drawing on private sector experience, compel the view that improved and modernized
management practices in judicial systems will become a necessity in the future. Without improved knowledge and understanding of the
complex interplay of administration, adjudication and the effective pursuit of the rule of law, the development of refined and efficient
management models for the judiciary will be hindered. A primary objective of the Sinergia project financed by the Swiss National
Foundation, is to more fully understand and acquire knowledge of the Swiss judiciary as the justice-guardian of civil society and as a
public sector organisation.
1
W.F. Willoughby, Principles of Judicial Administration, Washington, D.C., The Brookings Institution, 1929.
In the context of the European networks of scholars and researchers with an interest in court administration, the Sinergia Project
reflects an opportunity; this, of course, also applies to scholars in other regions with similar interests. Offering the platforms of IACA and
the EGPA Study Group to the participants in the Sinergia project, therefore, seemed to follow naturally.
This basic research is carried out with regard to the development of integrated management models for the administration of justice. In
addition, it is expected that the research project will yield numerous methodological findings related to research in court and justice
systems. This will generate added scientific value. The questions dealt with in this project are being approached on an interdisciplinary
basis. Gaining an insight into the judiciary from outside involves studying the interaction of legal, sociological, macro-economic,
psychological, historical and political science aspects. In addition, research into the functioning of judicial systems, their organisational
impacts, internal processes and the interaction between the people working within them can most profitably proceed only on an
interdisciplinary basis.
Over the next few years, the outcomes of the Sinergia Project should be of interest for our readership. The project is based on a
cooperation between the Center of Competence for Public management in Berne, with the Universities of Zurich, Lucerne, St. Gallen,
Idheap and the Montaigne Centre of Utrecht School of Law in the Netherlands.
This Special Issue
This special issue contains 10 articles by authors from Australia, Switzerland, Italy, France, Finland, Norway and Italy.
The Study Group on “Justice and Court Administration,” with its strong and developing network, seeks to stimulate academics and
practitioners from a variety of backgrounds, interests, skill areas, countries, and professions to share experience, practices, ideas and
knowledge. The articles in this special issue of the Journal reflect current Study Group scholarship, and IJCA is proud to serve as its
delivery vehicle. The areas of interest are broad and deal with issues such us: judicial governance, court and case management,
statistics, judicial budget and planning, records and space management, information and communication technology, performance
assessment, delay reduction programs, quality of justice, ethics, corruption, fundamental rights, mediation, therapeutic jurisprudence.
The focus is both on national and global issues and solutions, keeping in mind that: “Comparativists have certainly learned that legal
principles are not absolute [...] and the conflict of values has to be reconciled not by the rigor of artificial logic, but by a flexible and
pragmatic recognition that [...] a compromise solution has to be formed”2
A Special Thanks to the Volunteers in our Association
We would like to acknowledge the considerable work of the reviewers and the proofreaders of the articles presented here. The
proofreaders are:

Helen Child, Court Manager, Australia
Noel Doherty, Irish Court Administration, Dublin


Mariana Freitas, Court Clerk, Federal Justice, Curitiba, Brasil
John Stacey, President of the CEPEJ, UK


Johannes Riedel, President Superior Appeal Court Cologne, Germany

Susan A. Laniewski, SAL Consulting LLC, Rockport, USA
We acknowledge with special thanks the efforts of our Technical Editor, Linda Wade-Bahr, without whose tireless efforts and
considerable technical skills this Journal would still be a pipe dream.
2
(Mauro Cappelletti, The Judicial Process in Comparative Perspective, Oxford, Clarendon Press, 1989, p. 13.)
The European Commission For The Efficiency Of Justice (CEPEJ)
Reforming European Justice Systems – “Mission Impossible?”
By Professor dr. juris Jon T. Johnsen
1
1. Introduction
My paper concerns the Council of Europe’s (CoE) work to improve justice in Europe. It explains and exemplifies a type of
policy that the Council applies in its strive for implementing the demands of the European Human Rights Convention
(ECHR) on the judicial systems in Europe.
The Convention obliges all member states to put up efficient systems for remedying violations within their own national
legal systems. If such systems are missing or do not provide sufficient redress, member states now accept that everyone
is free to bring their case before the European Court of Human Rights (ECtHR). Over the years the Court has produced
extensive case law on violations of the provisions that protect people’s access to justice that develops and concretizes the
general wordings used in the text of the ECHR.
However, international complaint mechanisms are only one type of instrument for disseminating human rights. In addition
to judicial instruments like the ECtHR, CoE also uses policy vehicles for implementation of human rights like the one I will
focus upon; namely the European Commission for the Efficiency of Justice – usually abbreviated “CEPEJ” – from the
French version of its name. As one of several committees of CoE, it focuses on the development of the judicial systems of
2
the member states.
I start my paper by (1) pointing out two main factors that explain the establishment of CEPEJ, namely the provisions on
access to justice in the ECHR and the large volume of complaints forwarded to ECtHR. I then outline CEPEJ’s
organization and working methods. (2) The next three parts contain deeper analyses of the two most prioritized tasks of
CEPEJ at present; first the development of judicial statistics for Europe (3) and second its combat against delay (4). The
third main part discusses one of CEPEJ shortcomings so far, namely the lack of attention to legal aid (5). The last part
contains viewpoints on the powers and vehicles that CEPEJ possesses to fulfil its tasks (6) and how effective they are.
2. CEPEJ and Why It Was Established
2.1 Human Rights Background
CoE established CEPEJ in 2002, making it operational from 2003, as a means for improving the judicial protection
granted by ECHR, especially in:
 article 6: Right to a fair trial;
 article 5: Right to liberty and security;
 article 13: Right to an effective remedy.
The human rights doctrine on access to justice is essential to the work of CEPEJ. Human rights bodies have repeatedly
said that human rights should be effective and work for everyone, including the poor. Several major principles for the
organization and functioning of judicial systems in the member states can be read from the wording of ECHR art 6. As
framework of this paper I will emphasize that
 the courts’ competence and the organization of the court system should be established by law;
 case handling should be timely;
 everyone should have access to court when needed;
 everyone is entitled to representation before courts on an equal footing, (“equality of arms”) and to legal aid when
necessary for proper representation.
The author has participated in the work of CEPEJ as an expert since 2003. Views and opinions in the paper are the author’s own and
do not express any official opinion of CEPEJ. - Department of Public and International Law, Faculty of Law, University of Oslo, PO BOX
6706 St. Olavs plass, 0130 Oslo, Norway, Tel +4722859424, Fax +4722859420, Mob +4741471847, E-mail: j.t.johnsen@jus.uio.no
2
Abbreviations used in the text:
Council - Council of Europe; also abbreviated CoE
CEPEJ - European Commission for the Efficiency of Justice
(European) Convention - The European Convention on Human Rights (1950); also abbreviated ECHR
(European) Court - The European Court on Human Rights; also abbreviated ECtHR
All CEPEJ documents referred to are downloadable from: http://www.coe.int/t/dg1/legalcooperation/cepej/default_EN.asp? unless
otherwise stated.
1
International Journal For Court Administration | December 2012
1
2.2 Timeliness at the European Court of Human Rights
We might assume that how well article 6 was implemented in the national justice systems of the founding member states
varied significantly in 1953 when ECHR became operational. Although justice improvement has been a significant part of
the human rights policies of the Council of Europe since the start, the triggering event for establishing CEPEJ in 2002 was
the increasing problems that ECtHR experienced with timeliness. The Court had for long received complaints in tens of
thousands each year; resulting in a steadily increasing backlog despite an extensive screening.
Some figures might provide an impression of the problems that triggered the establishment of CEPEJ. According to its
president, the Court had 44 000 incoming cases in 2005, and a caseload of 82 000, of which 72 000 qualified as backlog.
3
Compared to three years before, the increase of incoming complaints was more than 7 000.
Analyses showed that the bulk of the complaints related to alleged violations of Article 6 on fair trial, with by far the largest
category being violations of the entitlement to trial ‘within reasonable time‘. It appeared as a detrimental paradox that the
Court – designed to be the prime protector of swift trials – was itself unable to comply with the requirement.
Most complaints came from jurisdictions in Southern Europe, and in Eastern Europe that had joined CoE after the
4
dissolution of the Soviet Union. One theory is that a Mediterranean legal culture exists that for several reasons has
become insensitive to the evils of delay.
2.3 Organization, Tasks and Working Methods of CEPEJ
The steering bodies of CoE wanted to remedy the problem both by making national remedies against human rights
violations more effective, and by removing the causes for the complaints by improving the quality and speed of the
5
member states’ judicial systems. Resolution (2002)12 on establishment outlines five major tasks for CEPEJ:
1. examine results achieved by the different judicial systems by using common statistical and evaluation methods;
2. define problems and areas for improvements and exchange views on how the European judicial systems work;
3. develop better tools for analyzing judicial systems and models for improving them that are well adapted to the
existing problems in the member states;
4. assisting individual member states on their request in how better to comply with the human rights requirements;
5. suggest, if necessary, that the relevant steering committees of the Council of Europe draft new legal instruments
6
or amendments to existing ones.
The bodies of CEPEJ are:
 a plenary with representatives from all member states that meets twice a year;
 a bureau with four members elected from the representatives that function as the board of CEPEJ;
 One to three (or more) working parties or working groups with a maximum of six expert members. They are
responsible for developing tools and instruments necessary for doing the tasks of CEPEJ and propose them to
the plenary for adoption;
7
 a secretariat provided by the Secretary General of CoE.
Pursuant to the resolution, CEPEJ should develop indicators, collect and analyze data and define measures and means of
evaluation. It might also issue reports containing statistics, best practice surveys, guidelines, action plans, opinions and
general comments. The Commission might establish collaboration with research groups and invite qualified persons,
8
specialists and NGOs for exchanges, arrange hearings and create networks of professionals working in the justice area.
3
Cited from oral information by the president of the Court, L. Wildhaber, presented at the CEPEJ Plenary on 7-9 December 2005,
recorded by the author. No definition of “backlog” was offered. According to the Court’s Annual Report 2005 the number of applications
lodged in 2002 was 34 509 and 41 510 in 2005. (European Court of Human Rights “Annual Report 2005” Registry of the European
Court of Human Rights Strasbourg 2006 p 121.) The Annual Report 2005 does not give figures on caseload or backlog.
4
The forty-seven countries of CoE cover a wider area than the traditional geographic concept of “Europe”. Turkey is for instance
member.
5
COUNCIL OF EUROPE COMMITTEE OF MINISTERS Resolution Res(2002)12 establishing the European Commission for the
efficiency of justice (CEPEJ). Adopted by the Committee of Ministers on 18 September 2002 at the 808th meeting of the Ministers’
Deputies.
6
Res(2002)12 Appendix 1 article 1.
7
Res(2002)12 Appendix 1 article 7.
8 Res(2002)12 Appendix 1 article 3.
International Journal For Court Administration | December 2012
2
9
The resolution did not suppose CEPEJ to function as a supervisory or monitoring body, which means that independent
control of the member states’ fulfillment of their human rights obligations on efficient justice is outside its scope of work.
Improvements presuppose voluntary acceptance and collaboration from the states. Still data gathered by CEPEJ – for
example on unrepresented poor parties in trials – might indicate that human rights obligations are not fulfilled see part 5.
When handling complaints on violations of ECHR article 6, the Court has repeatedly stated that article 6 (1) of the
Convention imposes on the Contracting States the duty “to organize their judicial systems so that they can meet its
10
requirements.” Member states are free to choose differing strategies for fulfilling their obligations, but their national
systems must work in practice.
CEPEJ should provide them with sufficient tools and encourage them to use them. Ambitions appeared far reaching.
Although ECHR only provides minimum rights that governments must not violate, states are free to establish better
systems. CoE often encourages such developments. Through CEPEJ it launched an ambitious policy strategy for
improving the efficiency of European judicial systems on the assumption of voluntarily acceptance by the member states.
Its goals concerned improvements well above the minimum level suggested by the case law of ECtHR in both the quality
and the speed of courts.
CEPEJ is now in its tenth year. Its main general fields of work so far have been:
 statistical evaluation of the judicial systems of the member states;
 identifying and developing measures to reduce delays and improve time management;
 bettering the quality of the overall management of judicial work;
 improving the enforcement systems;
 extending the use of mediation as a means to reduce court use.
In the present activity program for 2012-2013, CEPEJ focuses upon the three first fields. The main activity aims at all
member states. However, targeted bilateral cooperation at the request of one or more states on selected issues, like
improving their enforcement or appeal systems, is also part of the program. Promoting the implementation of tools already
11
developed by CEPEJ has priority over developing new ones.
My main question is how well CEPEJ has fulfilled the main goals of its mandate. As the title of my presentation suggests,
CEPEJ is not purely a success story. Firstly, the mandate is extensive and the challenges are huge. Secondly, resources
are limited. Thirdly, willingness and capacity to reform their justice systems vary significantly among the member states.
Obviously the present activities do not cover all parts of the mandate. Expressively and tacitly priorities have been made.
Limitations in CEPEJ’s approach can easily be pointed out:
Emphasis on legal aid, which is paramount to access to judicial systems for the lower classes, has been limited.
Alternative channels for handling legal problems, like informal problem solution, administrative procedures,
ombudsmen, consumer complaint systems, business arbitration, etc. have not been in focus, but mediation has
received some attention. Neither has the supply of legal advice as a means for a rational use of the courts drawn much
interest. Nor has criminal justice received much attention. CEPEJ has focused more on the judicial systems in
Southern and Eastern Europe than on the Western and Northern systems since they are supposed to have
significantly larger deficits. The latter are mainly used as models and standards of improvements for the less efficient
ones.
2.4 Further Analysis
In the rest of the paper I limit my analysis to three issues. I think that a more in depth analysis of selected tasks will give
you a better picture than attempting at an overview of all CEPEJ activities.
I start with the two tasks that CEPEJ has put most of its efforts into, and discuss what has been achieved. The first one
concerns the collection and issuing of reliable statistics on the main characteristics of the European justice systems. The
second is about developing strategies for better timeliness without reducing judicial quality. My point is to show what
CEPEJ has and might achieve in its two most prioritized areas. My third issue concerns legal aid. I also want to exemplify
an important challenge not prioritized in practice by CEPEJ during its first decade of work.
I will end with some reflections over the powers of CEPEJ and whether they are sufficient for its mandate.
9 Res(2002)12
10
Appendix 1 article 2.
See as an example Hadjidjanis v Greece (Judgment of 28 April 2005).
11
See CEPEJ(2011)6 2012-2013 Activity Programme of the CEPEJ pa. 8.
International Journal For Court Administration | December 2012
3
3. European Judicial Survey
3.1 Method and Challenges
A coherent reform policy presupposes a precise understanding of how the different judicial systems in Europe work and
12
tools that can be used to locate problems. As recommended in its mandate, one of CEPEJ working group has gathered
statistical data for measuring and evaluating the performance of the judicial systems in Europe. Starting in 2004, it has
become a comprehensive exercise.
An extensive questionnaire is sent to all member states every second year. The last European survey of judicial systems
13
14
was published in 2012 from 2010-data, gathered from 46 of the 47 member states. Only Lichtenstein is missing.
15
Together the 46 jurisdictions comprise more than 800 million people. The result is an extensive report of more than 400
16
17
pages, packed with information, available at the website of CEPEJ.
It boasts of some 2,5 million data entries, and
contains statistics on:






public expenditures on judicial systems (courts, prosecution, legal aid);
access to justice and the users of the courts;
fair trial, workload and court efficiency (organization, caseloads, backlogs, enforcement);
ADR (alternatives to court handling);
professional actors (judges and staff, prosecutors, lawyers, notaries, interpreters);
18
major trends in the development of European judicial systems.
19
A comparative study of 46 jurisdictions is a demanding task with vast methodology problems. From a scientific point of
view, there are certain peculiarities connected with studies carried out under the auspices of an international organization
of states:
All data in the survey has to be collected through official channels. The ministries and court administrations in the
member states appoint national correspondents that provide the information and answer the questionnaire. If research
or other sources show differing data, the study has to stick to the official version.
20
However, significant efforts have been made to make the received information as reliable as possible. CEPEJ might
question the received information in private and the correspondent might agree to changes. Obvious unreliable
information might be left out, but as an international body of governments, CEPEJ cannot substitute information it has
21
received from its member states with information from other sources.
European judicial systems differ significantly, if not drastically, both in structure and in the conceptualization of its
elements and functions. National statistics differ similarly. Such huge variations also mean that the correspondents
perceive many of the questions differently, and that answers and statistical information on the same question might well
relate to features in the different judicial systems that are not fully comparable.
Using a functional approach by defining certain essential functions of judicial systems independent of the national
conceptualizations causes other problems. When CEPEJ defines for instance “a notary” as “… a legal official who has
been entrusted, by public authority, with the safeguard of the freedom of consent and the protection of rightful interests of
22
individuals”, the result might well be ‘blank’ answers since national statistics might use national, self-evident names that
23
are not further defined or the state lacks entities that corresponded to the functional description.
12 CEPEJ-GT-EVAL.
13
European judicial systems Edition 2012(2010 data) CEPEJ Studies No 18 Council of Europe Publishing p. 7-8. (EJS 2012).
Germany is missing in the previous reports, due to its federal structure that makes the collection of national judicial statistics
complicated.
15
EJS 2012 p. 12.
16
http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp
17
EJS 2012 p. 8.
18
EJS 2012 p 3-5.
19
See also EJS 2012 pp. 6-12 and 393-443 for details.
20
EJS 2012 p. 8-10.
21
EJS 2012 p. 7.
22
EJS 2012 p. 353.
23
See EJS 2012 p. 353-359 for a variety of examples.
14
International Journal For Court Administration | December 2012
4
24
The concept of courts, for example, varies significantly in the judicial statistics of the member states. CEPEJ therefore
uses a wide definition to cover the variety, labeling a court as a “body established by law and appointed to adjudicate on
specific type(s) of judicial disputes within a specified administrative structure where one or several judge(s) is/are sitting,
on a temporary or permanent basis”. As a consequence comparability suffers and the survey warns that:
“(c)ourts perform different tasks according to the competences that are described in the law. In the majority of cases,
courts are responsible for dealing with civil and criminal law cases, and possibly administrative matters. In addition,
courts may have a responsibility for the maintenance of registers (land, business and civil registers) and have special
departments for enforcement cases. Therefore, a comparison of the court systems between the member states or
25
entities needs to be addressed with care, considering the actual jurisdictions.”
Some states might also substitute the information asked for with statistical information on entities that partly perform
judicatory tasks according to the CEPEJ definition and partly other tasks without being able to separate the judicatory
part, as indicated in the last citation from the European survey. Others might provide statistics only from institutions that
purely perform judicatory tasks according to the definition, and leave out statistics from other institutions that mix
26
judicatory functions with other tasks.
CEPEJ holds regular meetings with the national correspondents to remedy the problems and issues lengthy instructions
27
on how to fill in the questionnaire. The questionnaire also underwent major revisions up to the collection of data in 2008.
From then it has been similar to the version used for the 2006 data. Data are now thought reliable enough for
28
comparisons over time.
Although 46 states now participate, it does not mean that they have delivered information on all questions in the
questionnaire. The heterogeneity both of the judicial systems and the national statistics means that many questions are
difficult or impossible to answer. The response rate therefore varies significantly from table to table. Some might have
29
data from less than half of the 46 states.
However, missing answers from a state also might signify a lack of attention to and control of the feature in question. To
CEPEJ such findings still are of value, because they might indicate a need for improvement. When, for instance,
questions on time management result in limited response from jurisdictions with the largest shares of complaints to
ECtHR, the answers missing indicate that statistical tools for controlling time use are insufficient.
CEPEJ has been reluctant to present data in a way that might be conceived as rankings of the states. The last report
30
explicitly says: “Indeed, comparing does not mean ranking”. Therefore, reports mostly have presented statistics
alphabetically according to the names of the states, although some data also have been ordered according to numeric
value. Comments have been sparse, mainly limited to what can be read directly from the tables and figures.
CEPEJ also has been reluctant to analyze the immense variations in the figures. The main justification is fear that such
analysis might easily amount to criticism of several states. The differing quality of the data also might lead to severe
31
misjudgements of the findings.
3.2 Mission Impossible?
From a scientific point of view such presentations might appear unsatisfactory, and the alphabetic ordering makes it
difficult to read essential information from many of the tables and figures. However, the 2010 and 2012 reports contain
more analyses and rankings than the previous versions, and CEPEJ encourages everyone interested to make their own
32
analysis of the findings. The data sets used in the last reports are published on the website of CEPEJ for downloading.
24 EJS
25
2012 p. 98-100.
EJS 2012 p. 100 that also points to huge differences in the use of specialized courts.
26
In Norway, prosecution in criminal cases is carried out both by prosecutors that have prosecution as their main task and a much
larger number of prosecutors that mix prosecution with police work of different kind. Until 2010 statistics from Norway only contained
the judicatory work of the full-time prosecutors (The Higher Prosecutorial Authority). In the last editions also the police prosecutors are
counted, but not their staff, see EJS 2012 table 10.1 p. 233 . The chapter on criminal prosecution provides several illustrations of the
variations and challenges connected to the development of common judicial statistics for Europe, see EJS 2012 p. 232-247.
27
In 2008 a «peer review process» also was set up to improve data quality. EJS 2012 p. 9-10.
28
EJS 2012 p. 6.
29
See for instance EJS 2012 fig 3.1 p. 64 and table 9.1 and 9.2 p. 171.
30
EJS 2012 p.10.
31
Supra.
32
EJS 2012 p. 8. See footnote 16. (The 2010 data set was not yet available per December 2,.2012)
International Journal For Court Administration | December 2012
5
Due to the vast methodology problems described, one might ask whether the European survey project is too ambitious. It
is well known that international academic studies of judicial systems that use statistical methods for comparisons, have
been vulnerable to the criticism of whether they actually compare the same phenomenon.
However, some advantages also connect to the methodology compared to ordinary research. Since the governments of
the jurisdictions studied have decided to set up CEPEJ themselves and also confirmed the design of the survey, we might
suppose that their commitment to providing the data asked for is far greater than in a study conducted by a university or
an independent research institute. They also provide data usually available only for internal use. Several states have
developed new national statistics to better contribute to the survey that they hardly had produced without the commitment
to CEPEJ. Such efforts also mean improvements in the national statistics as a tool for the member states’ administration
of justice, which is another objective of CEPEJ.
The European survey is a huge enterprise and produces data on judicial systems in Europe on a scale not seen before. It
includes many jurisdictions that have been absent in law and society research. More than 100 people are involved in the
data collection. Despite several serious objections about the methodology and the current incomplete reporting, I find the
European survey interesting and capable to produce data of value. We might point to legal aid as an example:
Although the present collection is limited in scope, it has brought forward new data that, due to the large scale of the
survey, produces a better overall picture of legal aid schemes in Europe than before, see part 5. Data are now
available to the international research community in English and French. To my knowledge no previous academic
study has collected similar data on legal aid. Even the most extensive and well known comparative study on legal aid
33
by Cappelletti, Gordley and Johnson from the 1970ies, only had empirical data from a few European countries.
I know from my own research experiences on legal aid in Finland and Norway that some of the data in the survey had not
34
been produced before and therefore was genuinely new. Additionally, although known to the ministries and court
administrations, other data in the survey have not been published nationally and therefore not known to the public or to
the national academia.
I assume these observations hold true not only for legal aid in other jurisdictions than Norway and Finland, but also for the
other types of data collected on courts, enforcement, prosecutors, lawyers, etc. The European survey therefore opens
wide and new opportunities for research previously unavailable in practice.
Undoubtedly CEPEJ has contributed to increased public and attention and debate on the current conditions and deficits of
European judicial systems. The leading French newspaper “Le Monde” spent a full page on the 2008 report when it was
published. Also the 2010 and 2012 reports have received significant media attention in several member states, see the
35
press reviews at the CEPEJ website. Hopefully the academic community increasingly will become aware of this
extensive data source.
4. Delay
4.1 The Extent of the Problem
I will now turn to CEPEJ’s work on its other main priority, namely combating delay in European judicial systems.
Timeliness is one of the major principles embodied in ECHR art 6. Cases should be finalized within “reasonable time.” As
evidenced in the case law of the ECtHR, severe problems concerning timeliness prevail in several states. I will try both to
exemplify how the European judicial survey can be used to identify and explicate the challenges that CEPEJ faces, and to
present an overview and some examples of the methods that CEPEJ develops and applies in its combat against delay.
The European survey contains much data that is useful for a variety of analyses on time use. Time use differ with type of
cases and the European survey distinguishes between litigious and non-litigious civil cases, land registry cases, business
36
registry, administrative law, enforcement cases, severe criminal cases, misdemeanor cases, and other types of cases.
33
Cappelletti, Gordley, Johnson Towards Equal Justice A comparative Study of Legal Aid in Modern Societies. Milan, New York 1975.
Norway, for example, did not produce a separate budget or costs accounts on legal aid expenses in criminal until they became
requested by CEPEJ for the European survey. See Jon T. Johnsen: “Hva kan vi lære av finsk rettshjelp” Særskilt vedlegg til St. meld.
Nr.26 (2008-2009) Justis- og politidepartementet p. 70. Also available at http://www.regjeringen.no/nb/dep/jd/dok/regpubl/stmeld/20082009/stmeld-nr-26-2008-2009-.html?id=554306 . Norway produced the figures for the surveys on 2006 and 2010 data, but they are
missing again in the 2010 data. See EJS 2012 table 2.1 p 20.
35
See footnote 16 (press review).
36 See EJS 2012 p. 176-227.
34
International Journal For Court Administration | December 2012
6
Such tables mainly list states alphabetically along with the relevant statistical information, and thus should be looked upon
as raw data in need of further refinement.
4.1.1 Delay in Civil Litigation
To give an idea about both the extent of delay in Europe and the potential for further analysis of data from the European
survey, I have selected seven of the states with the largest backlogs of civil litigious cases in the survey and compared
them to the two states with the smallest backlogs. It should give an idea about the challenge and the usefulness of CEPEJ
statistics. Since data in the last surveys are collected the same way, they also allow for comparisons over time and I
therefore will show data from both the 2008 and 2010. However my intention is limited to indicating the potential of the
data. I do not intend any analysis in depth.
Graph 1 shows the 2008 data.
Graph 1: Civil litigious cases per 10 000 inhabitant. 2008. First instance courts.
37
Resolved cases are the number of cases solved during the calendar year. Total pending cases are the total number of
unfinished cases at the end of the year independent of their incoming year. Backlog capacity is the number of resolved
38
cases during the calendar year minus the number of incoming cases during the calendar year.
All three criteria are only rough indicators on timeliness. Resolved cases per year tell about the capacity of the judicial
system. Since courts usually handle different types of cases, their capacity for handling a certain type of cases as civil
37
Source: European judicial systems Edition 2010 (2008 data) Appendices, table 6 p. 302 CEPEJ Studies No 12 Council of Europe
Publishing (EJS 2010). 39 states gave data.
38
To avoid overloading the graphs, I have left out the numbers for incoming cases, since they are not strictly necessary to my
interpretations. They are available in EJS 2010 Appendices, table 6 p. 302.
International Journal For Court Administration | December 2012
7
litigious cases might be manipulated both by changing internal priorities and external resource allocation. Total number of
pending cases tells about the work load of the system. It is also an indicator on backlogs, but since all cases need some
handling time also when handling is timely, it is not a precise indicator because just a share of the pending cases will
count as backlog in the sense of not being handled timely. A positive backlog capacity means that the system will reduce
the number of pending cases, a negative that it will grow. None of these indicators tell the real handling time of individual
cases.
We observe that Bosnia and Herzegovina, Italy, Croatia, Portugal, Spain, Slovenia and France had the largest number of
pending cases per 10 000 inhabitant in 2008. Bosnia and Herzegovina had a number of pending cases of more than twice
the number of resolved cases. Backlog capacity is negative and means that the courts received more cases than they
solved and that the number of pending cases increased during 2008 and will continue to do so unless the number of
incoming cases decreases or capacity increases. The situation was quite similar, although not just as serious, in Italy and
Croatia and perhaps in Portugal; although the slightly positive backlog capacity in Croatia means some decrease in the
number of pending cases during the year.
Spain gave reason for concern due to the large negative backlog capacity that was far greater than for any other country
in Europe. If this trend continued for three years, the number of pending cases would almost surpass Croatia.
If we look at Austria and Azerbaijan with the lowest number of pending cases per 10 000 inhabitant in 2008, the picture
was very different. Although the number of solved cases in Austria was only one third of the number in Italy and only one
fifth in Azerbaijan, the number of pending cases appeared insignificant compared to the countries with the largest
backlogs. People's use of the courts counted from the number of cases was far lower in these two countries than in the
countries with the most clogged courts. No serious backlog problem seemed to exist, which made the backlog capacity
less important.
Graph 2 shows the 2010 data for the same countries.
Graph 2: Civil litigious cases per 10 000 inhabitant. 2010. First instance courts.
39
Changes in the overall picture from 2008 to 2010 are limited. The number of pending cases in Bosnia and Herzegovina
has increased as predicted. Backlog capacity is still negative, which means that the number of pending cases will
39
EJS 2012 p. 391 referring to http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp “Appendix: additional tables:
Table 4 (Chapter 9) number of civil (and commercial) litigious cases at 1st instance courts in 2010 (Q91). 42 states gave data. The
table also contains numbers on incoming cases for 2010.
International Journal For Court Administration | December 2012
8
continue to increase. Some changes can be found in resolved and pending cases in the other countries too, but none
seems significant so far. Italy has turned a negative backlog capacity in a positive one, which is promising for further
reduction of the pending cases over a larger time span. Also Spain has significantly reduced its negative backlog capacity,
although it still is negative, which indicates a slower growth in the number of pending cases.
4.1.2 Delay in Enforcement
The value of victory in court, however, might diminish if enforcement is slow. “Justice delayed is justice denied” is an old
saying in several countries. A complete picture of the efficiency of civil litigious proceedings ought to include enforcement.
As with graph 1 and 2 I will show data on time use on enforcement from the seven countries with the largest backlogs in
the European surveys and compare them to the two countries with the smallest backlogs both for 2008 and 2010. Graph
3 shows the figures for enforcement in 2008.
Graph 3: Enforcement cases per 10 000 inhabitant. 2008.
40
We note that most of the countries with the highest number of pending civil litigious cases, per 10 000 inhabitant, namely
Bosnia and Herzegovina, Slovenia, Portugal, Spain and Italy, also were among the states with the highest ratio of
enforcement cases. Croatia and France, however, were not among them, and Italy’s number of pending enforcement
cases was only just above one tenth of the number of civil litigious cases. It means that slowness in one part of the
judicial systems often go together with excessive time use in other parts, but not necessarily. Clogging at the litigation
stage might mean less need for capacity at the enforcement stage. However, if capacity at the litigation stage becomes
significantly increased to get rid of excessive backlogs, capacity at the enforcement stage might become a challenge.
Figures for Bosnia and Herzegovina are frightening. They mean that enforcement is highly ineffective. On average the
figure meant one pending enforcement case for every third inhabitant. The large negative backlog capacity also indicated
that the situation was rapidly worsening. Also Slovenia, Former Republic of Yugoslavia (FYROM), Portugal and Serbia
had significantly more enforcement cases pending than litigious civil cases. FYROM and Spain also showed a significant
negative backlog capacity. In the two countries with the smallest backlogs, Switzerland and the Czech Republic, the
number of pending enforcement cases was just a small fraction of the numbers in the countries with most pending cases.
Graph 4 shows the 2010 data for the same countries:
40
EJS 2010 table 11 p 305. 27 states gave data. The table also contains numbers on incoming cases for 2008.
International Journal For Court Administration | December 2012
9
Graph 4: Enforcement cases per 10 000 inhabitant. 2010.
41
More changes have taken place in enforcement caseloads since 2008 than in civil litigious caseloads. Bosnia and
Herzegovina resolved almost twice as many cases in 2010 as in 2008. Although the number of pending cases remains
almost the same, a large negative backlog capacity has turned into a positive one and indicates that the number of
pending cases will decrease in the future. A significant decrease in pending cases has taken place in Slovenia, while
FYROM and Spain show steep increases. It seems difficult to make sense of the FYROM data. The most probable
42
explanation seems to be inaccurate reporting.
Portugal and Serbia show steep raises in negative backlog capacity
although Serbia also has a significant increase in resolved cases from 2008 until 2010.
Hopefully this brief analysis has provided some ideas about both the potential for analyses and the challenges that
CEPEJ faces. Although there are many limitations in the conclusions that can be drawn from the statistics of the
European Survey, they must mean that the "reasonable time" criterion does not work satisfactorily in several jurisdictions.
However, CEPEJ has not come far yet in explaining why it is so. More research is sorely needed.
4.2 Work of CEPEJ- SATURN
As mentioned, CEPEJ established a separate working group on time management from the start. It is now (2012) named
the "SATURN centre for judicial time management" after the Roman god of time. CEPEJ also has established a network
of "pilot courts" with members from most member states that are used for providing information about the challenges in
the member states, best practice ideas and also to test out remedies developed by SATURN.
SATURN has issued several reports and guidelines for clearing out cases within the limit of “reasonable time” set by
43
article 6. I will give an overview of the most significant ones. They are available at the CEPEJ website.
44
Framework Programme. At the start in 2003 a working group developed a basis document titled "A new objective for
judicial systems: the processing of each case within an optimum and foreseeable time frame." The document was named
41
EJS 2012 p. 391 referring to http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp “Appendix: additional tables”
Table 9 (Chapter 9) number of enforcement cases at 1st instance courts in 2010 (Q91). 25 states gave data. The table also contains
numbers on incoming cases for 2010.
42
EJS 2010 p. 305 reports problems with interpreting the numbers provided by the national correspondent. In EJS 2012 only 249
incoming cases are reported in contrast to the uncertain number of 159 700 in 2008.
43
See footnote 2.
International Journal For Court Administration | December 2012
10
‘Framework Programme’ and contains a wide range of general strategies – named “action lines” – for increasing the
speed of European judicial systems. Most of them concern time-management systems for courts and court
administrations and have guided the later work of SATURN. Among them are:









agreed time schedules between the court and the parties;
increased use of ADR;
better measures against delaying tactics;
complaint systems against delay;
measures that reduce the need for appeal;
more use of multi tracking of cases instead of joining all in one queue;
increased attention to vulnerable parties;
involvement of the organizations of the actors in time management;
increased use of ICT tools.
From the word “optimum” we read that the ambition was not only to make the minimum standards of ECHR art 6
expressed in “reasonable time” effective, but to promote a time use that satisfies all well founded expectations of speedy
courts.
45
Guidelines. The "SATURN Guidelines for judicial time management" adopted in 2008 contains measures both for the
courts and for policy makers and administrative authorities. They concern issues as
 transparency and foreseeability;
 optimum duration;
 planning;
 flexibility;
 collaboration among the stakeholders of the proceedings;
 resources;
 law and procedures impacting on time management;
 monitoring and intervention:
 establishment of targets;
 active case management and crisis preparedness;
 suppression of procedural abuses.
The Guidelines include an essential appendix on time management statistics for the courts – European uniform guidelines
for monitoring of judicial timeframes (EUGMONT), which is used in the European judicial survey.
46
Implementation project. It does not help to issue sensible guidelines if they are not used. SATURN therefore launched
an implementation program on selected guidelines, meant both to stimulate courts to identify weaknesses in their time
management systems and to remedy them as far as possible. Special focus is put upon warning systems against possible
violations of the "reasonable time" criterion. After a test program in seven pilot courts, an implementation guide was
adopted in 2011.
47
Check list . The "Time Management Checklist", adopted in 2005, is a tool for internal use by the courts and national
judicial administrations. One purpose is to improve the collection of appropriate information and the analysis of the
duration of judicial proceedings. Another is to help in reducing undue delays, ensure effectiveness of the proceedings and
provide necessary transparency and foreseeability to the users of the justice systems.
48
Best Practice Compendium is a compilation of time management practices collected especially from the pilot courts, but
also from other available sources.
49
Northern Europe study. The study: "Time management of justice systems: a Northern Europe study" contains a
broad collection of time management strategies described in governmental reports from Northern Europe states. Most
44 CEPEJ (2004)19 Rev 2. "A new objective for judicial systems: the processing of each case within an optimum and foreseeable time
frame". A new, updated strategy has now been approved by CEPEJ, see CEPEJ-SATURN(2011)5 Rev 2.
45
CEPEJ(2008)8Rev.
46
CEPEJ-SATURN(2011)2, CEPEJ-SATURN(2011)9.
47
CEPEJ(2005)12Rev.
48
CEPEJ(2006)13.
International Journal For Court Administration | December 2012
11
tools address policy makers and administrators of justice systems, but several also address the courts. Part II contains
tools developed for time management in criminal cases at the police and prosecution, but many of them might be
adoptable by the courts.
50
“Reasonable time” in the case law of ECtHR. The report "Length of court proceedings in the member states of the
Council of Europe based on the case-law of the European Court of Human Rights" analyzes the major considerations
behind the “reasonable time” standard (Article 6 ECHR article) and spells out the general deadlines that can be extracted
from the judgments of the European Courts of Human Rights.
The report was updated in 2011 and analyzes the recent practices of ECtHR in determining whether the duration of
proceedings is reasonable. In a brief introductory overview the findings are summarized:
“Major factors impacting on the Court’s evaluation of reasonable time are:
- The applicant’s conduct (this is the only criterion that led the Court to conclude that Art. 6 was not violated even if the
length of proceedings was manifestly excessive)
- The conduct of the competent authorities (if the authorities have taken prompt and appropriate remedial action to
manage the temporary unpredictable overload of the courts, the longer processing time of some cases may be justified)
 What is at stake for the applicant (some cases require particular speed; mainly “priority cases”:
 labour disputes involving dismissals, recovery of wages and the restraint of trade;
 compensation for victims of accidents;
 cases in which applicant is serving prison sentence;
 police violence cases;
 cases where applicant’s health is critical;
 cases of applicants of advanced age;
 cases related to family life and relations of children and parents;
 cases with applicants of limited physical state and capacity.
In addition to individual criteria, the Court also makes an overall assessment of the circumstances of the case. It may
establish that ‘reasonable time’ is exceeded, if in such a global assessment, the Court finds that total time is excessive, or
if it finds long periods of inactivity by competent authorities:
Violation of the reasonable time (Art. 6) – summary
Type of case
Issues
Length
Criminal cases
Diverse
More than 5 years.
Civil cases
Priority cases
More than 2 years (minimum 1 year 10 months)
Civil cases
Complex cases
More than 8 years.
Administrative
Priority
More than 2 years.
Administrative
Regular, complex
More than 5 years.
Non-violation of the reasonable time (Art. 6) - examples
Type of case
Issues
Length
Criminal cases
Normal cases
3 years 6 months (total in 3 instances);
4 years 3 months (total in 3 levels plus investigation)
Criminal cases
Complex
8 years 5 months (investigation and 3 levels)
Civil cases
Simple cases
1 year 10 months in first instance; 1 year 8 months on appeal; 1 year 9
months Court of Cassation
Civil cases
Priority cases (labour)
1 year 7 months in first instance (labour); 1 year 9 months on appeal; 1
year 9 months Court of Cassation
49
CEPEJ Studies No. 2, 2006.
Length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human
Rights (31 July 2011) 2nd Edition by Ms Françoise Calvez, Judge (France) Updated by Mr Nicolas Régis Judge (France). (Final citation
to be added after adoption by the CEPEJ plenary 06-07 December 2012.)
50
International Journal For Court Administration | December 2012
12
51
…”
Most courts only measure their own time use, while the ECtHR looks at the combined time use including appeals and
enforcement. In criminal cases measurement starts when a suspect is "substantially affected" by the investigation, which
in many jurisdictions happens long before the case arrives in court, while in civil cases counting starts when the case
arrives at the court. Time use in administrative cases begins when the case is first presented to the administrative agency
in question, for example the tax authorities, which also might take place long before the case arrives in court.
- Statistical data on combined time use. We might question how well suited the existing data collection of the European
judicial survey is in detailing the time use in the member states and to reveal precisely how well their current practices
conform to the case law of the ECtHR. At present, only some rough, approximate conclusions seem substantiated. As
said in the report “Reasonable time” in the case law of ECtHR, and mentioned above, the Court looks at the combined
time use at all stages involved, which means that statistics only on handling time from the first instance courts will be
incomplete as an indicator for violations of ECHR article 6 for a significant amount of cases. What is gathered in the
European survey is data on pending, incoming and resolved cases during the year. However, in the published text, mainly
52
data for first instance courts are presented. Several member states have not developed court management systems that
can provide data on the real handling time of the individual cases and produce statistics from them.
Neither has CEPEJ yet tried to gather precise information on their total caseloads from states that do produce it. The
extensive survey therefore still lacks information on for example average, median and mean real handling time in
European jurisdictions. Only some specialized studies on litigious divorces, employment dismissals, robbery and
intentional homicide, provide some data comprehending both the first instance and the appellate stages. Less than half of
53
the states have so far provided such limited data.
The European survey attempts to diminish the measurement problem by estimating real time use from calculations of
54
theoretical indicators as “clearance rates”, “case turn over ratio” and “disposition time”.
CEPEJ-SATURN tries to remedy the problem through several of the tools summarized above. The guidelines, for instance
advices that sufficient management systems must be established:
“The length of judicial proceedings should be monitored through an integral and well-defined system of collection of
information. Such a system should be able to promptly provide both the detailed statistical data on the length of
proceedings at the general level, and identify individual instances at the origin of excessive and unreasonable length.”
55
The principle expressed is detailed in several guidelines on monitoring.
56
The report “Study in Council of Europe Member States Appeal and Supreme Courts’ Lengths of Proceedings” from 2011
contains statistical analysis of the combined time use in general at the first instance level and the appellate levels, which
is missing in the European survey. The report uses 2008 data not presented in EJS 2010. Clearance rate and disposition
time are the man indicators. Graph 5 contains an example copied from the report:
51
Supra.
EJS 2012 p. 176-227.
53
EJS 2012 p. 210-227.
54
See EJS 2012 p. 169-70 for definitions.
55
Guideline IC3 and IIIB 1-4. CEPEJ (2008)8Rev.
56
CEPEJ-SATURN “Study in Council of Europe Member States Appeal and Supreme Courts’ Lengths of Proceedings” Report prepared
by Marco Velicogna IRSIG-CNR. CEPEJ Studies No 17 Council of Europe 2011.
52
International Journal For Court Administration | December 2012
13
Graph 5: CEPEJ Studies No 17. Figure 60 on total time use in criminal cases.
57
Disposition time in criminal cases varies enormously among the member states. Average time was 414 days and the
58
median 255 days. Some are slow at the first instance, others at the appellate stages and some on all of them. Italy
comes out at the bottom both at the first instance (more than a year) and especially at the second instance that is
predicted to last for more than two years on average. However, third instance handling seems slower in several other
57
58
Supra p. 83.
Supra.
International Journal For Court Administration | December 2012
14
countries – among them Denmark, Romania and Albania. Disposition time is long in several of the countries with large
volume of pending cases, but not without exceptions.
It should be kept in mind; however, that disposition time is a theoretical figure that only expresses a prognosis on future
time use:
“The Disposition time (DT): “compares the number of resolved cases during the observed period and the number of
unresolved cases at the end of the observed period”. It is calculated by dividing the 365 days of a year by the case
59
turnover ratio. It estimates the number of days necessary for a pending case to be solved in court…”
Disposition time also is a rough indicator since it only tells about predicted future time use. Real handling time might be
different both in the previous and coming years. Therefore, real future handling time will differ from disposition time if
backlog capacity changes.
Disposition time is just an average. In jurisdictions with large backlogs of old cases, stipulations from disposition time to
real handling time for the backlog might easily be too optimistic, especially when backlog capacity is improving.
Also in this report CEPEJ problems with gathering reliable data on real handling time are clearly visible.
60
Strategic plan for the Saturn Centre. The document was adopted in 2011. In line with resolution (2002) 12 on
61
establishment, the plan defines the overall objective of CEPEJ-SATURN as preventing violations of article 6 of ECHR on
reasonable time, and limiting the number of such complaints to the ECtHR. Four major tasks are pointed out, namely to:
 “obtain a global view of the situation in the area of procedure lengths within the member states;
 identify the real reason of the excessive lengths of proceedings;
 propose methodologies and tools to optimize the lengths of proceedings;
62
 help member states to implement the methodologies and tools to optimize the lengths of proceedings.”
The four main objectives are then developed into seven strategic goals. Each of them is translated into several
operational goals and projects that constitute a working plan for the Centre.
CEPEJ main focus in the combat against delay during its first decennium has been on developing tools for efficient time
management and offering them to the member states. Recent projects show, however, that adequate instruments are not
63
sufficient. States must also make use of them. It differs how willing the judicial authorities and courts in the member
states are to prioritize the introduction and use of such instruments. While the development of new and better instruments
for voluntary adoption has broad support among the members, putting pressure on them to improve their justice systems,
might be more controversial. Still the CEPEJ-SATURN strategy for the coming years puts more emphasis on
implementation. How influential the strategy will become depends on the powers of CEPEJ, an issue that I will address in
part 6.1.
5 Legal Aid – A Non Prioritized Task
Legal aid schemes are essential for access to court for the poorer part of the population both in civil and criminal cases.
64
ECHR article 6 (3) guarantees legal aid in criminal cases “… when the interests of justice so require”. Airy v. Ireland
from 1979 establishes the right to legal aid according to discretionary criteria for all cases with access to court according
to ECHR article 6 (1), which means that also cases on civil rights and obligations are included. The main criteria are:




the importance of the case to the individual (applicant);
the complexity of the case;
the individual’s capacity to represent himself;
costs and the individual’s capacity to carry them.
59
Supra p. 12.
CEPEJ-SATURN(2011)5rev2.
61 See part 2.3.
62 CEPEJ-SATURN(2011)5rev2 p 3.
63 See the “Implementation project” mentioned above.
64 ECtHR Application No. 6289/73.
60
International Journal For Court Administration | December 2012
15
65
Over the years, the Council of Europe has issued several resolutions and recommendations on legal aid improvements.
CEPEJ is well aware of the importance of legal aid schemes and its mandate also opens for a separate working group on
66
such schemes.
According to the "Medium-Term Activity Programme" of CEPEJ from 2005, access to court is an essential issue when
dealing with the efficiency of justice and the application of Article 6 of the Convention. A new working group was proposed
with the objective:
‘to facilitate the access to court to all citizens, without hampering the efficiency of the functioning of the justice system
and enabling the smooth application of the instruments and standards of the Council of Europe as regards legal aid.’
CEPEJ Plenary expected the working group to analyze legal aid and the existing solutions in the member states, giving
67
priority to a comparative analysis in order to recommend specific measures to the member states.
68
From the numerous resolutions issued on legal aid by CoE, such a priority seemed well justified. Presumably due to lack
of means, CEPEJ did not establish the expert group as agreed, although data already collected provided several
indications of the importance of sufficient legal aid schemes for fulfilling the obligations of a fair justice system in article
69
6. Legal aid has not been a priority in later activity programs of CEPEJ.
The questions on legal aid in the European Judicial Survey have not been many, mainly mapping some basic information
70
about the schemes. In my opinion the answers still tell that European judicial systems face major challenges:
All 46 members that participated in the survey responded that they provide legal representation in court cases in criminal
71
matters and civil matters. Still, the types of matters covered within these two broad categories, varied widely. Variations
also are huge when it comes to volume. All together Croatia provided 7 grants per 10 000 inhabitant, and Hungary 8,
while the Netherlands reported 307, Monaco 196 and Finland 156. The average was 83 and the median 51. Only 21
72
states gave data on volume.
Legal aid expenditures varied enormously among the states that could provide figures from 2010. While Albania used 0,
01 euro per inhabitant and Hungary 0, 03, Northern Ireland spent 54 and England and Wales 46. The European average
73
was 6,1 euro per inhabitant and the median 2,1 euro. 40 states gave data. States also prioritize very differently between
74
civil and criminal legal aid.
The data gathered are rough and basic. I still believe they give an impression of an immense variation in the access to
legal aid in Europe. Although the sources of error are vast, one cannot escape the impression that the enormous variation
in legal aid funding among European countries also mean that the legal aid offered to the poorer part of the population
differs significantly both in volume and quality. A proposition that one will find widespread violations of the entitlement to
legal aid embodied in Article 6 in the countries with the poorest funding seems close at hand.
States prioritize very differently between courts and legal aid. A listing of the total 2010 public expenditure on courts and
legal aid shows huge variations. Switzerland reports 129 euro per inhabitant and Monaco 112, while Moldova used 2,5
75
euro and Albania 3 euro. The European average was 41 euro and the median 32 euro. 33 countries gave data.
76
The differences mean that the legal aid budget only made up a very small share of the court budget in several countries,
while the UK jurisdictions spent significantly more on legal aid than on courts. An analysis I did two years ago indicates
65
See CEPEJ “Relevant Council of Europe Resolutions and Recommendations in the field of efficiency and fairness of justice.”
CEPEJ(2003)7rev. 6 of 21 resolutions and recommendations included concern legal aid.
66
See Res(2002)12 on establishment of CEPEJ, Article 1 (a) and article 7 2 b. CEPEJ/GENERAL(2003))1 p. 5 and 7.
67
CEPEJ 2005 (10) Medium –Term Activity Programme p. 9.
68
See Jon T. Johnsen “Human Rights in the Development on Legal Aid in Europe” p 138-140 in A.
Uzelac and C.H. van Rhee (eds.) Public and Private Justice. Dispute Resolution in Moderns Societies.
Intersentia 2007 p. 131-151 for discussion of the framework on legal aid.
69
See Johnsen, supra p. 144-146.
70
See EJS 2012 chapter 2 and 3.
71
EJS 2012 p 63-67.
72
EJS 2012 table 3.4 p. 68
73
EJS 2012 fig. 2.22 p. 46.
74
EJS 2012 p 63.
75
EJS 2012 Fig. 2.28 p 52.
International Journal For Court Administration | December 2012
16
that in Southern and South Eastern jurisdictions with the seemingly largest problems with speed and backlogs, spending
per inhabitant on courts is not very far from the Northern and Western European jurisdictions, but in comparably they use
77
very little on legal aid.
We therefore might question the low priority of legal aid in the work of CEPEJ. Legal representation is a precondition for
proper use of the courts in most cases, but usually too expensive for poor people. Since ECHR article 6 guarantees
access to court for everyone independent of their economy, efficient legal aid schemes therefore are essential. It does not
help the less affluent part of the population that courts are fair and efficient if they cannot afford to use them.
The European survey also indirectly expresses some concern about the development of legal aid by noting that there
seems to be a tendency “… to help less frequently but to help better in some way”. Additionally the survey asks for “…
accurate information regarding the number of cases concerned by legal aid and the amount of budget allocated to such
legal aid” and notes that the “number of states or entities that were able to provide such data has decreased compared to
78
the previous study”.
On the other hand, if courts already are clogged and inefficient, access for new groups does not help much, and more
cases due to better legal aid might even increase clogging and delay. CEPEJ obviously faces a dilemma.
Still I do not think its present prioritization defendable. Also poor people should have the possibility to compete with people
of means for the capacity that the court system actually has. If significant parts of the population are kept from channeling
substantiated cases into the judicial system due to lack of means, the present picture of people’s access to court
appearing from the European survey also is far too bright. Not being able in ten years to address this serious and
pressing human rights issue in the efficiency of justice to poor people in Europe, is in my opinion a serious shortcoming of
CEPEJ.
6. Conclusions
79
6.1 Powers of CEPEJ
When CEPEJ puts more emphasis on implementation of reforms in addition to analyses of judicial systems and
development of tools for remedying deficits, the issue of enforcement becomes more pressing. What are the powers that
CEPEJ has at its disposal of for fulfilling its mandate? What sort of tools can it use to influence judicial development in
Europe?
According to its mandate CEPEJ is supposed to provide technical assistance upon request to any member of the Council
of Europe in developing their judicial systems. It might also function as a catalyst for exchanges between different
jurisdictions, and promote ideas of improving justice at seminars, conferences and other suitable events and use its
website as a ‘clearing-house’ for studies and reform ideas. The main undertaking is to produce viable reform ideas,
convey them to governments, interest groups and the public on the assumption of voluntary adoption by the states.
‘Gentle persuasion’ clearly constitutes CEPEJ’s main instrument for stimulating the member states to carry out judicial
reforms – obviously not a very powerful instrument, especially not in times of economic decline. However, other
mechanisms might add to its influence.
The Council of Europe is an international body that uses legally binding instruments, ‘soft law’, and other policy strategies
to influence their member states. Its main bodies consist of representatives of the member states, which mean that major
decisions usually build on a broad consensus. While CEPEJ itself is excluded from monitoring the member states, issue
recommendations or use other instruments of international law, it might draft proposals when needed and forward them to
the bodies of the Council that possess legislative power according to international law.
Still, ideology and appeal to the self-interests of the member states remains the main tools. As a human rights-based
organization, CoE has a powerful image as the main promoter of human rights in Europe. All member states have obliged
themselves to loyal implementation of the Convention and the case law of the Court. Although member states are free to
76
Hungary 0,1%, Azrbajan and Croatia 0,2%, Romania 2,4%, Northern Ireland 53,7%, England and Wales 68%. Calculated from EJS
2012 fig 2.22 p. 46 and fig 2.28 p 52, see footnote 73 and 75 above.
77 Jon T. Johnsen “Access to justice and the development of legal aid in Europe” Seminar presentation “Human rights, access to justice
and judicial development in Europe and developing countries” August 31, 2010. The assumption draws on European judicial systems
Edition 2008 (data 2006) CEPEJ Studies No. 11, figure 9 p. 3, figure 13 p. 40 and table 6 p.50-51.
78 EJS 2012 p. 83.
79 Johnsen supra p.149-151.
International Journal For Court Administration | December 2012
17
fulfill their obligations with other means than suggested by CEPEJ, there is reason to believe that countries with deficits in
their judicial systems will be receptive to reform models developed by CEPEJ. Since the other member states and the
CoE back them, implementing these models will minimize the risk for being found in violation of ECHR.
ECtHR has referred to CEPEJ tools on time management in a number of decisions on alleged violations of the
80
“reasonable time standard.” One example is Scordino v Italy, see § 73 and 74. ECtHR cited the “Framework
Programme”, and said that establishing a compensation system for violations of Article 6, is not sufficient. Remedies must
effectively prevent delay. Obviously such references significantly increase impacts if governments neglect relevant CEPEJ
tools. They pressure member states to consciously consider whether to adopt CEPEJ tools or comparable ones, or run
the risk of being found in violation of ECHR. SATURN thinks that such references ought to be made far more frequently
than to day and work on a better dialogue with the ECtHR.
The Convention and the case law of the Court might also be used in national courts. ECHR article 13 obliges all states to
provide an effective legal remedy in national law for securing everyone their rights under the Convention. Lawyers might
81
allege violations of its provisions on access to court, both before national courts and – if not successful – before ECtHR.
New judgments will develop the case law of the Court and bear upon all 47 member states.
Governments dislike the Court finding against them. Since ECHR allows individuals to sue, the risk of being found in
violation is significantly higher than for most other human rights instruments that do not provide for an individual complaint
procedure. Several states prefer to operate with safety margins and change dubious rules or practices as a precaution
instead of risk being found in violation of the Convention. These features add weight to the policy recommendations of the
CoE. Many states – often the small and rich ones – emphasize the development of human rights as an important part of
their foreign policy. They are then vulnerable to criticism of not fulfilling them at home.
Human rights activists might also use the human rights’ framework in national debates as arguments for judicial reform.
Such activism might help the national implementation. Amnesty International might provide a model. As an NGO, they
inter alia focus on violations of the prohibition against cruel or unusual punishment, the death penalty, persecution and
imprisonment without a fair trial, censorship and intimidation of political opponents to the regime in power, etc. They
invoke public opinion, pressure groups and governments in other countries to put pressure on the government responsible
for the alleged violation. Similarly, pressures to fulfil human rights commitments on access to court might be brought to
bear upon governments by activist organizations on judicial improvements.
Another important enforcement vehicle comes from the accession process for countries wishing to join the European
Union. They are all required to meet a set of conditions – the Copenhagen criteria – before they can become members.
They must guarantee democracy, the rule of law, human rights and the protection of minorities. The standards applied on
the judicial systems are derived from the provisions in the Convention, especially from Article 6. When monitoring reports
show that their judicial systems and legal aid schemes of the applicant countries have deficits, they must sufficiently
remedy them before they can join. Knowing the strong drive of several states to become part of the Union, the accession
process also facilitates the adoption of reform proposals from CEPEJ.
The accession of EU to the ECHR means that the case law of ECtHR will increase in importance to all EU members.
There are signs that the human rights policies of the Council of Europe will receive increased attention from the EU. Since
most of the states with malfunctioning justice systems either are members or aspire to become members, I think some
hope exist that the EU accession to CoE will impact on their willingness to reform.
6.2 Impacts
In section 2.2 I forwarded some reflections on the implementation of article 6 in a historical perspective, and on the
increasing number of complaints to the ECtHR on alleged violations of ECHR that triggered the establishment of CEPEJ a
decade ago. We might ask if the number of complaints to ECtHR, and also the number of violations, might be used to
measure whether European justice is improving and what the impacts of CEPEJ’s work are. Graph 6 compare the data in
section 2.2 on the backlogs just after CEPEJ became established, to some present numbers.
80
81
Case of Scordino v. Italy (No. 1) Application no. 36813/97
… or other bodies with the competence to function as a national remedy against violations of the ECHR.
International Journal For Court Administration | December 2012
18
Graph 6: Caseload at the European Court of Human Rights in 2005 and 2011.
82
Incoming cases have increased with more than half and pending cases have almost doubled. The increase of incoming
cases from three years before has tripled. The graph does not leave any impression that CEPEJ has been a success so
far, although we do not know what the figures would have been without the impact of CEPEJ. Although the specific
impacts of CEPEJ are impossible to pinpoint from such data, they tell that the challenges that triggered the establishment
of CEPEJ still exist.
As discussed in this paper, CEPEJ has helped in improving the understanding of the existing problems in Europe’s judicial
systems and has also developed a bundle of tools that might be used to remedy some of them. Implementation of reforms
has not come far yet, but hopefully will receive more attention from CEPEJ in coming years.
Coordination between CEPEJ and ECtHR in the work of bettering judicial efficiency and quality also should be improved.
CEPEJ might adapt its statistics and remedies more to the case law of ECtHR and help sensitizing national legal systems
to its principles, for example on reasonable time use. The Court also might include more references to the findings and
tools of CEPEJ in its judgments on complaints about violations of ECHR article 6. Important challenges exist in developing
systemic reforms from the highly individualized decisions in its case law.
Independent of the possible impacts on European judicial systems, CEPEJ’s existence and activity obviously has
increased public attention to its deficits. Hopefully are the increased backlogs at ECtHR a sign of improved consciousness
in Europe about the right to fair trial and the possibility to complain about violations, not of growth in the actual number of
violations.
82
Sources: European Court of Human Rights Annual Report, 2002 p.100, 2005 p. 121, 2008 p. 127, 2011 p. 151 and president
Wildhaber see footnote 3.
International Journal For Court Administration | December 2012
19
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Management Responses To Multiple Rationalities In Courts – A Review
By Angela Eicher and Kuno Schedler
Abstract:
Courts are multirational organizations in that they are characterized by the coexistence of various rationalities, pursuing
divergent goals and following different logical patterns, thus posing additional challenges on management. Rationalities
define the distinct way actor groups think, speak and act. Multiple rationalities challenge decision makers in courts as they
need to respond by developing practices to deal with the complexity they generate.
The objectives of this paper are twofold. First, we intent to critically review and discuss the literature on court management
which somehow addresses the phenomenon of multirationality within courts. Second, we draw a nexus between the
research fields of court management and New Institutionalism, since the latter is supposed to provide important insights for
the former.
It is concluded that, although the concept of multirational court management has implicitly already been indicated by some
scholars from the field of court management, it has not yet been explicitly mentioned and discussed in sufficient detail. Two
research streams are identified. The first stream of research implicitly focuses on multirationality by analyzing the
perceptions, attitudes, and relationships of different court actors. Local legal culture is the second stream, which refers to the
presence of competing values within courts. For further research, we suggest four types of practices to structure possible
managerial responses in courts.
1. Introduction
Today, courts find themselves more than ever in the midst of an area of tension. On the one hand they are confronted
with increasing workloads, increased case complexity and a relative decline in resources. On the other hand they have to
assure legitimacy in a context of various and sometimes even contradicting external expectations, stemming in particular
from politics (Seron, 1990, pp. 453-454). Although many reform efforts have been made, especially in the USA, but since
the 1990s also in Europe (Fabri & Langbroek, 2000, p. 1, 4) to prepare the courts for these challenges, and despite the
emergence of court management as a research field, the attempts to render the judiciary more manageable and thus
more efficient just partly succeeded (c.f. Wice, 1995, p. 310). In this respect Saari very aptly noted: „It may be no accident
that courts are one of the last major powerful institutions to allow management to enter into their midst, perhaps because
of the extraordinary complexity of the institution” (1982, p. 42). Therefore it has to be asked: What renders court
management that difficult?
As the authors will show, one reason for court management to be a formidable challenge refers to the organizational
peculiarities of courts, which changed thoroughly over time. Courts no longer have merely to be seen as complex, laborintensive, and professional organizations, as generally suggested in the prevalent literature (e.g. Gallas, 1967, p. 268;
Saari, 1967, p. 83; Friesen, Gallas & Gallas, 1971, p. 108; Seron, 1990, p. 456 ff.), but also as multirational organizations
in which different rationalities coexist due to their complex context (Schedler, 2012; Denis, Langley & Rouleau, 2007, p.
192, 193). Rationality in this regard is defined as a „specific way of thought, speech and action that follows a consistent
and logical pattern“(Schedler, 2003, p. 538). Multirational organizations are characterized by the coexistence of various
rationalities, pursuing divergent goals and following different logical patterns, which pose additional challenges on court
management. Mutual incomprehension leads for example to latent conflicts between these rationalities, whose relations
are moreover ambiguous, meaning that it is often not clear whether there exists equality or hierarchy between them.
Disturbed communication within the organization represents another aspect which renders the management of
multirational organizations that demanding. Hence, in order to prevent decision-making blockades and to promote an
organization’s efficiency it is essential for the management to be capable of meeting the challenges arising from
multirationality.
In the judicial context multirationality is supposed to have been triggered by the various reforms and reorganizations which
the courts experienced during the last centuries and concomitant the involvement of new actors. Since the rationalities of
these new court actors are supposed to differ quite substantively from the traditionally prevalent rationality of judges (cf.
e.g. Cameron, Zimmerman & Dowling, 1987), conflicts within the courts are likely to arise.
Research addressing the coexistence of multiple rationalities within courts can be divided in two main streams. Although
the term is usually not used, the first stream implies multirationality by examining the perceptions, attitudes and
relationships of different court actors and by identifying potential sources of conflicts. These studies are closely associated
with the issue of court administration and court management and were mainly conducted in the USA in the late 1980s (cf.
e.g. Saari, 1967; Cameron et al., 1987).
International Journal For Court Administration | December 2012
20
Local legal culture is the second stream of research which somehow points to the phenomenon of multirationality within
the judiciary. This stream was developed in the 1970s in connection with studies that dealt with the issue of delay
reduction (Ostrom, Ostrom, Hanson & Kleiman, 2007, p. 8). According to this concept there exist competing values within
courts, which become apparent across the different work areas (Ostrom et al., 2007, p. 67).
In addition to these two research streams from the field of court management, the presence of multiple rationalities within
a single organization has recently also became a research topic of New Institutionalists. March and Olsen state for
example: „In courts of law the judge, the prosecutor, the attorney, the witness and the accused legitimately follow different
logics of action. The credence of their arguments, data and conclusions are also expected to vary” (2009, p. 19).
Despite the fact that courts demonstrably share some important similarities with other multirational organizations, i.e.
hospitals that have already been studied quite extensively by proponents of New Institutionalism (cf. e.g. Heimer, 1999;
Scott, Ruef, Mendel & Caronna, 2000; Reay & Hinings, 2009), they have not yet attracted much attention from this theory.
Additionally scholars from the field of court management have not yet made substantial use of New Institutionalism, either.
1
This paper which is structured as follows intends to close this gap . The first part begins with an analysis on how changes
on the macro level affect courts. In this regard it is assumed that certain developments led to the incorporation of new
court actors with different rationalities, thus rendering the management of courts a formidable challenge. Characterizing
the main rationalities which can be found within courts marks the second part of the paper. Finally some responses and
practices courts use to counter multirationality are illustrated.
2. Literature Selection
The current literature review is based on a careful selection of articles and books in the field of court management which
somehow indicate the presence of multiple rationalities within the judiciary. Therefore, we first looked for articles which
2
were published between 1971 and 2012 and which contained one of the terms court management, court administration
3
4
and local legal culture in the title (cf. figure 1). As data base sources we used both EBSCO host and Web of Knowledge .
Since the Justice System Journal and the Judicature proved to be particularly fertile journals for this review we scanned
them in more detail for the same time period. Additional literature was then also gained on the basis of the previously
collected literature (snowball principle).
As the diagram below shows, most studies which cited articles containing one of the terms „court management” or „court
administration” in the title were published between the late 1970s and the early 1990s. This observation also coincides
with the findings of Lawson and Howard’s study which revealed that court management became a real „growth industry”
during the late 1970s (1991, p. 591). The majority of articles which refers to multirationality by examining the perception,
attitudes and relationships of different court actors are thus expected to have been published more or less in the same
time period.
Figure 1: Citation Index
Citations per year
court management
court administration
local legal culture
10
9
8
7
6
5
4
3
2
1
0
1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011
(Source: Web of Knowledge)
1
Results of the research project 'Basic Research into Court Management in Switzerland', supported by the Swiss National Science
Foundation (SNSF)
2
This date was chosen, because it was in this year when the first book on court management was published by Friesen et al. (Lawson
& Howard, 1991, p. 591).
3
The meaning of the term local legal culture will be discussed in more detail on page 13 ff.
4
The Web of Knowledge is a search platform that has been created by Thomson and Reuters and enables access to the most relevant
citation databases (cf. http://wokinfo.com).
International Journal For Court Administration | December 2012
21
Contrary to that, studies referring to the concept of local legal culture which embodies the second research stream
emerged about ten years later. The key contributors and key findings of these two research streams are listed in table 1
on page 6. What is striking is the overall rather limited amount of studies that examined the interactions and constellations
of court actors. Although there exist a few studies and articles in the field of court management which implicitly point to the
phenomenon of multirationality within courts, research on this subject has been rather scarce and uncoordinated
compared to other sub-topics of court management which have been extensively analyzed like for example caseload
management (cf. e.g. Lienhard & Kettiger, 2011). Further research is thus warranted.
After having outlined the basic points of the literature selection, the next part of the paper will illustrate how changes on
the macro level affected courts and finally led to the incorporation of new court actors, exhibiting different rationalities.
3. Struggle for Legitimacy in a Fast Changing Environment
New Institutionalism emerged during the 1970s (Scott, 2008, p. 19), and is nowadays one of the leading streams within
organizational theories (Walgenbach, 2006, p. 389). One of its basic assumptions starts from the premise that
„organizations are affected by their environments” (Scott & Meyer, 1991, p. 108), whereby it has to be differentiated
between a technical and an institutional environment. The purest form of the technical environment is the competitive
market; products and services are exchanged and efficient processes are rewarded (Scott & Meyer, 1991, p. 123).
Institutional environments, on the contrary, comprise elaborated rules and requirements, stemming from the state,
professional organizations or belief systems (Scott & Meyer, 1991, p. 123). In their famous essay Meyer and Rowan
argue that these institutionalized requirements are reflected in the elements, i.e. policies, programs, procedures of an
organization’s formal structure and are ceremonially adapted (1977, p. 340, 344). They operate as myths which must be
taken for granted as legitimate to maintain legitimacy and to ensure an organization’s survival (Meyer & Rowan, 1977, p.
344, 349). As indicated by Scott and Meyer (1991) the sources of legitimacy differ, according to the characteristics and
expectations of an organization’s relevant environment. A means-end rationality emphasizing output efficiency is the
primary premise of technical environments. Institutional environments are based on the understanding and acceptance of
actions in the past (Scott & Meyer, 1991, p. 124). Private organizations thus adhere primarily to an economic rationality,
since they must assert themselves on the market.
By contrast, public organizations originally attained their legitimacy from politics (DiMaggio & Powell, 1983) and from law
(Kettiger, 2000). Courts’ institutional logic in particular is to create justice, whereby the term „justice” does not mean the
same to everyone (Cohen, 2002, p. 180). Contrary to the logic of courts the legislative processes are supposed to be
driven both by a political and a professional rationality (Kettiger, 2003, p. 216; Schulze-Fielitz, 1988, p. 454 ff.).
However, as a consequence of certain developments during the 1990s, like the general budget shortages and
concomitant the rise of New Public Management, the economic rationality also became increasingly relevant for public
organizations in assuring legitimacy (Schedler, 2012, p. 4).
Applied to the judicial context this explains why different changes like budget constraints, new case disposition forms,
increased complexity of external demands, and the involvement of new court actors, forced courts to adjust their formal
structure and to professionalize their administration (Heydebrand and Seron, 1990, p. 1). Heydebrand and Seron speak in
this regard of „a rationalization of justice, which led to a systematization, simplification, standardization, and routinization
in a quest for efficiency, productivity, and cost effectiveness (…)” (1990, p. 6). This observation also coincides with Miller
and Friesen who note that the sophistication of an organization’s structure increases, as the complexity of a situation
increases (1984, p. 1164). The sensationalist attention the media increasingly pays in some countries to how courts
handle certain types of cases puts them under additional pressure and even endangers the public trust they enjoy (e.g.
Surette, 2010, p. 126; Langbroek, 2010, p. 24; Johnston & Bartels, 2010, p. 276). Although, the survival of courts as such
will probably never be threatened, disregarding the institutionalized demands from the environment and particularly from
politics could cause other problems since politics decides on courts’ finances and structure (Friesen et al., 1971, p. 83).
These instruments in turn could decrease courts’ scope of action.
Assuring and maintaining legitimacy is therefore also of crucial importance for courts.
Two problems arise out of these constraints: the first relates to the possible incompatibility between an organization’s
formal structure and its technical and efficiency demands. Even though this efficiency dilemma might not arise for courts,
since they are public organizations and thus are not exposed to the competitive market, other negative consequences
could be caused. Structure adaptions, which might well improve the efficiency of certain working processes within the
judiciary, could for example negatively affect the quality of jurisdiction and thus undermine courts’ main mission of
providing justice (e.g. Heydebrand & Seron, 1990, p. 194; Langbroek, 2010, pp. 29-30). Heterogeneity of the environment
and the associated possibility of conflicting rationalities constitute the second problem (Meyer & Rowan, 1977, p. 355).
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22
The goal of politics to cut costs within the judiciary might stay in sharp contrast with the main concern of society to ensure
a high quality of jurisdiction.
Table 1: Multirationality within Courts: Two Streams of Research
Research Stream
Measuring Perceptions, Attitudes and
Relationships of Court Actors
Local Legal Culture
Empirical Focus
 Analysis of the different perceptions and
attitudes court actors have of each other
 Analysis of the relationship among
different court actors
 Analysis of the impact local legal culture
has on court performance
Key Contributors
Berkson & Hays, 1976; Butler, 1977; Mays
& Taggart, 1986; Cameron et al., 1987;
Flanders, 1991; Wasby, 2005; Swanson &
Wasby, 2008
Nimmer, 1978; Church, Carlson, Lee & Tan,
1978; Eisenstein, Fleming & Nardully, 1988;
Nardulli, Eisenstein & Fleming, 1988; Ostrom
& Hanson, 1999; Ostrom, Ostrom, Hanson &
Kleiman, 2007; Coolsen, 2009
Main Findings
 Different court actors possess different
perspectives, pursue different objectives
and exhibit different priorities
 There exist different attitudes towards
management
 Different
work
styles,
divergent
perspectives,
and
structural
characteristics of the justice system are
identified as the main sources of conflict
among different court actors
 Culture has an influence on the functioning
1
of courts
 Shared beliefs, expectations, and attitudes
are the primary factors which affect court
performance
 Courts exhibit a heterogeneous culture,
which consists of the four archetypes
communal, autonomous, networked, and
hierarchical
 Competing values exist within one court
and across different work areas
 There are no „good” and „bad” court
cultures
Contribution to
Multirationality
 Multirationality is reflected in the different
values, goals and attitudes of court
actors
 Implies
multirationality
through
the
existence of culture incongruences within a
single organization (court)
4. Courts as Parts of an Organizational Field
Like Meyer and Rowan, DiMaggio and Powell also examined the impact of the institutionalized environment on
organizations (Walgenbach, 2006, p. 389). Based on the assumption that there can be observed a homogenization
among certain types of organizations they introduced the concept of the organizational field, by which they mean: „those
organizations that, in the aggregate, constitute a recognized area of institutional life: key suppliers, resource and product
consumers, regulatory agencies, and other organizations that produce similar services or products” (DiMaggio & Powell,
1983, p. 148). The main advantage of the field concept lays in its usefulness for identifying the „totality of relevant actors”
(DiMaggio & Powell, 1983, p. 148). Fields do not exist per se but are the result of a structuration process, which
comprises the following aspects: rise in interaction among field participants, establishment of interorganizational
domination and coalition patterns, risen information load, and mutual awareness of belonging to a common enterprise.
After a new field emerges, the organizations within this field are becoming increasingly more alike (DiMaggio & Powell,
1983, p. 148). This process of homogenization is called isomorphism. DiMaggio and Powell identify three different types
of isomorphism: coercive isomorphism, which is caused through political influence and legitimacy problems; mimetic
isomorphism stemming from uncertainty, and normative isomorphism relating to professionalization (DiMaggio & Powell,
1983, p. 150). For courts especially the first and the third isomorphic processes are relevant, since courts are professional
1
These findings are based on the six propositions of Ostrom et al. (2007, p. 130 ff.).
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23
organizations and at least in regard to their budget and structure dependent on politics. In their study Heydebrand and
Seron also observed a certain degree of isomorphism, mainly resulting from political pressure. They note that courts are
gradually incorporated into a justice system, where different agencies act interdependently and system viability is the main
concern (1990, p. 14). Well-established fields are supposed to be more stable, because they often exhibit a prevalent
logic (Greenwood, Raynard, Kodeih, Micelotta & Lounsbury, 2011, p. 335). Contrary to emerging fields, possible conflicts
between the distinct logics have already been solved at the field level (Greenwood et al., 2011, p. 335). In emerging fields
institutional demands are also expected to be less predictable than in well-established fields (Greenwood et al., 2011, p.
335; Lawrence & Phillips, 2004, p. 707). It is moreover easier for external actors, possessing distinct logics, to gain
access to emerging fields, thus additionally irritating the already still sparsely structured field (Greenwood et al., 2011, p.
336). Hence, organizations which are located within a mature field are confronted with a lower degree of institutional
complexity than organization within an emerging field.
Whereas Meyer and Rowan as well as DiMaggio and Powell believe that organizations are mainly influenced by their
institutional environment and therefore take a macro level approach (Walgenbach & Meyer, 2008, p. 42), Zucker, as the
main proponent of the micro level approach (Walgenbach, 2006, p. 382), sees the institutionalized structure and behavior
instead as variables. In Zucker’s view the degree of institutionalization, which depends on personal influence and on the
organizational context, affects the persistence of an institution (Zucker, 1977, p. 741). Higher institutionalization leads to
greater uniformity of cultural understandings and thus to greater change resistance (Zucker, 1977, p. 742). Those
behaviors exhibiting a low degree of institutionalization require positive or negative sanctions, to be conducted
(Walgenbach, 2006, p. 382). Judicial independence and the associated lack of sanctions could therefore serve as one
explanation for judges’ initial hesitation to delegate some of their responsibilities to court administrators and also account
for the culture incongruences found by Ostrom and colleagues (2007).
5. Multirationality as a Consequence of Macro Level Changes
In the previous section of this paper we have outlined some of the basic developments within courts’ environment and
illustrated the consequences. In the next section we intend to shift our attention from macro-level events to micro-level
processes. A special focus is laid on how courts deal with increased institutional complexity and the resulting
multirationality. To illustrate this we refer to findings of previous studies which addressed the phenomenon of
multirationality within courts.
As illustrated so far, courts are embedded in a highly institutionalized environment and have to deal with various different
expectations and demands, stemming from different stakeholders. Expect external developments, there also exist a few
endogenous factors, which can trigger changes in an organization’s formal structure (Walgenbach & Meyer, 2008, p. 102
ff.). Such endogenous triggers are for instance contradictions between institutional features, presence of multiple logics,
and ambiguity of rules (Walgenbach & Meyer, 2008, pp. 105-107). In this context Friedland and Alford introduced the
concept of institutional logics. They identified six institutional logics of Western society – capitalism, bureaucratic state,
democracy, nuclear family, and Christianity – which affect the preferences and interests of organizations (Friedland &
Alford, 1991, p. 249). Moreover, these multiple logics provide meaning systems and a repertoire of behavior (Friedland &
Alford, 1991, p. 232). A more precise explanation provide Thornton and Ocasio who define institutional logics as: „The
socially constructed, historical patterns of material practices, assumptions, values, beliefs, and rules by which individuals
produce and reproduce their material subsistence, organize time and space, and provide meaning to their social reality”
(1999, p. 804). Institutional logics thus reflect the institutionalized elements of a society, whereby they can greatly vary.
The reasons why we speak of rationalities in our study and not of institutional logics are manifold: First, we prefer the term
rationality because it is also used by scholars from the strategy-as-practice approach (e.g. Denis et al., 2007). Similar to
Denis and colleagues, we also start from the premise that there exist different archetypes of rationalities. Since our
approach also entails systemic elements, we further think it is appropriate to speak of rationality and to use this term for
labeling our concept. Lastly, the term rationality is in our view more suitable and more understandable in the Germanspeaking research area.
Nevertheless, by means of connecting institutions to actions, the concept of institutional logics makes insofar a
considerable contribution to the study of multirationality, as it brings the macro perspective, proposed by Meyer and
Rowan, and DiMaggio and Powell, and Zucker’s micro level approach together (Thornton & Ocasio, 2008, p. 100).
Besides Friedland and Alford’s conception of institutional logics, there exist several slightly different approaches (Cloutier
& Langley, 2007, p. 12). But, one major assumption, which all different concepts have in common, is the notion that
behavior of individuals and organizations is highly influenced by their environment and thus cannot be understood
detached from its institutional context (Thornton & Ocasio, 2008, p. 102). The carriers of institutions are according to
Zilber the members of an organization (2002, p. 249). As he showed in his study about a rape crisis center in Israel, these
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carriers can be either passive, thus simply carrying a certain meaning and action respectively, or take a more active role
by promoting and interpreting certain practices (Zilber, 2002, p. 249).
In what ways does this conception of multiple institutional logics contribute to the analysis of courts? Based on the
explanations above, it becomes obvious that, on the one side courts have faced external pressure to adjust their formal
structure. As shown, this external pressure stemmed from different developments, but was in particular pushed by the
political endeavor to constrain courts’ budget, which in turn relates to an increased influence of the economic rationality.
On the other side, in the course of the numerous reform efforts, new actors, carrying non-judicial logics gained access to
courts (e.g. Heydebrand & Seron, 1990, p. 1). This implies, that the pressure to adjust the formal structure, although
originally initiated exogenously, comes increasingly also from the new court actors, and hence arises also from within the
organization. Yet, due to their different societal backgrounds, these new actors are not supposed to hold a homogeneous
non-judicial logic, but are rather assumed to represent different logics.
Since different court actors pursue divergent objectives, in a setting where power is diffused and knowledge-based work
processes crucial, courts must operate in a highly pluralistic context (Denis et al., 2007, pp. 179-180). This view is also
shared by Saari, a former court administrator (1967, p. 85). He explicitly compares the management of courts with the
management of similar professional organizations like hospitals or universities and points to the dominance exerted by the
professionals; in this case the judges (1967, p. 83, 85).
Shifts in logics and their implications on organizations has also been a widely spread research issue of New
Institutionalits. In their study about the American higher education publishing industry Thornton and Ocasio observed for
instance a shift in the prevalent field logic – from an editorial to a market logic–, which was triggered by economic and
structural changes as well as by an altered understanding of these logics (1999, p. 836). In the same vein Greenwood and
Hinings used the concept of archetypes which they defined as „a set of structures and systems that reflects a single
interpretive scheme” (1993, p. 1052) to explore how contextual factors influence the underlying archetype of local
authorities in England and Wales (1993, p. 1069, 1070). The health care field constitutes another quite extensively
elaborated research setting for analyzing logics’ effect on organizations (e.g. Heimer, 1999; Scott, Ruef, Mendel &
Caronna, 2000; Reay & Hinings, 2005). Besides, health care organizations bear an important resemblance to courts, in
that they are also dominated by professionals (Heimer, 1999, p. 28; Saari, 1967, p. 83).
As Reay and Hinings (2009, p. 629) stress, although many New Institutionalists assume that a particular logic is dominant
within a field, more recent studies (e.g. Reay & Hinings, 2005) revealed that multiple logics can also coexist over a
relatively long period. The coexistence of multiple rationalities furthermore must not have per se a negative impact on
organizations. However, it seems clear, that the more equal the external demands and hence the less complex the
situation, the easier it will become for an organization to act in accordance with the premises of its relevant referent
audiences (Schedler, 2012, p. 14), which is important in order to assure legitimacy.
6. Multirationality within Courts
In a first part of this paper we have illustrated the concept of institutional logics and especially highlighted how alterations
on the macro level have triggered multirationality within courts. In the following second part we intend to characterize the
types of rationalities which can typically be expected to exist within courts. Moreover, we also describe some conflicts that
might arise due to these different rationalities. The question about how court actors deal with these multiple logics will
then be discussed in the final part of the paper. We derive our insights again mainly from the findings of previous studies,
which were with no exception conducted in the USA. Thus it has to be acknowledged, that the findings are not
generalizable, which is also not our claim. But, we believe that although the institutional setting of courts varies
considerably across time and space, they have one similarity in common, which is being a multirational organization.
7. Legal vs. Economic Rationality
In a survey Cameron et al. studied the roles of chief justices and state court administrators and noticed that, as a
consequence of the two distinct „systems” these actors embody, inherent differences were likely to exist between them
(1987, p. 442). Overall, the work of Cameron et al. implies that whereas a (chief) judge embodies a legal rationality, a
court administrator is supposed to act in accordance with an economic rationality. Differences in the actors’ rationality are
manifested in their divergent goals and values, their different decision-making processes and differences in perspectives.
While a judge’s primary objective is to provide impartial justice, an administrator seeks to increase system efficiency to
reduce costs (Cameron et al., 1987, p. 479). A court administrator is often forced to take rapid and authoritarian decisions
which were moreover frequently based on incomplete facts (Aikman, 2007, p. 130). Managing an organization therefore
often requires taking some risks (Maan, 2009, p. 23) and enduring a certain degree of uncertainty.
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In this sense judges also often do not see the huge effort taken by court administrators to implement a policy decision,
hence overlooking their contributions (Aikman, 2007, p. 130). Compared to the administrative decision-making process,
the judicial decision-making process is relatively slow and very detailed (Cameron et al., 1987, p. 452). This becomes
then problematic when the judicial decision-making process finds application in administrative matters, and thus causes
delays on tasks which require prompt decisions (Cameron et al., 1987, p. 452). Court administrators additionally often
focus on the entire system and take a long term focus. Justices in contrast rather possess a short term focus, since they
are more concerned with a concrete individual case (Cameron et al., 1987, p. 472; Flanders, 1991, p. 648; Aikman, 2007,
p. 129; Maan, 2009, p. 23). Differences in perspectives among judges and court administrators are not only manifested in
rules and forms, but are also visible in personnel decisions, i.e. the acquisition of a new computer program (Aikman, 2007,
p. 134). Change resistance and concomitant the preference to preserve the status quo is another characteristic of judges
which could lead to confrontations with those court actors who work more active as change agents (Cameron et al., 1987,
p. 455; Röhl, 1993, p. 124).
As Cameron and colleagues note, a court administrator is likewise often confronted with a dichotomous role, meaning that
his position moves depending on the situation, between being a subordinate aid and being a peer professional, whereby it
is not always evident for an administrator which role he has to take (1987, p. 473).
8. Competition among Legal and Non-Legal Rationalities
Probably the most interesting insight from the study of Cameron et al. is that differences in perceptions of chief judges and
court administrators often stem from their different attitude toward management (1987, p. 474; see also: Tobin & Hoffman,
1979, p. 27).
Mays and Taggart examined in this respect how the perceptions of judges and court administrators differ along the four
administrative functions: budgeting, personnel, jury management and case scheduling with the last function as being the
major source of conflict (1986, p. 3). The structural arrangement which leaves the ultimate management decision in the
hands of the judges and differences in the perspectives about what needs to be done and how were identified as being
the main reasons for conflicts (1986, pp. 6-7). The fact that judges often want to have the final say, even in non-judicial
matters is also confirmed by Saari (1967, p. 84).
Based on a case study of the judicial system of Florida Berkson and Hays investigated the strong opposition court
administrators had to face in the early years of their appointment from traditional court actors, particularly from judges and
clerks (1976). This at least at the beginning, rather hostile environment towards court administrators is reflected in the
following statement of a chief judge: „How can we expect him (court administrator) to tell an elected sheriff, clerk or judge
what to do” (cit. in Berkson & Hays, 1976, p. 69).
Berkson and Hays’ study revealed that in addition to judges, also clerks were rather skeptical about court administrators.
One clerk stated for example: „He does nothing a good secretary cannot do” (cit. in Berkson & Hays, 1976, p. 70). The
opposition on the part of clerks stemmed mainly from their fear to lose power and because they did not see the sense and
purpose of court administrators (1976, pp. 70-71; Aikman, 2007, p. 103) Aikman speaks in this context of „real power
struggles” (2007, p. 103) that existed between clerks and court administrators.
From a New Institutional point of view, the position of a court administrator thus at least at the beginning seems to have
been mainly of ceremonial meaning, since administrators did not possess any substantial competences. Both, lacking
acceptance and lacking responsibility induced court administrators to show a rather passive behavior which, although not
improving the efficiency of the judicial system, at least ensured their survival (Berkson & Hays, 1976, p. 73).
Butler, who investigated the attitudes of chief judges’ towards court administrators, acknowledges that apart from judges’
attitudes also other factors like the historical development of the court or statutory and constitutional limitations affect the
role of court administrators (1977, p. 184). On the basis of a list which comprised several duties Butler analyzed how
willing judges were to delegate some of their responsibilities to court administrators, whereby the willingness of judges to
grant administrators „broad powers” proved to be the most controversial issue (Butler, 1977, p. 186). Therefore, it does
not surprise that non-judicial tasks were delegated most often to administrators, while more judicial tasks or tasks which
could present any risk to the judicial independence were delegated only tenuously (Butler, 1977, p. 187). Instead of
viewing court administrators as equal „co-managers” judges rather accredited them administrative and technical work
(Tobin, 2004, p. 112). Tobin refers in this context to a quote of a nationally prominent court administrator who said that he
often had to leave meetings with judges, because as the judges noted: „The technical part of the meeting is over. You can
go now” (cit. in Tobin, 2004, p. 112). Even though this request for leaving the meeting before its official ending might be
reasonable from a judge’s point of view, it nevertheless underlines the lack of acceptance and esteem court
administrators receive.
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The fact that judges try to avoid any changes that could undermine their power is also observed in other organizations. A
study which investigated how institutional forces affect professional role identities revealed for example that professionals,
in this case physicians were often hesitant to delegate duties which they perceived as being particularly important to their
role (Chreim, Williams & Hinings, 2007, p. 1530).
With his statement „court administrators and judges differ” Flanders (1991, p. 640) also points to the existence of some
inherent differences between court administrators and judges. Flanders notes that court administrators differ from other
administrators since they have to manage judges, who are even more professionally distinct than physicians (1991, p.
641). Contrary to previous studies Flanders highlights the rather high influence of court administrations in intergovernmental relationships. He also states that the symbolic role of the judiciary often proves to be a quite powerful
argument to prevent budget cuts (1991, p. 644).
Another interesting point Flanders mentions in his article, refers to the conflict between court administrators and court
reporters. The reason for this conflict, as Flanders suggests, is due to the fact that court reporting, which represents a
central problem area within courts, often falls within the competence of court administrators (1991, p. 649). Hence, power
struggles not only exist among judges and court administrators, but also among other court actors.
In a case study Wasby (2005) showed in this context, that judicial secretaries can under certain circumstances also
become quite powerful, because their daily business often goes far beyond the formally assigned secretarial services (p.
155).
However, subsequent studies about the relationship between chief judges, clerks, and court administrators did not paint
such a gloomy picture. In this regard Cameron and colleagues mentioned the following five reasons which improved court
administrators’ situation in the USA: the first reason was the increasing workload, which raised judges’ willingness to
delegate some of their (non-judicial) duties. The second and third factors related to the rising pressure of politics to
increase efficiency. The fourth reason was the establishment of the circuit executive act of 1971 and the seminal
leadership of the American Chief Justice Warren E. Burger, who explicitly stressed the advantages of this new profession,
marked the fifth reason (Cameron et al., 1987, p. 446). But although the situation improved over time, some animus and
controversy continue to exist (e.g. Butler, 1977; Aikman, 2007, p. 103). Power struggles and turf struggles still seem to be
the main factors which put the relationship of judges and court administrators under strain (Flanders, 1991, p. 647).
Notwithstanding some studies which examine the relationship between court actors we still know too little about it.
Especially the role and rationalities of non-legal actors thus warrants further investigation.
9. Multirationality as an Expression of Competing Values
Another interesting concept which indicates the presence of multiple rationalities within the judiciary, although it speaks of
values and not of rationalities or logics, is the concept of local legal culture, which was originally developed in the 1970s in
connection to studies that dealt with the topic of delay reduction (Ostrom, Ostrom, Hanson & Kleiman, 2007, p. 8; Nimmer,
1978). Concerning the connection of culture and institutional logics Hinings notes „the existence of logics and zeitgeists
informs the content and structure of organizational cultures and vice versa” (2012, p. 99). Therefore, we think that
competing values might well serve as an indicator for the presence of multiple rationalities.
Local legal culture is defined as „a stable set of expectations, practices, and informal rules of behavior” (Church, Carlson,
Lee & Tan, 1978, p. 14). According to this concept court performance is to a large degree dependent on „the shared
beliefs, expectations, and attitudes, within the local court community about how fast criminal cases should move” (Ostrom
et al., 2007, p. 9; see also: Saari, 1982, p. 13). Probably one of the most path-breaking studies ever on local legal culture
combined several research concepts and analyzed the culture of twelve U.S. trial courts along the five dimensions: case
management style, judge-staff relations, change management, courthouse leadership and internal organization (Ostrom
et al., 2007, pp. 38-39). Ostrom and colleagues found that the cultural setting of courts is quite heterogeneous and varies
even across work areas (Ostrom et al., 2007, p. 60). The different values existing within courts, so their opinion can either
be complementary or competing. The higher the cultural homogeneity, the more consistent are the views of court actors
supposed to be (Ostrom et al., 2007, p. 60). Based on the insights of their study Ostrom et al. regard cultural
incongruence as a sign of different goals and strategies that prevail across work areas and which thus explain why court
reforms did often just partly succeed (2007, p. 61, 67). Contrary to many private organizations, public organizations are
hence characterized by the coexistence of multiple cultures. The researchers also note that: „Each culture type
emphasizes a distinct blend of values that represent different ways of seeing the world of judicial administration” (Ostrom
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et al., 2007, pp. 132-133). For this reason, culture affects the attitudes, norms and beliefs of different court actors in a
substantive manner (Ostrom et al., 2007, p. 11).
Overall, with regard to an effective court management, Ostrom et al. illustrated that competing values constitute an
additional challenge for court managers (Ostrom et al., 2007, p. 67). But, given that culture can be altered, it offers also a
possibility of promoting management reforms. Studying court culture is thus inevitable in order to increase comprehension
of the functioning of courts (Hanson, Ostrom & Kleiman, 2010, p. 5).
Unfortunately, this study does not examine whether different groups of court actors are carriers of different court cultures.
Therefore we propose for subsequent research to examine whether different actors are driven by different values and if so
how these values are characterized. It is for example conceivable that the culture which prevails within a court and within
a certain work area is dependent on the rationality of that court actor who is in charge of this work area. In this context
Hinings (2012), by referring to some studies which point to the coexistence of multiple logics (e.g. Reay & Hinings, 2009),
illustrates that such a multirational situation is probably also characterized by the presence of different subcultures.
Cultural homogeneity in comparison could indicate the dominance of a single logic (Hinings, 2012, p. 99).
Based on the concept of local legal culture, Coolsen conducted a stakeholder opinion survey and an empirical
investigation to analyze the consequences of a differentiated case management system, that aimed at reducing delay
(2009, p. 70). Depending on their role, respondents’ opinions concerning for example time standards varied quite
substantively (Coolsen, 2009, p. 80, 83). Coolsen’s conclusion that judges play an essential part in improving the overall
acceptance of time standards coincides with the findings of Greenwood, Suddaby and Hinings that professional
communities are able to ease change trough theorization (2002, p. 74).
How the capability of anticipating other court actors’ perception influences court effectiveness was the main question of
Sherwood and Clarke’s research (1981). Surprisingly, opinion differences were very small. To explain this result
Sherwood and Clarke presented an interesting argument. They stated that agreement over a certain topic can also be a
means to prevent change, in that it serves as a topic for „empty discussion” (1981, p. 213). In order to underpin this
argument Sherwood and Clarke point to a meeting which took place in 1971 and which aimed at examining the reasons
for delays within the judiciary. While judges identified „practices of lawyers and law firms” as the main reason for delay,
attorneys instead believed that delays were primarily caused by „judges and their practices” (1981, p. 214). As it came to
discussions in small groups, however, both actors mentioned completely different delay reasons. Based on this
observation Sherwood and Clarke derived the conclusion that there must exist a cultural norm which interdicts
discussions about collegial dissatisfaction (1981, p. 214), thus implying that rationalities, if at all often compete in secrecy.
10. Strategic Responses to Multirationality
Overall, the literature mentions two types of responses an organization can take to deal with multirationality. It can either
respond by adopting its structure or by developing specific strategies (Greenwood et al., 2011, p. 348). Meyer and Rowan
see decoupling as the main response organizations take to cope with multirationality. They believe that organizations
maintain the ceremonially adopted myths by decoupling their formal structures from their actual work activities (1977, p.
340). Decoupling bears the advantage of conflict avoidance or minimization and additionally increases external legitimacy,
which in turn is essential for an organization’s survival (Meyer & Rowan, 1977, p. 357).
In her study about a division of the provincial government of Alberta, Townley also found in this regard that although
strategic performance measurement systems were formally implemented as requested by the government, they were
factually not only challenged but also refused (2002, p. 175). In connection to Meyer and Rowan’s concept of decoupling,
some researchers also mentioned hybridization, the possibility of combining elements which were consistent with different
rationalities as a possible reaction to multirationality (D'Aunno, Sutton & Price, 1991, p. 641; Pache & Santos, 2011, p.
14). While decoupling and hybridization reflect structural responses (Greenwood et al., 2011, p. 351 ff.), there also exist
many concepts which try to categorize the different strategies available to organizations for dealing with multirational
situations (Greenwood et al., 2011, p. 348).
Friedland and Alford for instance explicitly highlight, that multiple logics can be manipulated or reinterpreted and hence,
besides functioning as constraints, simultaneously also serve as a means for individuals and organizations to gain their
ends (Friedland & Alford, 1991, p. 254). Oliver identifies the following five strategic responses an organization can take to
counter multirationality: acquiesce, compromise, avoid, defy, and manipulation (1991, p. 152). Which option an
organization chooses depends especially on the cause, constituents, content, control and context of the pressure (Oliver,
1991, p. 159). Similar to Oliver, Kraatz and Block also mention four options to cope with multirational situations.
Organizations can simply resist or eliminate pluralism, compartmentalize identities, try to find a cooperative solution or
International Journal For Court Administration | December 2012
28
build institutions in their own right, which means that organizations can build own sources of legitimacy through creating
own identities (2008, pp. 249-252).
Yet, another approach, to which we will mainly refer in this paper, identifies four types of practices for handling
multirationality, as depicted in figure 2 (Schedler, 2012, p. 19). The additional value of this approach compared to others
lays in its differentiation between a conscious and an unconscious dealing with multirationality, which seems to be of
special importance when analyzing organizations that were traditionally dominated by professionals. Contrary to nonprofessional organizations, the protagonists of professional organizations might often be well aware of the existence of
multiple rationalities, but consciously seek to isolate them to ensure both their power and their privileges. Moreover,
professionals almost always want to have the final decision and think long and hard about those decisions they delegate
(Saari, 1967, p. 84) – and they seek to protect their room to maneuver.
Figure 2: Practices for dealing with multiple rationalities
Isolation
Search formonorational
context
Conscious dealing
Unconscious dealing
Avoidance
Implicit dominance of one
rationality
monorational
Competence
Ability to act
multirationally
Tolerance
Intuitive mediation between
rationalities
between
multirational
(Source: Schedler, 2012, p. 19)
Since courts traditionally enjoy a relatively great legitimacy and because courts are also strongly bound by the law we do
not think that structural responses are very common. Instead we assume that courts and particularly judges respond to
institutional complexity by taking appropriate strategies. This assumption is to some degree also confirmed by the results
of previous studies. In the case of Florida, for instance, many court administrators were not selected on the basis of their
skills. Instead, presiding judges preferred to hire acquaintances or even friends, thus assuring control (Berkson & Hays,
1976, pp. 69-70). Also Tobin and Hoffman noticed that administrative skills were not the major selection criteria for hiring
court administrators. Judges preferred to hire administrators with a legal background (1979, p. 27). By way of explanation
Maan states that non-judicial managers are often assumed to have an inadequate understanding of the courts’ work,
which is in turn supposed to decrease their loyalty towards the courts (Maan, 2009, p. 23).
This raises a special dilemma: In order to be able to fulfill his duties properly a court administrator must be accepted by
the judges, which requires that he exhibits a legal background, even though his position would require many non-legal
skills (Friesen et al., 1971, pp. 124-126; Aikman, 2007, p. 147).
Another instance which points to the application of isolation as a common practice to prevent the emergence of a new
rationality refers to the hesitation of many judges to delegate some of their duties to court administrators. Whereas some
practitioners from the judiciary and especially many politicians appreciated the creation of this position, the judges, at least
at the beginning, were rather critical of this change (Berkson & Hays, 1967, p. 68; Friesen et al., 1971, p. 110; Röhl, 1993,
p. 127 ff.). As the literature shows, many judges consciously tried to constrain a court administrator’s power by delegating
only minor duties (e.g. Berkson & Hays, 1967, p. 68; Butler, 1977, p. 184; Aikman, 2007, p. 126). And in some cases they
even still intervened in an administrator’s daily tasks, like the allocation of parking spaces (Aikman, 2007, p. 126). A third
indication for this suppression of the economic rationality of court administrators emerges as one compares the main
sources of frustration of the chief justice and the court administrator. While the latter pointed to the former as being the
major reason for frustration, the chief justice perceived the legislature as the main cause of frustration (Cameron et al.,
1987, p. 464). This observation can be interpreted in two ways. Either court administrators’ competences were
constrained in such a way that they could not cause any trouble for chief judges or they resigned and conformed their
behavior to that of their superior. This observation also coincides with the findings of Reay and Hinings who illustrated that
the introduction of a business-like health care logic (similar to a business-like court logic) posed a challenge on the
traditionally dominant logic of medical professionalism (2009, p. 630). But, contrary to the judicial system professionals of
the health care field seem to have found ways to manage this rivalry of competing logics.
The practice of isolation was not only used to inhibit the introduction of an economic rationality represented by court
administrators, but was also applied on clerks. In their analysis about the influence of law clerks on the judicial decisionmaking process Swanson and Wasby (2008) showed that similar to the selection procedure of court administrators, also
clerks were carefully chosen. One judge stated for instance: „Judges pick people who we will get along with, and have a
International Journal For Court Administration | December 2012
29
somewhat similar point of view”. Another statement underlined the conscious avoidance of hiring a different thinking clerk
even more clearly: „You screen your law clerks – that is pretty much in tune with my philosophy. I am not gonna hire a
redneck law clerk” (cit. in Swanson & Wasby, 2008, p. 36). And even if the perspectives of clerks and judges might differ
at the beginning of their collaboration, over time many clerks either adjust their perspective or they even start to share the
same views as their judges (2008, p. 44).
The recruitment policy many judges used also reflects an element of normative isomorphism. The more the new
employees equal their colleagues the more equal will future processes, structures and decisions of an organization be
and hence contribute to preserving the status quo (Walgenbach & Meyer, 2008, p. 39). In addition, hiring staff with similar
views also reduces institutional complexity and thus can be regarded as a strategy to inhibit multirationality.
Still, contrary to this practice of isolation some judges, although being the exception, also said that they prefer hiring clerks
with a somewhat different and new perspective (Swanson & Wasby, 2008, p. 37). One judge said for example: „I try to
hire clerks different from my philosophy and background to get different perspectives” (cit. in Swanson & Wasby, 2008, p.
37).
The instances mentioned above indicate that courts and judges in particular deal relative consciously with multirationality.
Whereas isolation was apparently a common practice in the past, the recognition of the necessity of intentionally
supporting an economic rationality in administrative and managerial matters seems to have increased over time. A similar
conclusion was also drawn by Reay and Hinings in the health care field. Although the introduction of a business logic led
at the beginning to some irritation on the part of the traditionally dominant physicians, four mechanisms were developed to
successfully manage this rivalry of competing logics (2009, p. 630). These mechanisms included a distinction between
„medical” and „other” decisions, the incorporation of informal input from the physicians in the decision-making process of
the regional health authority, a joint alliance against the government, and joint innovations (Reay & Hinings, 2009, pp.
640-643). It would be interesting though, to know to what extent these mechanisms also apply within the judiciary or what
other practices for coping with multirationality exist.
11. Concluding Remarks
Before drawing some conclusions we have to point out the basic constraints of this review. First it has to be stressed that
the findings used to illustrate the concept of multirationality stem, without exception from studies which were conducted in
the USA, and which were besides quite old. In addition, multirationality varies without doubt strongly according to its
context, which further reduces generalizability. Another constraint relates to the fact that, except in the case of (chief)
judges and court administrators, knowledge about other court actors’ relationships and attitudes is still relatively scant.
Increasing this knowledge is thus inevitable if we want to improve our understanding about multirationality and its
consequences for the judiciary.
Studies implicitly addressing the phenomenon of multirationality can be divided in two research streams. The first
research stream implicitly focuses at multirationality by examining the perceptions, attitudes, and relationships of different
court actors. Local legal culture is the second research stream which indicates multirationality through the existence of
culture incongruence within a single court. Competing values are moreover seen as the major factor affecting court
performance.
Overall, the findings of previous studies revealed, that while judges and clerks traditionally hold a legal rationality, court
administrators embody often an economic rationality. Given the host of other new, non-legal court actors, like computer
experts and support staff (Heydebrand & Seron, 1990, p. 1) it is however likely that apart from the legal and economic
rationalities other rationalities exist as well. Despite the fact that isolation seems to be a common practice of judges to
prevent the rise of the economic rationality within courts, the relationship among judges, clerks, and court administrators
still seems to be „positive and supportive” in most cases (Aikman, 2007, p. 104).
Although these two research streams implicitly point to the presence of multiple rationalities within the judiciary,
multirationality has not yet been identified as a core challenge of court management.
By referring to insights from New Institutionalism, we have demonstrated that courts, as a consequence of certain
developments in their environment, became multirational organizations, thus rendering court management extremely
demanding. Mutual incomprehension and goal divergence are for example supposed to cause latent conflicts. The
ambiguity of court actors’ relations as well as the fact that courts are often lacking a clear command structure pose
additional challenges on the management of courts.
International Journal For Court Administration | December 2012
30
A last point which complicates court management refers to the communication processes which are supposed to be often
disturbed within the judiciary.
Nevertheless, multirationality is not per se negative and can even be associated with positive effects. The presence of
multiple rationalities can for instance broaden an organizations’ repertoire of practices to respond to institutional
complexity and thus, even if causing some ambiguity, also increase its problem solving capacity (e.g. Lounsbury, 2008, p.
354; Aikman, 2007, p. 135). As long as an organization’s rationalities are compatible or „can be tailored to be so”, they do
probably not hamper an efficient court management (cf. Greenwood et al., 2011, p. 332). Yet still, situations where
multiple rationalities collide and conflict will pose an additional challenge on court management (Greenwood et al., 2011,
p. 318). For this reason, we believe that the concept of multirationality makes an important contribution to the study of
court management since it directs attention towards the diverse challenges arising from the coexistence of multiple
rationalities and the associated consequences on courts’ efficiency. In order to be able to systematically handle and
master the described challenges it is in our view inevitable to take a multirational management approach. Notably, we
suggest for further research to structure possible management responses in courts into the four types of practices:
isolation, avoidance, tolerance, and competence.
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34
Better Administering for Better Judging
By Loïc Cadiet, Jean-Paul Jean, Hélène Pauliat, Aurélie Binet-Grosclaude and Caroline Foulquier
1. Introduction: Research Project and Methodology:
Better administering justice for better judging: the research project called MAJICE in French (Mieux administrer la justice
1
en interne et dans les pays du Conseil de l’Europe) , led by the teams of the universities of Limoges, Poitiers and Paris 1
Panthéon-Sorbonne under the supervision of the National Research Agency, in the context of the research program
called Governing and administering, meant to analyze three fundamental sections of the French judicial system:
administrative justice, criminal justice and civil justice. The aim was to understand common and specific features of these
three jurisdictions and how they affect the administration of justice. It was moreover intended to compare the French legal
2
system with other European systems. We have chosen England and the Netherlands because they introduced the notion
of efficiency and assessment long ago. This subject has been covered by authors in the past, but not in a systematic way,
and especially not in a comparative way, between different EU member States, and between different court systems,
levels and procedures. The work of the CEPEJ (European Commission for the Efficiency of Justice) dealing with the
3
4
judicial area of the 47 Member States of the Council of Europe is important in this regard .
In France, the assessment of justice is a recent phenomenon which can be explained by two movements. At first,
increased budgetary needs of justice have made politicians more responsive to the performance of justice. In a second
step, scarcity of public funds has deepened the phenomenon of "control" and courts did no longer obtain what they asked
for but only to the extent they showed their needs to be what justified. From these recent events many concerns and
tensions in the dialogue between politicians and judges emerged. The infringement of the independence of the judiciary
by the concern of a more efficient administration of justice is regularly highlighted. Analyzing how this new method of court
administration develops in practice is indispensable to appraise the real foundations of this tension. In this context, noting
that this phenomenon is not specific to France is interesting. In the two countries chosen by the research teams, England
and the Netherlands, a number of common points with our own questions have been experienced. The quality of justice
and the legitimacy of justice are common problems in all European countries, but especially in England and the
Netherlands: justice seems to be a public service in crisis. It is perceived as slow, as missing independence and
5
sometimes as lacking humanity .
To carry out the research project, each laboratory had a post-doctoral researcher who was the intermediary between
French, English and Dutch judicial staff, judicial-related (non-judicial) staff and academics.
The research was founded not only on scientific information but also on meetings with English and Dutch judicial and nonjudicial staff and academics. These meetings were prepared with the help of questionnaires sent a few weeks before our
appointments. The questionnaires, a fundamental tool of the research, were constructed by the members of the three
research teams conducting the project and coordinated by the two post-doctoral researchers working for the project.
Some of the questions were based on the CEPEJ documents on the efficiency and the quality of national justice
6
systems .
After a number of intermediary workshops, an international conference was held at the end of the project, in Limoges, on
th
25 May, 2012.
1
Scientific Directors: Hélène Pauliat, OMIJ (Observatoire des Mutations Institutionnelles et Juridiques de Limoges ; Loïc Cadiet, CRPJ
(Centre de Recherches sur la Justice et le Procès de Paris I) ; Jean-Paul Jean, EPRED (Equipe Poitevine de Recherche et
d’Encadrement Doctoral en sciences criminelles de Poitiers). Scientific secretariat: Aurélie Binet-Grosclaude, doctor in private law,
researcher, Universities of Paris 1 and Poitiers; Caroline Foulquier, doctor in public law, lecturer, University of Limoges.
2
The judicial system is common in England and Wales. The United Kingdom implies indeed a distinction between England and Wales,
Scotland and Northern Ireland. For convenience, we will refer only to England.
3
Systèmes judiciaires européens : efficacité et qualité, éd. du Conseil de l'Europe, Les études de la CEPEJ n° 12, 422 p, octobre
2010 ; http://www.coe.int/cepej
4
The article includes some elements resulting from scientific activities of the co-directors in research for the Council of Europe. In the
European Commission for the Efficiency of Justice, J.-P. Jean chairs the group of experts Evaluation of the Council of Europe, author of
the reports from 2004 to 2010 Systèmes judicaires européens and co-author with H. Jorry of the report Les enquêtes de satisfaction
conduites auprès des usagers des tribunaux, Les études de la CEPEJ, n° 15, 2011 ; H. Pauliat is co-author with L. Berthier of the report
Administration et gestion des systèmes judiciaires en Europe, Les études de la CEPEJ n° 10, 2009 ; they have contributed with L.
Cadiet to the work La qualité des décisions de justice, Les études de la CEPEJ n° 4, Actes du colloque de Poitiers, 2007.
5
Some miscarriages were highly publicized and decreased public confidence in justice. See P. Langbroek, « Entre responsabilisation
et indépendance des magistrats : la réorganisation du système judiciaire des Pays-Bas », RFAP 2008, n° 125.
6
http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp
International Journal For Court Administration | December 2012
35
The questionnaires are closely linked with the topic of the MAJICE project which is to analyze three subjects: civil, criminal
and administrative justice. These three jurisdictions have experienced, and are still experiencing, a lot of reforms because
of the high number of cases they process. Furthermore, the efficiency of a great part of the justice systems in question
depends on the success of these new forms of administration. The specificity of the MAJICE project is not to examine at
first the procedural reforms of the justice systems, but the administrative and financing reforms that surround and
underpin them.
In the three questionnaires we wanted to particularly highlight the following question: what are the consequences of the
administrative and financing reforms on the efficiency and the quality of the justice system, for example the relevance of
its assessment? Adaptations were necessary regarding the specificities of the three justice systems and the three
countries considered although in these countries the three types of jurisdictions are clearly separated. In addition, there is
a jurisdictional dualism in the countries studied even though there are differences we sometimes did not understand well
before we went abroad. Consequently, the three questionnaires were different but were structured in the same way.
The intention here is to present some results of this research that can help to analyze the relationship between improving
court administration and improving judgment which is actually one of the key issues in the judicial world.
2. Concept and Cultural Background
The interest for the examined notion of court administration or administration of justice needs of course to be explained.
This research concept made the choice of a strictly defined approach. The focus is on management of the public service
and not a very wide approach, as the European Court of Human Rights retains, including the final versions of court
decisions.
The management of a court has become a subject that requires careful consideration. Defining this notion is very
important to determine the broad conceptions of judicial procedure. Moreover, in order for the quality of the administration
of justice to be considered or assessed, one has to answer the question of the necessity of the assessment, and to define
what criteria or indicators should be chosen: quality or performance can not only be analyzed through the quantity of
decisions reached, nor the amount of time it takes to deliver these decisions. But the question of the assessment of the
quality of the service provided by justice, referred to as an organization, is particularly delicate because it is not the
judge’s decision, regarding its substance and reflecting his independence, that is the subject matter of the study, but the
conditions under which it is prepared, delivered and executed. Above all the measures which constitute the administration
of justice are more or less made public.
This process took a completely different development in the countries covered in this study, regarding each country’s
history, administrative culture, and judicial tradition and regarding the level of their resources.
The delicate exercise consisted in gathering, as part of the same study, comparative data of England, the Netherlands
and France. It thus allows seeing if managerial opportunities of justice can be stated in the same terms in countries where
reforms of judicial systems take place in different contexts and habitus. Such an approach is in line with that of Philippe
7
d’Iribarne, more than twenty years ago , in the area of organizational sociology. This researcher had compared the
working patterns in three countries, the United States, the Netherlands and France, in both the private and the public
sector.
In the United States, the culture of contract prevails: a few goals are very specifically laid down with expected results;
pragmatism and penalties for failure for non-compliance with the contract are considered as the rule within a continuous
relationship between cost and efficiency.
In the Netherlands, the consensus culture prevails: all the actors contribute to the definition of the goals and to their
achievement, in an initiative of continuous progress, while using means of sophisticated assessment. In such a system, it
seems to be difficult to be an opposing actor insofar as the actors live in a dense network and their behavior is expected.
In France, the culture of honor prevails: all decisions are taken at the central level, by the representative of the state or the
company director, but then, the other actors, at their own level, keep their points of view and shall adapt the
implementation of the suggested steps, the way they prefer, according to their own conception and pursuant to a logic of
both honor and good performance.
7
P. D’Iribarne, La logique de l'honneur, Le Seuil, 1989.
International Journal For Court Administration | December 2012
36
If we identify the United Kingdom and the United States, more particularly since the reforms of the public services in the
Thatcher and Blair years, inspired by the new public management invented in the United States, we can measure, among
legal systems, what can separate these three standards or get them closer.
Between a civil law state system with the culture of public service as in France and a common law system where the
private sector and the outsourcing of the State’s services prevail; between the centralization and the strong ideology of the
“French public service” and the Dutch and English pragmatism of the “what works?” system, we can find theoretical and
pragmatic tools to better understand how improving court administration can improve the work of the courts.
Indeed despite the fundamental differences, this research highlights, as also pointed out by the European Commission for
8
the Efficiency of Justice , that there is still a dominant and common culture to administer and manage, that is to say the
culture of performance and efficiency, which have become key concepts for the heads of the courts, especially through
the policies arising from new public management, benchmarking means and case management. Such an approximation
of the different systems can be made all the more rapidly as all of them face fast-growing litigation flows they can only
handle by using methods of alternative dispute-resolution, contracting processes and by investing in new information
technologies that may change the judge’s and his staff’s work environment.
3. Recent Reforms Involving Justice in a Performance Approach
Since the adoption of recent legislations governing public finance in the early 2000, the administration of the civil, criminal
and administrative judiciary has been subject to a radical change in France, in the Netherlands and in England.
In the three countries, the growth of managerial services, the organizational rationality and the standardization of
processes have created the need of promoting the management of the courts and the awareness among judges of the
realities of court administration.
In the Netherlands, judges have played a leadership role and have tackled the issue head on, in order to be directly in
charge of the administration through the complete change implemented since the 2002 reforms that made the Council for
the Judiciary become the body acting between the ministry and the courts in order to ensure the autonomy of the
administration of justice, with a commitment of all the actors, an entire transparency of the system and a clear definition of
the responsibilities at both national and local levels. Within the jurisdictions, each court is administered by a court-council
including a manager who is the chief administrative officer and who serves the objectives set out to him and which are
clearly identified and related to cost and quality matters. It has been thus established an “integrated management, which
means that the judicial, administrative, human resources and financial operations should be integrally managed by the
9
courts themselves (or, depending on their size, the individual court tiers)” .
In the English courts, there is a very clear division between administrative and judicial functions, which could also be
found, for example, in administrative tribunals, between the Tribunals Service and the tribunals’ judiciary, before the
merger between the Tribunals Service and the Her Majesty’s Courts Service (see below). Each one was provided with its
own management body: the Tribunals Service Executive Board, for the courts administration and the Tribunal Judicial
10
Executive Board, for the judicial functions . Despite this separation of administrative and judicial functions in civil and
criminal matters there was also a collaboration: there were group meetings co-led by the Chief Executive and the Senior
11
President . The Senior President attended the Tribunals Service Management Board (TSMB) as observer and the
judiciary was associated to programs and projects of importance. Since the merger, the separation between
12
administrative and judicial functions is always established . If the financial responsibility belongs to the Chief Executive
(as Accounting Officer), there is a protocol that associates the judges. The Administrative Support Centres’ managers are
required to support the observation of key performance indicators – set by the Chief Executive, in consultation with the
Senior President - by both the administrative and judicial staffs.
France is definitely moving towards these same orientations. However the French magistrates’ Council has no powers
neither in administrative nor in budgetary matters. In fact, the management of the judiciary is much centralized and is
8
Systèmes judiciaires européens : efficacité et qualité, éd. du Conseil de l'Europe, Les études de la CEPEJ n° 12, 422 p, octobre
2010 ; http://www.coe.int/cepej
9
T. Bunjevac, Court gouvernance in context: beyond independence, International Journal for Court Administration, December 2011, p.
5, http://www.iaca.ws/files/12-2011-CourtGovernanceInContext-Bunjevac.pdf
10
Annual Report 2009-2010 of the Tribunals Service, p. 42.
11
Ibid. Chief Executive and Senior President are leaders of the administration and the judiciary respectively.
12
See the 2011 Framework Document describing the new relationship between the judiciary and administration,
http://www.justice.gov.uk/jobs/current-vacancies/competency-framework
International Journal For Court Administration | December 2012
37
under the supervision of the Ministry of Justice whose central relay is represented by the Regional Administrative
Departments. The courts have limited scopes for initiatives. By contrast, in the French administrative justice, the Conseil
d’Etat has gradually become the leader of the entire administrative justice system with an approach including legal,
administrative and budgetary aspects. Nevertheless, both in ordinary (i.e. civil and criminal) justice and in the
administrative justice, current reforms are characterized by the requirement of the implementation of a court project by the
presidents, which would influence the means and the budget according to the objectives to be reached. But there seems
to be very little consideration about the division between judicial and administrative functions when the courts of appeal
are integrated, under the supervision of the ministry, within these regional platforms, with the services of the penitentiary
authorities and the legal protection for youth and minors, whereas the French Council of State comes to an integrated
management model while mastering the administrative and budgetary aspects that serve the judicial objectives it fixes.
4. The Question of the Assessment of The Judiciary
This pursuit of improvement of the public performance needs supervision. It also needs to be appraised, in order to
identify what actions are needed. A clear distinction shall be made between two aspects: the collective assessment of a
system, a service or a jurisdiction and the individual assessment of the magistrates and the court officials, which implies
quite different difficulties.
The sophisticated assessment process in the Netherlands exclusively deals with the collective assessment implemented
under the auspices of the Council for the Judiciary. Within the RechtspraaQ quality process, standard assessment criteria
apply to the entire courts system. In addition, the Council for the Judiciary did set up a specific commission which, every
four years, visits courts in order to make an audit. Each court applies locally its criteria while using, in addition to statistical
analysis, satisfaction surveys among citizens, lawyers, judges, court officials and staff, or while having steering
committees dealing with incidents reported in the functioning of the court. Individual assessment is not made through
disciplinary proceedings. Intervision and peer review are used to assess the outcome of proceedings or of demeanors at a
hearing. Assessment criteria seem quite sophisticated both from a quantitative point of view (a precise determination of
the time for the judges, for the administrative staff compared with various kinds of the legal cases dealt with), which
should help to clarify the allocation of budget resources, and from a qualitative point of view, including the promotion of
quality while measuring a satisfaction rate for each area. The assessments are made public and are compared.
In England, the same trend can be observed concerning quality, that is to say not a structured process of assessing the
courts’ activity, but a set of control and audit processes that are part of a managerial concept but that suit and are specific
to the complexity of the English judicial system. The Tribunals Service and Her Majesty’s Courts Service, because of their
being the Ministry of Justice’s executive agencies, had a significant role to play in the assessment of the judicial system.
13
These two agencies were merged in April 2011. A new governance structure was introduced . In continuity of the two
previous agencies, the new agency implemented action plans for the courts and tribunals to assess performance and to
supervise management, while taking into account major objectives and particularly the reduction of budgetary allocations.
The performance assessment criteria are based on the efficiency, and especially on delays and on costs of court
decisions. The assessment of justice is also made through numerous satisfaction surveys among citizens, witnesses and
victims, or through questionnaires for professionals, dealing with very concrete criteria. The independence of magistrates
excludes any individual assessment process applicable to all judges. Only some categories of judges are appraised by
14
senior judges, taking into account a competency framework . There is no individual assessment made through
disciplinary proceedings.
In France, collective assessment is clearly implemented. Concerning the administrative jurisdiction, the task is assigned to
the Permanent Inspectorate of the administrative jurisdictions, which is issued from the Council of State which, from time
to time, supervises the activity of the administrative courts, the administrative courts of appeal, both the management and
the results of the jurisdictional activity, as well as staff issues. Concerning the (ordinary) judicial jurisdiction, it is
supervised by the Ministry of Justice under the auspices of the Court Services Division which allocates the required
resources in terms of staff and budget depending on the activity and the workload. The General Inspectorate of the
Judicial Services, which is currently working with the Minister of Justice, has the permanent task to assess the functioning
and the performance of the (ordinary) judicial jurisdiction. Performance assessment criteria of both the (ordinary) judicial
15
16
and the administrative justice converge on many points , even if the relevance of existing indicators is disputed . The
time taken to process cases, the number of pending cases, the number of magistrates or court clerks for handling cases
13
http://www.justice.gov.uk/about/hmcts/board
http://www.justice.gov.uk/jobs/current-vacancies/competency-framework; http://www.judiciary.gov.uk/publications-and-reports/judicialcollege/JSB-guidance-frameworks
15
Rapport Assemblée Nationale n°2857, 2010, rapporteur R. Couanau.
16
J-R. Brunetière, Les objectifs et les indicateurs de la LOLF, quatre ans après, RFAP, 2010/3.
14
International Journal For Court Administration | December 2012
38
are the traditional indicators of recent legislation governing public finance but are not balanced by some criteria that could
be taken into account regarding the subjects of litigation. Qualitative criteria are of “low quality” and mostly include the
cancellation rate of the court decisions on appeal. Individual assessment of magistrates is based on their professional
competence. Furthermore, there is, since 2004, a modulated bonus system based on the individual performance of each
magistrate, which enhances the feeling of quantitative pressure as well as it may suggest the possibility of an infringement
17
to the independence of magistrates .
5. The Necessity of Quality Policies to Offset the Productivity Requirements
Faced with this risk, quality policies are necessary to offset the productivity requirements implemented. Indeed, continually
increasing research in productivity of court activities is more and more threatening to both the substantive nature of court
decisions and to the judges’ operational independence. But it is also clear from our observations that quality, if essentially
intended for a process of streamlining and standardization, may have negative effects. The objective of quality of the
administration of justice may call into question the necessary quality for the legal function.
In the Netherlands, the RechtspraaQ, a “total quality” system, is very well structured and jointly implemented by the
18
Council for the Judiciary and the ministry, and fully integrated in the courts’ activity by “quality managers” . Following a
first period when measurement of performance within quantifiable targets was prevailing, integrity, expertise, legal unity,
diligence and timeliness, have gradually been introduced to improve the balance of effective functioning of the entire
judicial process. Satisfaction surveys, audits, assessment mechanisms based on peer review and intervision are means
19
that are systematically and regularly used . Current developments deal with the quality of the wording of court decisions.
The Council for Justice set up an evaluation by a committee of judges and lawyers in the quality of verdicts in civil
judgments from district courts only. The eventual goal is to create a model but also to define what the quality of justice is.
This approach worries some judges who fear being evaluated relative to compliance with this model. We can see here a
potential risk of negative effect of quality policies mentioned above.
The observed approaches in the two other countries are quite different. In England, the measurement of quality is made
through many opinion polls and surveys that assess the access conditions to information and to the different jurisdictions,
the length of procedures or individual points such as the respect of the Witness Charter, for the witnesses who play a
major role in the procedure. Based on these surveys, Her Majesty’s Courts and Tribunals Service publishes the results
with a ranking that promotes a competition between the courts whereas the Customer Excellence Service delivers a
labeling that corresponds to the right level of quality of the courts. Hence, the search for the quality of justice seems to be,
20
in England, part of a series of fragmented approaches .
In France, as it is the case in England, it seems difficult to analyze a policy of quality of justice because of its
heterogeneity and its dispersion, and even its weakness. As part of the promotion of the quality of the reception in public
services, the welcoming and information policy of the courts led to the certification of a few of them, when the reform of
the judicial map was removing, without joint action, 178 district courts (tribunaux d’instance) and local courts (juridictions
de proximité). User satisfaction surveys consisted in a single national survey led by the Justice Public Interest Group in
May 2001 and since 2007, in surveys of victims of infringements. At the local level, only one local survey was led in 2010
under the auspices of the European Commission for the Efficiency of Justice. Beyond few limited initiatives, the
discussion on the quality of justice does not manage to irrigate the French (ordinary) judicial justice which is caught up in
its functioning problems as well as in implementing a system by the central administration that does not allow the
accountability of local actors. In the administrative justice, working groups have been implemented on the initiative of the
Council of State and other administrative courts, particularly dealing with topics such as the wording of court decisions.
On the whole, the expression “quality of justice” conceals major heterogeneities in the Dutch, English and French
systems. Nevertheless, it can be noted that the concept of quality is of both a structural and functional nature. The quality
of justice is that of its administration, its organization and its jurisdictional functioning. The own dynamics of the concept of
17
J-P. Jean and H. Pauliat, Primes modulables, qualité et indépendance de la justice judiciaire, D. 2005, p. 2717.
See in particular, Ph. Langbroek, « Entre responsabilisation et indépendance des magistrats : la réorganisation du système judiciaire
des Pays-Bas », RFAP 2008, n° 125, p 67 ; M. Fabri, J.-P. Jean, Ph.Langbroek and H. Pauliat (ed.), L’administration de la justice en
Europe et l’évaluation de sa qualité, Montchrestien, 2005, spéc., pp 301-321 ; Ph. Langbroek, (ed.), Quality management in courts and
in the judicial organisations in 8 Council of Europe member States, a qualitative inventory to hypothesise factors for success or failure,
CEPEJ studies n° 13.
19
For the period 2008 to 2011, the following objectives have been pointed out: competence, reliability, effectiveness, legitimacy, the
judicial organisation shall be “deeply rooted in society”.
20
Gar Yein Ng, « Quality management in the Justice System in England and Wales », in Ph. Langbroek, Quality management in courts
and in the judicial organisations in 8 Council of Europe member states, p. 35.
18
International Journal For Court Administration | December 2012
39
quality reach beyond many concepts of justice as a public service and/or a constitutional authority; in that respect the
concept of quality is in a position to allow a series of necessary initiatives, even balancing the excessive trend of the sole
requirement of “performance” as well as the involvement of all the actors in “quality-approaches” that would allow to set
concrete targets to improve the service provided to citizens and professional practices to be locally reached. Quality shall
deal with both the administration of justice and the jurisdictional function in its whole.
An appropriate connection shall be made, more particularly with the need for experimentation in the administration of
justice. The quality policies imply both know-how and training but essentially the involvement of the actors on well-defined
objectives such as, for example, greeting the citizen or attention paid to witnesses. Such motives imply the definition of
local projects, the allocated means and a regular assessment of the results as provided for in the pragmatic “what works?”
model. In France, the constitutional reform of July 2008 allows the legislative experimentation and entrenches impact
th
assessments. The law dated August 10 , 2011 dealing with citizens who shall perform the duties of assessors, is
therefore experimented in the jurisdictions of two courts of appeal. In the administrative justice, whether with regard to the
dematerialization of exchanges procedures or even with regard to the implementation of new procedures related to the
hearing or the appraisals, the use of experimentation became naturally a prerequisite for any general application. In the
Netherlands and in England, the same process exists, concerning alternative dispute resolutions for example. Such
practices, that are certainly not new, seem nevertheless to speed up. They show a greater concern for quality and
effectiveness, a healthy caution as well as an increasing concern about the assessment and the positive appreciation of
their image, a little destabilizing for the independence of the magistrates and of the jurisdictions, as a whole. The issue of
the organization and of the arrangements experienced by courts and jurisdictions can thus be raised: who is proposing (is
it the minister or is it a jurisdiction that applies?), who is selecting, who is assessing the results and on what basis? To
what extent such an organization could be consistent with the independence of magistrates?
6. Conclusion
Analyses of reforms in the administration of justice in the three countries studied show signs of probable changes in the
profession of the judge and in court proceedings and also a temptation to separate administrative and judicial functions
within the judicial systems. This more than ever involves providing criteria for distinguishing measures of administration of
justice and measures of judicial functions. France has considered, both from a theoretical perspective and relying on the
legal basis, criteria for distinguishing between the acts dealing with the management of justice and judicial administration
acts, while questioning each complaint procedure against them. The pragmatic approach in England and in the
Netherlands seems to pay less attention to such an issue. The measures of the administration of justice cannot be denied
in the Netherlands, but remain in theory questionable in England.
The question of independence of the judiciary, due to a more performance-orientated administration of justice, is often
brought forward by the heads of the courts. They keep protesting against the reduction of their initiatives and influence in
21
favor of managers who have a direct relationship with the central administration . Such a tension between judges and
22
managers is not peculiar to England, France and the Netherlands, and may prevail at a European level . The question is
to know where the action of « judging » begins, and where the action of « administering » ends.
21
A significant example of the protest is the annual meeting of 2001 of the first presidents: “The project of the inter-branch platforms,
which was conducted without joint action, would lead, if it was implemented, to a misapprehension of the prerogatives of the heads of
the courts as responsible for the budget known as “the program’s operational budget” and as the secondary authorizing officers for
functioning credits of the courts, legal costs credits and legal aid credits. As a matter of fact, the certification of the legal commitment
and the certification of the service make the payment lie within the competence of officers who would be under the supervision of the
general secretary of the ministry. If the project was maintained, the first presidents would have to ask to be discharged with their
functions as secondary authorizing officers and as responsible for the budget known as “the program’s operational budget” insofar as
they would not be able to carry out their powers effectively…”
22
MEDEL, conference of Bordeaux, June 22nd, 2011 « La justice à l’heure de la performance » ; Recommendation (2010)12 of
November 17, 2010 of the Committee of Ministers of the Council of Europe on the judges: independence, effectiveness and
responsibilities ; Opinion n° 2 (2001) of November 23rd, 2001 of the Consultative Council of European judges (CCJE) related to the
financing and the management of the courts with regard to the effectiveness of justice and as provided for in article 6 of the European
Convention of Human Rights.
International Journal For Court Administration | December 2012
40
Status Of Court Management In Switzerland1
By Prof. Dr. iur. Andreas Lienhard, Mag. rer. publ. Daniel Kettiger and MA Daniela Winkler
1. Introduction
1.1 Context
At an international level, and in particular in the Anglo-American region, there is a long tradition of scientific study of court
management. Thus in Australia there has for quite some time been the Australasian Institution of Judicial Administration
2
(AIJA) , which concerns itself with every aspect of court administration. In the USA too, research and education in the field
of court management has been institutionalized for a long time, in particular by the National Center for State Courts
3
4
(NCSC) and the related Institute for Court Management (ICM) . In Europe, a working group known as the European
5
Commission for the Efficiency of Justice (CEPEJ) deals with issues of court management as part of the activities of the
Council of Europe. The fact that court management is also increasingly becoming an important topic in the European area
was demonstrated by the establishment, in 2008, of a new professional journal that focuses on court management, the
6
International Journal for Court Administration (IJCA).
In Switzerland, the issue of court management was discussed for the first time in the course of the New Public
Management (NPM) projects in the cantons, but was often limited to the question of whether to include the courts in the
7
relevant cantonal NPM model. Generally speaking, court management was a matter that was only sporadically raised,
8
such as at a symposium of the Swiss Society of Administrative Sciences (SSAS) in 2003 or more recently in an article in
9
which theses on good court management are formulated. In Switzerland even today there is a general dearth of empirical
and other theoretical findings on the mode of operation of the justice system and its interaction with society, or with
specific social target groups. For example, it was only in 2009 that the first indications were obtained of how cases in
10
various categories were handled by the highest administrative and social insurance courts in Switzerland. In the fields of
criminal and civil justice, no such information is available at all. There is also a lack of empirical principles related to the
11
“self-image of judges”, i.e. how judges in Switzerland see themselves. Empirical research into the activities of lay judges
12
also remains in its infancy in Switzerland, whereas in other countries, the relevant principles are available. It has,
however, been possible to obtain initial findings on the functioning of the federal courts while evaluating the effectiveness
13
of the new federal justice system.
In order to conduct more detailed research into the workings of the Swiss justice system and to devise principles for
14
optimizing processes, in May 2012 work began on a project on “Basic Research into Court Management in Switzerland”
15
16
involving universities in Switzerland and abroad ; the project is supported by the Swiss National Science Foundation
(SNSF). To get this research project underway, the Centre of Competence for Public Management (CCPM) of the
University of Bern, as the project's leading house, conducted a survey of Swiss courts on the status of court management.
In the following remarks the methods and the results of this survey are summarized and commented on. The findings of
the survey will be subject of further research work within the project.
1
Study within the framework of the research project “Basic Research into Court Management in Switzerland” which is supported by the
Swiss National Science Foundation (SNSF)
2
http://www.aija.org.au/ (Status: 07.08.2012).
3
http://www.ncsc.org/ (Status: 07.08.2012).
4
http://www.ncsc.org/Education-and-Careers/Courses/ICM-History.aspx (Status: 07.08.2012).
5
See http://www.coe.int/t/dghl/cooperation/cepej/default_en.asp (Status: 07.08.2012).
6
See also on the topicality of the subject LANGBROEK (2008), p. 1 ff.
7
See for example MEIER (1999).
8
See KETTIGER (2003).
9
See LIENHARD (2009a), LIENHARD (2009b).
10
See Lienhard /Kettiger (2009), Lienhard/Kettiger (2010).
11
Approaches to the “self-image of judges” – mainly fragmentary or from a sectoral or disciplinary viewpoint – can be found in
EHRENZELLER/LUDEWIG-KEDMI (2006); LUDEWIG-KEDMI (2007).
12
See e.g. MACHURA (2003); MACHURA (2006).
13
See Lienhard/Rieder/Kilias/Schwenkel/Hardegger/Odermatt (2010).
14
See http://www.justizforschung.ch.
15
University of Bern, University of Lucerne, University of St. Gallen, University of Zurich, IDHEAP Lausanne.
16
University of Utrecht (The Netherlands).
International Journal For Court Administration | December 2012
41
1.2 The Field in Question: Court Management
17
1.2.1 The Constituent Aspects of Court Management
The court system in Switzerland – like all state bodies – is under increasing pressure to reform. On the one hand,
workloads, the complexities dealt with and procedural requirements are all tending to grow in volume, whilst at the same
18
time, there are scarcely any additional resources allocated or available to cope with the problem . In addition, observers
19
in Switzerland have noted a tendency towards ever larger court organizations. The outcome is that judicial authorities
20
are forced to increase their efficiency . This can ultimately be achieved only through a truly effective system of court
21
management . Simply “administering” the courts is no longer sufficient. The former President of the Cantonal Court of
Appeal in the Canton of Zurich, Rainer Klopfer, described the importance of court management as follows: “A court, as a
major institution providing services, and as the most important supervisory body, needs a professional, efficient
administration. This does not happen without management, but this in no way means that the independence of judges is
compromised, just the opposite. It produces better working conditions for the judges and means that they can better fulfill
22
their core duty, namely to adjudicate“ .
In recent times, endeavors to improve court management in theory and practice
24
constituents for a system of good court management that may be listed as follows :










23
have produced a number of
strategic principles;
management structures;
management support;
management instruments;
25
caseload management ;
26
court controlling ;
client-friendly practices;
career development and job satisfaction;
quality assurance and development; and
certification.
1.2.2 Management and Quality Standards in the Justice System
In the 1960s and 1970s, research in the field of economics focused intensively on the issue of how companies should be
controlled and managed. The aim was to establish theoretical concepts of management that were able to take account of
both the complex internal structure of companies as well as their position embedded in a complex environment. The best
known management model to emerge from this work – in the European area at any rate – is the “St Gallen Management
27
Model”. As these integrated management models, based on scientific principles, achieved acceptance, this model was
28
refined by the University of St Gallen and today, under the title “New St Gallen Management Model” , it represents one of
the most important sets of principles in business management. In the course of the debate on New Public Management
(NPM), in the second half of the 1980s, two special management models for public administration were devised in
29
Switzerland. The development of these management models stemmed from the recognition that although integrated
control and management is essential for modern administration, the models devised for private companies are not
suitable for the special circumstances and tasks of public administration and therefore cannot be adopted indiscriminately
in the public sector.
17
The text of this sub-chapter corresponds in part to LIENHARD (2009a), Margin no 25 ff., and LIENHARD/KETTIGER (2009), p. 415 f.
See LIENHARD (2005), p. 461 f.; KETTIGER (2003a), p. 9 ff.
19
In most cases, this is a consequence of the reorganisation processes. The size of the courts in Switzerland is nevertheless still
below average in comparison with other countries. For example, a Dutch regional court has around 100 judges.
20
See LIENHARD (2005), p. 461 f.; MEIER (1999), p. 2; for more detail KETTIGER (2003b), p. 176 ff.; HOFFMANN-RIEM (2001), p. 211 ff.,
talks of truth, justice, independence and efficiency as the „magic square of the third power“.
21
For more detail on court management, see LIENHARD (2009a), Margin no 25 ff.; LIENHARD/KETTIGER (2009), p. 415 f.
22
KLOPFER (2005).
23
See for example LIENHARD (2005), p. 460 ff.; KETTIGER (2003b), p. 173 ff.; PARLIAMENTARISCHE VERWALTUNGSKONTROLLSTELLE (2001).
24
See for more detail LIENHARD (2009a), Margin no 31 ff.
25
See BANDLI (2009), BANDLI (2012), p. 111; LIENHARD/KETTIGER (2009).
26
See LIENHARD (2007).
27
See ULRICH/KRIEG (2001).
28
See RÜEGG-STÜRM (2002).
29
See THOM/RITZ (2008), p. 41 ff.; SCHEDLER/PROELLER (2011), p. 19 ff., in particular p. 22.
18
International Journal For Court Administration | December 2012
42
There was also a need for a refined purpose-built management model for non-governmental organizations (NGOs), and
30
more particularly non-profit organizations (NPOs) due to their special position in society and their tasks. Around the
same time as this discussion of management models for public administration, a debate arose on more management in
the justice system, covering a wide academic spectrum and being quite heated at times. In Germany, this stemmed in part
31
from a book by Wolfgang Hoffmann-Riem . In Switzerland, the issue − as already mentioned − was taken up by Kettiger
32
and Lienhard. No management model was produced however, nor even any approaches to one. Nonetheless there are
33
thesis-type model concepts on the social function of the justice system . The question of whether management elements
exist in the justice system cannot therefore be based on a specific model but must borrow from the existing management
models for the private sector and public administration.
In order to devise the specific questions that enable an analysis and evaluation of the management organization of judicial
authorities to be made, use can also be made of quality management tools that have been specifically developed for
courts or that are regarded as suitable for the justice sector. The latter can be found primarily in the following quality
assurance systems:





ISO 9001 (DIN EN ISO 9001): EN ISO 9001 lays down the minimum requirements for a quality management
system (QM system) that an organization has to satisfy in order to provide products and services that meet the
expectations of clients and any official requirements. At the same time the management system should be subject
to a constant process of improvement.
Common Assessment Framework (CAF): This approach to quality assurance developed for public administrations
at the behest of the EU and based on EFQM attempted to devise a uniform scheme for quality assurance for
34
administrations throughout Europe. In the course of this project very specific questionnaires were developed in
35
36
particular in Germany. The CAF is also regarded as suitable set of instruments for courts as well.
Trial Court Performance Standards (TCPS): In the USA, the National Center for State Courts (NCSC) developed a
system for measuring performance and quality with 22 standards and 68 related indicators that are structured into
five subject areas (Access to Justice; Expedition and Timeliness; Equality, Fairness and Integrity; Independence
37
and Accountability; Public Trust and Confidence). The TCPS was primarily developed from the viewpoint of the
criminal justice system. As a quality assurance instrument, the TCPS has proven in court practice to be too
38
expensive and complicated. Nonetheless the list of 22 standards and 68 indicators provides a reference point for
quality aspects in the justice system and indirectly for questions relating to the organization of the courts.
39
CourTools: Also developed by the NCSC in the USA, the system of court performance measures known as
CourTools offer courts a balanced perspective on how the court is conducting its business. It provides key figures
for the running of courts. A version of CourTools has been developed for trial courts and for appellate courts.
CEPEJ question list: The European Commission for the Efficiency of Justice (CEPEJ) has devised its own
40
question list for investigating the quality of the justice system and the courts by way of self-evaluations. Like the
TCPS, this provides reference points for important organizational questions in the justice system.
In addition, various organs of the Council of Europe have issued guidelines (soft law) on court organization for the
41
purpose of implementing the guarantees of the European Convention on Human Rights (ECHR). Of importance in
particular are:
 the recommendation by the Council of Ministers dated 17 November 2010 “On judges: independence, efficiency
42
and responsibilities” ;
30
A great deal has been written about this, see e.g. SCHWARZ (1984); TIEBEL (2006).
See HOFFMANN-RIEM (2001).
32
See KETTIGER (2003); LIENHARD (2009a).
33
See KETTIGER (2003b), p. 199 ff., KETTIGER (2007), p. 247 ff.
34
See http://www.caf-netzwerk.de/cln_227/nn_376176/SharedDocs/Publikationen/CAF/caf
Broschuere 2002,templateId=raw,property=publicationFile.pdf/cafBroschuere2002.pdf (Status: 07.08.2012);
see also http://www.bka.gv.at/DocView.axd?CobId=23866 (Status: 07.08.2012).
35
See e.g. http://www.caf-netzwerk.de/cln_227/nn_1645010/CAF-Netzwerk/Shared/Publikationen/
caf__arbeitsbogen__stand__oktober__2009,templateId=raw,property=publicationFile.pdf/caf_arbeitsbogen_stand_oktober_2009.pdf
(Status: 07.08.2012).
36
The European Institute of Public Management (EIPA) offers seminars on the subject of the CAF in the justice system.
37
See http://www.ncsconline.org/d_research/TCPS/Contents.htm (Status: 07.08.2012).
38
See SCHAUFFLER (2007), p. 119 f.
39
See http://www.ncsconline.org/D_Research/CourTools/index.html (Status: 16.07.2012).
40
European Commission for the Efficiency of Justice (CEPEJ) (2008).
41
For more detail on this, see TSCHIRKY (2011).
31
International Journal For Court Administration | December 2012
43
 The report of the Venice Commission from March 2010 referring to the aforementioned recommendation by the
44
Council of Ministers43 “Independence of the Judicial System Part I: The Independence of Judges” .
 Various recommendations made by the Consultative Council of European Judges (CCJE).
 In contrast to the position with the ECHR, there are no guidelines for court organization directly related to UN Pact II.
On the other hand, there are various (non-legally binding) documents from organizations affiliated to the UN (but not
45
from UN organs) that make reference to Art. 10 of the UN Universal Declaration of Human Rights , which also calls
for access to an independent court.
46
 The Syracuse Draft Principles on the Independence of the Judiciary.
47
 The Montreal Universal Declaration on the Independence of Justice.
48
 United Nations Basic Principles on the Independence of the Judiciary.
 These principles also provide reference points on what must be taken into account in court management.
 The various documents on the quality of court organization and court management contain a certain number of
49
requirements at various levels. On the one hand they contain basic elements for court systems with direct
reference to case law (e.g. independence of the courts, access to the courts, accelerated procedures) and on the
other, support elements for court management (e.g. quality assurance systems, caseload management, controlling).
This investigation concentrates on elements in the second category.
1.3 The Subject of the Survey: the Organization of Courts in Switzerland
When considering the following description of the results of the survey on court management in Switzerland, it should be
noted that the courts in Switzerland are organized in a wide variety of ways. Due to the federal system of justice, court
organization is the responsibility of the cantons: each of the 26 cantons has far-reaching autonomy relating to the
50
structure of its justice system. In the criminal and civil justice systems, the cantons have their own trial and appeal
51
courts . In the administrative justice system, decisions are commonly made by administrative judicial authorities as the
prior instance to the administrative and social insurance courts. Whereas the regulations on civil and criminal procedure
were harmonized in 2011 for all the cantons, the procedural rules for the administrative justice system still vary from
canton to canton.
The decisions of the cantonal appeal courts can normally be referred to the Federal Supreme Court. The Confederation
52
also has its courts of prior instance (Federal Administrative Court , Federal Criminal Court, Federal Patent Court), whose
decisions can normally be appealed to the Federal Supreme Court. The federal courts each have their own procedural
codes.
In addition, the size of a canton has a significant influence on court organization. In small cantons (e.g. AppenzellAusserrhoden, Appenzell-Innerrhoden, Nidwalden, Obwalden, Zug) and the city cantons (Basel-Stadt, Geneva) the entire
judicial infrastructure (ordinary and appeal courts) is normally centralized in one location. In the larger cantons (e.g.
Aargau, Bern, Graubünden, Vaud, Zurich) there is a high degree of regional decentralization among the ordinary courts;
the appeal courts however, are generally based in one location.
The varying size of the cantons and the structural diversity in court organization leads to considerable differences in the
size of the courts. This ranges in Switzerland from ordinary cantonal civil and criminal courts with one professional judge,
53
to the Federal Administrative Court, which has around 75 professional judges . In the Cantons of Appenzell-Innerrhoden,
Appenzell-Ausserrhoden, Glarus, Obwalden and Uri, the ordinary court or courts (in the civil and criminal justice systems)
have 3 or fewer professional judges. In the same 5 cantons and in the Canton of Nidwalden, furthermore, the appeal court
42
Council of Europe, Recommendation CM/Rec(2010)12.
Council of Europe, Recommendation CM/Rec(94)12.
44
Venice Commission, CDL-AD(2010)004.
45
See GASS/KIENER/STADELMANN (2012), p. 34.
46
See GASS/KIENER/STADELMANN (2012), p. 35 ff.; this is the result of a conference of experts organised in May 1981 by the
Association of Penal Law and the International Commission of Jurists.
47
See GASS/KIENER/STADELMANN (2012), p. 42 ff., this is the result of the “First World Conference on the Independence of Justice” held
on 10 June 1983 in Montreal.
48
See GASS/KIENER/STADELMANN (2012), p. 57 ff., this is the result of the “Seventh United Nations Congress on the Prevention of
Crime and the Treatment of Offenders” held from 26 August to 6 September 1985 in Milan.
49
See also LIENHARD (2009a), Margin no 79.
50
The Swiss federal system of justice is subject of research work conducted by the authors for the Forum of Federations that will be
published in 2013.
51
The cantonal appeal courts have a variety of different names: e.g. Appellationsgericht, Obergericht, Kantonsgericht.
52
For more detail on this, see BANDLI (2012).
53
See http://www.bvger.ch/gericht/organisation/index.html?lang=de (Status: 07.08.2012).
43
International Journal For Court Administration | December 2012
44
54
or courts (in the civil, criminal and administrative justice systems) have 3 or fewer professional judges. Lay judges are
used in a variety of ways in the cantonal courts with regard to the relationship between lay and professional judges, their
duties (e.g. advisory activities) and working hours. The characteristics mentioned of the organization of Swiss courts have
considerable effects on the organizational and operational structures of the individual courts and therefore on court
management as well.
1.4 Methodology and Procedure
In May 2012, an empirical survey of selected elements of court management was conducted in the cantonal appeal courts
55
for criminal, civil and administrative matters , as well as the federal courts (Federal Supreme Court, Federal Criminal
Court, Federal Administrative Court, Federal Patent Court). The selection of the elements of court management is based
on the management models and quality assurance tools mentioned in 1.2.2. The following six elements, described using a
variety of different terms, are elements of almost all of the listed models and tools and are also of special interest in
relation to the research project “Basic Research into Court Management in Switzerland”:






Strategy: The focus in this case is primarily on the strategic management instrument, the strategic management
body and the operationalization of the strategic goals.
Management processes: Important aspects in this area are the caseload management system and/or control, case
processing and the case supervision system, the quality management system, certification, performance
objectives as well as the service level mandate and/or the public service agreement.
Organizational structure: This element covers firstly the structure of the budget and the right to make budgetary
proposals, secondly the provision and the upkeep of the required buildings or offices and of the furniture and
fittings and thirdly the provision, maintenance and operation of the IT systems. Also of interest in relation to the
organizational structure are the court management board and management support.
Staff resources: In this element, recruiting staff, retaining staff and career development, the basic and continuous
professional education of judges and instruments of reflection (e.g. meetings and peer reviews) are relevant.
Public relations: This element covers communication with the public (e.g. media and public relations) as well as
feedback instruments for the legal profession and the public.
Culture: In relation to this, the focus is on culture-forming measures, such as codes of conduct.
The survey of cantonal courts of appeal and the federal courts was conducted using a written questionnaire structured
according to the abovementioned elements and including a total of 39 questions on the subject of court management.
When devising the questionnaire, reference was made to the latest questionnaire from the CEPEJ for evaluating justice
56
systems in order to prevent any overlap. Both quantitative and qualitative data were generated using what were mainly
closed but in some cases open questions, together with the opportunity to provide further details and comments. The
most significant results of the survey are presented and discussed below.
2. Results of the Survey
2.1 General Remarks
As can be seen from Table 1, a total of 32 appeal courts in 23 cantons and 3 federal courts completed the questionnaire.
The appeal courts in the Cantons of Appenzell Ausserrhoden, Fribourg and Schwyz as well as the Federal Patent Court
57
did not take part in the survey. The response rate is accordingly very high.
The following remarks are based on data generated by the 35 completed questionnaires from the 32 cantonal and the 3
federal courts listed in Table 1. In some cases additional available information was also used.
2.2 Strategy
According to the survey, in nine of the 23 cantons assessed, the appeal courts have a strategy or a set of guiding
principles. These are the Cantons of Aargau, Basel-Landschaft, Basel-Stadt, Bern, Geneva, Glarus, Lucerne, Neuchatel
and Obwalden (see Graphic 1). In three further cantons, one of the two appeal courts has a strategy or set of guiding
54
The Cantonal Court of the Canton of Appenzell-Innerrhoden has what is probably a unique feature: all of its judges work on a parttime or voluntary basis and are therefore lay judges. This includes the Cantonal Court President as well.
55
Not including special courts (such as independent social insurance courts).
56
See European Commission for the Efficiency of Justice (CEPEJ) (2011).
57
The Federal Patent Court and the Cantonal Court of Appeal of the Canton of Appenzell Ausserrhoden did not explain in any detail
why they were unable to participate in the survey. The Cantonal Court of Appeal in the Canton of Fribourg decided not to answer the
questionnaire because it is currently undergoing reorganisation. The Cantonal Court of Appeal and the Administrative Court in the
Canton of Schwyz did not take part due to its excessive workload.
International Journal For Court Administration | December 2012
45
principles. In the cantons of Ticino and Thurgau this is the Administrative Court, in the Canton of Zurich, the Cantonal
Court of Appeal. What is interesting is that the cantons where the courts have no strategy, (with the exception of the four
Cantons of Graubünden, St. Gallen, Vaud and Valais) are small cantons with, in some cases a small and very centralized
court infrastructure. All the federal courts considered have a strategy or a set of guiding principles.
As far as the key elements of the strategy are concerned, three principal themes can be recognized: firstly independence,
secondly quality, efficiency and expeditiousness and thirdly the issue of setting priorities for case processing. In addition,
other than in one canton, it is always the judicial authority that is responsible for deciding on the strategy or the guiding
principles. This suggests that in this area of court management, the principle of separation of powers and judicial
independence are strictly observed. In only very few cantons and in only one federal court, however, is there an
implementation plan for the strategy or the guiding principles.
As far as the body responsible for deciding on the strategy or the set of guiding principles is concerned, the cantons
presented a varied picture. In six courts an independent judicial authority is responsible, in 11 cantons and in the federal
courts each court is responsible for itself and in one court an executive board is responsible.
2.3 Management Processes
2.3.1 Case Processing and Case Monitoring (Business Oversight)
With the exception of the Canton of Jura, all the appeal courts in the 23 cantons assessed have a system for case
processing and case monitoring (case management), which records the number of new cases and the number of cases
that have been decided. In most cantons the system also records the number of cases that have been referred back by a
superior authority for reconsideration and/or the duration of the proceedings. In a few cantons, the system records the
number the cases which went to trial. In addition, in the Cantonal Courts of Appeal in the Cantons Basel-Landschaft,
Solothurn and Uri, the system records the criminal proceedings under threat of time-bar. In the courts of first instance, the
system in each case records the same information as in the cantonal appeal courts. According to this study in the
Cantonal Court of Appeal in the Canton of Jura, the individual court presidents are solely responsible for case processing
and case monitoring, which is why there is no centralized tool.
In all the three federal courts assessed, there is a system for case processing and case monitoring that records the
number of new cases, the number of decided cases and the duration of the proceedings. In the Federal Criminal Court
and in the Federal Administrative Court the number of cases that have gone to trial is also recorded, as well as the
number of cases that have been referred back for reconsideration by the superior authority. In the Federal Criminal Court
the system also records the criminal proceedings under threat of time-bar.
2.3.2 Caseload Management System
The following survey results relating to the caseload management system must be regarded with caution. It cannot be
said with any certainty if the courts use a system where the caseload is weighted or whether the figures relating to the
allocated cases have simply been recorded.
As the survey showed, in nine cantons (Aargau, Basel-Landschaft, Graubünden, Lucerne, St. Gallen, Thurgau, Vaud,
Valais and Zug) the appeal courts have a caseload management system (see Graphic 2). In the Cantons of Bern, Ticino
and Zurich each administrative court also has this type of system. At most of the appeal courts in the total of twelve
cantons, there is a caseload management system that covers both the workload of the divisions/chambers and the
workload of the judges. Of the federal courts, only the Federal Administrative Court has a caseload management system.
This covers the workload of the divisions/chambers.
The results also indicate that the issue of whether there is a caseload management system available or not depends on
the size and the structure of the canton concerned. For the appeal courts and the courts of first instance, the caseload
management system is largely identical, other than in the Canton of Basel-Landschaft.
2.3.3 Allocation of Cases
As far as the allocation of cases to divisions/chambers and judges is concerned, in only three of the cantons assessed
(Geneva, Nidwalden and Solothurn) is there no standardized method. In a further four cantons (Glarus, St. Gallen,
Thurgau and Zug) there is no standardized method for the administrative court, but in the Cantonal Court of Appeal there
is such a method. In the Canton of Zurich, this method exists only in the Administrative Court. Among the federal courts,
the Federal Criminal Court has no standardized method for the allocation of cases.
International Journal For Court Administration | December 2012
46
58
An analysis of the results shows that the Federal Administrative Court and the Courts of Appeal in the Cantons of
Graubünden and Neuchatel all have a computer controlled case allocation system. The Court of Appeal in the Canton of
Solothurn is currently introducing this type of system for the Insurance Court. The most common method of case
allocation is one in which a legal instrument (an act, procedural rules, regulations) determines which division or chamber
is responsible for what category of legal dispute or category of case. In a second step, cases are allocated to individual
judges according to their workloads (with a view to distributing the workload as fairly as possible).
2.3.4 Quality Management and Certification
In a good third of the cantons assessed (Aargau, Bern, Geneva, Lucerne, Neuchatel, Solothurn and Zurich) the appeal
59
courts have a quality management system (QM system) and/or performance measurement system (see Graphic 3). In
each of the Cantons of Ticino, Thurgau and Zug one of the two appeal courts has such a system. For the lower courts, no
precise conclusion can be drawn. Of the federal courts, the Federal Supreme Court and the Federal Administrative Court
have a QM system. Only in one canton and in the Federal Supreme Court does the QM system or performance system
also covers the work of the individual judges.
60
In the cantonal appeal courts and in the federal courts, quality is measured on the basis of a variety of indicators : The
61
indicators most commonly applied are the number of cases concluded, the duration of proceedings , the number of
pending cases, the number of new cases and the amount of work done by the judges and the court staff. Only in two
cantonal appeal courts are the costs of the proceedings also used as a factor in quality and/or performance. Likewise
there are only two courts in which the percentage of cases processed by a single judge, together with the satisfaction of
users (in relation to the service provided by the court) is systematically recorded. The satisfaction of the court staff is
recorded only in three of the cantonal appeal courts and in the Federal Supreme Court. (For more on quality trends see
2.5.4, on feedback instruments see 2.6.2).
An additional step with regard to quality management is certification, which involves the evaluation of existing quality
62
management instruments by an external professional agency that has been specially authorized for this purpose.
According to our survey, not one court authority in Switzerland has a certified quality management system (e.g. ISO 9001,
63 64
ISO/IEC 27001, EFQM, GoodPriv@cy ).
2.3.5 Service Level Mandate and Performance Objectives
A service level mandate or a public service agreement with courts or individual divisions in the sense of contract
65
management exists only in the cantonal courts and only in the Cantons of Bern, Lucerne, Solothurn and Zurich (see
66
67
Graphic 4). In these cantons , where the central administration generally has implemented the principles of NPM , the
service level mandate for courts is directly related to the cantons’ financial planning and budget processes.
Irrespective of the issue of outcome-oriented public management systems, in eleven further cantons (Aargau, BaselLandschaft, Geneva, Glarus, Graubünden, Obwalden, St. Gallen, Schaffhausen, Ticino, Uri and Zug) the cantonal appeal
courts work with performance objectives, which are normally set by the plenum or by the administrative committee. In a
total of nine cantons (Aargau, Bern, Basel-Landschaft, Geneva, Obwalden, Schaffhausen, Solothurn, Zug and Zurich),
lower courts are also required to meet performance standards.
58
See also BANDLI (2012), p. 111 f.
The quality management system does not have to comply with a recognised standard (e.g. ISO, EFQM, see 1.2.2); it may be a
custom-made system, but it has to be clearly defined.
60
The survey offered a choice of the following indicators: new cases; duration of proceedings; concluded cases; pending cases; work
performance of the judges and the court staff; percentage of cases dealt with by a single judge; execution of decisions in criminal cases
(sentences and summary penalty orders); satisfaction of the court staff; satisfaction of court users (in relation to the service provided by
the court); legal and organisational quality of the court; costs of court proceedings.
61
From a certain duration of proceedings, the issue is no longer simply quality management but a potential violation of the
fundamental right to have legal cases heard by a court within a reasonable time (Art. 29 para. 1 Federal Constitution, Art. 6 ECHR), see
CALVEZ (2006).
62
See LIENHARD (2009a), p. 14.
63
A Swiss standard for data management and data protection.
64
This result corresponds to the authors’ own investigations in 2010/2011.
65
In the Canton of Zurich, only the Cantonal Court of Appeal has a service level mandate or a public service agreement; the
Administrative Court has no service level mandate.
66
See the FLAG 2009 report, BBl 2009 7915, p. 7954; KOLLER/HIRZEL/ROLLAND/DE MARTINI (2012), p. 145.
67
i.e. running the administration according to the principles of outcome-oriented public management (in particular with a service level
mandate and global budget), see SCHEDLER/PROELLER (2011).
59
International Journal For Court Administration | December 2012
47
The Federal Criminal Court and the Federal Administrative Court also work with internal performance goals. In the
Federal Administrative Court the plenum of judges is responsible for determining the annual goals for the divisions.
2.4 Organizational Structure
2.4.1 Court Management Board
According to our survey, only the Cantonal Court of Appeal in the Canton of Appenzell Innerrhoden, the Administrative
Court in the Canton of Graubünden, the Cantonal Court of Appeal and Administrative Court in the Canton of Obwalden,
the Cantonal Court of Appeal in the Canton of Schaffhausen and the Court of Appeal in the Canton of Ticino have no
court management board (see Graphic 5). However, the Cantonal Court of Appeal in the Canton of Schaffhausen has an
internal management board. In all the other cantons surveyed and in the federal courts assessed, there is a court
management board. The organizational structure and the responsibilities of the court management board vary
considerably. Often the court management board consists of an administrative committee (a body made up of judges).
2.4.2 Management Support
In addition to the court management board, a management support office is also an element of court management.
Management support includes both efficient (staff) services assisting the Presidium, the plenum and the management
68
board as well as the operational management of the administration of justice.
In the Cantons of Appenzell Innerrhoden, Glarus, Graubünden, Nidwalden, Obwalden, Schaffhausen and Uri, the appeal
courts have no management support office of their own. In the Canton of Ticino it exists only in the Administrative Court
and in the Canton of Thurgau only in the Cantonal Court of Appeal. In all the other cantons, the cantonal appeal courts
have some form of management support office. In the Cantons of Basel-Stadt, Geneva, Lucerne, Neuchatel, St. Gallen,
Valais, Zug and in certain cases in the Cantons of Bern, Thurgau and Zurich, the courts of first instance have a
management support office of their own design. The three federal courts assessed also have a management support
office.
The structure of the management support office in the cantonal appeal courts and federal courts varies considerably (see
Table 2). With the exception of the Cantonal Court of Appeal in the Canton of Valais, the management support office in
the courts always comprises a general secretary or a court administrator. In a number of courts, the support also includes
an IT service, a financial services section and a human resources section. Only in the appeal courts in the Canton of
Zurich and in the federal courts is the management of office space one of the tasks of the management support office.
69
2.4.3 Budget
The budget for the courts in the Cantons of Aargau, Bern, Geneva, Lucerne and Solothurn (to a certain extent) consists of
product group budgets with global financial requirements (in keeping with the principles of NPM) (see Graphic 6). In the
majority of cantons, the courts’ budget is structured according to the type of costs (traditional input control), whereby in 7
cantons the courts have a global budget. The budgets of the federal court are structured according to the type of costs.
In most cantons the courts can make their own budget proposals to the cantonal parliament (irrespective of whether such
autonomy is mentioned in the cantonal constitution). Only in the Cantons of Basel-Stadt, Neuchatel, Schaffhausen, Ticino
and Uri is the right to make budgetary proposals on behalf of the courts the responsibility of the cantonal government (see
70
Graphic 7). Examples can be found of the model whereby the courts submit their own budget directly to the parliament
(Aargau, Basel-Landschaft, Zug) and the model in which the cantonal government integrates the courts’ budget proposal
unamended into the overall cantonal budget. All three federal courts assessed have the right to make budgetary
proposals and submit their own budget directly to parliament.
2.4.4 Court Buildings
Responsibility for the management of the court building in almost every case is that of the office of the central
administration in charge of cantonal real estate. This applies both to the acquisition of premises and to their maintenance
and cleaning. Only in the Cantons of Graubünden, St. Gallen and Zurich are the courts authorized in accordance with
68
See LIENHARD (2009a), p. 9.
The issue of the budgets is often closely related to the public service agreement and/or the performance objectives (see above
2.3.5).
70
In the cantons not included in the results of the survey, i.e. Appenzell Ausserrhoden., Fribourg and Schwyz there is no independent
right to make budgetary proposals (information from additional investigations). Canton Appenzell Ausserrhoden however has the
following rule: if the cantonal government and Cantonal Court of Appeal are unable to agree on a joint proposal, the President of the
Supreme Court has the right to participate in the meetings of the Finance Committee and of the Cantonal Parliament on the budget,
where he or she has the right to make proposals (Art. 92 para. 2 Justice Act, bGS 145.31).
69
International Journal For Court Administration | December 2012
48
71
72
their budget to acquire premises on their own. In the Cantons of Graubünden and Zurich , real estate management is
an inherent part of the autonomy of the courts, enshrined in the respective cantonal constitutions. In the Cantons of
Lucerne and Schaffhausen, the courts nonetheless have the right to choose their premises from the properties offered by
the relevant office of the central administration.
In the federal courts assessed (Federal Supreme Court, Federal Criminal Court and Federal Administrative Court), a
standard rule in each of the acts governing these courts states that the court premises are provided by the Federal
73
Department of Finance. The latter must however take appropriate account of the needs of the court in question . The
federal courts are responsible for organizing the cleaning and routine maintenance of their buildings.
2.4.5 Furniture and Fittings
The purchase of furniture and fittings is dealt with in a wide variety of ways. Some courts are free to purchase what they
need in the open market (even in cantons where the courts are otherwise not responsible for managing their buildings),
some courts obtain their furniture from a mandatory supplier via an administrative office, while others are provided with
furnished premises by the central administration. For the most part, the courts themselves are responsible for acquiring
their own furniture and fittings.
The federal courts are free to purchase their own furniture and fittings on the open market.
2.4.6 Information Technology
When it comes to information technology, the situation as regards hardware and software is similar to that with furniture.
The courts in the Cantons of Basel-Stadt, Graubünden, Valais and Zurich are free to acquire what they need on the
market. This also applies for certain specialized IT requirements in the Cantons of Aargau, Basel-Landschaft, Bern,
Glarus, Lucerne, Obwalden, St. Gallen, Uri and Zug as well as in the three federal courts assessed. In many cantons,
however, the central administration is responsible for their courts’ information technology. The courts in the Cantons of
Aargau, Basel-Stadt, Geneva, Lucerne, St. Gallen, Solothurn, Valais and Zurich have their own IT services section, and
this is also the case in specialized sectors in the Cantons of Bern and Zug, as well as in the federal courts (see Table 2).
2.5 Staff Resources
2.5.1 Long-term Plan
In only eight of the 23 cantons assessed have the appeal courts developed a long-term plan in relation to the recruitment,
selection, basic and advanced training, evaluation, career development and salary of judges and/or the court registrars
and/or the administrative staff (see Graphic 8). Only the Administrative Court in the Canton of Bern has a plan for all three
types of staff mentioned. The Court of Appeal in the Canton of Aargau has a plan for the first two types of staff; the Court
of Appeal in the Canton of Basel-Stadt and the Cantonal Court of Appeal in the Cantons of Geneva and Vaud have a plan
for the last two types of staff. In addition, the Cantonal Court of Appeal in the Canton of Basel-Landschaft and the
Administrative Court in the Canton of Zurich have a plan for court registrars only; the Court of Appeal and Administrative
Court in the Canton of Lucerne on the other hand have a plan for administrative staff only. Of the federal courts assessed,
the Federal Supreme Court and the Federal Criminal Court have a plan, the former for all three types of staff and the latter
for court registrars and for administrative staff.
2.5.2 Appointment and Pre-Selection of Judges
The judges in the federal courts are elected by the Swiss Parliament, while the judges in the cantonal appeal courts and in
the courts of first instance in the Cantons of Bern, Jura, Lucerne, Neuchatel, Nidwalden, Schaffhausen and Ticino are
elected by their cantonal parliaments. In the Cantons of Geneva, Glarus, Obwalden, Uri and Zug all the judges in the
lower and appeal courts are appointed by a vote of the local electorate. The Cantons of Vaud and Valais have a special
system for appointing judges: the cantonal parliament elects the judges of the Cantonal Court of Appeal, who then appoint
the judges of the lower courts. In the Cantons of Aargau, Basel-Landschaft, Graubünden, St. Gallen, Solothurn, Thurgau
and Zurich, the cantonal parliament elects the judges in the cantonal appeal courts, while the electorate votes on the
judges in the courts of first instance. The powers of appointment with regard to both the appeal and lower courts are
allocated either to the electorate or to the cantonal parliament in the Cantons of Appenzell-Innerrhoden and Basel-Stadt,
based primarily on the distinction between professional judges, legally-qualified substitute judges and lay judges.
71
See UHLMANN/KIENER (2010), Margin no 41 ff.
See HALLER (2009), Margin no 13, 28 and 36.; SCHMID (2007), Art. 73, Margin no 12.
73
Additional investigations by the authors, see Art. 25a para. 1 FSCA for the Federal Supreme Court and identical provisions for the
Federal Criminal Court and Federal Administrative Court.
72
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49
Whether there is a procedure for the pre-selection of judges essentially depends on whether the judges are appointed by
a vote of the electorate or of parliament (see above). Where the people decide, there is normally no pre-selection, but in
contrast there normally is pre-selection in the case of parliamentary appointments. In all the parliamentary elections to the
cantonal appeal courts, other than in the Cantons of Basel-Landschaft, Jura and Valais, a pre-selection process is carried
out by a parliamentary committee. The same applies for appointments to the federal courts. Although the judges in the
cantonal appeal courts are elected by the people, in the Cantons of Geneva, Obwalden and Zug there is also a form of
preliminary examination of candidates for election to the appeal courts by a cross-party committee. In certain cantons, e.g.
in the Cantons of Bern, Basel-Stadt, Geneva, Graubünden, Neuchatel, Solothurn, Thurgau, Ticino and Zug, candidates
must hold a law degree, and in some cases must also hold a lawyer’s practicing certificate.
2.5.3 Professional Induction and Advanced Training for Judges
The Cantonal Court of Appeal in Basel-Landschaft, the Court of Appeal in Basel-Stadt, the Administrative Court in Glarus,
the Cantonal Court of Appeal and Administrative Court in Lucerne, the Cantonal Court of Appeal and Administrative Court
in Obwalden, the Administrative Court in Thurgau, the Cantonal Court of Appeal in Uri, the Cantonal Court of Appeal in
the Valais and the Federal Supreme Court are the only courts where judges systematically undergo a professional
induction process at the start of their activities. This ranges from a personal induction session provided by the president of
the court of appeal in a half-day information event to an obligation for professional judges in the district courts in the
Canton of Thurgau to attend the certified training course for judges at the Swiss Judges’ Academy. In the Federal
Supreme Court, the judges receive training on using the office automation equipment, the case law databases, the library
database and library and the statistics and controlling application as well as information on safety precautions and the
support provided by the various court services.
In all the cantons and in all federal courts, judges are permitted to attend at least part of their advanced training during
normal working hours; the courses are normally paid for.
2.5.4 Staff Appraisal Interviews and Satisfaction
Only one cantonal appeal court (the Administrative Court in the Canton of St. Gallen) has regular staff appraisal interviews
with judges. Interviews with judges in the courts of first instance are held in the Cantons of Bern and Lucerne. In theory,
this should also be the case in the Canton of Zurich, but in practice the interviews seldom take place. There are no
interviews of this type in the federal courts. With the exception of the Cantonal Court of Appeal in the Canton of
Graubünden and the Court of Appeal in the Canton of Ticino where there are no appraisal interviews, and the Cantonal
Court of Appeal in the Canton of Valais, all the cantonal appeal courts and all the federal courts hold appraisal interviews
for court registrars. Likewise with exception of the two courts that do not hold any appraisal interviews and the Cantonal
Court of Appeal in the Canton of Appenzell-Innerrhoden, all the appeal courts and all the federal courts hold appraisal
interviews for the administrative staff. In a good half of the cantons and in all the federal courts, the performance
assessment for court registrars and for administrative staff has an effect on salary – but does not affect judges’ salaries.
With the exception of the courts in the Cantons of Jura, Lucerne, Neuchatel, Obwalden, Schaffhausen, Ticino, Vaud and
Zurich and the Cantonal Court of Appeal in Graubünden, all the cantonal courts of appeal and lower cantonal courts and
the Federal Supreme Court and the Federal Administrative Court periodically evaluate the satisfaction of their staff. In the
Cantons of Aargau, Bern and St. Gallen, the evaluation is an element of the regular staff survey which covers all cantonal
staff.
74
2.5.5 Quality Circles and Peer Reviews
In 15 of the 23 cantons assessed, the appeal courts organize regular meetings for judges, quality improvement
conferences and other events, at which they are given the opportunity to discuss legal concerns, and in particular those
proposed by the judges themselves (e.g. supervision, peer reviews).
Basically the judges discuss their experiences and improvements in quality at regular plenary, divisional or chamber
meetings at which other issues can also be discussed. The Court of Appeal in the Canton of Aargau holds regular judges
conferences and the Cantonal Court of Appeal in the Canton of St. Gallen organizes selective supervision in the area of
family law. No meetings of this type are held in the Cantons of Nidwalden, Obwalden, Ticino, Uri, Vaud, Valais and Zurich
or in the Cantonal Court of Appeal in the Canton of Glarus and the Administrative Court in the Canton of St. Gallen. All
federal courts assessed organize regular meetings to discuss legal issues.
74
This aspect of court management is closely related to quality management (see above 2.3.4). It is considered here in order preserve
consistency between questionnaire and the evaluation.
International Journal For Court Administration | December 2012
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With the exception of the Cantons of Appenzell-Innerrhoden, Glarus, Nidwalden, Obwalden, Uri, Vaud, Valais, the
Administrative Courts in the Canton of Graubünden and St. Gallen and the Court of Appeal in the Canton of Zurich, the
judges in all the cantonal appeal courts conduct a form of peer review or supervision between colleagues (discussion of
cases with colleagues). In most cases, this peer review is informal, only the Cantons Schaffhausen and Solothurn and the
Administrative Court in the Canton of Zug have a formalized form of peer review, for the appeal and lower courts. Among
the federal courts, the Federal Supreme Court and the Federal Criminal Court conduct a form of peer review.
2.6 Public Relations
2.6.1 Communication and Information
In the Cantons of Aargau, Bern (only in the Administrative Court), Basel-Landschaft, Basel-Stadt, Geneva, Jura, Lucerne,
Obwalden, Solothurn, Ticino (only in the Court of Appeal), Vaud, Valais and Zug, the appeal courts have a communication
concept (see Graphic 9). With the exception of the Cantons of Bern, Basel-Landschaft and Ticino, in these cantons the
lower courts have a similar concept. In the cantons where the appeal courts have no communication concept, the lower
courts do not have one either. All the federal courts assessed have a communication concept.
Apart from the Cantons of Appenzell-Innerrhoden, Glarus, Jura, Neuchatel, Nidwalden, Schaffhausen and Ticino and the
Administrative Court in Graubünden, all the cantonal courts have a person responsible for communication (see Graphic
10). However only the courts in the Cantons of Aargau, Bern, Basel-Stadt, Geneva, Lucerne, St. Gallen, Solothurn and
Thurgau, as well as the Cantonal Court of Appeal in Graubünden have a media spokesperson. All three federal courts
assessed have a person responsible for communication and a media spokesperson.
In the Cantons of Bern, Basel-Stadt and Zurich and in the Federal Criminal Court, external communication is part of the
st
responsibility of the general secretary or the 1 court registrar. In the Cantons of Basel-Landschaft and Thurgau and in the
Cantonal Court of Appeal in Graubünden, the Administrative Court in the Canton of St. Gallen and in the Federal
Supreme Court, the president of court or the court presidium is responsible for media matters. The rules on
responsibilities in the Cantons of St. Gallen and Solothurn are interesting. In the Cantonal Court of Appeal in the Canton
of St. Gallen, general enquiries are answered by the general secretary, while questions on specific court cases are
answered by the judges responsible for the cases in question; in the Cantonal Court of Appeal in the Canton of Solothurn,
the court of appeal registrar is responsible for matters involving any of the courts, and the head court registrar for matters
concerning the chambers. The Canton of Zug has set up a joint media unit for the courts, the Office of the Cantonal
75
Prosecutor and the Cantonal Police.
76
2.6.2 Surveys on Satisfaction and Feedback Instruments
77
78
79
80
To date, only the Cantonal Courts of Appeal in the Cantons of Appenzell-Innerrhoden , Geneva , Bern , Solothurn ,
Valais and Zurich have carried out surveys in order to assess the public’s trust in and satisfaction with the services
81
provided by the courts (see Graphic 11). The Cantonal Court of Appeal in the Canton of Basel-Landschaft is planning a
survey of this type. So far, the federal courts have not carried out any surveys of this nature.
As far as methods for providing feedback on how a court is functioning is concerned, in almost all of the cantonal appeal
courts and federal courts, it is possible to give informal feedback by making a telephone call, sending an e-mail or letter
and/or by filing an appeal with the supervisory authority.
2.6.3 Cooperation with the Bar Association
In the following cantons there are institutionalized forms of cooperation between the courts and the relevant cantonal bar
association: Aargau, Bern, Basel-Landschaft, Basel-Stadt, Geneva, Glarus (only with the Administrative Court), Lucerne,
Neuchatel, St. Gallen, Schaffhausen, Solothurn, Thurgau (only with the Cantonal Court of Appeal) and Vaud. Normally
this cooperation takes the form of an annual meeting of delegations from the courts and the bar association in order to
discuss current problems and concerns. There is also institutionalized cooperation between the Federal Supreme Court
75
Additional investigations by the authors.
This aspect of court management is closely related to quality management (see above 2.3.4). It is considered here in order preserve
consistency between questionnaire and the evaluation.
77
A survey was carried out for the first time in spring 2012, but at the time of this survey the results had not been evaluated.
78
A survey on satisfaction is carried out every five years, see http://ge.ch/justice/enquetes-de-satisfaction.
79
A survey was carried out 10 years ago, see OBERGERICHT DES KANTONS BERN (2001).
80
The last survey took place in 2008, the next is planned for 2013. The survey is organised by the Court Administration Committee.
Lawyers are asked about the courts that they appear in. See http://www.so.ch/gerichte/gerichtsverwaltung.html (Status: 07.08.2012).
81
Findings also based on specific studies.
76
International Journal For Court Administration | December 2012
51
and the Swiss Bar Association (SBA): there are annual meetings between the court management board of the Federal
Supreme Court and the Executive Board of the SBA.
2.7 Culture
The survey reveals that in the majority of appeal courts and in the federal courts, a culture of stimulating and inspiring
improvements in the entire organization is encouraged (see Graphic 12). Here, no connection with the size of the courts
can be detected. However it is only in the Cantons of Geneva and Lucerne that specific projects are currently undertaken.
These cantons have two things in common; both cantons have managed courts and in both cantons existing courts have
been merged to form one court. Clearly it was recognized in this connection that the cultural aspect is important. It is also
interesting that the Cantonal Court of Appeal in the Canton of Aargau is part of an ideas management scheme involving
the entire cantonal administration and that this cultural aspect is accordingly institutionalized.
In 10 cantonal appeal courts and in the Federal Supreme Court and the Federal Criminal Court, judges are encouraged to
follow proven practices and codes of conduct. The Cantonal Court of Appeal in the Canton of Basel-Landschaft has its
82
own code of conduct for judges. The Canton of Zug is in the process of drafting a code of conduct for its civil court of
first instance.
It is only at the appeal courts in the Cantons of Bern (only at the Cantonal Court of Appeal), Basel-Landschaft, BaselStadt, Geneva, Graubünden (only at the Cantonal Court of Appeal), Lucerne, Solothurn, Thurgau (only at the
Administrative Court), Uri, Vaud, Zug (only at the Administrative Court) and Zurich (only at the Administrative Court) that
clear efforts are being made to improve the culture of cooperation. According to the information provided by these courts,
the cooperation culture is primarily encouraged through joint professional or social events.
With the exception of the Cantons of Appenzell-Innerrhoden, Glarus, Jura, Ticino and Valais, a culture of sharing
knowledge is encouraged at the cantonal appeal courts. In the federal courts, a similar culture is encouraged. A common
method of sharing knowledge is for courts to make their own judgments and the judgments of other courts in the canton
(case law collections, landmark rulings) systematically available. The Cantonal Court of Appeal in the Canton of Aargau,
the Court of Appeal in the Canton of Basel-Stadt, Cantonal Court of Appeal in the Canton of Neuchatel, the Administrative
Court in the Canton of Thurgau, the Cantonal Court of Appeal in the Canton of Zug, the Federal Supreme Court and the
Federal Administrative Court all do this. In certain cantons, landmark rulings made by the appeal courts are systematically
83
84
85
published and also made accessible to the public (e.g. in the Cantons of Aargau , Basel-Landschaft and Zug ). The
appeal courts in the Cantons of Glarus, Jura, St. Gallen, Thurgau, Ticino, Valais and Zurich provide generous support with
advanced training (see section 2.5.2), but do not encourage a culture of sharing knowledge as a general principle.
2.8 Current Reform Projects
With the introduction the new Civil and Criminal Procedure Codes that apply throughout Switzerland, in most cantons
major reform projects have been completed since 1 January 2011. Despite this, as of spring 2012, reform projects of
varying magnitude are being carried out in almost half of the cantons (see Graphic 13). For example, in the Cantons of
Aargau and Basel-Landschaft, revisions of the law on the organization of the courts are making their way through the
legislative process. In the Canton of Basel-Landschaft, the cantonal parliament decided on 21 June 2012 to amend the
86
Court Organisation Act, primarily in order to institutionalize court management bodies. In the Canton of Lucerne, the new
Cantonal Constitution provides for the merger of the canton’s two appeal courts, the Cantonal Court of Appeal and the
87
Administrative Court, into a single Cantonal Court of Appeal. The Canton of Bern has recently strengthened the
88
institutional independence of its courts . The courts are currently working to implement this. Another interesting project is
being conducted in the Canton of Basel-Stadt, where a review of the organization of the entire prosecution service and
civil and administrative justice systems is taking place. Some reforms in the organization of the courts are related to the
new federal provisions on the protection of children and adults, which will come into force on 1 January 2013.
82
See http://www.baselland.ch/fileadmin/baselland/files/docs/gerichte/verhaltenskodex.pdf.
Aargau Court and Administrative Decisions (AGVE), since 2001 also online (https://www.ag.ch/de/meta/gesetze/agve/agve.jsp,
Status: 27.08.2012).
84
http://www.baselland.ch/main_rechtsprechung-htm.281760.0.html (Status: 27.08.2012).
85
Court and administrative practices (GVP), see http://www.zug.ch/behoerden/staatskanzlei/kanzlei/gvp (Status: 27.08.2012).
86
Additional investigations by the authors.
87
See the Dispatch of the Cantonal Council to the Cantonal Parliament B 25 on drafts of amendments to the law to create a Cantonal
Court and on other organizational changes in the justice system in the Canton of Lucerne dated 6 December 2011. The Cantonal
Parliament debated the bill B 25 in the May session of 2012.
88
See LIENHARD (2010).
83
International Journal For Court Administration | December 2012
52
3. Appraisal and Outlook
3.1 General Summary according to Elements of Court Management
3.1.1 Strategy
Strategic principles are an essential prerequisite for taking action and this applies in the justice system as well. In around
half of the cantons, this has been recognized by the appeal courts, with the federal courts also having a strategy or a set
of guiding principles. The instruments relate both to the fundamental aspects of court systems (e.g. independence) and to
the secondary aspects of court management (e.g. efficiency in case processing). Commonly, however, there is a failure to
implement the strategic principles effectively (operationalization, implementation plans).
Generally speaking, the strategic principles are devised by the courts themselves – only in one canton was this done by
the cantonal government.
3.1.2 Management processes
Although all the courts assessed have a (simple) system for case processing and case monitoring (business oversight) –
only around half the cantonal appeal courts use a caseload management system (relating case weighting to resources).
At federal level, there is a caseload management system in only one court.
With regard to allocating cases to the divisions/chambers/judges, the majority of courts have a standardized method.
However, this is controlled electronically in only two cantonal courts and in one federal court.
The survey shows that the appeal courts in a good third of the cantons as well as two federal courts use a quality
assurance system. However, the frequency of appeals and consistency of judgments as well as the satisfaction of parties
with the way the courts work and with procedural fees are rarely part of these systems. Not one court is certified.
Around half of the cantons and two federal courts work with performance objectives – in certain cases based on public
service mandates or public service agreements.
3.1.3 Organizational Structure
Almost all of the courts assessed in the cantons and all the federal courts assessed have a court management board;
however the organizational structure and powers of this body vary quite considerably from court to court. It is surprising to
note that one third of the cantons have no actual management support system to call on.
Around half of the cantons have global or product group budgets – but there are none in the federal courts. The right to
make budgetary proposals is used in most of the cantonal courts assessed and in all the federal courts.
The management of the court building in most cases is the responsibility of the office of the central administration that is in
charge of the real estate of the canton. The acquisition of furniture and fittings is dealt with in a wide variety of ways.
Normally, however, the courts are responsible for doing this themselves. The situation is different in relation to information
technology, which in the case of most cantonal courts is procured by the central administration. Only the federal courts
consistently do it themselves.
3.1.4 Staff Resources
In only eight of the cantons assessed do the appeal courts have a comprehensive long-term plan for human resources. At
a federal level, two of the courts assessed have such a plan.
For all parliamentary elections to the cantonal appeal courts, and in some cases also in votes by the electorate, the
candidates are preselected in all but three cantons. There is also a selection procedure for elections to the federal courts.
The eligibility requirements for election however vary from place to place; a lawyer’s practicing certificate is not always
required.
Only in around a third of the cantonal appeal courts and in all of the federal courts assessed do judges receive systematic
induction at the start of their activities. The situation is quite different in relation to continuing professional education. This
is provided in all the courts – albeit in a variety of forms, for example in-house or externally.
Almost all the cantonal appeal courts and federal courts have staff appraisal interviews for court registrars and
administrative staff. Only one cantonal appeal court interviews its judges as well. In around two thirds of the cantons and
at the Federal Supreme Court and Federal Administrative Court, staff job satisfaction is periodically evaluated.
International Journal For Court Administration | December 2012
53
Likewise, in around two-thirds of the cantons assessed and all of the federal courts assessed the appeal courts regularly
organize quality improvement measures for judges or similar events.
3.1.5 Public relations
Just under half of the cantons and all the federal courts have a communication concept. The vast majority of cantonal
courts and all the federal courts have a person responsible for communication or a media spokesperson.
Only four cantonal courts have carried out public satisfaction surveys to date.
3.1.6 Culture
The survey revealed that the majority of appeal courts and all the federal courts encourage a culture that stimulates and
inspires improvements in the entire organization. Clear efforts to improve the culture of cooperation are in evidence in
around half of the appeal courts in the cantons. The situation is different in relation to the culture of sharing knowledge. In
almost all of the cantonal appeal courts and in all of the federal courts this culture is encouraged.
3.2 Comparison
3.2.1 Cantons with More or Fewer Elements of Court Management Implemented
The survey shows that in cantonal appeal courts the level of implementation of elements of court management varies
89
widely (see Graphic 14). There are cantons whose appeal courts already use numerous elements, other cantons that
implement these elements only sporadically but nonetheless do it, while others make hardly any use of the options of
court management.
3.2.2 Factor of Size
As might be expected, the level of implementation of elements of court management in the larger courts is higher than in
smaller courts. The trend is for court management to be in a more advanced state of implementation in the larger cantons
than in the smaller ones. This does not however apply to the Canton of Ticino.
3.2.3 Relationship with NPM
Likewise as would be expected, the survey reveals that in the cantons that have implemented the principles of New Public
Management (NPM) in their central administration, the tendency is for courts to be making use of elements of court
management (see Graphic 15). The implementation of elements of court management is even more readily visible in
cantons where the courts are run on the basis of NPM. One exception to this is Canton Solothurn, which, although it is an
NPM pioneer canton, is not among the front runners in the overall assessment in relation to the level of implementation of
court management.
3.2.4 Level of Implementation in the Federal Courts By Comparison with the Cantonal Appeal Courts
The level of implementation of elements of court management in the federal courts varies. On the one hand, certain
elements must be regarded in a positive light, such as the right to make budgetary proposals, controlling in the Federal
Supreme Court or caseload management in the Federal Administrative Court. On the other hand, there is clear potential
for optimization especially in relation to public satisfaction surveys and the cooperation culture. In contrast to the cantonal
courts, there is no significant difference between the courts depending on their size. By way of comparison with the
cantonal appeal courts, the federal courts have a high level of implementation. However, neither the federal courts nor the
cantonal appeal courts can claim to be playing a pioneering role.
3.3 Conclusions / Need for Further Research
In general, it may be concluded from the survey of the cantonal appeal courts and the federal courts that various elements
of court management have already been introduced into the running and organization of the Swiss justice system. The
level of implementation is, however, noticeably heterogeneous. This lack of consistency relates not only to the individual
elements of court management that have been selected, but also to their inherent structure (e.g. objectives). In addition,
implementation in practice appears often to be hesitant, for example, in relation to existing strategies.
The fact that the development and optimization of court management in Switzerland has not yet been completed is also
confirmed by the survey itself. Around half of the cantonal appeal courts and some of the federal courts indicate that a
wide variety of reform projects are ongoing or planned.
89
Based on the results of the survey an evaluation weighted according to the six elements (see 1.4) was carried out of the overall
status of court management in the cantonal and federal courts.
International Journal For Court Administration | December 2012
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The differences in the level of implementation of the various elements of court management are undoubtedly due in part
to Switzerland’s federalist system of justice (see above 1.3). Furthermore, if an overall view is taken, the impression is
confirmed that conceptual foundations for the management of the justice system are generally lacking. The survey shows
that the implementation of management elements in general does not follow any conception. The recently launched
research project on “Basic Research into Court Management in Switzerland” should contribute to resolving this difficulty
and to finding further and more profound explanations for the differences outlined above.
Bibliography
Annex
Table 1: Courts Surveyed and Response
Table 2: Services provided by the Management Support Office
Graphic 1: Strategy
Graphic 2: Caseload management system
Graphic 3: Quality management system
Graphic 4: Service level mandate and NPM
Graphic 5: Court management board
Graphic 6: Budget
Graphic 7: Right to make budgetary proposals
Graphic 8: Long-term plan for staff resources
Graphic 9: Communication concept
Graphic 10: Person responsible for communication and media spokesperson
Graphic 11: Surveys on satisfaction among the public
Graphic 12: Culture
Graphic 13: Current reform projects
Graphic 14: Status of court management
Graphic 15: Relation of court management with NPM
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(Hrsg.), Festschrift 100 Jahre Verwaltungsgericht des Kantons Bern, Bern 2010, p. 401-436
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Lienhard, Andreas/Kettiger, Daniel (2009): Geschäftslastbewirtschaftung bei Gerichten: Methodik, Erfahrungen und
Ergebnisse einer Studie bei den kantonalen Verwaltungs- und Sozialversicherungsgerichten; ZBl 8/2009, p. 413 ff.
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Prevention of Crime and the Treatment of Offenders held from 26 August to 6 September 1985 in Milan.
International Journal For Court Administration | December 2012
57
Annex
Table 1: Courts Surveyed and Response
Canton
Aargau (AG)
Cantonal Court of Appeal (CCA)
Appenzell Ausserrhoden (AR)
Cantonal Court of Appeal (CCA)
Appenzell Innerrhoden (AI)
Cantonal Court of Appeal (CCA)
Basel-Landschaft (BL)
Cantonal Court of Appeal (CCA)
Basel-Stadt (BS)
Court of Appeal (CA)
Bern (BE)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Freiburg (FR)
Cantonal Court of Appeal (CCA)
Geneva (GE)
Cantonal Court of Appeal (CCA)
Glarus (GL)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Graubünden (GR)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Jura (JU)
Cantonal Court of Appeal (CCA)
Lucerne (LU)
Cantonal Court of Appeal (CCA) and Administrative Court
90
(AC)
Neuchatel (NE)
Cantonal Court of Appeal (CCA)
Nidwalden (NW)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Obwalden (OW)
Cantonal Court of Appeal (CCA) and Administrative Court
(AC)
Schaffhausen (SH)
Cantonal Court of Appeal (CCA)
Schwyz (SZ)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Solothurn (SO)
Cantonal Court of Appeal (CCA)
St. Gallen (SG)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Ticino (TI)
Court of Appeal (CA)
Administrative Court (AC)
Thurgau (TG)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Uri (UR)
Cantonal Court of Appeal (CCA)
Vaud (VD)
Cantonal Court of Appeal (CCA)
Valais (VS)
Cantonal Court of Appeal (CCA)
Zurich (ZH)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Zug (ZG)
Cantonal Court of Appeal (CCA) Administrative Court (AC)
Federal Courts
Federal Supreme Court (FSC)
Federal Criminal Court (FCC)
Federal Administrative Court (FAC)
Federal Patent Court (FPC)
Courts that answered the questionnaire
Courts that did not answer the questionnaire
90
From 1 June 2013, the Cantonal Court of Appeal.
International Journal For Court Administration | December 2012
58
Table 2: Services provided by the Management Support Office
Canton/
General
IT Service
Financial
Human
Court
Secretary/
Services
resources
Court
Section
section
Administrator
AG CCA
x
x
x
x
BE CCA
x
x
x
BE AC
x
x
x
x
BL CCA
x
x
x
BS CA
x
x
x
x
GE CCA
x
x
x
x
JU CCA
x
LU CCA/AC
x
x
x
NE CCA
x
SG CCA
x
x
x
x
SG AC
x
x
x
SO CCA
x
x
x
TG CCA
x
x
TI AC
x
VD CCA
x
x
x
VS CCA
x
x
ZG CCA
x
x
x
ZG AC
x
x
x
ZH CCA
x
x
x
x
ZH AC
x
x
x
FSC
x
x
x
x
FCC
x
x
x
x
FAC
x
x
x
x
Service
for
management
of office space
x
x
x
x
x
91
Other
x
91
x
92
x
93
x
94
The Cantonal Court of Appeal in the Canton of Geneva also has a security service.
At the Cantonal Court of Appeal and Administrative Court in the Canton of Lucerne a member of staff in the human resources
sections is also responsible for staff issues; the real estate office is responsible for managing office space.
93
The Federal Supreme Court also has a media contact point, a legal document service (including a specialist translation service), a
librarian service, a security service and multilingual chancelleries.
94
The Federal Administrative Court also has an academic service.
92
International Journal For Court Administration | December 2012
59
Graphic 1: Strategy
Graphic 2: Caseload management system
International Journal For Court Administration | December 2012
60
Graphic 3: Quality management system
Graphic 4: Service level mandate and NPM
International Journal For Court Administration | December 2012
61
Graphic 5: Court management board
Graphic 6: Budget
International Journal For Court Administration | December 2012
62
Graphic 7: Right to make budgetary proposals
Graphic 8: Long-term plan for staff resources
International Journal For Court Administration | December 2012
63
Graphic 9: Communication concept
Graphic 10: Person responsible for communication and media spokesperson
International Journal For Court Administration | December 2012
64
Graphic 11: Surveys on satisfaction among the public
Graphic 12: Culture
International Journal For Court Administration | December 2012
65
Graphic 13: Current reform projects
Graphic 14: Status of court management
International Journal For Court Administration | December 2012
66
Graphic 15: Relation of court management with NPM
International Journal For Court Administration | December 2012
67
Caseload Allocation and Special Judicial Skills: Finding the ‘Right Judge’?
By Kathy Mack, Sharyn Roach Anleu, and Anne Wallace
Abstract:
Australian courts, as with those in most common law systems, value judicial officers who are generalists. Appointment to a
court indicates that the appointee is capable of dealing impartially with all types of cases that come before it. However,
caseload allocation processes within courts also recognize and value different skills or expertise that may be applied to
particular types of cases or to particular judicial tasks.
Our research investigates ways magistrates courts in Australia (first instance courts of general criminal and civil jurisdiction)
manage caseload allocation processes to match magistrates’ skills and abilities to specific work demands within their general
jurisdictions as well as to the demands of specialist lists and courts. The research draws on interview data collected from
judicial officers and court staff involved in caseload allocation in four Australian jurisdictions.
This research finds that these courts place a high value on the principle that ‘everyone should be able to do everything’ and
the entitlement of individual judicial officers to a caseload that is balanced and fair in relation to their colleagues. However,
this preference for generalist judicial officers can create tensions in relation to the need to staff specialist lists, and to
sometimes use particular skills in the general lists.
Despite the presumption of competence, those allocating generalist and specialist caseload take into account different skills
and expertise in the judicial workforce in the allocation decisions. Preferences of judicial officers for particular types of work
can also play a role. However, the process by which assessments are made about expertise is also less than transparent in
many cases, and draws largely on informal sources of knowledge.
Magistrates and court users may benefit from a more clearly defined and transparent process to identify and develop skills
and expertise, and allocate caseload accordingly. Such a process must preserve the flexibility that these high-volume courts
need to deal with their caseload efficiently and appropriately and to match judicial skills to the needs of particular types of
cases.
1. Introduction
1
2
Occupational specialization is a feature of modern world, yet until quite recently judicial officers hearing and deciding
3
4
cases in Australia, as in other common law countries, have been viewed as generalists — capable of tackling any form
of work that comes before the court to which they are appointed. To some extent, this has been allied with the principle of
judicial impartiality; if all judicial officers in a court are equally qualified to hear and decide a particular case, it should not
matter which one does so. Cases can be allocated randomly to judicial officers, rather than by reference to judicial
expertise or preference. This ‘randomness principle’ enhances public confidence in the impartial administration of
5
justice.
A requirement for judicial officers to be generalists also simplifies administration, as it allows any case to be allocated to
any judicial officer. A judicial officer whose expertise is confined to one or only a few aspects of a court’s jurisdiction is a
less flexible or mobile resource than one who can tackle all aspects of the court’s work.
1
Lawrence Baum, Specializing the Courts (2010, University of Chicago Press) 1.
The term ‘judicial officer’ is used throughout this paper to refer to both judges (judicial officers appointed to superior and intermediate
courts in Australia) and to magistrates (judicial officers appointed to first instance courts).
3
Lawrence Baum, ‘Probing the Effects of Judicial Specialisation’ (2009) 58 Duke Law Journal 1668; Baum, Specializing the Courts,
above n 1, xi.
4
Baum, Specializing the Courts, above n 1, 1-2; This preference is still reflected in the Law Council of Australia’s suggested criteria for
judicial appointment which state that judges who are appointed with more specialist experience should also possess ‘the ability to
acquire quickly an effective working knowledge of the law and rules of procedure in areas necessary for their work not covered by their
previous experience’: Law Council of Australia, Policy on the Process of Judicial Appointments (September 2008, Law Council of
Australia) 3. A discussion paper by a former Federal Attorney-General on the process and criteria for judicial appointments refers to a
similarly broad requirement for ‘knowledge of the law’: Michael Lavarch, Judicial Appointments: Procedure and Criteria: AttorneyGeneral’s Discussion Paper (1993, Commonwealth Attorney-General’s Department) 5.
5
Caroline Sage, Ted Wright & Carolyn Morris, Case Management Reform: A Study of the Federal Court's Individual Docket System
(2002, Law and Justice Foundation of New South Wales) 58; Petra Butler, 'The Assignment of Cases to Judges' (2003) 1 New Zealand
Journal of Public and International Law 83, 86, 112.
2
International Journal For Court Administration | December 2012
68
A commitment to judges as generalists assumes substantial similarity in the kind of work, and the necessary knowledge
and skills, across the court’s caseload. However, judicial systems also have a long history of identifying different types of
6
cases that require particular knowledge, skills or processes, and creating specialist courts or divisions to handle them.
7
Like other common law judicial systems, Australian courts are experiencing increased specialization, including
8
specialized courts, lists and jurisdictions within individual courts. Court users might expect this development to be
accompanied by specialist and focused judicial expertise.
As well as specialist caseloads, there are different tasks and roles to be performed by judicial officers within the general
caseload. These may require particular skills and expertise.
Australian courts generally operate on a master calendar, so that cases lodged with a court are received by the court
9
organization and then allocated to a particular list. Judicial officers are allocated to lists, rather than to particular cases.
The challenge for a court is to make best use of its judicial expertise across a variety of case types.
This article draws on a recent study of judicial caseload allocation in Australian magistrates’ courts (high volume, first
10
instance, general jurisdiction courts ) to investigate how they approach these issues. Firstly, it examines the notion of
specialization, both in terms of the types of caseload in these courts, and the nature of skills relevant to dealing with them.
The findings of the study are then analyzed with a focus on two questions: To what extent is specialized judicial
knowledge or specific types of skills utilized in caseload allocation? How are they identified?
2. Specialization in Courts
11
Specialization in relation to courts can refer to a jurisdiction delimited by subject-matter, whether formally and informally.
12
Specialization in relation to a specific legal area is not new. For example, the Australian legal system, as with most
common law systems, has traditionally drawn distinctions between criminal and non-criminal (‘civil’) cases, between
13
courts of equity and common law, and between appeal courts and courts of first instance. In magistrates courts, the
primary distinction has been a long-standing differentiation between civil and criminal caseload, with the latter clearly
14
dominating their work.
In recent decades, specialization in the law and the recognition of more complexity and diversity in areas of legal
15
practice has resulted in a variety of new specialist courts to deal with civil caseload. Examples from Australia and
overseas include commercial or business courts, administrative courts, labor or industrial courts, family courts and
6
See discussion below, pp 3-4.
Baum, Specializing the Courts, above n 1, 18, 21-3; Michael King, Arie Freiberg, Becky Batagol & Ross Hyams, Non-Adversarial
Justice (2009, The Federation Press) 138-43.
8
King et al, above n 7, 35-8, 143-58, 178-83.
9
Ernest C Friesen, Edward C Gallas & Nesta M Gallas Managing the Courts, (1971, Bobbs-Merrill) 184-187; David C Steelman, John A
Goerdt & James E McMillan Caseflow Management: The Heart of Court Management in the New Millenium, (2004, National Center for
State Courts) 95.
10
Australia is a federal system, with national courts and a court system for each state operating separately. Commonwealth courts
include the High Court, the Federal Court, the Family Court and the Federal Magistrates Court. Each Australian state and territory has a
Supreme Court, and a Magistrates or Local Court (as it is called in New South Wales). There is also an intermediate trial court, the
District or County Court, except in the smallest jurisdictions, Australian Capital Territory, Northern Territory and Tasmania. In 2010-2011
over 96% of all criminal cases and 88% of civil cases were initiated in a magistrates courts: Steering Committee for the Review of
Commonwealth/State Service Providers, Report on Government Services 2012 (2012, Productivity Commission) 7.18. These courts
have a wide general jurisdiction in less serious criminal cases and lower value civil matters. Magistrates sit alone (without juries) and
make many decisions, typically extemporaneously, on law and facts.
11
Baum, ‘Probing the Effects’ above n 3, 1672-3.
12
Arie Freiburg, ‘Problem-Orientated Courts: Innovative Solutions to Intractable Problems?’ (2001) 11 Journal of Judicial Administration
8, 11; Lee Applebaum ‘Some Observations on Modern Business Courts and the Bar’s Role in Their Development’ (2008) (March/April)
Business Law Today.
13
Freiburg, ‘Problem-Orientated Courts’ above n 12, 11.
14
Kathy Mack, Sharyn Roach Anleu & Anne Wallace, ‘Everyday work in the magistrates courts: Time and tasks’ (2011) 21 Journal of
Judicial Administration 34, 40-1.
15
Paul Maffei, ‘Specialisation of Judges - Different aspects to consider in drafting the structure of the Opinion No. 15’ Paper prepared
for the Working Group of the Consultative Council of European Judges’ (20 March 2011, CCEG, Strasbourg); Lee Applebaum, ‘The
Steady Growth of Business Courts ‘ Future trends in State Courts (2011, National Center for State Courts) 70.
7
International Journal For Court Administration | December 2012
69
16
environment courts.
Australian courts, as with overseas jurisdictions, have also seen the creation of specialist lists
17
18
within existing courts, such as building cases, intellectual property, commercial and corporations’ lists.
Specialization can also refer to courts that utilize particular (usually novel) approaches to dealing with certain types of
cases. Within the criminal jurisdiction the development of specialist courts to deal with juvenile criminal offenders dates
19
back to the latter part of the nineteenth century.
More recently the increasing popularity of ‘problem-solving ‘or
‘therapeutic’ theories that aim to address underlying issues (social, personal and economic) that result in criminal
20
behavior, and restorative justice approaches designed to resolve cases through mediated encounters between offenders
21
and victims, have resulted in new specialist jurisdictions. Features of these approaches can include direct engagement
by judicial officers with, and ongoing supervision of, offenders, a multi-disciplinary collaborative process between the
courts and relevant service providers, a non-adversarial approach and outcomes which address more broadly the needs
22
23
of the community, as well as those of victims.
Such approaches are often employed in drug courts, family violence
24
25
26
27
courts, community courts, mental health courts and indigenous courts. These are often not entirely separate from
28
mainstream courts and judicial officers retain their judicial authority alongside their new role.
29
Over the last decade these developments have been reflected in Australian magistrates courts. Some new specialized
courts have adopted problem-solving, or therapeutic approaches, others are specialist in the more traditional sense, that
30
is, they have a jurisdiction limited to dealing with a particular type of case, for example, family violence, or cases of child
31
sexual assault.
Others, such as indigenous courts, combine specialization by type of offender with some problem32
solving, restorative or therapeutic aspects.
In many instances, what is labeled as a specialist ‘court’ is, in fact, a
33
specialist division within an existing court, nearly all of them within magistrates courts. The advantage of this approach is
that it enables the court to more easily adjust the structure (independently of the legislature) if, for example, the
34
specialization is later perceived as unnecessary or there is a desire to change its focus. It also enables the court to
deploy its judicial workforce more flexibly, across the whole range of the court’s work.
A third concept of specialization relates to particular kinds of tasks within a wide range of a court’s overall jurisdiction,
such as presiding at trial as distinguished from managing pre-trial processes. Even within the typical criminal and civil
jurisdictions of a generalist court, judicial officers in magistrates courts undertake an increasingly wide range of in and out
16
Markus B. Zimmer, ‘Overview of Specialized Courts’ (2009) International Journal for Court Administration 6-15; Freiburg, ‘ProblemOrientated Courts’ above n 12, 11; Applebaum, ‘Some Observations’ above n 12; Applebaum, ‘The Steady Growth’ above n 15, 74.
17
Freiburg, ‘Problem-Orientated Courts’ above n 12, 11.
18
Hon James Jacob Spigelman AC, ‘Implications of the current economic crisis for the administration of justice’ (2009) 18 Journal of
Judicial Administration 205, 209.
19
Baum, Specializing the Courts, above n 1, 29.
20
Joyce Plotnikoff & Richard Woolfson, Review of the effectiveness of specialist courts in other jurisdictions, Research Series 3/05
(2005, Department of Constitutional Affairs) 3-4; King et al, above n 7; Michael King, ‘Judging, judicial values and judicial conduct in
problem-solving courts, Indigenous sentencing courts and mainstream courts‘ (2010) 19 Journal of Judicial Administration 133; Sharyn
Roach Anleu & Kathy Mack, ‘Magistrates courts and Social Change’ (2007) 2 Law & Policy 183, 190-1.
21
King et al, above n 7, 39-64.
22
Plotnikoff & Woolfson, above n 20, 3-4; Arie Freiburg, ‘Innovations in the Court System’ (Paper delivered to the Australian Institute of
Criminology Crime in Australia Conference, Melbourne, Australia, 30 November 2004) 2-4; Greg Berman & Aubrey Fox, Lasting
Change or Passing Fad? Problem-Solving Justice in England and Wales (2009, Policy Exchange) 11-14, Law Reform Commission of
Western Australia, Court intervention programs: final report (2009, Law Reform Commission of Western Australia) 5-6; King, above n
20, 133.
23
Plotnikoff & Woolfson, above n 20, 5-7; Freiburg, ‘Innovations’ above n 22, 5-6.
24
Plotnikoff & Woolfson, above n 20, 8; Freiburg, ‘Innovations’ above n 22, 10-2.
25
Plotnikoff & Woolfson, above n 20,7; Freiburg, ‘Innovations’ above n 22, 7-8.
26
Plotnikoff & Woolfson, above n 20, 8-10; Freiburg, ‘Innovations’ above n 22, 6-7.
27
Elena Marchetti & Kathleen Daly, ‘Indigenous Courts and Justice Practices in Australia’ (2004) Trends and Issues in Criminal Justice
No. 277, Australian Institute of Criminology, Canberra; Freiburg, ‘Innovations’ above n 22, 8-10.
28
King, above n 20, 133, 144-45.
29
King et al, above n 7, 35-8, 143-7, 148-58; Freiburg, ‘Innovations’ above n 22, 1, 3-13; Andrew Phelan ‘Solving Human Problems or
Deciding Cases? Judicial Innovation in New York and its Relevance to Australia, Part I’ (2003) 13 Journal of Judicial Administration 98.
30
Freiburg, ‘Innovations’ above n 22, 2.
31
Ibid 12.
32
Where typically the ‘key features are participation, co-ordination of service delivery and community involvement’: Ibid, 8; King et al,
above n 7, 42-3, 178-83.
33
For example, in the State of Victoria, the indigenous (or Koori) court, the Family Violence Court and the Drug Court are all specialist
divisions within the Magistrates’ Court: Magistrates' Court Act 1989 (Vic) ss 4D,4H,4A.
34
Law Reform Commission of Western Australia, above n 22, 25.
International Journal For Court Administration | December 2012
70
35
of court tasks. Presiding at trial takes the most judicial time but judicial officers must also be able to manage pre-trial
processes, promote settlement, work through a busy criminal list considering adjournment requests, bail applications,
hear guilty pleas, impose sentences and set matters for other proceedings. They must also be able to prepare detailed
36
written judgments as well deliver appropriate extempore judgments. These tasks require a range of skills, some of which
can be relatively specialized and distinct from the conventional judicial qualities. In this article, we refer to these as
‘special’ skills.
3. Specialization, Special Skills and Caseload Allocation
Specialization has implications for the way that caseload is allocated within courts. ‘Playing to strengths’, that is,
allocating caseload to judicial officers according to their particular expertise (knowledge and skills) can have a number of
37
benefits, but also has potential disadvantages. Allocating cases to judicial officers who have greater familiarity with a
particular type of work, or possess skills required to manage it, may result in more appropriate outcomes and in cases
38
being dealt with more effectively. For example, a judicial officer appointed from a background as a criminal lawyer will be
more familiar with the law relating to criminal cases, and so more likely to make a correct decision (reducing the likelihood
of appeal) than one appointed from a different background. They will also be more familiar with the relevant processes,
and therefore likely to deal with the case more expeditiously than a judicial officer who lacks that familiarity.
On the other hand, specialization can impact adversely on the judicial work force, for example, by increasing the chances
39
of judges becoming ‘burnt out’ or traumatized, for example as a result of repeated exposure to instances of particularly
40
emotionally difficult jurisdictions, such as domestic violence. A lack of variety in judicial caseload may lead to boredom
41
and reduce job satisfaction.
Surveys of judicial officers working in specialist therapeutic courts suggest that such
42
specialization can result in increased job satisfaction. However, this appears to be correlated with several factors
including their willingness or enthusiasm for undertaking the specialist role in the first place, and an increased involvement
43
with, and direct feedback from, court participants, a distinctive feature of problem-solving courts.
There are also possible organizational difficulties.
concern for smaller courts, where:
Specialization can reduce a court’s flexibility. This is a particular
It is not always possible to have specialized judges for each subject; some Chambers are responsible for several
specialized subjects; judges will therefore have to show multi-competences; [and] it will sometimes be necessary to
replace a competent colleague in a certain matter in the absence (vacation, illness, missions); here too, the multi44
competences and flexibility will be needed.
Specialist judges may sit idle if there are not enough specialist cases to keep them busy,
46
ability to allocate judges in accordance with the demands of their caseload.
45
whereas courts require the
Our research identifies concerns about flexibility and job satisfaction for judicial officers in the allocation of specialist
caseload in Australian magistrates courts. It also suggests that courts already identify and use particular skills and
qualities in the general caseload and that those allocating the caseload typically acquire information about magistrates’
skills through a variety of sources.
35
Mack, Roach Anleu & Wallace, above n 14, 34, 43.
Ibid 43-5.
37
Rachel Laing, Saskia Righarts & Mark Henaghan, A Preliminary Study on Civil Case Progression Times Report (15 April 2O11, The
Law Foundation New Zealand) 18-9.
38
Baum, ‘Probing the Effects’ above n 3, 1676; Maffei, above n 15; Applebaum, ‘The Steady Growth’ above n 15, 70.
39
Plotnikoff & Woolfson, above n 20, 38.
40
Robyn Mazur & Liberty Aldrich, ‘What Makes a Domestic Violence Court Work? Lessons from New York’ (Spring 2003) The Judges’
Journal 5, 41; King et al, above n 7, 168.
41
Freiburg, ‘Problem-Orientated Courts’ above n 12, 12; Sharyn Roach Anleu & Kathy Mack, 'Gender, Judging and Job Satisfaction'
(2009) 17 (1) Feminist Legal Studies 79.
42
Plotnikoff & Woolfson, above n 20; Deborah J Chase & Peggy Fulton Hora ‘The Implications of Therapeutic Jurisprudence for Judicial
Satisfaction’ (2000) 37 (1) Court Review 12, 18.
43
Plotnikoff & Woolfson, above n 20, 38.
44
Maffei, above n 15.
45
Baum, ‘Probing the Effects’ above n 3, 1676; David Williams, ‘Technology Boom Prompts Call for a Specialised Court’ CNN News
Center, 2 October 2000.
46
Williams, above n 45.
36
International Journal For Court Administration | December 2012
71
4. Identifying Different Knowledge, Skills and Qualities
The creation of specialist courts or lists clearly implies the appointment of judges who have particular expertise in their
47
subject matter, in terms of knowledge of a particular area of law and/or the background or social context in which
particular types of cases arise. For example, appointment to a commercial list would require familiarity with commercial
law, whereas appointment to an indigenous court requires awareness of cultural issues and appropriate communication
48
skills.
Appointment to a therapeutic, or problem-solving court, may require a more dramatic change in the judge’s role ‘from
being a detached, neutral arbiter to the central figure in the team... the judge is both a cheerleader and stern parent,
49
encouraging and rewarding compliance, as well as attending to lapses.’
This new role requires more attention to
50
developing personal and interpersonal skills that facilitate the problem-solving approach. These include the ability to
establish empathy, foster mutual respect among courtroom participants, active listening, and the capacity to provide
51
praise and constructive criticism, operate in non-coercive, non-paternalistic ways, and communicate clearly.
Within the general caseload, different skills might be valued at particular stages of the process. In Australian magistrates
courts, most criminal cases that come into a court will go into a large intake list, where they are identified as requiring a
further adjournment, or be allocated to another list where they will either be dealt with by way of a hearing or as a plea of
guilty. Effective time-management skills and the capacity to make timely and appropriate decisions will be highly valued
qualities at this stage of the process.
Cases to be dealt with as guilty pleas may also be listed in relatively large lists. Judicial officers dealing with these lists
will require the ability to make quick and reasoned decisions, as well as good communication skills, to ensure that
52
defendants understand both the process and the case outcome.
A case that is allocated for hearing will generally have some type of pre-trial process where the court attempts to identify
and narrow the issues, and possibly promote a settlement, if appropriate. Where backlogs exist, expedited hearing lists
might be created as a way of identifying cases that have been languishing and which need to be cleared. A judicial officer
dealing with these stages might also draw on problem-solving and facilitative skills as well as a capacity to quickly identify
53
relevant issues, and manage and organize the parties.
If a case is not settled, there will be a hearing, and then, in a criminal cases, a post-hearing or sentencing phase if the
offender is found guilty. In these processes, there might be less emphasis on time-management skills and more on
54
ensuring that all relevant issues are identified and explored, and appropriate decisions are made.
One approach to ensuring that cases are only allocated to those who have the knowledge or skills necessary to deal with
55
them, is to require such knowledge or skills as a qualification or condition for appointment to a court, or to serve on a
specialist list or division within a court, or to handle a particular stage of the caseload. That requirement might be satisfied
56
by virtue of the person’s prior professional experience and expertise, or by means of subsequent or ongoing training.
47
Freiburg, ‘Innovations’ above n 22, 2; Zimmer, above n 16, 1.
King, above n 20, 141-3.
49
Chase & Hora, above n 42, 12. See also Jelena Popovic, ‘Mainsteaming Therapeutic Jurisprudence in Victoria: Feelin’ Groovy?’ in G
rd
Reinhardt & A Cannon (eds) 3 international Conference on Therapeutic Jurisprudence: Transforming Legal Processes in Court and
Beyond (2007, AIJA) 187, 195.
50
King, above n 20, 134.
51
Susan Goldberg, Judging for the 21st Century: A Problem-solving Approach (2006, National Judicial Institute) 9-18; Michael King,
Solution-Focused Judging Bench Book (2009, AIJA) 6, 30-39, 121-149. Although King has pointed out that many of these so-called
‘therapeutic skills’ have considerable value in mainstream judging: King, above n 20, 144-5.
52
Christopher Roper, A Curriculum for Professional Development for Australian Judicial Officers, (January 2007, National Judicial
College of Australia) 15.
53
Ibid 15-8.
54
Ibid 19-20.
55
Baum, ‘Probing the Effects’ above n 3, 1676.
56
If training is the required pathway, then decisions need to be made as to the type of training, its form, and how it is provided: Maffei,
above n 15; Berman & Fox, above n 22, 37,42; Law Reform Commission of Western above n22, 23, 81 & Submission No.17 (13
October 2008) Dr Andrew Cannon, Deputy Chief Magistrate of South Australia, 2.
48
International Journal For Court Administration | December 2012
72
While judicial education for those in therapeutic court roles appears to be increasingly encouraged in the United States,
57
58
Canada and Australia, it is rarely mandatory. A recent survey found that judicial appointments to these courts are
generally made by the judicial head of the court, usually as a result of the appointee signaling his or her interest to
59
undertake such an appointment. This is broadly consistent with the findings of our research, as noted below.
Appointing only those who are willing to take on the challenges of a specialist role in a therapeutic court might be seen as
60
useful way of identifying those who do not have the skills, interest, or personality to undertake such a role. However, it is
not a guarantee that those who volunteer necessarily have the required attributes. In England and Wales, a lack of
interest among lay magistrates in specialized therapeutic approaches has been identified as a barrier to their more
61
62
widespread implementation. In Australia, with a professional magistracy, there has been much greater interest among
the magistrates in therapeutic and problem-solving approaches.
Judicial officers might be appointed to specialist courts on a permanent basis or given opportunities to specialize by being
63
assigned to particular types of case or subject matter for periods of time.
They might be able to move between
64
specialist and generalist work over periods of time.
Similarly, judicial officers might be allocated only to a particular
stage of case processing, such as presiding at trial, for a set period of time.
Appointment to specialist courts or lists is sometimes viewed as an opportunity for the judge who has an interest in a
65
66
particular area to gain greater expertise in that area of law, and its case management.
In these circumstances the
appointment itself provides the training opportunity. Similarly, skills required to successfully manage a large intake list, or
facilitate a settlement in a pre-trial conference, for example, might be learned or honed, on the job.
An alternative approach to allocating caseload is to assume that all judges have the required skills and not to differentiate
between them in caseload allocations; appointment to the court implies competence to deal with any aspect of its
jurisdiction. In their 2007 study, Langbroek and Fabri identified this as the approach inherent in the caseload allocation
67
policies in some European countries, notably France, Italy and Denmark.
This approach is congruent with the reported desire of many judicial officers to have a balanced caseload, that is, one that
provides variety in terms of the nature and type of their work. This was a recurrent theme in the studies in Western
68
European judiciaries surveyed by Fabri and Langbroek and was reflected in the study of Australian magistrates courts,
to which we now turn.
5. Judicial Caseload Allocation in Australian Magistrates Courts
Magistrates courts exist in all Australian jurisdictions and, as noted above, are the courts of first-instance jurisdiction that
69
deal with the majority of caseload. This study of the way in which their caseload is allocated was undertaken as part of a
series of research projects undertaken by the second and third-named authors that have explored the work of
70
magistrates. Two issues from that previous research were identified as particularly pertinent to this study; firstly, that the
57
Plotnikoff & Woolfson, above n 20, 3. The survey from which this conclusion was drawn included a total of 10 courts drawn from
Australia (drugs and domestic violence courts); the USA (drugs, domestic violence, community and mental health courts) and Canada
(drugs and domestic violence courts).
58
Ibid 32-4.
59
Ibid 31.
60
Ibid.
61
Berman & Fox, above n 22, 37.
62
In Australia magistrates are paid; for some time the minimum statutory qualification for appointment has included admission as a
barrister/solicitor/legal practitioner, and most magistrates are now legally qualified: Sharyn Roach Anleu & Kathy Mack, 'The
professionalization of Australian magistrates: Autonomy, credentials and prestige ' (2008) 44 Journal of Sociology 185, 190-1, 193; In
England and Wales, magistrates courts are staffed by both stipendiary magistrates (paid, legally qualified persons appointed as District
Judges), but mostly by lay magistrates (community volunteers) who sit in panels of three: Berman & Fox, above n 22, 36.
63
Baum, ‘Probing the Effects’ above n 3, 1673.
64
Ibid.
65
Ibid 1676; Applebaum, ‘The Steady Growth’ above n 15, 73.
66
Applebaum, ‘The Steady Growth’ above n 15, 73.
67
Philip M. Langbroek & Marco Fabri, Is There a Right Judge for Each Case? A Comparative Study of Case Assignment in Six
European Countries (2007, Intersentia) 24.
68
Ibid 22-3.
69
See above n 9.
70
Since 2000, the Magistrates Research Project and the Judicial Research Project of Flinders University have undertaken extensive
empirical research into many aspects of the Australian judiciary. The research has used interviews, surveys and observation studies to
International Journal For Court Administration | December 2012
73
work of these courts is dominated by the high-volume, criminal list;
72
high levels of satisfaction from a variety of work.
71
and, secondly, that magistrates themselves derive
In order to explore the process for allocating caseload in depth, data was collected in the form of semi-structured
interviews conducted with magistrates and court officers who had been identified, through a process of consultation with
the courts participating in the study, as individuals with knowledge and experience of caseload allocation in those
jurisdictions. Interviews took place in two jurisdictions with large metropolitan populations, and one jurisdiction with a more
widely dispersed smaller population covering very remote areas. In larger jurisdictions, interviewees were selected from
courts within each jurisdiction, including both metropolitan and suburban courts, in order to explore differences in the
73
nature of caseload and the available judicial resources that might affect the allocation process.
In total nine judicial officers and nine court officers or court administrators in magistrates courts from four jurisdictions
were interviewed. Interviews were recorded and transcribed, and transcripts were checked and corrected by the
interviewers after listening again to the digital recordings of the interviews. Interviews were then analyzed thematically to
identify views of a range of interviewees on particular issues related to caseload allocation. Initial findings drawn from an
analysis of the interview data were subsequently refined through a process of feedback and consultation with the courts
who had participated in the study, through presentations made to magistrates from those courts and their responses to a
74
draft report.
The findings reveal a somewhat ambivalent approach by Australian courts to specialist caseload allocation. The two
competing approaches can be characterized by two phrases used by interviewees ‘everyone does everything’ and ‘horses
for courses’. The first re-states the principle of the generalist judicial officer, the second denotes the ability to allocate
caseload according to expertise and skills. Analysis of the data also shows that those responsible for workload allocation
place a high value on being able to identify particular capabilities and qualities (‘special skills’) among the judicial
workforce that can be deployed to manage the general criminal caseload efficiently.
6. ‘Everyone Does Everything’
A constant theme that emerged from the analysis of the interview data was the fundamental principle of caseload
allocation: every judicial officer appointed to a court was presumed to be capable of handling all types of cases that come
before that court. As one interviewee expressed it: ‘[E]verybody does everything…capacity to be a judicial officer means
the capacity to do everything in your jurisdiction.’
This presumption means that judicial officers are interchangeable, which links to the importance placed on the impartiality
and neutrality of judicial officers, that is, that the identity of the judge or magistrate concerned should make no difference
75
to the outcome of the case. It also has implications for efficiency; a case can be speedily disposed of without having to
wait for a magistrate who has expertise in its particular subject matter to become available, and all judicial resources can
be fully utilised. This was seen as especially important in smaller courts, reflected in the following quote from the same
investigate the attitudes of magistrates and judges towards their work, their experiences of their everyday work and how matters are
handled in court. See details at <http://www.flinders.edu.au/ehl/law/research-activities/current-projects/magistrates-research-project/>.
The Magistrates Research Project was funded initially by a University-Industry Research Collaborative Grant in 2001 with Flinders
University and the Association of Australian Magistrates (AAM) as the partners and received financial support from the Australasian
Institute of Judicial Administration (AIJA). From 2002 until 2005, it was funded by an Australian Research Council (ARC) Linkage
Project Grant (LP210306), with AAM and all Chief Magistrates and their courts as industry partners and with support from Flinders
University as the host institution. From 2006, the Judicial Research Project has been funded by an ARC Discovery Grant
(DP0665198). The Workload Allocation Study has been funded by an ARC Linkage Project Grant (LP 0669168) 2006-2009 with the
magistrates courts of Victoria, South Australia and the Northern Territory as well as the AIJA as collaborating organisations. From 2010
additional funding has been supplied by ARC DP1096888. All phases of these research projects involving human subjects have been
approved by the Social and Behavioural Research Ethics Committee of Flinders University. We are grateful to Russell Brewer, Carolyn
Corkindale, Colleen deLaine, Elizabeth Edwards, Ruth Harris, Julie Henderson, John Horrocks, Lilian Jacobs, Leigh Kennedy, Lisa
Kennedy, Mary McKenna, Rose Polkinghorne, Wendy Reimens, Mavis Sansom, Chia-Lung Tai, Carla Welsh, Rae Wood, and David
Wootton for research and administrative assistance in connection with this project.
71
Kathy Mack and Sharyn Roach Anleu, '"Getting Through the List": Judgecraft and Legitimacy in the Lower Courts' (2007) 16 Social
and Legal Studies 341, 342-3.
72
Roach Anleu & Kathy Mack, 'Gender' above n 41, 90.
73
The processes, documentation and procedure for all phases of this research were approved by the Flinders University Social and
Behavioural Research Ethics Committee.
74
Kathy Mack, Anne Wallace & Sharyn Roach Anleu, Judicial Workload: Time, Tasks and Work Organisation (forthcoming).
75
John Alford, Royston Gustavson and Philip Williams, The Governance of Australia's Courts: A Managerial Perspective (2004,
Australian Institute of Judicial Administration) 72-3.
International Journal For Court Administration | December 2012
74
interviewee: ‘[I]f I don’t have everybody potentially available to sit in that court, we’re going to come to a time where
there’s nobody left to sit in there.’
The notion that ‘everyone does everything’ is also supported on the grounds of equity and job satisfaction.
All
interviewees identified the importance of providing a variety of work to magistrates, both in terms of amount and type of
76
work. As one Allocating Magistrate expressed it: ‘Over a period of time it should roughly be equal, both in terms of the,
... time spent but also the sort of level of degree of difficulty, diversity, doing familiar vs. unfamiliar work.’ This is congruent
with earlier findings from survey research done among Australian magistrates that they indicate that their work contains
77
considerable variety and also express very high levels of satisfaction with the variety of their work.
One aspect to satisfaction with variety is that it is seen as signifying fairness of treatment between magistrates, spreading
78
the burden of particularly onerous work. As one Allocating Court Officer explained: ‘Generally speaking you do have
courts where people would prefer not to be, so you just try and share that around and make it as even as possible for the
courts that they don’t like.’
Varying the allocation of magistrates between lists also helps to deter lawyers and other court users from manipulating
79
their own schedules or availability in an attempt to ensure a case is heard by a particular magistrate.
The less
predictable the pattern of allocation of magistrates to cases, the less likely this can occur.
7. ‘Horses for Courses’ – Matching Skills to Tasks
Despite the emphasis on equality in caseload allocation, and the concept that everyone can do everything, interview data
reveals that an understanding of magistrates’ strengths and weaknesses is used to inform allocation to specialist lists and
sometimes to particular kinds of work within more general lists. Particular types of (‘special’) skills are valued as is
specialist knowledge or expertise, and matched to specific tasks within generalist and specialized caseload.
One interviewee commented:
“I think there are horses for courses – it’s nonsense to suggest that every judicial officer is good at every type of work –
we know they’re not – it’s a lie, to say that they are good at all types of work. …People have particular skills and I try
and utilize their skills.”
Recognition of strengths, might also imply cognizance of weaknesses as well, something adverted to by the same
interviewee, who admitted: ‘some people have particular weaknesses and [I] try and make sure that their weakness are
put in a place where they will not hurt people or themselves.’ An Allocating Court Officer provided an example of how this
might play out in practice:
“Yes, for example, [a] magistrate that’s known to be very strict, … we’ve got Crimes Family Violence that sits four days
a week, very vulnerable, mainly women, as you can imagine – I wouldn’t let him loose on the women, … on the
Monday, the Monday’s the day when all the weekend bashings come in – I wouldn’t let him loose on them because
he’s, he just hasn’t got the right attitude.”
These tensions can be particularly acute with specialist courts or lists, as one Allocating Magistrate explained: ‘So you
create special lists, you create special expertise. …The specialist lists I’m quite thoughtful about who I put in there.’
Interviews revealed a somewhat ambivalent attitude to the specialist caseload in the courts that were studied, which is
reflected in the European jurisdictions studied by Langbroek and Fabri. On the one hand, identifying particular knowledge
and skills within the judicial workforce enables a court to marshal that expertise to deal more effectively and efficiently with
specialist and general caseload. On the other, too great a differentiation between judicial officers in terms of expertise is
seen as an implicit threat to the efficient running of the court, in that, if carried too far, it can reduce the court’s capacity to
80
exercise flexibility in deploying its judicial resources.
76
The magistrate who has primary responsibility for caseload allocation in each court is referred to in this article as the 'Allocating
Magistrate'. They usually supervise the work of the Allocating Court Officer (see below) who does the ‘hands on’ work in the allocation
process.
77
Roach Anleu & Mack, 'Gender' above n 41, 86-7, 90.
78
The court staff member who has primary responsibility for workload allocation in a court is referred to in this article as the Allocating
Court Officer. They work with the Allocating Magistrate.
79
A practice known colloquially as ‘magistrate shopping’.
80
Langbroek & Fabri, above n 67, 21.
International Journal For Court Administration | December 2012
75
Generally interviewees did not support specialization being permitted to the extent that individual magistrates would only
be capable of doing a particular type of caseload. It was emphasized that each magistrate appointed to a court should
retain the capacity to do every type of work handled by that court. Underlying this view appears to be a concern that
having judicial officers who were exclusively specialists could adversely impact on a court’s ability to cover all types of
caseload. Judicial resources need sufficient flexibility to be capable of being allocated to different types of work,
depending on the particular mix of the cases before the court at a particular time.
It appears that in larger metropolitan courts, specialization is more easily accommodated, and more entrenched, in
particular, the long-standing divide between civil and criminal work. In practice, magistrates who sit in civil work are rarely
asked to work outside their specialization. This appears to be, at least in part, a consequence of the volume of work
associated with that specialty in larger courts. However, even in metropolitan courts, concerns were expressed about the
trend towards specialization. Some interviewees felt that over-specialization can result in magistrates effectively becoming
de-skilled, in terms of their ability to tackle work outside their specialty.
Concerns were greater in smaller jurisdictions. Although there was a clear appreciation of the value of expertise or
particular skills, that appeared often to take second place to concerns about the ability to ensure that all cases within the
court’s jurisdiction were dealt with as speedily and efficiently as possible. This view was expressed by one Allocating
Magistrate as follows:
“On a busy day, it’s sort of all bets are off and you go wherever we need you but normally we would try and list to their
strength.”
Matching skills to tasks could be especially important in the allocation of caseload in the generalist, high-volume, criminal
list, as a way to achieve timely and effective disposition of cases. As expressed by one Allocating Magistrate:
“So, whilst I start with this philosophy of everybody being equal and having equal access to the various
courts,…underpinning all of that is if you use your, or deploy your, appropriate resources to the areas where they have
an expertise, so you match their skills to the case. …you then look at your specialization and you match your
resources to your caseload, you’ve always got to do that, because at the end of the day we think that we’ve got to
dispose of the cases.”
Attitudes of individual magistrates, or their approaches, were also sometimes used in a strategic way in caseload
allocation. For example, a magistrate who is known to have a lenient attitude to sentencing might be allocated to a list of
contested matters with a view to encouraging early guilty pleas. This was often expressed in terms of the desire to
81
achieve an efficient, in the sense of speedy, disposition of the caseload and to avoid late, especially day of trial, pleas.
8. Knowledge and Skills
Certain types of legal knowledge were particularly valued. In courts where most appointees are drawn from a background
in criminal law, a magistrate with expertise and interest in civil ligation might be seen as an asset. More specialized
expertise – in taxation, fraud, proceeds of crime – might come in handy if the court received a complex matter in such an
area. Greater familiarity with the law and procedure in complex matters, such as family violence or sexual assault cases,
or, in the civil jurisdiction, workers compensation or building cases was also thought to facilitate better decisions, as one
Allocating Magistrate explained:
“You don’t give building disputes to people who don’t have any ability to manipulate complex technical information,
complicated accounting and all that, because it will just go forever, and they’ll never be able to take control at all and at
the end of it they’ll muck it up because they just didn’t understand it – it will get on top of them.”
Magistrates who were not subject-matter experts might still be selected for particular types of lists on the basis of their
skills and experience. The ability to manage a hearing list in a timely fashion – ‘to get through the work’ – was high on the
list of desirable skills. One Allocating Court Officer expressed it this way:
“I’ve got a massive DVA [Domestic Violence] list, I’ve got a massive hearing list, and I think well, OK, how am I going
to work – I work out roughly who I think that can manage the load because there is some that are a little bit slower than
others.”
81
Most cases in these courts are resolved by way of a plea of guilty whereby the defendant admits the charge and elects to make
submissions to the magistrate as to the circumstances of the offence and appropriate penalty. However, late changes of plea (when
cases are listed for hearing and change to a plea of guilty very close to the hearing time) create problems for courts in scheduling
cases: Sentencing Advisory Council, Victoria, Sentence Indication and Specified Sentencing Discounts: Final Report (2007, Sentencing
Advisory Council) 15.
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76
In the case of a slower magistrate:
“So if you get a big list of 100 or 90 or 80 you’re simply not going to put that person in that list because to do so would
be detrimental to him, or her, and ultimately to the delivery of the service, the justice service, to serve the people that
are appearing before the court.”
Despite the pressure of work in these courts, speed was not always seen as the most desirable quality. As one
Allocating Magistrate commented:
“A slower magistrate versus a faster magistrate - couldn’t tell you which one’s better, depends, so many dependencies
– the nature of the case, the quality of their interaction; a fast magistrate might be brilliant or terrible, depending
entirely on your perspective of how quality is decided.”
While Allocating Court Officers were inclined to put slightly greater emphasis on the need for speedy disposition of
caseload, they also found it useful to be able to deploy slower magistrates in a strategic fashion, as the following quote
illustrates:
“I don’t judge a magistrate by how quick or slow [s/he] is, there’s other things to take into account, …I’ve got a
particular magistrate who’s very, very quick but none of the barristers like appearing before him because he’s so strict
and, if I put them before him, they will move heaven and earth to think of a reason to adjourn their case to avoid being
in front of him, and so I’ve gained nothing by putting my huge big list in front of [...], because so much of it’s been
adjourned, whereas the magistrate who’s slow, the barristers love appearing before [...] because he’s lenient, so it’s,
um, more tempting to put my cases in front of him, so there’s lots of things to take into account.”
Some Allocating Court Officers indicated an awareness that the balance between efficiency and quality outcomes may
need to be struck differently in a specialized list, so, for example, a magistrate who is slower, but has good rapport with
juvenile offenders might be particularly valuable in achieving quality outcomes in a Children’s Court or specialist list.
Allocating Magistrates and Allocating Court Officers seek out other qualities in magistrates, such as the ability to be
thorough and methodical, to promote settlement discussions and to sentence fairly, and generally achieve quality
outcomes. As one Allocating Magistrate expressed it: Efficiency…”in the sense of did they get a fair hearing, were they
listened to, if you interviewed the offenders did they feel they were looked at, listened to, or just treated as a number.”
9. Preferences
Identifying particular judicial skills and expertise in caseload allocation was seen as important to maintain morale.
Allowing magistrates to work in areas they enjoyed could improve their job satisfaction, and was something that both
Allocating Court Officers and Allocating Magistrates were prepared to accommodate, at least to some extent. Listing
magistrates in areas that they did not like working might not be productive, although it was rarely the decisive factor in
caseload allocation.
It was generally easier to cater for preferences where those allocating the caseload considered there was a good match
between their own assessment of the magistrate’s skills and abilities and the magistrate’s preference. As one Allocating
Court Officer expressed it:
“We have some magistrates who prefer to do...[a type of court], so if they were good at it, you’d try and give it to them
fairly regularly because it’s in your own interests. ...normally we would try and list to their strength.”
What became more difficult, for those allocating caseload, was the situation where their assessment of a magistrate’s
skills and abilities did not tally with the magistrate’s own preference. In that situation, those allocating the caseload would
normally try and find a way to avoid a direct refusal, as one explained:
“I’ll be hoping when that happens that the people who volunteer will be the sort of people who won’t cause grief in a
particular list – and usually it works without me having to have any embarrassment. Occasionally I get a volunteer for a
listing which I know that will come to grief – the court’s grief. I normally try and find something else they want to do that
clashes with that – and give them that. So they don’t get that work – it’s not apparent or obvious anyway – that I’m
avoiding giving them that work.”
The size of a court is a limitation on allocating to preferences as another Allocating Magistrate from a small court
explained:
“In a way you’re limited as to how you can do that because, you know, you get certain dates where there’s X number
of magistrates in town and really the ones who are here will need to do it.”
The desire to ensure a spread of the work that was perceived as fair by other magistrates was another limitation, as one
Allocating Magistrate explained:
International Journal For Court Administration | December 2012
77
“I have to share work around, but I’ll do my best to make sure people sitting in that court are interested in doing that
sort of work.”
Another commented on similar lines:
“But some magistrates do not like working in particular areas and, if it doesn’t upset the balance of things, then I’m
happy to accommodate.“
As well as considering preferences, those allocating caseload need to identify which magistrates are appropriate choices
to handle particular types of cases. The notion of ‘horses for courses’ implies the ability to identify differences in expertise
(skills and knowledge) between individual magistrates in order to allocate caseload.
10. Identifying Expertise
Some courts require training for magistrates to undertake certain specialist lists or divisions, such as indigenous, mental
health, drug courts, and sexual assault cases. For example, Victorian magistrates are required to undergo particular
training provided by the Victorian Judicial College prior to their appointment to sit in the sexual assault list, and Northern
82
Territory magistrates are required to undergo training to sit in that jurisdiction’s Alcohol Court.
More informally,
magistrates appointed to co-ordinate specialist lists might be asked to identify other magistrates who are suitable for
appointment to that list, whether or not formal training is required. This approach is being used, for example, in the Koori
(indigenous) Court in Victoria, where the coordinating magistrate works with the Allocating Magistrate to select
magistrates to work in that division of the Magistrates Court.
However, in most jurisdictions, particular skills and qualities are identified through informal processes, whether for
designated specialist work or for different assignments within the general jurisdiction of the court. In the absence of
specific training or other requirements, the general caseload allocation process will determine how and by whom
judgments about relevant expertise are made. In this process, those responsible for allocation will be looking for ‘special’
rather than ‘specialist’ expertise.
In some courts, Allocating Magistrates may use their own knowledge to make quite specific allocations of individual
magistrates to particular lists. In others, where the normal practice is for the Allocating Court Officer to make the specific
allocations from a list of available magistrates provided to them by the Allocating Magistrate, it will be that court officer
who decides which magistrate is the most suitable choice for a particular list.
Allocating Magistrates and Allocating Court Officers acquire information about different skills, knowledge and preferences
of individual magistrates in a variety of ways. Initially, when a magistrate is appointed to a court, there will be information
made available (formally and informally) about their professional background prior to that appointment which will indicate
the legal areas in which they have worked and their broader professional experience. Both Allocating Magistrates and
Allocating Court Officers also garner information over the course of time in dealing with individual magistrates, by talking
with them, being told about their interests, preferences, likes and dislikes in terms of type and volume of caseload. In
addition, there is feedback and information provided, either directly, or indirectly from other other court staff, lawyers, and
prosecutors, and, less often, directly from members of the public, as the following quotes illustrate (the first from an
Allocating Magistrate, and the second from an Allocating Court Officer):
“Talking to people and talking to practitioners…and you get a sense of what do people think about your court,…in
conversation I will see them at functions or wherever.”
“Without spying on everyone, and I don’t – you just sort of hear – people make comments. I know within the court here
I’ve got a pretty good handle on the practices of the magistrates even though I’ve never been to see them in court. I
really don’t know how I know – I don’t ask for information – you just pick up comments and remarks. The clerks know.
If I wanted to know I could find out – I would just go and ask the clerks.”
Allocating Court Officers sometimes also observe magistrates in the courtroom and hear reports from other court staff
about how magistrates process particular types of cases, as the following quote illustrates:
“Whether people are quick or slow, you’ll see it by how much work they get through. If a magistrate is given a list of 65
or 70 mention matters, and will need assistance if by lunchtime there’s still 40 there, you know that their capacity’s
going to be 20/25 in the morning and 20/25 in the afternoon.”
One Allocating Court Officer expressed the judgment in instinctive terms:
82
Now replaced by the Substance Misuse Assessment and Referral for Treatment Court (SMART Court).
International Journal For Court Administration | December 2012
78
“You know, you get a gut feel for it, too, whether they’re going to be good in that court or there’s another area which
they would be better in.”
Interviewees bring considerable experience to their assessment of the skills and expertise of judicial officers in their
courts. However a striking feature of the process was the lack of any formal process within which expertise might be
recognized, for example, the ‘ticketing system’ used in England and Wales, whereby, for example, cases in the family
jurisdiction must be dealt with by magistrates or judges who have received specific training to deal with those types of
83
cases.
11. Conclusion
This research finds that, in Australian magistrates courts, overall, judicial officers are generally regarded as
interchangeable, and individualization of caseload is the exception, rather than the rule. However, as specialization in
types of cases and tasks has increased in Australian magistrates courts, there has been a need to identify different types
of expertise within the judicial workforce and to try and organize the process of caseload allocation in such a way as to
take best advantage of particular knowledge and skills among magistrates. However, while a trend to increased
specialization in caseload allocation is apparent in some larger jurisdictions, it is a less practical option in smaller courts.
The skills that might be valued depend on the nature of the jurisdiction and its priorities. The capacity to allocate caseload
to judicial officers who have particular types of skills or knowledge is not relevant only to specialized caseload. In these
high-volume lower-instance courts, ‘getting through the work’ is a primary consideration. Those responsible for caseload
allocation seek out abilities, such as dealing efficiently with a large list, or case managing to promote settlement, as useful
skills to be deployed strategically to assist with managing overall caseload.
At present, identification of expertise is often being undertaken on a fairly ad hoc basis. Judgments made by those
allocating the work are sometimes informed by expressions of preference from the magistrates themselves, but are
usually made on the basis of a variety of information that comes to them from various sources.
These informal judgments may be serving the courts well, although it might be questioned whether, in the absence of a
clearly defined standards for the skills and expertise for particular types of work, the appropriate judgments are always
being made on the best sources of information. There is potential for misjudgments to occur, and for judicial officers to
perceive inequities and imbalances in the way that opportunities to specialize are provided.
There is potential for conflict between magistrates’ expressed preferences and the judgments that those allocating the
work of the court make about their skills. Our data suggests that, in the absence of a formal process to recognize
expertise, such conflicts may sometimes be dealt with by avoidance rather than direct resolution.
Regard should be given to the need for caseloads that are perceived to be fair or balanced in terms of type and volume of
work. Processes that require or encourage too much judicial specialization might reduce job satisfaction for magistrates,
and limit the court’s ability to manage its caseload efficiently and flexibly, leaving a few specialists doing the least
desirable work and/or a few specialists during the most desirable work.
A system that allocates even part of its caseload on the basis of skill or expertise needs to have a process which allows
magistrates to demonstrate or acquire expertise in order to be allocated to specialist areas of work. One possibility is for
Australian courts to consider adopting a ticketing system such as that used in some United Kingdom courts (as noted
above). A second is to build on the approach currently being adopted in Victoria and the Northern Territory requiring
training in relation to certain types of specialist lists. However, either process might add a layer of bureaucracy and
rigidity that could reduce the flexibility required for caseload allocation in a high volume court, especially in a smaller
jurisdiction.
A response that is less onerous than formal accreditation is to articulate criteria and processes for decision-making by
those who allocate the caseload, as to how specialist expertise and skills are identified and how allocations relying on
particular ‘special’ qualities are made. A formal statement by the court could be directed to two audiences; firstly, to
judicial officers within the court, and second to the public. Within the court it could promote clearer understandings of how
magistrates who wish to specialize or gain experience in particular types of work can do so. It could also enhance
perceptions of equity and fair treatment between magistrates in caseload allocation. This would have the potential to
83
John Flood, Avis Whyte, Reza Banakar and Julian Webb, ‘Case assignment in English courts’ in Langbroek & Fabri, above n 67,
133, 171-2; Judicial Office, ‘Judiciary of England & Wales’ (2012) at <http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-indetail/jurisdictions/family-jurisdiction> accessed 15 August 2012.
International Journal For Court Administration | December 2012
79
promote positive dialogue within the court about the nature of skills and expertise needed for specialist and generalist
work and how they might be fostered and supported. At the present time, this openness is lacking. Such a statement
might also serve as a guide to the public, promoting transparency about the caseload allocation process, and enhancing
public confidence in the administration of justice by promoting awareness of the court’s expertise.
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International Journal For Court Administration | December 2012
81
Evaluating Court Performance: Findings From Two Italian Courts
1
2
By Luigi Lepore , Concetta Metallo , and Rocco Agrifoglio
3
Abstract:
This study is part of a wider research project aimed at developing and testing a Performance Measurement System (PMS)
for courts based on a Balanced Scorecard (BSC) framework. The current study represents an initial effort to describe results
of a performance measurement attempt that may suggest some challenges in developing a comprehensive PMS for courts.
We have tried to assess the performance in two Italian courts focusing on three issues: efficiency measures (clearance
rates, case turnover, and disposition time), culture assessment, and Information Systems (IS) success. Our findings provide
some useful and interesting insight for researchers and practitioners.
1. Introduction
Courts have experimented with innovative management, such as greater autonomy for court administrators and new ways
to work supported by Information and Communication. Over the last twenty years the Italian Judicial System (JS) has
been facing a crisis of performance, such as the unacceptable length of proceedings, a large number of both pending civil
4
and criminal proceedings and has had a significant amount of money invested . As a consequence, the Italian Legislator
is making efforts to realize a modernization process of the JS aimed at changing the organization of courts, management
approach and performance measurement. Italian Technology (ICT); ICT is an important medium to spread managerial
5
philosophy in the JS . Italy has been one of the European Countries that has invested the most in ICTs to develop an “e6
government approach” for the JS (e-justice) .
Despite the modernization process and the considerable investment in ICT, to date the results achieved have been very
7
few and the Italian JS is still characterized by poor performance . A managerial approach for courts, and the use of PMSs,
in particular, could be useful for court administrators and presiding judges in order to monitor the court activities, the
achievement of goals and thus to improve court efficiency and effectiveness.
The importance of the managerial approach and performance measurement is shown by the efforts made over recent
decades by scholars of Court Management and Judicial Administration to produce Performance Measurement Systems
(PMS) for US courts. “Performance measurement is crucial to a court’s ability to provide high quality yet cost-effective and
efficient services to its customers. Court managers and presiding judges increasingly embrace the idea of systematically
8
integrating performance measurement into the daily operations of the courts” .
This study is part of wider research project of the “International Laboratory for the Study of Judicial Systems” of
Parthenope University of Naples aimed at developing and testing a PMS for courts, titled “Court Performance
1
Luigi Lepore, Ph.D. is assistant Professor and Researcher of Business Administration and Public management; Visiting researcher at
the Institute for Court Management of the “National Center for State Court” - Williamsburg, VA – USA; Co-coordinator of Task Force 1
“Undergraduate” of the Erasmus Academic Network “Menu for Justice”; Co-coordinator of the Work Package 2 “Judicial System” of the
research project “InnoLab”; His research interests focus on Court management and Performance measurement systems. Contact:
“Parthenope” University of Naples – Italy, lepore@uniparthenope.it, +39.081.5474765
2
Concetta Metallo, Ph.D. is associate professor of Organization Theory. Her research focuses on organizational behaviour topics and
information systems. She has a special interest in the study of ICT acceptance and usage behaviour. Contact: “Parthenope” University
of Naples – Italy, metallo@uniparthenope.it
3
Rocco Agrifoglio, Ph.D., is assistant Professor and Researcher of Organization Theory and Information Systems. Visiting Scholar at
Computer Information System Department of Westminster University of London and member of some National and International
research projects on topic "ICT usage and outcome" in Public Sector. Author of many monograph books and articles on themes ICT
acceptance and usage as well as its effects on individual and organizational performance. Contact: “Parthenope” University of Naples
– Italy, agrifoglio@uniparthenope.it
4
CEPEJ (2010), European judicial systems. Efficiency and quality of justice, Strasbourg: Council of Europe; Ministero dell’Economia e
Finanze (2007), Libro Verde sulla spesa pubblica, Roma: MEF.
5
Fabri M., Langbroek P.M. (2000), The challenge of change for judicial systems. Developing a public administration perspective,
Amsterdam: IOS Press.
6
Fabri M., (2001), “State of the Art, Critical Issues and Trends of ICT in European Judicial System”, in Fabri M., Contini F. (eds),
Justice and Technology in Europe: How ICT is Changing Judicial Business, The Netherlands: Kluwer Law International, The Hague;
Contini F., Cordella A. (2007), Information System and Information Infrastructure Deployment: the Challenge of the Italian e-Justice
Approach, The Electronic Journal of e-Government, 5(1), www.ejeg.com.
7
See note 1 supra.
8
Ostrom B.J., Clarke T.M., Schauffler R.Y., Ostrom C., Hanson R.A. (2008: i), A unifying Framework for Court Performance
measurement, Final Report, Williamsburg: NCSC. http://cdm16501.contentdm.oclc.org/cdm/ref/collection/ctadmin/id/1079
International Journal For Court Administration | December 2012
82
Measurement System” (CPMS). We believe that an ad-hoc PMS for courts could be useful in supporting managers/court
administrators and presiding judges in decision-making, allowing them to improve the resource allocation, the timeliness
of case resolution, the quality of judicial services, and the accountability of the Italian JS. In particular, CPMS is based on
the Balanced Scorecard (BSC) framework. Considering the substantial efforts the Italian Legislator are making in order to
develop an “e-government approach” for the JS, we decided to add another dimension, Information System success (IS
success), to the traditional four indicators of the BSC (financial, customer, internal operating, innovation and learning).
Within this research project, the current study represents an initial effort to describe results of the performance
measurement attempt that may suggest some challenges in developing a comprehensive PMS for courts. We have tried
to assess performance in two Italian courts focusing on the CPMS’ indicators: internal operating, innovation and learning,
and IS success.
The structure of this paper is as follows. First, we introduce the theoretical background, explaining PMSs and BSC in
particular within non-profit organizations; then we widen the dimension of IS success. Second, we propose a PMS for
courts. In the following section, we describe the research methodology and the results of the analysis. Finally, we discuss
the findings.
2. Theoretical Background
Measuring the performance of non-profit organizations is a well-documented topic over the years, various systems have
been proposed to assess the effectiveness and efficiency of organizations which, not operating in a market system,
cannot refer to profit or other performance indicators typically used in for-profit organizations.
In non-profit organizations, and in public institutions in particular, the importance of non-financial indicators is
demonstrated by the relevance assumed in recent decades of those models, like BSC, that through these indicators can
9
be used to best represent the achievement of complex and to articulate goals of public organizations .
10
Scholars and practitioners have used the BSC framework to assess performance in courts . According to Ostrom and
11
colleagues of the National Center for State Courts (NCSC) , performance measurement provides essential information
that is critical to “allow a court to husband its limited resources, set priorities, and target its attention at where it is most
needed”. Thus, performance measurement is important for safeguarding the interests of the different stakeholders. In fact,
the absence of mechanisms able to adequately evaluate the results, as well as the inadequacy of instruments for the
communication of results to public services users, would impede the operation of accountability mechanisms that protect
the stakeholders of courts.
CourTools is the PMS released by NCSC and used to evaluate American state trial court performance; it is “a common
12
set of 10 indicators and methods to measure performance in a meaningful and manageable way” . The information
obtained by the use of this kind of PMS is critical for court management, they are useful to define ways courts can change
administrative and managerial practices until the desired objectives are achieved.
According to research, these systems assume a very important role in organizations, supporting strategic and operational
decision making. Moreover, these PMSs are considered useful for motivating and sanctioning, as well as for monitoring
13
the activities and their results, in order to improve performance .
The diffusion of sophisticated PMSs, and in general of the Performance Management instruments, in Public
Administration (PA) around the world seems to be due to the level of inefficiency, the wasteful use of public resources and
the consequent crisis of public confidence. Moreover, this diffusion is also due to the limits of the traditional PMSs, such
as the inability to provide precise information about the public value created for the different category of stakeholders and
the inadequate ability to show the value produced by intangible assets.
9
Kaplan R.S., Norton D.P. (1992), The Balanced Scorecard: Measures that drive performance, Harvard Business Review, 70(1);
Kaplan R.S., Norton D.P. (1996a), The Balanced Scorecard: Translating Strategy into Action, Boston: Harvard Business Scholl Press;
Kaplan R.S., Norton D.P. (1996b), Using the Balanced Scorecard as a management service, Harvard Business Review, 74(1); Kaplan
R.S. (1999), The Balanced Scorecard for Public Sector Organization, Balanced Scorecard Report, Boston: Harvard Business School
Publishing.
10
See note 5 supra.
11
Hanson R.A., Ostrom B.J., Kleiman M. (2010: 6), The Pursuit of High Performance, International Journal For Court Administration,
3(1).
12
See note 8 supra Hanson R.A., Ostrom B.J., Kleiman M. (2010: 6).
13
For an analysis see Pollitt C. (1999), Integrating Financial Management and Performance Management, OECD: Paris.
International Journal For Court Administration | December 2012
83
In order to overcome these limitations, BSC uses indicators to monitor targets achievement from four dimensions:
financial, customer, internal process, and innovation and learning. More specifically, BSC is a management tool that
provides a periodic and concise assessment of how well the organization is progressing towards achieving its strategic
and operational goals. The model was created by Kaplan and Norton in the early 1990’s and has grown in popularity ever
since. To each strategic objective of the organization are associated some indicators on the four perspectives of the
14
BSC .
Furthermore, BSC has been widely used to evaluate ICT investments in different kinds of organizations, both profit and
15
non-profit oriented . In particular, Wright and colleagues (1999) applied BSC to evaluate software performance including
this aspect in the innovation and learning perspective. Rosemann and Wiese (1999), instead, used the BSC for the
evaluation of IS tasks such as the process of implementation and operational use, adding a new project perspective to the
traditional four dimensions.
The evaluation of effectiveness of ICT investments and the inclusion of this dimension within CPMS could be useful for
court administrators and presiding judges because it provides the opportunity to understand if and how the ISs contribute
16
to improve court performance . “IS success or effectiveness is critical to our understanding of the value and efficacy of IS
17
management actions and IS investments” .
Many scholars recognized the need to evaluate IS success and a large number of system success measures exist. The
18
most widespread and recognized indicator is user satisfaction . An IS is a successful information system if it is capable of
satisfying the information requirements of its users.
According to DeLone and McLean (1992), however, a single indicator is not sufficient to measure such a complex
construct as the success of an IS. The authors therefore developed a model, known as the “IS success model”, based on
several dimensions, aimed to investigate “What causes IS success?” and, consequently, IS impact on individual and
organizational performance. “The IS Success Model” considers six dimensions:
1. system quality, characteristics of the information system itself which produces the information;
2. information quality, quality of the information that the system produces, primarily in the form of reports;
3. information system use, how many times people use IS;
4. user satisfaction, IS ability of satisfying the information requirements of its users;
5. individual impact, the contribute of IS on individual work performance, and
6. organizational impact, the effect of IS on organizational performance. In particular, system quality concerns the
consistency of the user interface, the quality of documentation, and whether there are bugs in the system.
Information quality concerns the relevance, timeliness and accuracy of information generated through the system.
IS use concerns the usage of the system by user. User satisfaction, instead, is the sum of an individual’s
reactions to a set of factors affecting IS success. Finally, individual and organizational impacts are the outcomes
attributed to user satisfaction and IS use.
3. A Performance Measurement System for Courts
Within the wider research project of the “International Laboratory for the Study of Judicial Systems”, we have tried to
define the CPMS based on BSC framework.
14
For an analysis of recent developments of BSC in PA see Kaplan R.S. (2012), The balanced scorecard: Comments on balanced
scorecard commentaries, Journal of Accounting and Organizational Change, 8(4); Chan YC. L. (2004), Performance measurement and
adoption of balanced scorecards: A survey of municipal governments in the USA and Canada, International Journal of Public Sector
Management, 17(3).
15
Martinsons M.G., (1992), Strategic thinking about information management, Keynote Address to the 11th annual conference of the
International Association of Management Consultants, Toronto; Martinsons M., Davison R., Tse D. (1999), The balanced scorecard: a
foundation for the strategic management of information systems, Decision Support Systems, 25(1); Wright W.F., Smith R., Jesser R.,
Stupeck M. (1999), Information Technology, Process Reengineering and Performance Measurement: A Balanced Scorecard Analysis
of Compaq Computer Corporation, Communications of the Association for Information Systems, 1; Rosemann M., Wiese J. (1999),
Measuring the Performance of ERP Software: a Balanced Scorecard Approach, Proceeding 10th Australasian Conference on
Information Systems.
16
For an analysis of the IS success in U.S. courts, see Greenwood J.M. and Bockweg G. (2012), Insights to Building a Successful EFiling Case Management Services: U.S. Federal Courts Experience, International Journal for Court Administration, (4)2.
17
DeLone W.H., McLean E.R. (2003: 10), The DeLone and McLean Model of Information Systems Success: A Ten-Year Update,
Journal of Management Information Systems, 19(4). DeLone W.H., McLean E.R. (1992), Information Systems Success: The Quest for
the Dependent Variable, Information System Research, 3(1).
18
Bailey J.E., Pearson, S.W. (1983), Development of a Tool for Measuring and Analyzing Computer User Satisfaction, Management
Science, 29(5).
International Journal For Court Administration | December 2012
84
Following the studies of Ostrom and colleagues (2008), we have chosen the BSC framework to measure court
performance because BSC makes extensive use of qualitative and non-financial indicators to demonstrate the overall
ability of the organization to adequately satisfy stakeholders. We decided to add another dimension to the traditional four
of the BSC: the IS success dimension. Some authors, in fact, have argued that although the innovation and learning
dimension of BSC could also provide indicators for the evaluation of IS performance, in some cases it is not suitable for
19
this purpose . Therefore, CPMS consists of five perspectives: customer, internal operating, financial, innovation and
learning, and IS success. Figure 1 shows the CPMS.
Fig. 1 - Court Performance Measurement System (CPMS)
The five dimensions composing CPMS are the following:
1. customer perspective: the customer of a court is a person or an organization that receives the service provided by
the court. Indicators included in this dimension measure the court’s accessibility and treatment of customers in terms
of fairness, equality, and respect. To define these measures, customers are asked to answer questions about how
they are treated in court and whether the court’s decision making process seems fair. These questions have been
defined on the basis of the questions used by the CourTools;
2. internal operating perspective: indicators used in this perspective assess the court’s ability to be efficient, controlling
its internal procedures and environments. The efficiency indicators used could inform presiding judges and court
administrators about how well resources are used to achieve intended goals in terms of case resolution. In this
perspective we include the indicators proposed by the European Commission for the Efficiency of Justice (CEPEJ) to
evaluate efficiency of European courts. These indicators are: “clearance rate”, which is the number of cases resolved
as a percentage of the number of incoming cases; “case turnover ratio” measured as the resolved cases divided by
unresolved cases; “disposition time” calculated as 365 divided by “case turnover ratio”. These indicators are a
fundamental management tool that evaluate the length of time it takes a court to process cases;
3. financial perspective: the indicator included in this dimension is a cost indicator such as “cost per case”. It is a
measurement of the average cost of processing a single case, by case type (e.g., civil and/or criminal cases). “Cost
per case” is an indicator developed in the CourTools. It could aid managers in decision-making about the resources
allocation in order to improve cost effectiveness of courts;
4. innovation and learning perspective: we include in this dimension some indicators that could be useful to evaluate
the contribution of human resources, information capital, and court culture to support innovation and learning.
Particularly, for human resources, we use the following indicators: number of administrative staff, number of
professional judges, and number of IS end-users. Information capital, instead, is evaluated using the following
indicators: ICT software and hardware investments. Although the values of these indicators are not a direct measure
of performance, they can be interpreted as an approximation of the potential for innovation and learning of the court.
For example, information about the number and types of human resources could be useful to understand if court
staff is large enough to give court the possibility to carry out its activities, but also to innovate and learn. Finally, court
20
culture is evaluated using a specific scale , the Court Culture Assessment Instrument (CCAI), which has been
19
20
See note 12 supra Martinsons M.G. (1992); Rosemann M., Wiese J. (1999).
Ostrom B.J., Ostrom Jr. C.W., Hanson R.A., Kleiman M. (2007), Trial Courts as organizations, Philadelphia: Temple University Press.
International Journal For Court Administration | December 2012
85
21
adapted by a researcher of NCSC from the Organizational Culture Assessment Instrument (OCAI) scale . “Culture
is an important element enabling court performance because it encompasses and makes coherent […] values,
22
expectations, and assumptions about how work gets done in a particular court” . The CCAI is based on two specific
dimensions such as solidarity and sociability. Solidarity refers to how unified the court is and shows the degree to
which judges and court personnel working are to shared goals, mutual interests, and common tasks in order to get
common ends, while sociability refers to how closely knit are members of the court, highlighting the degree to which
judges and court personnel work cooperatively as one in a cordial fashion. Combining these dimensions, the CCAI
provides a classification scheme that systematically produces four distinguishable types of cultures (communal,
networked, autonomous, and hierarchical) measured by five content dimensions such as case management style,
judge-staff relations, change management, courthouse leadership, and internal organization. Communal culture
(High Sociability - Low Solidarity) emphasizes the importance of getting along and acting collectively. Networked
culture (High Sociability - High Solidarity) emphasizes collaborative work environment and effective court-wide
communication. Autonomous culture (Low Sociability - Low Solidarity) is characterized by judges broad discretion in
processing cases. Finally, Hierarchical culture (Low Sociability - High Solidarity) defines rules and procedures to
23
meet clearly stated court-wide objectives .
5. IS success perspective: as previously argued, the model of DeLone and McLean consists of six dimensions useful to
investigate a process understanding of IS and their impacts. The model analyses three components, such as
creation, use, and consequences of system use, and “each of these steps is a necessary, but not sufficient, condition
24
for the resultant outcome(s)” . With reference to courts, this model promotes understanding of ICT applications,
such as a case tracking system, used by court administrative staff for performing activities and their impacts.
Understanding user’s perception of these applications, as well as their usage and effectiveness, provides court
managers important information for supporting strategic and operational decision making.
4. Research Methodology
Data was collected from two courts, Naples and Bari, by using a qualitative and quantitative methodology. In particular, a
qualitative analysis was conducted by ethnographic interviews and document analysis in order to collect data useful to
measure indicators of internal operating perspective. Overall, we conducted nine interviews for each court including a
preliminary interview with the court administrator in order to obtain general information about courts and eight semistructured interviews with two court administrators, an IS manager, two chancellery officers and three administrative
officers. Furthermore, through the analysis of court documents (Judiciary Administration Report; Directorate General for
Automated Information Systems; CEPEJ reports) and data collecting we obtained some important information about the
performance of the courts and calculated CPMS indicators.
Then, a quantitative analysis was carried out by using a structured questionnaire, in Italian, completed by the
th
th
administrative staff of Bari and Naples courts during the period from the 20 of October 2009 to the 15 of January 2010.
The questionnaire was aimed at capturing respondent profile information and to measure court culture and IS success by
using two scales developed by research. In particular, these scales were translated from English and then back-translated
25
to check the reliability of the translation using the procedure suggested by Brislin (1970) . Furthermore, we conducted a
pre and pilot test to validate the measures and in the first instance we obtained feedback from representatives of the court
administrative staff. Findings of the pre-test confirmed the reliability and consistency of the scales used.
Then, we gave questionnaires to all the administrative staff of Bari and Naples courts. Of 620 court administrative staff,
212 were from the court of Bari and 408 from the court of Naples, we received a total of 321 completed questionnaires: 59
from Bari (r.r. 27.83%) and 262 from Naples (r.r. 64.21%). To minimize data entry errors, the collected data was checked
for consistency. As a result, 314 valid responses were collected.
With reference to measurement, court culture was measured using the CCAI scale developed by Ostrom and colleagues
(2007). This scale allows both current and preferred cultural conditions to be measured by assessing five key dimensions
of court culture. For Case Management Style an example indicator is: Judges are committed to use case flow
management with the support of administrative and courtroom staff. Written court rules and procedures are applied
uniformly by judges. For Judicial and Court Staff Relations, an example is: Judges value and promote a diverse workforce
and diversity of ideas; act to enhance professional administrative and courtroom staff development; seek to treat all staff
21
Cameron K.S., Quinn R.E. (2006), Diagnosing and Changing Organizational Culture, San Francisco, CA: John Wiley and Sons.
Ostrom B.J., Hanson R.A. (2010: 22), Achieving High Performance: A Framework for Courts, Williamsburg: NCSC.
23
For a more detailed analysis of CCAI, please see 17 note supra.
24
See note 14 supra DeLone and McLean (2003: 16).
25
Brislin R.W. (1970), Back-translation for cross-cultural research, Journal of Cross-Cultural Psychology 1, 195-216.
22
International Journal For Court Administration | December 2012
86
with fairness and respect. For Change Management, an example used is: Judges and court managers seek input from a
varied set of individual and measure court user preferences concerning policy changes [..]. For Courthouse Leadership,
an example used is: Judicial and administrative staff leaders seek to build an integrated justice system community [..]. For
Internal Organization, an example used is: Judges and administrators seek a shared court-wide view of what needs to be
accomplished [..]. Each dimension is composed by four sets of statements; responders should divide 100 points among
these four statements giving a higher number of points to the statement that is most often emphasized.
Finally, IS success consists of six dimensions measured as follows. System quality, information quality, and IS use was
26
measured using respectively two-item, seven-item and single item of Rai and colleagues’ (2002) scales. Examples of
items used to measure variables are respectively: Is system user friendly? Does system provide the precise information
you need? How many am I dependent on system? Twelve items were used to measure user satisfaction based on Doll
27
and Torkzadeh’s (1988) end-user computing satisfaction scale. An example used is: Are you satisfied with the system?
28
Finally, individual impact was measured using Etezadi-Amoli and Farhoomand’s (1996) user performance four-item
scale. An example used is: How successful has system been in improving the quality of your work? Organizational impact
was not measured because it could be inferred from indicators related to other CPMS perspectives. All the IS success
dimensions were measured by five-point scale ranging from “Strongly disagree” (1) to “Strongly agree” (5), except for IS
use and individual impact that were measured by seven-point scale ranging from “Strongly disagree” (1) to “Strongly
agree” (7).
5. Results
Concerning the internal operating perspective, we calculated the clearance rate, the case turnover ratio, and the
disposition time indicators as well as a summary of civil cases management for Bari and Naples courts. On the contrary,
concerning the innovation and the learning and IS success perspectives, data was collected by the “t-test” statistical
method. The t-test is a statistical test common used to assess whether the means of two groups are statistically different
from each other. In this regard, the t-test is very useful for our study because it allows us to compare court culture and IS
success dimensions among two courts, showing the significant differences at p≤0.010 value.
With reference to the first perspective, the clearance rate for Bari court for the year 2010 is 114.6%, while it was 107.1%
for Naples court. The longitudinal analysis has highlighted a general increase in productivity of the two courts, there is
only a slight decrease in production capacity on Naples court from 2008 to 2009 (Fig. 2).
Fig. 2 – Clearance Rate
The case turnover ratio for Bari court in 2010 was equal to 0.43, while for Naples court it was 0.47. Moreover, the
longitudinal analysis has shown that the value of case turnover ratio for Bari court increased from 2007 to 2008 and then
decreased. Instead, it is almost constant during the observed period for Naples (Fig. 3).
26
Rai A., Lang S.S., Welker R.B. (2002), Assessing the Validity of IS Success Models: An Empirical Testand Theoretical Analysis,
Information Systems Research, 13.
27
Doll, W. J. and Torkzadeh, G. (1998), The Measurement of End-User Computing Satisfaction, MIS Quarterly, 12(2), 259-274.
28
Etezadi-Amoli, J., Farhoomand A. F. (1996), A Structural Model of End User Computing Satisfaction and User Performance,
Information & Management, 30, 65-73.
International Journal For Court Administration | December 2012
87
Fig. 3 – Case Turnover Ratio
Furthermore, results of the disposition time have shown that the number of days required to resolve civil cases decreases
from 1.077 days in 2007 to 796 days in 2008, subsequently it increases in 2009, it is equal to 844 days, and remained
constant in 2010. For Naples, timeliness of case resolution at first increases from 781 days in 2007 to 805 days in 2008
and 824 in 2009, and then it decreases to 783 days in 2010 (Fig. 4).
Fig. 4 – Disposition Time
Finally, Figure 5 provides a summary of civil case management in the two courts, showing the number of incoming,
resolved, and pending cases.
Fig. 5 – Civil Cases of Naples and Bari Courts
Civil cases Naples
Civil cases Bari
600000
300000
500000
250000
400000
200000
300000
150000
200000
100000
100000
50000
0
0
2007
2008
incoming
2009
resolved
2010
2007
pending
2008
incoming
2009
resolved
2010
pending
With reference to innovation and learning perspective, the results have shown that the Bari court is composed of 106
judges and 252 administrative staff. Investment in ICT hardware amounted to € 40,000, of which € 35,000 for the
purchase of 50 computers and € 5,000 for other computer equipment. Investment in ICT software, by contrast, is not
quantifiable because these investments are often provided by the central government without any indication of cost. The
court of Naples is composed of 438 judges and 674 administrative staff. Data relating to ICT hardware and software
investments is not available.
29
Furthermore, using CCAI we assessed the organizational culture of the two courts and compared results in order to
verify differences. Thus, firstly, we compared the current and preferred cultural types within each court in order to
understand the gaps among cultural models. After, we compared the culture models of Bari and Naples courts in order to
understand the difference between two courts about current and preferred organizational cultures.
29
See note 17 supra.
International Journal For Court Administration | December 2012
88
Table 1 shows the results of comparative analysis between current and preferred culture for each court, while Table 2
shows the results of comparative analysis of culture types between two courts.
Tab. 1 – Current and preferred culture comparative analysis for each court
Content dimension
Case Management Style
Judge-Staff Relations
Change Management
Courthouse Leadership
Internal Organization
Culture type
COMMUNAL
NETWORKED
AUTONOMOUS
HIERARCHICAL
COMMUNAL
NETWORKED
AUTONOMOUS
HIERARCHICAL
COMMUNAL
NETWORKED
AUTONOMOUS
HIERARCHICAL
COMMUNAL
NETWORKED
AUTONOMOUS
HIERARCHICAL
COMMUNAL
NETWORKED
AUTONOMOUS
HIERARCHICAL
Current
Mean Std. Dev.
19.11
16.84
13.06
10.79
30.39
24.67
23.31
21.91
27.12
23.11
16.76
16.69
24.29
23.60
14.33
14.12
21.35
14.70
16.59
18.08
22.45
18.72
22.94
16.83
12.18
11.26
14.72
15.16
26.88
23.62
32.59
27.61
14.82
13.50
15.39
12.32
29.00
22.09
24.12
20.22
Bari
Preferred
t-test
Mean Std. Dev. "t" value
Sig.
25.78
18.39
3.038
0.004
24.80
19.36
4.789
0.000
15.29
15.88
4.467
0.000
18.43
18.45
1.599
0.116
26.17
20.72
0.355
0.724
22.92
20.95
1.667
0.102
13.21
16.67
2.784
0.008
25.49
23.77
2.773
0.008
21.86
18.55
0.189
0.851
22.43
18.47
1.552
0.127
14.12
19.02
2.436
0.018
29.90
24.85
1.712
0.093
29.76
20.82
5.282
0.000
26.84
21.20
3.224
0.002
13.98
16.47
3.079
0.003
18.14
17.55
3.003
0.004
27.63
20.13
3.759
0.000
25.55
18.30
3.670
0.001
17.12
20.15
2.737
0.009
17.35
18.17
1.755
0.085
Current
Mean Std. Dev.
29.76
20.10
16.59
13.13
27.95
21.81
22.90
20.35
33.03
21.05
21.28
14.25
24.29
22.93
14.61
13.95
20.63
18.33
13.24
12.42
30.19
24.23
28.43
21.36
10.85
10.62
17.14
16.39
32.84
21.60
34.31
26.53
12.89
11.22
18.10
14.50
37.87
22.68
24.73
19.98
Naples
Preferred
t-test
Mean Std. Dev. "t" value
Sig.
33.83
21.18
3.019
0.003
28.28
19.4
7.247
0.000
12.43
11.49
10.054
0.000
17.03
17.89
4.175
0.000
33.18
21.61
0.080
0.936
24.42
18.78
1.925
0.056
13.09
11.54
6.013
0.000
19.28
18.55
2.854
0.005
20.58
16.41
0.039
0.969
25.28
18.59
9.239
0.000
11.36
12.14
10.504
0.000
33.29
22.16
2.774
0.006
28.71
18.73
12.336
0.000
25.58
18.24
4.780
0.000
13.50
12.04
11.844
0.000
23.71
20.00
4.937
0.000
17.80
16.13
3.747
0.000
29.14
23.68
6.110
0.000
14.33
13.91
12.164
0.000
28.05
22.90
1.443
0.151
Tab. 2 – Bari and Naples Courts comparative analysis for current and preferred court culture
Content dimension
Culture type
COMMUNAL
NETWORKED
AUTONOMOUS
HIERARCHICAL
COMMUNAL
NETWORKED
Judge-Staff Relations
AUTONOMOUS
HIERARCHICAL
COMMUNAL
NETWORKED
Change Management
AUTONOMOUS
HIERARCHICAL
COMMUNAL
NETWORKED
Courthouse Leadership
AUTONOMOUS
HIERARCHICAL
COMMUNAL
NETWORKED
Internal Organization
AUTONOMOUS
HIERARCHICAL
Case Management Style
Current Court Culture
Bari
Naples
t-test
Mean Std. Dev. Mean Std. Dev. "t" value
Sig.
19.11
16.84
29.76
20.10
3.869
0.001
13.06
10.79
16.59
13.13
1.996
0.049
30.39
24.67
27.95
21.81
0.646
0.521
23.31
21.91
22.90
20.35
0.122
0.903
27.12
23.11
33.03
21.05
1.651
0.103
16.76
16.69
21.28
14.25
1.778
0.080
24.29
23.60
24.29
22.93
0.000
1.000
14.33
14.12
14.61
13.95
0.128
0.898
21.35
14.70
20.63
18.33
0.299
0.766
16.59
18.08
13.24
12.42
1.250
0.216
22.45
18.72
30.19
24.23
2.473
0.015
22.94
16.83
28.43
21.36
1.963
0.053
12.18
11.26
10.85
10.62
0.757
0.452
14.72
15.16
17.14
16.39
1.001
0.320
26.88
23.62
32.84
21.60
1.638
0.106
32.59
27.61
34.31
26.53
0.403
0.688
14.82
13.50
12.89
11.22
0.940
0.350
15.39
12.32
18.10
14.50
1.350
0.181
29.00
22.09
37.87
22.68
2.547
0.013
24.12
20.22
24.73
19.98
0.193
0.848
Preferred Court Culture
Bari
Naples
t-test
Mean Std. Dev. Mean Std. Dev. "t" value
Sig.
25.78
18.39
33.83
21.18
2.702
0.008
24.80
19.36
28.28
19.40
1.146
0.255
15.29
15.88
12.43
11.49
1.458
0.146
18.43
18.45
17.03
17.89
0.493
0.622
26.17
20.72
33.18
21.61
2.138
0.036
22.92
20.95
24.42
18.78
0.468
0.641
13.21
16.67
13.09
11.54
0.047
0.963
25.49
23.77
19.28
18.55
1.734
0.088
21.86
18.55
20.58
16.41
0.452
0.653
22.43
18.47
25.28
18.59
0.982
0.329
14.12
19.02
11.36
12.14
0.986
0.328
29.90
24.85
33.29
22.16
0.888
0.378
29.76
20.82
28.71
18.73
0.329
0.743
26.84
21.20
25.58
18.24
0.391
0.697
13.98
16.47
13.50
12.04
0.196
0.845
18.14
17.55
23.71
20.00
1.965
0.053
27.63
20.13
17.80
16.13
3.233
0.002
25.55
18.30
29.14
23.68
1.175
0.024
17.12
20.15
14.33
13.91
0.934
0.354
17.35
18.17
28.05
22.90
3.550
0.001
The results of comparative analysis within two courts has shown that current and preferred court culture types are often
statistically different from each other (Sig.≤0.010). On the contrary, the results of comparative analysis between two courts
have shown that cultural types, both current and preferred, are not statistically different form each other (Sig.≥0.010),
apart from some exceptions. To achieve a better understanding of CCAI results, we built the following graphs, developed
from two previous tables, in order to better show the gaps among current and preferred court culture types for each of the
five dimensions and for each court. Figure 6 shows the results of CCAI for the Case Management Style dimension.
Fig. 6 – Case
Management
Style
Case Management
Style
COMMUNAL
35.00
30.00
25.00
20.00
15.00
10.00
Bari (current)
5.00
HIERARCHICAL
0.00
NETWORKED
Bari (preferred)
Naples (current)
Naples (preferred)
AUTONOMOUS
International Journal For Court Administration | December 2012
89
With reference to Case Management Style, the court of Bari is currently characterized by autonomous and hierarchical
cultural models, while communal and networked are preferred. Moreover, autonomous and communal current cultural
models prevail in the court of Naples, while communal and networked are preferred.
In both courts, despite a general agreement on court’s goals, judges are relatively free to make their own determinations
on case flow management. Moreover, the court of Bari is also characterized by more rules and procedures to meet clearly
stated court-wide objectives, while the other court emphasizes the importance of group involvement and mutually agreed
norms rather than established rules and procedures.
Finally, both court personnel prefer a collaborative work environment and effective court-wide communication aimed to
involve people and to decide on policy guidelines. Figure 7 shows the results of CCAI for judge-staff relations.
Fig. 7 – Judge-Staff
Judge-StaffRelations
Relations
COMMUNAL
35.00
30.00
25.00
20.00
15.00
10.00
Bari (current)
5.00
HIERARCHICAL
0.00
NETWORKED
Bari (preferred)
Naples (current)
Naples (preferred)
AUTONOMOUS
With regard to judge-staff relations, the CCAI results have shown that the court of Bari is currently characterized by
communal and autonomous cultural models, while it prefers communal and hierarchical types. On the contrary, the court
of Naples is characterized by communal and autonomous cultural types, but it prefers communal and networked cultural
archetypes. In this regard, in both courts, judges seek to involve and to collaborate with the administrative staff in a
flexible way, such as norms, rather than established rules and firm lines of authority. Whereas, the court of Bari prefers
the current model, but its personnel would also like to use evaluation systems and performance appraisals in order to
obtain rewards, promotions, and merit recruitment. The court of Naples’s personnel, instead, also prefers working in a
collaborative environment characterized by more flexibility, rather than its traditional environment characterized by more
authority and wide discretion of judges. Figure 8 shows the results of CCAI for the change management.
Fig. 8 – Change Management
Change Management
COMMUNAL
35.00
30.00
25.00
20.00
15.00
10.00
Bari (current)
5.00
HIERARCHICAL
0.00
NETWORKED
Bari (preferred)
Naples (current)
Naples (preferred)
AUTONOMOUS
With reference to change management, the CCAI results have shown that both courts are mainly characterized by
autonomous and hierarchical cultural models, while the hierarchical type is even more preferred by administrative staff of
the courts. Thus, judges seek individual ways to change management resisting a rule and process bound organizational
setting rather than centralized change initiatives. On the other hand, judges are inclined to use technology, new ways of
working and interaction inspired by principles of management in order to improve the timeliness of case processing and
accuracy of record keeping. In both courts, judges who are perceived as good coordinators and organizers and who seek
International Journal For Court Administration | December 2012
90
to achieve the advantages of order and efficiency are even more preferred by administrative staff. Using new technologies
and principles of management court personnel could improve their individual performance promoting widespread benefits
for the whole organization. Figure 9 shows the results of CCAI for the courthouse leadership.
Fig. 9 – Courthouse
leadership
Courthouse
Leadership
COMMUNAL
35.00
30.00
25.00
20.00
15.00
10.00
Bari (current)
5.00
HIERARCHICAL
0.00
NETWORKED
Bari (preferred)
Naples (current)
Naples (preferred)
AUTONOMOUS
With regard to courthouse leadership style, the CCAI results have highlighted that both courts are characterized by
hierarchical and autonomous cultural models, while they would prefer to go to other, opposite, cultural models such as
communal and networked. In both courts, presiding judge leadership is inhibited because each judge prefers to work with
a few corresponding staff members of their own choice. Furthermore, each judge establishes rules and directives to guide
court operations and uses their own channels to get things done. On the contrary, the personnel of two courts would like
to emphasize human relationships in order to mutually agree upon the court performance goals, to obtain more job
satisfaction, and to build an integrated court system community. Finally, figure 10 shows the results of CCAI for the
internal organization.
Fig. 10 – Internal Organization
Internal Organization
COMMUNAL
40.00
35.00
30.00
25.00
20.00
15.00
10.00
Bari (current)
5.00
HIERARCHICAL
0.00
NETWORKED
Bari (preferred)
Naples (current)
Naples (preferred)
AUTONOMOUS
With reference to the internal organization, both courts are currently characterized from the prevalence of the autonomous
cultural model. However, the court of Bari prefers communal and networked cultural types, while the court of Naples
would like to go to networked and hierarchical models. Thus, in both courts the internal organization is autonomous so
that each judge decides how to organize their own work and has wide discretion to get things done. Two courts
emphasize stability and slow change of practices, while the confrontation is minimized. On the contrary, the court of Bari
prefers the collegiality and teamwork pointing out the role of personal relations in workplace. Court personnel prefer
informal channels to communicate and to share information among judges and administrative staff and to work
collaboratively to perform case processing. The court of Naples, like the court of Bari, prefers internal organization based
on collaborative work, but also would like to have a clear division of duties and formalized roles.
Regarding IS success perspective, as previously mentioned we conducted a comparative analysis of IS success
dimensions between the two courts in order to understanding where ISs are perceived to be more effective for
performance improvement. The results of the comparative analysis are presented in Table 3.
International Journal For Court Administration | December 2012
91
Tab. 3 – The IS Success’s results
Court
IS Success
Bari
Naples
t-test
Mean
Std. Dev. Mean
Std. Dev.
"t" value
Sig.
System quality
3.57
1.08
3.32
1.24
1.416
0.161
Information quality
3.35
0.98
3.32
1.03
0.265
0.792
User satisfaction
3.47
0.98
3.34
1.06
0.882
0.381
IS use
5.71
1.74
5.54
1.69
0.632
0.529
Individual impact
4.91
1.64
4.48
1.81
1.673
0.098
Findings have highlighted that both system’s quality and information quality are positively perceived by court personnel
because their responses’ mean is higher than 2.5 (Bari court: means 3.57 and 3.35; Naples court: means 3.32 and 3.32).
Regarding user satisfaction and IS user dimensions, findings have shown that court personnel are satisfied with the
system (Bari court: mean 3.47; Naples court: mean 3.34) because there is a fit between job requirements and IS
functionality. Consequently, court personnel use it to perform the court activities (Bari court: mean 5.71; Naples court:
mean 5.54).
Regarding individual impact, results have highlighted that within two the courts, administrative staff perceive positively the
benefits occurring at the level of individual performance, because their responses’ mean is higher than 3.5 (Bari court:
mean 4.91; Naples court: mean 4.48).
Overall, comparing the dimensions of the IS success model between the two courts, our findings have shown that Bari
and Naples courts are similar with regard to IS success dimensions, except for the individual impact dimension
(Sig.≤0.010). In this regard, Bari court personnel perceived more benefits deriving from IS compared to Naples court
personnel.
6. Conclusions
Overall, three main conclusions emerge from our analysis.
Firstly, despite that over the recent decades the Italian JS has been characterized by a dramatic crisis of performance, our
findings have shown an opposite trend from 2007 to 2010 for Bari and Naples courts. More generally, internal operating
perspective’s indicators have shown a good civil case management for both courts and for Bari in particular. Results have
highlighted that both Bari and Naples courts have been able, not only to justify the demands of justice during the year, but
also to reduce the backlog and the number of pending cases. These results may have arisen from the modernization
process of the JS introduced by the Italian Legislature, tough management approach and ICTs investment. However,
despite these results appearing positive when compared with those achieved by other Italian courts, they cannot be
compared with the performance of most European courts. According to research, this gap could arise from the limited
autonomy and empowerment of Italian court managers, but also from other inadequate organizational characteristics of
30
courts . The Italian Legislature has enacted three basic principles, such as autonomy, responsibility and evaluation in
order to improve the performance of PA. With regard to the JS, perhaps the action on these three principles is still small
and thus unable to generate the desired improvements. We believe that PMSs, like CPMS, could be useful to increase the
effort on the level of the evaluation, also by delegating more responsibility to court personnel and so improving the internal
and external accountability of courts. However, presiding judges and court administrators require greater autonomy and
specific managerial skills.
Second, with reference to court culture our findings have shown that prevailing current cultural models of court personnel
are hierarchical and autonomous, while the cultural models preferred by court personnel are communal and networked.
Italian JS is characterized by a bureaucratized governance model and, thus, has a strong resistance to change that
hinders the modernization process. As research suggested the resistance to change is one of the peculiar characteristics
of the bureaucratic governance model of Italian Public institutions and in particular the JS. This seems principally due to
the autonomy that the law allows to the judicial branch. However, our analysis also shows the willingness of court
30
Fabri M. (2006), Amministrare la giustizia. Governance, organizzazione, sistemi informativi, Bologna: Lexis; Lepore L., Agrifoglio R.,
Metallo C. (2010), “Measuring the Performance of Italian Courts: the Role of IS Success”, in A. D’Atri, M. De Marco, A.M. Braccini and
F. Cabiddu, Management of the Interconnected World, Springer, Springer-Verlag Berlin Heidelberg.
International Journal For Court Administration | December 2012
92
personnel to change their ways of working through the adoption of new cultural and governance models, similarly to what
happens in other sectors of PA.
Finally, our findings have also shown that administrative staff of both courts positively perceived the benefits arising from
IS on individual performance. ISs have encouraged the digitalization of documents and the streamlining of organizational
processes, allowing the integration of existing databases and to explore the possible uses of ICT to improve the data
31
exchange in the JS . Using these applications, both administrative staff and judges could access legal information timely
and without time and spatial limits. In this regard, these applications are useful for receiving information in a timely
fashion, reducing the resolution time of legal cases and improving individual and court performance. Furthermore, findings
of comparative analysis on IS success between two courts have also identified that Bari court personnel perceived more
benefits derived from IS compared to Naples. The literature agrees that user satisfaction and IS use are two determinants
32
of the individual impact dimension . In Bari court, these dimensions are, on average, higher than Napoli court;
consequently, for Bari court personnel, IS contributes most to the improvement of their performance.
31
Contini F., Cordella A. (2007), Information System and Information Infrastructure Deployment: the Challenge of the Italian e-Justice
Approach, The Electronic Journal of e-Government, 5(1).
32
See note 14 supra.
International Journal For Court Administration | December 2012
93
Designing And Implementing Delay Reduction Projects In Courts
1
By Petra Pekkanen , Maija Eronen, Pauliina Seppälä and Timo Pirttilä
Abstract:
The paper brings insights into and suggestions for planning and implementing delay reduction projects in courts. On the
basis of five case studies, the paper describes possible ways to carry out delay reduction projects and analyzes the critical
factors in them during the different change project stages: analyzing stage – planning stage – implementation stage. Critical
success factors, guidelines and suggestions for each stage are provided on the basis of the analysis. Also the possibilities
and challenges of using outside expertise in improvement projects are discussed.
1. Introduction
Delays and backlogs in the justice system have been undermining the functioning and performance of court processes in
many countries for decades. The widespread concern about delays and the realized need for improving process
performance has led to a rise in studies and research concerning the possibilities of different types of caseflow
management applications. These have produced a variety of proposed solutions aimed at increasing the role of time
management and time-frames in court operations (see for e.g. CEPEJ, 2005; Coolsen, 2005; Di Vita, 2010; McWilliams,
1992; Ostrom and Hanson, 2000; Steelman and Fabri, 2008).
In order to enhance the ownership, acceptance and implementation of different caseflow management solutions, there is
a need to analyze and study the possible ways and procedures of organizing, designing and carrying out process
improvement and delay reduction projects in courts.
The objective of the present study is to bring insights into and suggestions for planning and implementing delay reduction
projects in courts. The aim is also to analyze the critical success factors in delay reduction projects and the ways the
factors can be taken into account in different stages of the improvement work.
This study is based on experiences and lessons learned in five delay reduction projects carried out in five different Finnish
Courts of Justice in the years 2006-2012. These projects have been designed and executed in close co-operation with
outside experts in the field of process improvement and operations management, and the management and personnel of
the courts. The study utilizes diversified data collected during the research projects: participant observation and field notes
in process improvement workshops, interviews, and statistical data.
The paper describes the context and progress of the delay reduction projects, and analyzes the critical factors in them,
during the change project stages: analyzing stage – planning stage – implementation stage. On the basis of the analysis,
critical success factors, guidelines and suggestions are provided. Also the possibilities and challenges of using outside
expertise in improvement project are discussed.
The next chapter provides an overview on the literature related to process improvement programs in professional
organizations in general and in courts particular. Chapter 3 introduces the studied process improvement project. In
chapter 4 the results of the improvement projects are discussed, and chapter 5 presents the final conclusions.
2. Process Improvement Programs in Courts
As the pressure to improve process effectiveness has expanded also to the operational environment of public sector
organizations, the process improvement approach to change has become increasingly studied also in the public sector
and in the professional and service organizations. Improvement expectations in these areas concentrate often on
decreasing throughput-times, managing time-related issues in the process, and increasing organizational flexibility (Fernie
and Rees, 1995; Lowendahl, 2005; Korhonen, 2008; Ongaro, 2004).
The challenges inherent in organizational improvement projects are usually connected to problems in creating sustainable
change and building organizational improvement competences. The difficulties are often connected to a lack of earlier
experience from similar projects and difficulties in determining the resources, competences and time needed for the
project. Resistance to change usually reflects the confusion caused by not knowing (the tangible objective) or not
understanding (the implementation process, individual and team involvement). The lack of fully understanding the
implications of the intended change and the lack of understanding the reasons behind the need for change causes low
1
Contact: Lappeenranta University of Technology, Department of Industrial Management, P.O. Box 20, FI-53851 Lappeenranta,
Finland, E-mail: petra.pekkanen@lut.fi
International Journal For Court Administration | December 2012
94
morale, disinterest and lack of enthusiasm towards the project and changes. To overcome these problems greater
emphasis should be put to the project procedures and interventions aiming at building organizational commitment to
change and making the change initiatives stick in the organization (see e.g. Cicmil, 1999; Hammer, 2001 Korhonen, 2008;
Longenecker et al., 2006; Roberto and Levesque, 2005).
Critical success factors to be considered in achieving these aims have been said to be for example the level of
participation, a clear focus and project scope, strong leadership, a sense of urgency, real-time feedback through testing
and experimenting, a clearly defined improvement plan, effective training, and effective analysis based on accurate data
(see e.g. Hagsgård, 2008; Hammer 2001 Korhonen 2008; Longenecker et al. 2006 Roberto and Levesque 2005).
The special characteristics of professional public organizations and processes make it even more important, but also
more difficult, to achieve the commitment and willingness to change and the ownership and institutionalizing of the change
efforts. The autonomous and individual nature of the work makes the achieving of widespread willingness and motivation
to improvement a prerequisite for a successful improvement project (Hagsgård, 2008). The need for autonomy, traditional
and historical working methods, and the complicating factors inherent in the production process create prejudice towards
the suitability and functionality of process improvement solutions. Multiplicity of different stakeholders makes it more
difficult to get consensus of what is important and what is the goal, value, and customer of the operations and processes.
Due to these complicating characteristics, special attention is needed in the participation of employees, building the
process improvement capability, understanding the need for change, reinforcing the change and the crucial role of top
management in the improvement efforts (see e.g. Brashier et al., 1996; Cheng, 1990; Fernandez and Rainey, 2006;
Hagsgård, 2008; Lowendahl, 2005; Price and Brodie, 2001).
Hagsgård (2008) has reported a successful approach to court improvement emphasizing the importance of internal and
external dialogue and communication during the improvement work. The success of the approach rely on widespread
participation of different stakeholders, building commitment to improvement, having systematic working procedures,
having clear action plans and measures for success, giving time for employees to reflect on changes and giving extra
attention to the follow-up and evaluation of the project results. Hagsgård (2008) also highlights the importance of face-toface dialogue in reaching agreement of improvement needs and efforts, and the careful use of outside experts and
consultants in court process improvement.
In the United States, Aikman (1994), representing the National Center for State Courts, has written a handbook about
Total Quality Management applications in courts. Four key points in TQM applications can be identified from the
handbook. The first is the importance of involving and empowering the staff and thus creating an energized atmosphere
and a steady stream of ideas for enhancing continuous improvement. The second is that the concept and technique used
need not be highlighted. It is not required that courts use the term “total quality management” in their improvement efforts.
A survey among courts proved that courts have used the principles of TQM in their improvement work but adopted and
preferred some other label for it. In courts it is important that improvements need not be implemented in some predefined
steps and schedule; the time-frame for improvement projects in government units normally needs to be much longer than
in the private sector. The change needs to be introduced patiently and persistently, inch by inch. Thirdly, the importance of
leadership commitment was highlighted in keeping the improvement work ongoing by endorsing it as the most appropriate
management approach. The fourth key point is the need to use objective performance data as the foundations for
management decisions and improvement. Courts have usually mountains of data; however, the use of the data is often
not suitable to enhance the identification of the causes for problems or identifying the possible solutions.
The present study aims to take into account the prerequisites of successful process improvement work reported in
literature and bring new insights and suggestions on how to design and carry out process improvement programs in
courts.
3. Process Improvement Projects
This chapter introduces the general progress and content of the action research improvement projects carried out in the
case courts, and describes the phases, actions and interventions. The data for this research is based on five longitudinal
case studies conducted during the years 2006-2012 in five different Finnish courts. The case courts were the Helsinki
Court of Appeal, the Insurance Court, the Helsinki District Court, the Helsinki Administrative Court, and the Supreme
Administrative Court. These organizations have the largest caseloads in Finland and they also suffer from the longest
delays, and that is why the development projects were directed to these organizations. The case courts, the events in
various phases and the gathered data are summarized in table 1.
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95
Table 1 – Summary of the case organizations, events and gathered data
Case
Helsinki Court
Insurance
Supreme Adm. Helsinki Adm. Helsinki District
Organization
of Appeal
Court
Court
Court
Court
Cases/year
4000
7000-8000
4000-5000
8000-9000
60 000-70 000
Employees
170
110
100
150
330
Implementation
Status
Finished
Finished
Evaluation phase Evaluation phase
phase
(in 05/12)
03/06–12/09
08/08- 06/10
01/11 01/11 01/11 Events in various
phases
Analysis
3
5
2
2
3
Planning
10
4
2
2
3
Testing
4
1
1
1
Implementation
6
1
2
2
1
Evaluation
2
2
1
1
Types
of
gathered data
Semi-structured
32
interviews
50
20
20
25
Workshop results, Field notes, Numerical data of caseloads, Project reflection
documents
Methods of data
Content analysis, Quantitative analysis
analysis
The research projects were based on active teamwork and interaction between the researchers and the case
organizations. During the development project, there was a group of researchers involved who analyzed the initial stages
of the projects, planned and prepared the work group sessions, and also analyzed the results of the sessions. Every case
organization formed a work group of 5-10 persons who represented various occupational groups from different levels of
the organization: including court clerks, assistant judges, judges, senior judges, administrative staff and department and
top management. A coordinating person from the court side was named, who was responsible for choosing the
participants to the improvement group. These groups were the core of the development and planned the needed changes
together with the researchers. Wider participation was ensured by conducting interviews among court personnel.
The research projects consisted of the phases of data gathering and analysis, planning, and implementation. Although the
phases are here presented as separate, the actual situation was usually that some phases were performed partly
simultaneously. The phases and their purposes and lengths are presented in figure 1.
Figure 1 – Phases of the process improvement projects
4. Analyzing the Process Improvement Needs
The aim of the analysis phase was to discover and analyze the underlying reasons causing the delays. In this phase,
several reasons for the delays were identified. For example, resources and old backlogs and target setting, measurement
and control were areas which caused the cases to be delayed. Four main areas needing improvement could be
highlighted. These areas were goal setting and process performance measurement, process control systems, production
and capacity planning, and process roles and responsibilities. The reasons for the delays and the main improvement
areas are presented in figure 2.
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96
Figure 2 - Summary of the categories of reasons for delays and areas needing improvement
One aim of the analysis phase was also to create motivation and challenge the existing working methods. In order to
succeed in this phase, several critical factors had to be taken into account. These factors were:
1) Addressing the initial motivation
To create ownership towards the process improvement projects, the initial need for change and improvement had to be
discussed in order to create widespread willingness and general wanting to change. Without this there would be a danger
of “spurious improvement”.
2) Understanding the scope and scale of changes needed
The basis for understanding the scope and scale of the needed changes had to be created in the beginning of the
improvement work. Creating understanding of the problem and its causes increases the motivation and commitment to
start the process improvement work systematically, aiming for deeper and more profound changes in operations and
attitudes.
3) Getting new perspectives
Because the procedures had a strong and fixed background and history it was possible that there would be difficulties in
getting a new perspective to the work processes and to really challenge the existing ways of doing things. Using external
expertise is useful, because the external expert can bring a new perspective to operations and have novel ideas.
However, this contains a risk of reinforcing prejudice towards the project and decreasing the ownership towards the
project. That is why it is important that the external expert does not force some techniques, but merely introduces ideas,
possibilities and challenges.
4) Building the capability and continuity for improvement
Two aspects had to be taken into account when the project was planned: the actual staffing of the improvement group and
creating understanding in the group of the need of commitment towards long-term and persistent improvement work. Also
top management involvement was essential for increasing motivation and bringing in decision making power.
5) Building trust between participants
Professional organizations are often hierarchical, and the employees hold a great deal of professional respect and pride.
This is why building trust between the participants is important for creating a good atmosphere. If an outside expert is
used, building trust between the organization and the outsider is necessary.
5. Planning the Improvement Solutions
The purpose of this phase was to plan the needed changes and actions in order to create solutions for the problems
which were identified in the analysis phase.
A prerequisite was to sharpen the target-setting – setting case-differentiated time-frames and targets, and processphased time-frames and targets. The importance of these time-frames has been reported in many studies (e.g. CEPEJ
2005), but none of the case courts had agreed time-frames nor targets previously.
International Journal For Court Administration | December 2012
97
After that the operational improvement solutions were designed. These solutions can be divided to two groups: workplanning practices and process control – practices. The overall planning process and the most important improvement
solution areas are presented in figure 3.
Figure 3 – Planning the process improvement solutions and the most important solution areas
The project group designed new solutions and work-planning tools for both improvement areas. One example of a tool for
process control practices is a time-frame alarm-system. The system aims to be a work-planning tool and an important
means to equalize throughput-times. The basic idea of this system is that the cases in danger of delay need to be
detected earlier, when the overall time-frame can still be reached. The system helps to pay attention to delays happening
in the early handling stages, and appropriate interventions can be made. The system is three-phased, with control points
with a time-frame set in three different handling phases. The time-frames for these phases and the alarm-levels have
been designed in the way that no cases will be pending over 12 months. The idea of the process control points, casedifferentiated time-frames for priority and non-priority cases and alarm-levels are presented in table 2.
Table 2 – The control points, time-frames and alarm-levels set for normal and priority cases
Alarm- levels (days pending)
Recipient of
Reason for alarm
Normal case
Priority case
the alarm
Lower
Upper
Lower
Upper
Referendary has not been
Control point 1
Court Clerk 130
180
60
80
selected for the case
The decision draft has not been
Control point 2
Referendary 180
240
80
110
delivered to the Judge division
A decision has not been made
Control point 3
Judge
270
360
120
150
for the case
With the help of the alarm-system, a person can easily control his/her own inventory situation and plan the work according
to the age of the cases. The data system also enables the managers to monitor the overall situation of pending cases and
inventories easily online, as the pending case listings are available from the data system by the whole court, the
departments, persons, subject groups, complexity, priorities and decision divisions. If the pending time of a case has for
some reason exceeded the set time-frames in some control point, the alarm system symbol appears in the case listing in
the data system for the particular person responsible for the next advance phase in the handling. If the case has
exceeded the lower alarm- level, the symbol in the listings is one exclamation mark, and if the case exceeds the upperalarm level, the symbol is three exclamation marks. An example of the basic scene in the data system is depicted in
figure 4. In this example a judge’s pending inventory listing is presented with the alarm-system symbols: age in days,
exclamation marks, green diamonds for priority cases and black diamonds when the case is evaluated as complex.
Figure 4 – Example of the alarm-system symbols in a judge’s pending inventory listing in the data system
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The critical factors in the planning stage of the improvement work are issues that should be incorporated in the
improvement initiatives to create functional and acceptable process improvement solutions. The factors are:
1) Tailoring the solutions
The exact needs can differ from organization to organization, and that is why it is important that the planned solutions are
based on the analysis made earlier to create ownership towards the solutions and to increase commitment. The external
expert can bring ideas and keep the planning work going on, but the members of the organization need to plan the exact
context of the improvement initiative.
2) Introducing change incrementally
In professional organizations there is a fear that the improvement solutions will only complicate the already highly
complicated work and require extra work and efforts, and thus the willingness to try and understand new things may
decrease. This is why the solutions should be kept simple and introduced incrementally, keeping the new information at
an acceptable level and using appropriate language.
3) Building flexibility to the solutions
The old methods of working are usually deep-rooted and due to the autonomous nature, everyone has created a way of
their own in carrying out the work. When the solutions are planned to be flexible so that everyone can utilize them easily,
the adoption and acceptability of the solutions increases. This means that the solutions are more in the nature of helpful
tools, collectively agreed rules, guidelines and procedures.
4) Building automatically directing solutions
Due to the autonomous nature of the work, the acceptable and functional solutions should be based on self-control and
self-management of the employees, which automatically directs their work and is not based only on direct supervision.
The solutions need to be genuinely helpful in carrying out the work and present in everyday operations.
6. Implementing Improvement Solutions
The attitude of the personnel affects the success of the implementation phase. The attitudes were mainly positive, but
also opposite attitudes existed. The approval of changes inproved all the time and the opposition diminished as the
benefits of the initiatives became clearer. Also the role of the top management was seen as crucial in the adoption and
implementation of the change efforts (see the quotes from the interviewed personnel below).
“The example of the managers is the number one in the implementation. That is the way it is achieved; the managers
need to commit to this, utilize the new procedures themselves, spur, demand and demonstrate…”
“At first the concept of logistics sounded a bit far-fetched. But during the project, meetings and conversations, everyone
started to realize that these are useful, sensible and reasonable issues. When you can influence the things coming up, the
resistance to change breaks down and people start to see the rewards…”
“Most of all, the logistics project was a project influencing attitudes towards time… and thus all the results of the project
will take enormous amount of time to become visible…”
The opinions of the factors affecting the implementation were gathered by interviews in the evaluation phase. The
analysis concerning the factors that affected the success of the implementation revealed both factors that helped the
adoption and factors that hindered them. These factors are summarized in table 4.
Table 3 – Factors affecting the adoption and implementation of process improvement initiatives
FACTORS FACILITATING THE ADOPTION
FACTORS HINDERING THE ADOPTION
 Commitment and willingness to change – current and  Opinions concerning suitable working methods
important issue
on professional organization
 Visible involvement and commitment of top  Large case inventories and the time-consuming
management and wide participation of different
start-up of the planning
personnel groups
 External expertise and new improvement methods
 Detailed and complicated planning solutions
 Enough time to adopt and internalize changes
 Attitudes towards changes
 Easily acceptable and adoptable solutions
 Too many changes and improvement projects
going on at once
 Old and new operation models overlap
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99
Overall, the critical factors in the implementation phase are issues that need to be addressed to make the adoption of the
solutions more widespread and build the conditions for achieving sustainable change. The factors are:
Getting peer support and experiences
Spreading good experiences and best practices among the employees is crucial in order to convince
1) Establishing a permanent process improvement team
The continuity of the improvement needs to be ensured during the improvement work in order to maintain the momentum
of the changes and to continue the improvement efforts. By establishing a permanent team, it is possible to keep the
change initiatives alive, evaluate and monitor them and make corrective actions if needed.
2) Connecting the changes to the strategy and rewards
It is critical that the organization's strategy and operational targets are not in conflict with and do not contradict the
improvement efforts. Achieving sustainable change requires that the improvement efforts are connected with the
organization's goals and reward structure.
3) Creating improvement strategy for the organization
If there are many different types of improvement projects and efforts going on simultaneously, it influences the willingness,
attitude and motivation of the employees to improve and makes it difficult to find the needed capabilities and resources to
the improvement groups. That is why organizations should make a clear improvement plan based on analyzed
improvement needs.
7. Results of the Projects
The results achieved through the action research projects were very good and promising. The results of the two finished
research projects (Helsinki Court of Appeal and Insurance Court) are summarized in figure 5. Good results are expected
also from the other projects. As can be seen in the figure, in the Helsinki Court of Appeal the average throughput-times
nearly halved from 2005 to 2009. The proportion of cases pending over 12 months dropped to 7% and there were
factually no very old cases. In the Insurance Court the average throughput-time dropped to approximately 10 months in
2010, whereas in 2008 it was 14 months. The number of cases over 12 months has decreased by almost 50%.
Figure 5 – Age of pending cases (Helsinki Court of Appeal, 19 January 2010 and Insurance Court,
31 December 2010)
When the changes were analyzed on the basis of the opinions and outlooks of the personnel, the general opinion was that
the situation was now considerably better concerning delays, backlogs, throughput-times, work distribution, and thus the
general working climate. Also the atmosphere concerning the subject of delays is now more open and it is easier and
more common to talk about the issues surrounding it. All in all, according to the analyzed opinions the main changes in
the case courts took place in the following:
 Management control practices
This was said to be one of the biggest and most concrete changes during the project. The set time-frames and the
designed work-planning tools, for example the alarm system, have facilitated the management control over throughputtimes and delays. The tools have made the management duty of controlling the progress of cases easier and thus more
common and more regular. It has also become more accepted that the management will intervene with problems
concerning delays and backlogs more actively.
“Controlling is easier, intervening with problems is easier and the climate surrounding these issues is generally better. It
feels fairer to manage these issues and intervene when everyone knows the agreed rules…”
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100
 Personal work control and systematic planning procedures
The alarm system is also helpful for all personnel in controlling their own personal pending inventory and planning the
work. It has made the controlling of the situation of the cases a weekly routine, and it has changed the procedures of
planning the order of work according to the age of the cases.
“Before I take even a single case from my case shelf, I take a look at the inventory listing and what it looks like… what
cases there are on top of the list and what sort of diamonds and exclamation marks there are… whether there is
something that needs special attention or reaction right away…”
 Attention and active process start-up for complex cases
The marking of the complex cases has made them come forward from the mass of cases. The marking has provoked
interest towards the case, making it more motivating to take it from the case file. The marking has also made it easier to
distribute the complex cases more evenly to the referendaries and judges and helped to estimate the time needed for the
handling, and thus reserve enough time for these cases beforehand.
“I have started to feel a kind of duty to handle also the more complex cases in the same time as other cases because
there are these labels. I do not feel that it is unpleasant or offending, it has simply changed my attitude towards them.”
 Case ownership
One very noticeable change was identified to be the taking of greater responsibility for the cases and commitment to the
timely handling of all cases. Now the case has a responsible person from start to finish who is responsible for making the
handling decision, planning the stages and scheduling the process according to the time-limits. This has made it easier to
follow the principles of advance planning and scheduling.
“Now we have on view all our cases and their situation and status. Previously the judges had the case listings on paper
but they were not seen anywhere. At the same time that they were not seen, they did not bother anyone either. Now
everyone keeps the inventories more in control and follows the situation.”
8. Conclusions
Based on the lessons learned from the process improvement projects, the present study aimed to contribute to the
discussions of process improvement applications in courts by increasing the knowledge concerning critical and influencing
factors which need to be highlighted in different stages of process improvement work. Especially, the study aimed to
recognize and highlight the critical factors which need to be taken into account in the improvement work in order to apply
process improvement techniques effectively and at the same time create ownership towards the solutions. The identified
critical factors and areas in different stages of process improvement work in courts are summarized in figure 6.
Figure 6 – Critical factors in process improvement work
The study has contributed to the discussion of process improvement applications in courts by confirming critical factors
previously highlighted in the literature and bringing new insights into the factors that need to be addressed and
incorporated in the process improvement work in order to enhance the application and acceptance of the solutions.
The study has confirmed that especially the widespread participation, role of top management, building commitment,
giving time to adopt changes and building systematic procedures to analyze improvement needs, build action plans and
evaluation efforts (see e.g. Fernandez and Rainey, 2006; Hagsgård, 2008) are the most important prerequisites for
successful improvement approach.
The study has brought new suggestions especially on how to incorporate and transfer these different prerequisites and
characteristics of successful improvement in to a more practical road-map for carrying out improvement work in courts:
what areas and factors need to be highlighted in different phases of the process improvement work, how the critical
International Journal For Court Administration | December 2012
101
factors can be incorporated into the different stages, interventions and solutions of the process improvement projects and
what is the role of an external facilitator in assisting process improvement work and in enhancing ownership towards the
solutions and improvement.
The possible approaches and models of process improvement in courts still need further research and empirical evidence.
In order to create a more concrete approach and model to process improvement, the different process improvement
interventions carried out in courts should be studied and reported using longitudinal approaches. This way the approaches
and solutions that genuinely create the basics for sustainable change instead of quick, short-term improvements, could be
more easily revealed and distinguished.
One important research topic connected to the process improvement model is to study further the possibilities and
challenges of using external expertise in process improvement work in courts. Based on this study, the possible roles,
interventions and methods of the outside expert aiming not only to act in transferring possible improvement solutions but
building the organization´s capabilities to analyze their own processes, to design solutions and to create a continuum for
the improvement work should be further studied. The research should create suggestions and guidelines for external
experts to enhance courts’ willingness and enthusiasm to improve and to gain ownership towards the solutions. In
addition, the external expert’s role in transferring best improvement practices and lessons from one court to another
should be highlighted more in process improvement studies.
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Electronic Data Exchange Within European Justice: e-CODEX Challenges,
Threats and Opportunities1
By Nadia Carboni, Marco Velicogna
IRSIG – CNR
Abstract:
This paper analyses one of the most debated and controversial issues regarding the changes which are taking place in
the Justice domain: the complexity of developing and implementing ITC systems that ‘actually work’, and doing so with a
reasonable budget and in a reasonable time. While the number of studies on National experiences is slowly growing (see
for example Fabri & Contini 2001, Fabri 2007, Contini & Lanzara 2009, Reiling 2012), filling an often-mentioned gap in
justice sector literature, building on the European project e-CODEX case study, the authors point the attention to a
somewhat new and unexplored phenomenon, the concrete attempt to build cross-border electronic data exchange within
the European justice field.
e-CODEX (e-Justice Communication via Online Data Exchange) is the first European Large Scale Pilot in the domain of
e-Justice. The project is carried out by 19 partners either being or representing their national ministries of justice of 15
European countries, plus the Council of Bars and Law Societies of Europe (CCBE), the Conseil des Notariats de l'Union
Européenne (CNUE) and the National Research Council of Italy (through two of its institutes - IRSIG-CNR and ITTIGCNR). To provide a better grasp of the project scale, its overall budget is over 14 M euro and about 14 hundred personmonths are committed to it.
The project aims at improving cross-border access of citizens and businesses to legal means in Europe, as well as to
improve the interoperability between legal authorities of different Member States. With a case based approach, e-CODEX
is developing and will be soon implementing an interoperability layer to connect existing National Systems in order to
provide cross border e-justice services. The project commitment includes running a live pilot in a ‘production environment’
for a duration of twelve months. The electronic services that have been so far selected are: European Payment Order
(EPO), European Small Claim procedure, European Arrest Warrant (EAW), and the Secure cross-border exchange of
sensitive data.
The paper provides a description of the on-going project, showing the additional layers of complexity which affect the
design and innovation of ICT when the scope of the system being created crosses not only organizational and institutional
boundaries, but also national borders. When implementing their National Systems, many European countries have
experienced difficulties ranging from delays to never ending design or piloting stages to more or less openly declared
failures. According to the authors’ main hypothesis, and in line with a growing number of empirical studies, this complexity
is caused by several factors such as technological, organisational, normative, and their intertwining. Furthermore, it
provides the opportunity to begin investigating the changes deriving from such a project in terms of governance and public
value of the services delivered.
1. Introduction
In a Europe without borders, cooperation among judicial authorities of different countries is crucial to enable and stimulate
2
the mobility of citizens and businesses. In an increasingly digital society, such judicial cooperation relies on e-Justice to
facilitate the interaction between different national and European judicial actors. A European system of e-Justice should
be accessible to citizens, businesses, legal practitioners and the judicial authorities, which will make use of existing
modern technologies.
1
This work has been carried out within the e-CODEX Work Package 2 (Communication) activities. While involved in the e-CODEX
project, the authors have attempted to keep an independent stance while collecting and analysing the data. This work has also
benefited from the results of several research projects in the area of e‐justice coordinated by the Research Institute on Judicial Systems
of the Italian National Research Council (IRSIG‐CNR) with financial support from the European Commission and from the Italian
Ministry of Universities and Research. The opinions expressed in this article are those of the authors and do not necessarily reflect the
positions of e-CODEX or of the aforementioned institutions.
2
In particular, in the EU jargon, the concept of judicial cooperation refers to “Cooperation between the judicial bodies of different States,
which may take the form of mutual assistance or the recognition and enforcement of judgments
(http://eurovoc.europa.eu/drupal/?q=request&view=pt&termuri=http://eurovoc.europa.eu/209988&language=en last visited 19/11/2012).
International Journal For Court Administration | December 2012
104
In June 2007 the Justice Home Affairs Council of Ministers decided that it was time to develop, at European level, the use
3
of information and communication technologies in the field of justice. In November 2008 the European e-Justice Action
Plan was launched. This plan basically states that the European e-Justice system must be designed while respecting the
principle of the independence of the judiciary. From a technical viewpoint, e-Justice must take into account the more
general framework of e-Government, especially on issues like secure infrastructure and the authentication, e-Signature
and e-Identity. The European e-Justice Action Plan outlines numerous areas of activity for the support of the European
judicial area at the service of European citizens. Examples are access to information in this field, dematerialization of
proceedings and communication between judicial authorities. The realization of these goals calls for common solutions to
potential digital barriers between countries. At a time when the physical barriers between countries in the European Union
have been removed, the digital era poses new cross-border challenges though. Challenges relate to different standards,
different protocols, the cross-border recognition of identities, mandates, electronic signatures, and so forth.
Within this framework the E-codex project has been drafted. It aims to improve the cross-border access of citizens and
businesses to legal means in Europe as well as to improve the interoperability between legal authorities within the EU.
The use of ICT will make judicial procedures more transparent, efficient and economic. At the same time, it will help
citizens, companies, administrations, and legal practitioners to get an easier access to justice. This means not only
smoother access to information but also the ability to process cross-border cases efficiently.
The paper provides a description of the on-going e-codex project, showing the additional layers of complexity which affect
the design and innovation of ICT when the scope of the system being created crosses not only organizational and
institutional boundaries, but also national borders.
It proceeds as follows. First, we propose a conceptual framework to evaluate ICT-enabled governance projects at a panEuropean level. The approach is based on both the academic literature and practitioner experience. Then we apply it to a
case study at cross-border in Europe. E-codex project well suits the main paper’s objective that is to outline the various
challenges that interoperability initiatives at EU level pose. Conclusions discuss threats and opportunities related to
electronic data exchange within European Justice field.
2. Theoretical Framework
Our analytical framework is based on previous works within the public administration literature. We mainly refer to the
4
recent findings related to the explanatory research on emerging ICT-enabled governance models in EU cities carried out
by Misuraca et al. (2011).
Following Misuraca et al. work, we started from the idea of a multilevel framework concerning three key dimensions:
governance, interoperability and public values. Then we develop the three concepts through indicators and we apply it to
a pan European project.
3. Governance/ e-Governance
The concept of governance has come to be widely used, yet it is not always clear what it means (Al-Habil, 2011). The
complexity of governance has been studied from different perspectives and in different disciplines with evolving definitions
5
and variations of interpretations. In our research, we define it as the process of autonomous, self-organizing networks of
organizations exchanging information, negotiating, reaching agreements and taking decisions (Toikka, 2011; Velicogna
and Contini, 2009). In other words, governance is related to self-organizing, inter-organizational networks that are charged
with policy-making (Rhodes 1996). In fact, the multiple dimensions of governance - the structures, roles and relationships
governing how society functions – refer to complex policy-making situations, involving multiple organizations, from the
government as well as from the outside.
3
For a description of which technologies were available at the time in the European justice domain, see Velicogna (2008, 2007).
The research was conducted by the Information Society Unit of the Institute for prospective technological studies (IPTS)of the
European Commission ‘s Joint Research Centre.
5
We mainly refer to the definition developed by the UN, which sees governance as “a multifaceted compound situation of institutions,
systems, structures, processes, procedures, practices, relationships, and leadership behavior in the exercise of social, political,
economic, and managerial/administrative authority in the running of public or private affairs”. It is a situation of multiple inter-linkages
and relationships in which a variety of public and private actors collaborate - sometimes mutually conflicting and sometimes mutually
reinforcing and complementary - in order to produce and define policy. In this sense, governance involves the management of
administration at European, national and local level, including inter-administrative and inter-sectorial linkages with various partners and
stakeholders.
4
International Journal For Court Administration | December 2012
105
To this respect governance can be described by the characteristics of governance models (macro perspective) and of
governance network (micro perspective). The first dimension refers to the institutional level where stable formal and
informal rules, boundaries, procedures, regime values and alike are found, this level is associated with the policy studies
approach and it addresses the problematic changing context of administration. The second level is organizational or
managerial. Where the bureaus, departments, executive branches and such reside along with the lateral
nongovernmental contractual entities linked to government. At this level the issues of incentives, administrative discretion,
performance measures and civil service functioning become crucial (Frederickson, 1999).
ICTs are important tools to support the transformation of governance processes through e-Governance. e-Governance
can therefore be considered as a broad framework to capture the co-evolution of ICTs' various stakeholders with the
political institutions, at local, national and global level. e-Governance can also be regarded as a multidimensional
construct that encompasses ICT research, at the intersections with social, economic, political, and organizational science
research, and addresses the investigation of the missions of government in relation to the interests of society (Misuraca
2011a). E-Governance is not simply the process of moving existing government functions to an electronic platform. It is
also about ‘democratic processes’ and ‘public policies’. E-Governance reflects the capacity and ability of government to
reform and improve to better serve its citizens. It also means engaging with the stakeholders to share the risks,
opportunities and benefits of collaboration in steering the Nation’s and community affairs.
To fulfill its mission, however, e-Governance has to reflect the principles and objectives of ‘Good Governance’, which
include government efficiency, transparency, openness, accountability, and inclusiveness (United Nations, 2006). eGovernance is, or should be citizens or people centred. Efficiency and quality services, however, are too fundamental to
e-Governance. The core idea of ‘public service’ or ‘public value’ is therefore central to delivering successful eGovernance.
4. Public Values
In recent years, public administration research has paid greater attention to the study of public values (e.g., Beck
Jørgensen & Andersen, 2010; Beck Jørgensen & Bozeman, 2007; de Graaf & Van der Wal, 2010; Meynhardt, 2009).
After a rather one-sided focus on efficiency, a key aspect of this new interest is the acknowledgement of the
6
multidimensionality of the value universe .
Public value refers to the value created by government through services, law regulations and other actions (Moore 1995).
In the public value idea, public intervention should be directed towards meeting citizens’ needs in a fair, effective and
accountable way. Hence, the public value concept acknowledges the necessity to involve citizens and civil society actors
to build a democratic governance system.
The close relationship between the concept of public value and e-Government was first noted by Kearns (2004). From this
perspective, the use of ICTs to improve government and governance is also a means to improve the production of public
value.
A number of value classifications have been developed over time (Hood, 1991; Lundquist, 2001; Pollitt 2003, Beck
Jørgensen and Bozeman 2007). To this regard Misuraca et al. (2011c p. 5) identified three main value drivers that
constitute the basis of a theoretical framework for ICT-enabled governance, and which include various dimensions:
a) Performance: effectiveness, efficiency (and also, indirectly, responsiveness (serving all citizens in a consistent and
predictable way).
b) Openness: access to information as a proxy for participation (enabling the empowerment of citizens so that they can
legally control service delivery) and transparency (bringing visibility to citizens of the service workflow by means of
automated service delivery); and accountability (creating standards against which the individuals providing a service
and the service delivery can be held accountable)
c) Inclusion: equity and inclusiveness (referring to citizens receiving a service on an equal basis and providing services
to disadvantaged and minority groups), which involve respect for the rule of law.
6
Even the OECD – with its traditional emphasis on efficiency – has paid increased attention to the variety of public values (OECD,
1996, 2000, 2008).
International Journal For Court Administration | December 2012
106
5. Interoperability
According to the European eGovernance policy, the implementation of trans-border public services will require that
member states' public administrations and nation-based technical and legal systems be made interoperable, that is, able
to communicate and exchange data, documents and information with one another (Contini, Lanzara 2012). The European
Interoperability Framework defines the main principles and guidelines which member states should attend when they
develop their National or Government Interoperability Frameworks (NIF or GIF). The EIF recommendations should be
taken into account in order to deliver trans-border services for the European citizens, enterprises, and public agencies and
administrations. Within the vision of the European Commission the EIF does not replace the NIFs, but complements them
according to the principle of subsidiarity, one of the leading principles of European integration. This means, for example in
the case of e-services in civil justice, that national courts and Ministries of Justice are responsible for delivering services
across European borders when they receive trans-border claims. In order to be able to do that, they should adapt or
update their technology, language, legal rules and procedures, and institutional and organizational structures according to
the EIF guidelines (Contini, Lanzara 2012). It means that the national frameworks must become interoperable by means
of the European Interoperability Framework.
7
The EIF v.2 identifies four types of interoperability: technological, legal, semantic, and organizational/institutional .
a) Technological interoperability
This includes both hardware and software issues. The former mainly concerns connectivity and protocols (e.g.,
TCP/IP), while the latter concerns a common syntax (e.g. XML) for data, and also standards for messaging (e.g. SOAP
and WSDL). A technological interoperability platform allows two organizations to reliably exchange messages, but the
actual understanding of message content remains outside its scope (Misuraca 2011c).
b) Semantic interoperability
Ojo et al. (2009) define the concept of “semantic interoperability” as the capability of organizations in public, private,
voluntary and other sectors, and their information systems to:
- discover required information;
- explicitly describe the meanings of the data they wish to share with other organizations;
- process received information in a manner consistent with intended purpose of such information.
This implies that, despite divergences in the structure, organization and content of the exchanged data, the intended
meaning is correctly conveyed, the information is correctly acquired and the expected actions are understood and
undertaken.
c) Legal Interoperability
It has been defined (Onsrud, 2010) as: … “a functional environment in which:
– differing use conditions imposed on datasets drawn from multiple disparate sources are readily determinable,
typically through automated means, with confidence;
– use conditions imposed on datasets do not disallow creation of derivative products that incorporate data carrying
different use conditions;
– users may legally access and use the data of others without seeking permission on a case-by-case basis.”
Onsrud and Rushton (1995, in Onsrud, 2010: 7) define the complexities in data sharing as needing to deal with ”both
the technical and institutional aspects of collecting, structuring, analysing, presenting, disseminating, integrating and
maintaining spatial data“. More recent trends in spatial data use have further compounded the already complex privacy
and intellectual property challenges. These trends include ubiquitous location-based devices and services and the
collection and use of personal information; the call for more open access to data and the variety of licensing regimes;
and the crowd-sourcing movement borne of Web 2.0.
d) Organizational interoperability
For an effective and far-reaching cooperation between two (or more) organizations, organizational interoperability also
needs to be addressed. The latter means that the two (or more) cooperating organizations are able to effectively
perform a cooperative task, exchanging information and services. Furthermore, this strand also includes the
progressive adoption of best practices, necessary to ease an effective interoperability. Organizational interoperability is
generally supported by adopting an appropriate framework, such as ebXML, TOGAF, or e-GIF (Misuraca 2011b).
7
Lanzara and Contini (2012) use the expression institutional interoperability rather than organizational, as it underlines the institutional
features of public administrations.
International Journal For Court Administration | December 2012
107
The multilevel analysis for evaluation of ICT-enabled governance projects at EU level results from the conceptual
combination of three variables/dimensions:
Multilevel governance: characteristics of governance models (cultural and administrative tradition – typology of judicial
systems) and of governance network (actors involved at local – national – European level).
Multifaceted interoperability : legal – organisational – semantic – technical
Multi public values: openness – inclusion – performance
Multilevel analytical framework
Governance
Interoperability
Public Values
- governance
models: cultural
administrative
tradition
- governance
networks: actors,
rules, linkages,
etc.
- technical
- semantic
- legal
- organizational
- openness
- performance
- inclusion
ALIGNMENT
Figure 1 – The case study analysis: the e-Justice Communication
via Online Data Exchange (e-Codex) project
6. e-CODEX Case study
An Overview
8
The e-Justice Communication via Online Data Exchange (e-CODEX) project is the first European Large Scale Pilot of
the Information and Communication Technologies Policy Support Programme (ICT PSP) in the domain of e-Justice.
Within the Competitiveness and Innovation Framework Programme (CIP), the ICT PSP is part of the European Union
effort to exploit the potential of the new information and communication technologies.
Coordinated by the Justizministerium des Landes Nordrhein-Westfalen (Jm Nrw), the e-CODEX project is carried out by
19 partners either being or representing their national ministries of justice of 15 European countries, plus the Council of
Bars and Law Societies of Europe (CCBE), the Conseil des Notariats de l'Union Européenne (CNUE) and the National
9
Research Council of Italy (through two of its institutes - IRSIG-CNR and ITTIG-CNR). The project started in December
2010 and will end in December of 2013. To provide a better grasp of the project scale, its overall budget is over 14 M euro
and about 14 hundred person-months are committed to it.
8
http://www.e-codex.eu/ e-CODEX is an EU co-funded project (Ref. CIP-ICT PSP 2010 no 270968).
In addition to the Justizministerium des Landes Nordrhein-Westfalen (JM NRW) GERMANY, the project sees the participation of:
Bundesministerium für Justiz Österreich (BMJ Austria) AUSTRIA; Federal Public Service Justice (MoJ Belgium) BELGIUM; Fedict
Belgium (Fedict Belgium) BELGIUM; Ministry of Justice of the Czech Republic (MoJ Czech Republic) CZECH REPUBLIC; Ministry of
Justice (MoJ Estonia) ESTONIA; Ministry of Justice France (MoJ France) FRANCE; Aristotelio Panepistimio Thessalonikis (AUTH
Greece) GREECE; Italian Ministry of Justice - Directorate General for IT (MoJ Italy) ITALY; Malta Information Technology Agency
(MJHA/MITA Malta) MALTA; Ministerie van Justitie (MoJ Netherlands) NETHERLANDS; Instituto das Tecnologias de Informação na
Justiça (MJ - ITIJ Portugal) Portugal; Ministry of Communications and Information Society (MCSI Romania) ROMANIA; Spanish
Ministry of Justice - Directorate General for Modernization of Justice Administration (MJU Spain) SPAIN; Ministry of Public
Administration and Justice (KIM Hungary) HUNGARY; IT Department of the Ministry of Justice of Turkey (MoJ Turkey) TURKEY;
Council of Bars and Law Societies of Europe (CCBE) BELGIUM; Conseil des Notariats de l'Union Européenne (CNUE) BELGIUM; the
National Research Council of Italy (CNR) ITALY.
9
International Journal For Court Administration | December 2012
108
The project aims at improving cross-border access of citizens and businesses to legal means in Europe, as well as to
improve the interoperability between legal authorities of different Member States. With a case based approach, e-CODEX
is developing and will be soon implementing an interoperability layer to connect existing National Systems in order to
provide cross border e-justice services. The project commitment includes running a live pilot in a ‘production environment’
for a duration of twelve months. The electronic services that have been so far selected are: European Payment Order
(EPO), European Small Claim (ESC) procedure, European Arrest Warrant (EAW), and the Secure cross-border exchange
of sensitive data.
The case study focuses on two of the four electronic services that have been so far selected for piloting e-CODEX, the
European Payment Order (EPO), and the European Small Claim (ESC) procedure. This is done for two reasons. Firstly,
they are the ones that are in the most advanced phase of development, and secondly, they involve the general public and
potentially a much larger number of users. Second, both procedures are based on Regulations where “for the first time the
European Union legislator, not only regulated certain aspects related to civil proceedings in cross-border cases (e.g. the
jurisdiction, the serving of documents, the gathering of evidences etc.), but also tried to propose an autonomous model of
10
rules governing civil proceedings”. Some reference to the criminal justice pilots, the European Arrest Warrant (EAW),
and the Secure cross-border exchange of sensitive data will be made when needed to highlight additional relevant
elements. It should be noted that the project is still in the phases of developing the technological components of the eCODEX infrastructure and that the pilots are not running yet, even though, as we will see, the action of development is
itself generating effects and pointing out at future consequences.
A description of the off-line procedures from the user perspective highlighting its critical elements is followed from a
description of the high level technological and organizational infrastructure that e-CODEX is building to support them.
7. The European Payment Order
The European Payment Order procedure is based on the Council Regulation 1896/2006 of 12 December 2006, which is
applicable since the 12th of December 2008. Its purpose was is “to simplify, speed up and reduce the costs of litigation in
cross-border cases concerning uncontested pecuniary claims by creating a European order for payment procedure; and
to permit the free circulation of European orders for payment throughout the Member States by laying down minimum
standards, compliance with which renders unnecessary any intermediate proceedings in the Member State of
11
enforcement prior to recognition and enforcement”. In other words, the procedure should allow EU citizens to
12
autonomously file a cross-border case without having to resort to legal assistance or at least reducing its need. The
procedure does not require presence of the parties before the court and the communication exchange between the actors
of the procedure (parties and seized Court) is supported through structured forms provided by the Regulation, which are
available in all official languages of the EU. Furthermore, the e-justice portal provides a step-by-step guide of the
procedure, on-line forms to be filled and automatic translation of the ‘static’ component of the form. A relevant problem is
that “these forms are not very clear in most parts and often both citizens and Courts do not know exactly how to deal with
13
them”.
14
In order to begin the procedure, the claimant has to submit an application to the competent Court . The regulation
provides a preformatted form (A) to be filled for this purpose. Filling and submitting the claim rises at least four main
problems: understanding which is the competent Court, filling the claim in one of the languages accepted by the seized
court, paying the court fees (if applicable), submitting the claim.
Understanding which is the court jurisdictionally competent - In principle, if the claim is against a consumer and relates to
a consumer contract, the application must be lodged with the competent court of the Member State in which the defendant
is domiciled. In the other cases, jurisdiction is determined in accordance with the rules of international jurisdiction provided
by Regulation (EC) No 44/2001. The system set up by Regulation No. 44/2001 “is not so easy to apply: it is sometimes
based on quite complicated criteria of connection, whose interpretation can often differ according to the Court seized …
Moreover, this system of jurisdiction is not very well known by the Courts of the Member States. Finally, except as for
10
Mellone, M. (2012), p. 1
http://www.irsig.cnr.it/BIEPCO/documents/case_studies/EuropeanSmallClaim_Mellone.pdf
11
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for
payment procedure, in OJ L 399, 30.12.2006, p.3
12
The European order for payment procedure applies between all Member States of the European Union with the exception of
Denmark.
13
Mellone, M. (2012), p. 1
http://www.irsig.cnr.it/BIEPCO/documents/case_studies/EuropeanSmallClaim_Mellone.pdf
14
It should be noted that the “European order for payment is issued by courts with the exception of Hungary, where order for payment
procedure falls under the competence of notaries” https://e-justice.europa.eu/content_european_payment_order_forms-156-en.do
International Journal For Court Administration | December 2012
109
rules on exclusive fora, there are no duties for the Court seized to check automatically (“ex officio”) its competence to deal
with the case. In other words, if parties do not raise any exception of jurisdiction, the Court seized can declare its
15
competence to deal with the case, although it is not actually competent to do it”. Furthermore, the claimant must also
specify the grounds for the court’s jurisdiction choosing from 14 options, one of which is open and needs to be specified.
Filling the claim in one of the languages accepted by the seized court – Given the nature of the procedure, typically, the
languages accepted by the seized court are not those of the claimant. While the static content of the form is available in
the EU official languages and part of the structured data that need to be entered do not need translation (i.e. names.
Surnames, telephone numbers etc.), some open fields need to be filled with unstructured text such as descriptions,
statements and additional information which need to be translated. Further complexity to the need of translation is added
by the fact that each Member State “juridical language is a technical language and it deeply depends on the national law.
16
Therefore, it can not be easily or automatically translated into a different language”.
Paying the court fees – in order to file a claim, fees and charges need to be paid to the seized court. The problem here
concerns not only the amount to be paid, which is fixed in accordance with national law, but also the modalities through
which the payment is allowed. Not all countries accept credit card or collect the fees from the bank account. Consulting
the website of the European Judicial Network in civil and commercial matters may provide some help, but understanding
how to proceed may require contacting the court concerned.
Submitting the claim – Once completed, the form needs to be printed, dated and signed and submitted. Submission can
be done in paper form or by any other means of communication, such as fax and electronic, that is accepted by the
Member State of the seized court and available to the seized court. In several countries though only paper submission is
allowed while in others, electronic submission requires the possession of special software or of a digital signature valid in
the Member State of the seized court.
Once the seized court receives the application, it examines if the form is correctly filled out. If the application needs to be
completed and/or rectified the seized court should send a request to the claimant (Form B). If the court considers that the
necessary requirements are met for only a part of the claim, it can propose a modification to the application (Form C).
Failure for the claimant to reply within the limit set out by the court results in the rejection of the application. The court also
rejects the application if the requirements set out by the European Payment Order Regulation are not met, or if the claim
is clearly unfounded. Decision to reject the application is communicated to the claimant through form D. If the
requirements are met, the court should issue the European Payment Order within 30 days (Form F). The order is
therefore issued solely on the basis of the information provided by the claimant, which is not verified by the court.
17
According to the e-justice portal, “the European Payment Order must then be served on the defendant by the court”. At
the same time, “Regulation No. 1896/2006 does not clearly state whether the Court or the claimant shall serve the
18
European order for payment”. It only mentions that the court should “ensure that the order is served on the defendant in
19
accordance with national law by a method that shall meet the minimum standards laid down in Articles 13, 14 and 15”.
So, while in some countries the courts take care of the service of the European order for payment together with the
creditor’s claim, in others this task is left to the claimant.
Once the claimant receives the documents, she/he can decide to pay to the claimant the amount indicated in the order, or
oppose the order by lodging a statement of opposition with the court that issued this order within 30 days from the day
following that on which the order is served. The order becomes enforceable unless a statement of opposition is lodged
with the court within the time limit indicated. The eventual enforcement of the order is a separate procedure, which “takes
place in accordance with the national rules and procedures of the Member State where the European Payment Order is
20
being enforced”. If a statement of opposition is lodged, the proceedings continue before the competent courts of the
15
Mellone, M. (2012), p. 4
http://www.irsig.cnr.it/BIEPCO/documents/case_studies/EuropeanSmallClaim_Mellone.pdf
16
Mellone, M. (2012), p. 17
http://www.irsig.cnr.it/BIEPCO/documents/case_studies/EuropeanSmallClaim_Mellone.pdf
17
https://e-justice.europa.eu/content_european_payment_order-41-eu-en.do
18
Mellone, M. (2012), p. 11
http://www.irsig.cnr.it/BIEPCO/documents/case_studies/EuropeanSmallClaim_Mellone.pdf
19
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for
payment procedure, in OJ L 399, 30.12.2006, p.3
20
https://e-justice.europa.eu/content_european_payment_order-41-eu-en.do
International Journal For Court Administration | December 2012
110
Member State where the order was issued in accordance with the rules of ordinary civil procedure, unless the claimant
21
has explicitly requested that the proceedings be terminated in that event.
8. The European Small Claim Procedure
The European Small Claims Procedure has been introduced to simplify, reduce costs and speed up cross-border civil and
22
commercial claims of up to €2000 (excluding all interest, expenses and disbursements). The European Small Claims
Procedure is available to litigants as an alternative to the procedures existing under the laws of the European Union
23
Member States.
The procedure is defined by the Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July
24
2007 establishing a European Small Claims Procedure. This Regulation also eliminates the intermediate proceedings
necessary to enable recognition and enforcement, in other Member States, of judgments given in one Member State in
25
the European Small Claims Procedure. In other words, “a judgment given in the European Small Claims Procedure is
recognized and enforceable in another Member State without the need for a declaration of enforceability and without any
26
possibility of opposing its recognition”.
Similarly to the European Payment Order procedure, the European Small Claims Procedure is designed with the objective
to allow a common person to file a claim or to defend himself without the need of a lawyer. For this reason, it is supported
through structured forms for the communication exchange between the parties and the seized court provided as annexes
to the Regulation. Also in this case the forms are available in all official languages of the EU and the e-justice portal
provides a step-by-step guide of the procedure, on-line forms to be filled and automatic translation of the “static”
component of the form. Once again, the problem of clarity of the forms for non-expert users is present.
In order to begin the procedure, the claimant has to submit an application to the competent Court filling a standard claim
27
form (A) in a fashion similar to -and with the same problems of- the form A of the European Payment Order procedure.
An additional complexity is added by the fact that relevant supporting documents, such as receipts, and invoices must be
28
attached to the form. Furthermore, translation of such documents may be requested.
Once the seized court receives the application, it examines if the form is correctly filled out. If the claim is outside the
scope of the Regulation, the court should notify it to the claimant and if the claim is not withdrawn, the court should
proceed in accordance with the relevant applicable procedural law of the Member State. If the application is within the
scope of the regulation but some information is missing or is incorrect, the seized court sends a request to the claimant
(Form B) to provide it. If the claimant fails to provide the relevant information in the time specified, the claim is rejected.
The claim is rejected also if it is found manifestly unfounded or inadmissible.
If the form provides the needed information or if and the application is not manifestly unfounded or inadmissible, “copy of
the claim form, and, where applicable, of the supporting documents, together with the answer form should be served on
21
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for
payment procedure, in OJ L 399, 30.12.2006, p.3
22
Art. 2. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small
Claims Procedure
23
Art. 1. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small
Claims Procedure
24
The European Small Claims Procedure Regulation applies from 1 January 2009 in all EU Member States with the exception of
Denmark
25
Art. 1. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small
Claims Procedure
26
https://e-justice.europa.eu/content_small_claims-42-EU-en.do
27
European Small Claims form A provides details on the parties, on the claim, on the grounds on which the court has been seized and
an eventual request for an oral hearing. Filling, signing, and submitting the claim rises the same problems discussed for the European
Payment Order procedure: understand which is the competent Court, filling the claim in one of the languages accepted by the seized
court, paying the court fees (if applicable), submitting the claim.
28
“If any other document received by the court or tribunal is not in the language in which the proceedings are conducted, the court or
tribunal may require a translation of that document only if the translation appears to be necessary for giving the judgment” Art. 6.
Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007
establishing a European Small Claims
Procedure. Furthermore, a party can refuse to accept a document because it is not in either one of the official languages of the place
where service is to be effected, or to where the document is to be dispatched or a language which the addressee understands. In this
case, the other party must provide a translation of the document (ibidem).
International Journal For Court Administration | December 2012
111
29
the defendant … within 14 days of receiving the properly filled in claim”.
While according to the e-justice portal “the
30
court should serve a copy of it, along with the Answer Form, on the defendant”, the Regulation does not specify it and in
some cases it has been interpreted otherwise by Member States (i.e. Italy).
The defendant has 30 days from the service of the claim form and answer form to reply, by filling a part of the answer
form and returning it (accompanied, where appropriate, by relevant supporting documents), to the court or tribunal. The
court should then send a copy of the reply and any relevant supporting documents to the claimant within 14 days. A
31
counterclaim is also possible.
Within 30 days of receiving the defendant's answer (or of the claimant in case of a counterclaim) the court must give a
32
judgment on the small claim or demand further details from the parties (within a maximum of 30 days), taking evidence,
33
or summon the parties to an oral hearing. The court should then give the judgment either within 30 days of any oral
34
hearing or after having received all information necessary for giving the judgment.
Enforcement is governed by the national rules and procedures of the Member State where the judgment is enforced. “The
party seeking enforcement produces an original copy of the judgment, and of the certificate (Form D) translated by a
35
qualified person into the language, or one of the languages, of the Member State of enforcement”. The only reason that
enforcement in another Member State can be refused is if it is “irreconcilable with an earlier judgment given in any
36
Member State or in a third country”.
37
9. e-CODEX Technological and Organizational Infrastructure
Let’s now focus our attention on the technological and organizational infrastructure, which is now being built to support
them. The main focus of e-CODEX is on the cross-border electronic data and documents exchange. As we will see, one
of the consequences of the switch from paper to digital changes some key properties of the techno-legal objects
supporting the data and document exchange. So for example, the content of a paper form sent by the claimant to the
court maintains its structure and format once the envelope is opened at the court. This is not necessarily true for an
electronic document, which visualization may depend on the application used to open it. The typical example is the
opening of a word document with Microsoft Word and with OpenOffice Writer, or an html or xml document by two different
browsers. Furthermore, while by postal service the “original” of a paper supporting document can be submitted, the digital
version of such document is necessarily a copy. It is important to remember that in the justice domain, not only the
content of a document is of importance. Also the form, including the presentation of the content and the way in which the
information is packaged, can be relevant for it to perform its purpose. To face these challenges e-CODEX has to find
viable techno-legal solutions.
For example, the European Payment Order and the European Small Claims procedures Regulation requires the claimant
to sign the claim form. In the electronic version, an advanced electronic signature, as defined by Directive 1999/93/EC of
29
Art. 5.2. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small
Claims Procedure
30
https://e-justice.europa.eu/content_small_claims-42-EU-en.do
31
If the counterclaim does not exceed the value, it should be submitted using the Form A and follows a procedure analogue to that of
the claim. If the counterclaim exceeds the limit, the claim and counterclaim do not proceed in the European Small Claims Procedure but
must “be dealt with in accordance with the relevant procedural law applicable in the Member State in which the procedure is conducted”
Art. 5.7. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small
Claims Procedure.
32
According to Article 9, Taking of evidence, “1. The court or tribunal shall determine the means of taking evidence and the extent of
the evidence necessary for its judgment under the rules applicable to the admissibility of evidence. The court or tribunal may admit the
taking of evidence through written statements of witnesses, experts or parties. It may also admit the taking of evidence through video
conference or other communication technology if the technical means are available. 2. The court or tribunal may take expert evidence
or oral testimony only if it is necessary for giving the judgment. In making its decision, the court or tribunal shall take costs into account.
3. The court or tribunal shall use the simplest and least burdensome method of taking evidence”.
33
If there is an oral hearing, the parties do not need to be represented by a lawyer.
34
Art. 7.2. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small
Claims Procedure.
35
http://europa.eu/legislation_summaries/consumers/protection_of_consumers/l16028_en.htm
36
Art. 22. Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small
Claims Procedure, and in particular “(a) the earlier judgment involved the same cause of action and was between the same parties; (b)
the earlier judgment was given in the Member State of enforcement or fulfils the conditions necessary for its recognition in the Member
State of enforcement; and (c) the irreconcilability was not and could not have been raised as an objection in the court or tribunal
proceedings in the Member State where the judgment in the European Small Claims Procedure was given” (ibidem).
37
This section builds on e-CODEX D7.3 “High Level Architecture Definition” v0.2, v0.4 and v1.0.
International Journal For Court Administration | December 2012
112
the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures
(which guarantees the integrity of the text, as well as the authentication) is needed. While a paper signature can be easily
done by any claimant and it is also assumed that can be verified by any reader (although the validity of this assumption
could be easily questioned), this is not so in the case of an advanced electronic signature. In case of advanced electronic
signature, both signature and signature verification require the litigant to have access to specific and typically not
interoperable technologies. So for example an Italian claimant may be able to electronically sign a document in a way that
is adequate and can be verified by an Italian court, but if the document is sent to a court of another EU Member State, this
court cannot verify it even if it has an e-filing infrastructure. This is because the various judiciaries have developed
solutions that are not interoperable.
For this reason, e-CODEX infrastructure is being built taking into account not just the specific procedures it will support,
but also that Member States have already established ICT solutions in the justice domain, solutions that respond to
specific requirements of national legal systems, and which implied considerable investments in terms of financial and
human resources. Recognising that “these national solutions … cannot simply be replaced in favour of new, centralised
38
approaches”, e-CODEX aims to create an interoperability layer for the electronic exchange of data and documents
between the existing European national information systems and infrastructures. Accordingly, “e-CODEX … should not be
39
a new centralised approach or duplication of any national solution at the European level”.
Furthermore, given the size, complexity, cost and independent evolution of such national systems, feasibility and
40
evolvability reasons suggested to avoid, wherever possible, attempting their modification in order to fit e-CODEX needs.
What e-CODEX wants to create, therefore, is an e-Delivery platform based on a multilateral solution in which all parties
41
agree to common e-CODEX interoperability standards. The choice of a multilateral solution avoids the need to
implement bilateral arrangements as this would “create the need for the maintenance of a multitude of solutions and
42
agreements” and increase complexity. In practice, the e-Delivery platform exchanges data and documents that are
translated from sending national format to e-CODEX format and then again to receiving national format.
One of the key concepts adopted by E-CODEX to achieve such simplification is the creation of a ‘circle of trust’ between
the judicial authorities involved. This circle of trust should provide the basis for the Judicial authorities to trust the
information provided through e-CODEX. In other words, E-CODEX works on each Member State’s trust of other Member
43
44
States on issues such as confidentiality, e-Identification, e-Signature, e-Documents, e-Payment and transport. So, for
example, “through the use of the ‘circle of trust’ the responsibility of verifying the signature lies with the sending country.
45
The process does not have to be repeated in the receiving country”. As e-CODEX analysis has shown, without such a
circle of trust, the complexity of the task would be too high to be managed in order to produce a working solution.
The creation and maintenance of the circle of trust is not only a technological and organizational issue. It also requires a
formal agreement between the States and in some cases the introduction of national norms in order to make it
performative in the national justice domains.
In line with its exchange nature, the e-CODEX system is not designed for the storage of data and documents, but only for
the transport of messages. As a consequence, after a successful message transmission, the message is deleted and only
46
the log information is stored for statistical and security purposes.
38
e-CODEX Technical Annex V.1.1, p.11.
e-CODEX Deliverable 4.2 Concept for Implementation of WP4 (Pilots authentication and signature specifications), p.13.
40
e-CODEX Deliverable 7.1 Governance and Guidelines Definition, p.10.
41
e-CODEX Standards and Architectural Guidelines are based on the European Interoperability Framework for European public
services (EIF version 16.12.2010 COM(2010) 744 final) and the Architecture Guidelines for Trans-European Telematics Networks for
Administrations (IDABC Version 7.1) ( e-CODEX Deliverable 7.1 Governance and Guidelines Definition p.10).
42
e-CODEX Deliverable 7.1 Governance and Guidelines Definition, p.30.
43
Typically, e-service users need to identify and authenticate themselves in order to be recognized by the system and use the services
i.e. signing in to an email account through user name and password.
44
e-CODEX Deliverable 7.1 Governance and Guidelines Definition, p.10.
45
e-CODEX D7.3 High Level Architecture Definition V0.2, p.20.
46
e-CODEX D7.3 High Level Architecture Definition V0.2, p.16.
39
International Journal For Court Administration | December 2012
113
Figure 2 – e-CODEX Components Source: e-CODEX D7.3 v1.0
The above picture provides a representation of e-CODEX’s main technological components and their interconnection from
the sending e-CODEX Member State (sending eCM) to the Receiving e-CODEX Member State (Receiving eCM). The eCODEX includes four main technological building blocks: the e-CODEX Service Provider, the e-CODEX Connector, the eCODEX Gateway and the e-Delivery platform.
E-CODEX infrastructure allows an e-CODEX user to submit files, data and documents. The e-CODEX users for civil
cases are typically the claimant, the defendant, their lawyers and the seized court. In the criminal cases, not discussed in
this paper, users can be judges, public prosecutors, lawyers or even members of the police forces.
The figure below provides a simplified representation of the e-CODEX high level infrastructure in civil cases. It should be
considered that typically, in European Payment Order and the European Small Claims procedures, claimant and seized
court are located in different Member States and that the defendant may or may not be in the same Member State of the
seized court. Furthermore, each Member State may be the place from which any of the actors send or receive a
document. The figure includes an additional actor, the e-Justice portal, which in theory will also provide an alternative
access to the e-CODEX communication infrastructure to parties that are not able to connect through their Member State
infrastructure component.
Figure 3 - e-CODEX building blocks from EU Member State perspective Source: e-CODEX D7.3 v1.0
Let’s now look more in detail to the e-CODEX infrastructure in action. An e-CODEX user creates, submits and receives
his/her files through his/her national system (i.e. the national solution which allows e-filing of national cases which has
been adapted to satisfy e-CODEX requirements or an ad-hoc solution) or through the e-Justice portal. Such systems, for
the purpose of e-CODEX, act as e-CODEX Service Providers. In order to be an e-CODEX service provider the system
must be able to deliver a service in conformity with e-CODEX standards (i.e. security standards, privacy) in the field of ejustice and be connected to an e-CODEX gateway through an e-CODEX Connector of an e-CODEX member. An
International Journal For Court Administration | December 2012
114
e-CODEX Service Provider may be a governmental solution or a private solution. In other words, depending on the use
case, or on the role of the user, the e-CODEX service provider can be a national application maintained by the
47
participating country’s government, the e-Justice portal or another application used by legal professionals.
The e-CODEX Connector performs two main functions: 1) it transforms the outgoing documents received from the eCODEX Service Provider from the national standard to the e-CODEX standard and adds a trust-ok token to the
documents. The trust-ok token provides the results of electronic signature verification or a statement guaranteeing that the
48
document was issued by an advanced electronic system that is capable of identifying the user and that ensures that the
document is uniquely linked to the user and is created using means that the user can maintain under his control and any
subsequent change of the data is detectable. According to the principle of the circle of trust, the responsibility for the
implementation and the control of those characteristics lies with the Member State whose party to a procedure uses the
49
50
system. The receiving country can then trust the documents and is not required to validate them again. 2) It transforms
the incoming documents received by the e-CODEX gateway from the e-CODEX standard to the national standard, it
verifies the trust-ok token and that no data has been changed.
The e-CODEX Connector might also perform protocol and semantic translations. Member States’ are free to decide at
what stage in their infrastructure they will perform these actions if they are necessary at all.
The e-CODEX gateways (national or provided by the e-Justice portal) are “channels” or systems for data transmission
between two communication partners. e-CODEX gateways are under the responsibility of e-CODEX members. The
gateways are required to fulfill specific security requirements within their operation, but also for the communication with
others. These gateways act as interfaces between national systems (or the e-Justice portal) and the e-Delivery platform.
Accordingly, they perform different functionalities, such as establishing a connection to other gateways and connectors,
format the content of a message to be sent to the e-CODEX standard (eBMS3.0) and extract the contents of a received e51
CODEX message, providing a transport signature and providing a timestamp for outgoing messages and checking of
the transport signature, providing of a timestamp and sending of an acknowledgment of receipt for incoming messages.
The e-Delivery platform is responsible for the secure and reliable transport of data and files from one e-CODEX gateway
to another. It has been decided to adopt a decentralized architecture. If a technical need will emerge in the future, a
central hub will then be considered. To allow access to all potential users, the system will use the Internet with encryption
to ensure a secure connection. In principle, the e-CODEX e-Delivery platform will be “content agnostic, however it remains
to be discussed if delivery evidences are business documents and therefore part of the content (the payload) or if they are
52
rather an integral part of the transport infrastructure”.
As payment of court or other fees can be required by the procedure, e-CODEX addresses the issue. While apparently
simple, this aspect is also a source of complexity as the various Member States have different ways to handle e-payment.
To cope with this complexity, pilot solutions will “vary from direct debit handling outside the e-CODEX process to online
payment done with a national system parallel to the e-CODEX process and handing over the payment receipt to the e53
CODEX process”.
A representation of the electronic cross border judicial communication exchange process supported by e-CODEX is
provided in the swim lane diagram below (Figure 4):
47
D3.3 Documented System Requirements and Specifications, 11.05.12 p. 13.
An advanced electronic system is an electronic system which meets the following requirements: the created document is uniquely
linked to the user; the system is capable of identifying the user; the document is created using means that the user can maintain under
his control; any subsequent change of the data of a created document is detectable.
49
D3.3 Documented System Requirements and Specifications , 11.05.12 p. 16.
50
e-CODEX Deliverable 5.3 Concept of Implementation v0.9.
51
D4.2: Concept for Implementation of WP4, 30.05.2012.
52
D5.2 Reusable Assets 02.12.2011, p. 25.
53 e-CODEX Deliverable 5.3 Concept of Implementation, v0.9 p.14.
48
International Journal For Court Administration | December 2012
115
Figure 4 – High level use cases scenario Source: e-CODEX D7.3 v1.0
10. Analysis and Concluding Remarks
As previously mentioned, e-CODEX goal is to improve cross-border access of citizens and businesses to legal remedies
in Europe, and to improve the interoperability between legal authorities of different Member States. The previous
paragraphs have provided two examples of procedures that will be supported by e-CODEX and have described the
infrastructure that is being assembled in order to provide such support. In line with the objectives of this paper, it is now
time to analyse how the assemblage of this infrastructure interacts with the three key dimensions of governance,
interoperability and public values.
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From a governance perspective, e-CODEX introduces a number of new actors to the ones already playing an active or
potentially active role in the European Payment Order and the European Small Claims off-line service provision. To the
main actors such as claimants, defendants, lawyers, judges and court personnel, and service and information providers
such as postal services, e-justice portal, the e-CODEX infrastructure adds as a minimum the national points of contact
where national Gateway and Connector are managed, typically under the responsibility of the Member State Ministry of
justice, the public and private organizations which develop and maintain the e-CODEX Service Providers, the advanced
electronic signature infrastructures, the networks, etc.
On the one hand this change increases the rigidity of the system, as it will make it more cumbersome to introduce some
changes in the supported procedures. To provide a trivial example, at present changes in the forms provided by the
European Payment Order and the European Small Claims Regulations require ‘just’ a change in the regulation and in the
XML and PDF schemes available on the e-Justice portal. Once such schemes are integrated in the e-CODEX Service
Providers and Connectors, these components will also need to change and the private and public actors maintaining and
evolving them will need to be involved.
On the other hand, the analysis carried out on the European Payment Order and the European Small Claims off-line
empirical procedures in order to develop the pilots, are resulting in a better understanding of the concrete and multiple
problems that until now have been tackled only at individual party and court level, providing to them a broader
54
perspective. It is the case, for example, of the problems related to the payment of the court fees in Italy, which, once
recognized as a problem not of the single court, the Italian Ministry of Justice e-CODEX coordinator is now addressing
from a National perspective. So the new, broader network of actors involved in the governance of the system is providing
also new opportunities to improve the service (not only on-line one but also off-line).
On the level of interoperability, the introduction of e-CODEX infrastructure is indeed increasing the complexity of the
system. Technological interoperability solutions are constrained not only by the Member States technological installed
bases but also by Member States and EU regulations on the feature that the electronic data and documents exchange
have to be performative in the seized court justice domain. Furthermore, evolvability issues need to be taken into account.
National Member States ICT systems, which are becoming components of e-CODEX, are only temporarily stable and eCODEX infrastructure needs to be able to cope with their change in order to keep running.
From a semantic perspective, e-CODEX is not directly addressing the issue of translation problems that the parties are
facing when dealing with the preparation of a claim or of a counterclaim. It is focused on the semantic issues related to the
structure and structured data of the documents, which can be used for example for feeding automatically court case
management systems. At the same time, once again, given the level of action, which is that of the Member State and not
the court, some more systematic actions are being taken to improve the information available to parties of other Member
States. For example, some of the Member States that did not do it before, are attempting to provide information on
payment of court fees not just in the official language(s) of the seized court but also in other ones (i.e. English).
While one of the organizational implications of e-CODEX is the increase in the number of organizational actors involved in
the procedure (at least on-line), another interesting result is the increase in coordination and standardization that seems to
be taking place (but which will need further investigation and analysis) as the technological infrastructure is being
developed and its organizational counterpart is being designed. Much of this will be visible only in the future, such as for
example that the role of the national points of contact play once established.
The project is attempting to avoid the need of normative changes in the various Member States in order to allow
interoperability, as it can be quite time consuming and require the involvement of legislative bodies. This reduces the
governance complexity. Furthermore, the EU Regulations provide some common grounds, which ease the legal
complexity. At the same time, the elements which still depend, especially for the on-line procedure, on the national legal
domains make achieving interoperability still a dauntless task.
Finally, considering the public values dimensions suggested, in relation to Performance, it could be argued that while the
system may improve effectiveness and efficiency of European Payment Order and the European Small Claims
procedures, given the complexity of the infrastructure required, if the number of cases does not rise consistently, it is not
probable that it will result in a gain for the tax payers in a service delivery perspective; at the same time, it seems that
there are good indications from a responsiveness perspective (serving all citizens in a consistent and predictable way).
Furthermore, it should be remembered that the European Payment Order and the European Small Claims pilots are just a
54
For an interesting presentation of the problems faced by a claimant see Ng G.Y. (2012).
International Journal For Court Administration | December 2012
117
first step in the attempt to create an information infrastructure which should enable support of all cross-border services in
the justice domain (both civil and criminal).
At the present state of the project, an attempt to assess in more detail present and future costs and benefits of these eservices is difficult. On the one hand, while budget and budget expenditure data are available, costs can not be easily
defined in monetary terms (such as front-end, maintenance and evolution costs, return on investment etc.) as many of the
resources are not clearly allocated and many of the costs are not clearly visible or predictable (i.e. personnel of courts
cooperating with the project piloting are outside the project budget’ or using the system once it is fully operational; service
providers adapting National software applications to cope with the e-CODEX infrastructure - or with European Payment
Order and the European Small Claims on-line procedures- within their contract for the provision of maintenance and
evolution of national applications; etc.). On the other hand, it is only through the use that ICT infrastructures show most of
their potential benefits. Empirical research has shown how initial goals, visions, plans, and models are subject to drifts and
derives which leads to the actual outcomes which are often quite distant from what was originally intended (Ciborra et al.
2000, Contini and Lanzara 2009).
It is in the opinion of the author that the collection of further data in the next phases of the project will allow to better
assess the results of the project as Performance is concerned. This will include quantitative data on costs associated to
development and maintenance of the technology and organizational infrastructure that allows the service provision, data
on the system usage etc. But it will include also more qualitative data through interviews and focus groups with the
various categories of users.
Considering Openness, the on-line automated service delivery should become more transparent and, given the increased
organizational coordination which seems to be emerging and the statistical data collection which should be supported,
also accountability should improve. As Inclusion is concerned, providing an additional way to proceed which can be
chosen by the parties, e-CODEX should be able to improve it. Furthermore, many of the changes which are being
generated as an effect of e-CODEX pilots implementation, such as in the case of payment of court fees, also go in the
direction of improving inclusion.
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Velicogna, M. (2007) “Justice Systems and ICT, What can be learned from Europe?”, Utrecht law review, Volume 3, Issue
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International Journal For Court Administration | December 2012
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Justice and Court Administrations, Their Workings and Efficiency in
Switzerland: Aspects Of Sentencing And Its Outcome In Swiss Cantons1
2
By Daniel Fink, Ph.D., ICDP, University of Lausanne and Christophe Koller, Ph.D., IDHEAP-BADAC, University of
3
Lausanne
1. Introduction
Federal States, their administration of justice and their justice administrations, are characterized by differences in
organizational settings, deficiencies in policy implementation, variations of policy outcomes as well as a dearth of
information. Defendants of federal States claim that these well-known negative aspects of federalism are – largely –
outbalanced by the speedier processes, efficacy and the efficiency of its largely autonomous units. In the field of the
administration of justice, especially in penal justice and correctional programs, federalism must however also be
considered with regard to the respect of principles of equal treatment, of equality before the law, of the state of law, all
presumably protected by the Constitution.
The present study on the administration of justice with regard to the respect of the principle of equal treatment before the
4
law (art. 5 Swiss Constitution) is part of a larger project which compares the Swiss federal State composed of 26 cantons
and its policies. BADAC - the Swiss cantons and cities database (www.badac.ch) aims at providing data on public
administration, government authorities and the policies pursued by cantons and cities. Its objectives are to: (1) follow up
reforms at cantonal and city level, including justice and police matters; and (2) to benchmark activities of the cantonal
States and to evaluate their impact on the socio-economic environment. The BADAC portal offers a powerful multilevel
database and a web-mapping system which make graphic presentations of indicators and geo-localization of data
accessible for everybody. Since the 1990s, regular surveys have been conducted through cantonal and city
administrations on several subjects which are not collected by other statistical or research organization in Switzerland. In
a survey undertaken in 2010, the BADAC collected for the first time, data on cantonal justice and police administrations as
well as on the organizations of justice administration at the national and cantonal level. The first analysis of the collected
5
data was published in the Atlas of the State .
In this paper the focus lies on four issues related to the analysis of different applications of penal law in the cantons. First,
we want to check out the figures relating to the application of penal law; we work on the total number of convictions as
well as on the number of convictions containing criminal code offences broken down by canton. We move then on to the
question of the use of pre-trial detention which has to be understood in relation to the number of unsuspended or partially
suspended prison sanctions. Further, we describe the use of the prison sanctions and then we move on to question the
efficiency of the application of law in terms of recidivism rates.
Initially, we concentrate this analysis on the main issues of the subject and will not address secondary aspects such as
the impacts of variables such as gender, age or nationality. As we outline in the course of this exploratory study of
important differences in the application of penal law by cantons, we still have to work towards a multidimensional analyses
of the application of penal law in the cantons in the future. This means we will have to analyze several characteristics of
the geographical location of cantons, the structure of its population, the state of the economy, victimization rates and
1
We want to express our gratitude to anonymous reviewers of our contribution. As non-native English speakers we are also extremely
grateful to the proofreader for an in-depth stylistic revision of the text. Remaining errors are all of our own making.
2
Dr. Daniel Fink has been leading the Department of crime and criminal justice statistics at the Swiss Federal Statistical Office between
1996 and 2010. He lectures since 2011 in criminology at the University of Lausanne at the Institute of Criminology and Penal law. This
is an expanded version of the presentation elaborated by both authors and held by Christophe Koller at the EGPA Conference in
Bergen in 2012.
3
Dr. Christophe Koller is in charge of the Swiss database of cantons and cities (Banque de données des cantons et des villes suisses
BADAC) at the Swiss graduate school of public administration, University of Lausanne.
4
Appenzell Ausserrhoden (AR), Bern (BE), Basel-Landschaft (BL), Basel-Stadt (BS), Switzerland (CH), Fribourg (FR), Geneva (GE),
Glarus (GL), Graubünden (GR), Jura (JU), Lucerne (LU), Neuchâtel (NE), Nidwalden (NW), Obwalden (OW), St. Gallen (SG),
Schaffhausen (SH), Solothurn (SO), Schwyz (SZ), Thurgau (TG), Ticino (TI), Uri (UR), Vaud (VD), Valais (VS), Zug (ZG), Zurich (ZH).
5
Koller Ch. et ali., Staatsatlas, Kartographie des Schweizer Föderalismus / Atlas de l’Etat, Cartographie du fédéralisme suisse, Zürich,
NZZ-Libro, 2012. The chapter entitled Surveiller et punir (surveilling and punishing; pages 126 till 135) provides an analysis of the
organization of the police authorities of the Federal State as well as cantonal and communal police forces and of several asp ects of
policing activities. It also contains a study on differences, among cantons, on sentencing regarding different laws, e.g. criminal code,
drug and traffic offences. On the website, the pages entitled Justice et Police, contain graphs and maps to many other subjects from the
survey conducted in 2010; these expand on the data taken from the Swiss Federal Statistical Office. This additional data, contrary to
the latter, the data can automatically be weighted with demographic information at various levels (canton region, among others) and
made available in different tabular, graphical and cartographic presentations.
International Journal For Court Administration | December 2012
121
police registered crimes. However, we have already advanced the hypothesis that the differences are not only the result
of different social, economic and geographical conditions or different crime rates among cantons, but also due to different
6
criminal policies, priority settings, inequality and, possibly discrimination in prosecution and sentencing .
2. Studies about differences in judicial practice and inequality before the law in other Countries and in
Switzerland
2.1 Studies in other Countries
Differences in the administration of justice and equality before the law have been the object of only a few studies in
criminology, public policy analysis, history of law or the sociology of legal practice. Most existing research relates to social
inequalities in the justice practice and in court proceedings, highlighting the importance of ethnic origin or social status of
those prosecuted and sentenced – all of which show that socially, economically or otherwise disadvantaged persons
historically receive higher sanctions. American, British and Australian studies are particularly prolific on this subject
(Bridge 1994, Hagan 1995, Grover 2008, Messmore 2010). Only a few take into account the governmental and public
policies which may have a mitigating effect (Braithwaite 1979, Vogel 2007). Belgian, French and Italian researches have
been very active on this subject as well; numerous articles were published for instance in the journal “Déviance et société”
(see bibliography). The role of the administration in the management of justice and in the prevention of inequality of
treatment in prosecution and sentencing has also seldom been the subject of comparative and quantitative research, at
the decentralized level, or between federal governments. One has to turn to organizational sociology to find a few studies
which consider the role of the federal States in the management of penal justice and inequalities in the treatment of
offenders (Heinz 2008, 2010). Regional differences in the organization of justice, its administration and the outcome of its
practices have never been studied, whereas in the field of health (Kunst, 1997) or in that of territorial management, these
approaches are very common (Terribilini, 2001).
2.2 Switzerland
In Swiss studies as in international research, differences in the administration of justice and equality before the law have
been the object of studies since the first annual statistical tables on sentencing published by the Swiss Federal Statistical
th
7
Office (SFSO) in the beginning of the 20 century . Even at that time, the SFSO noted strong differences which could not
only be defined by reference to the crime level in the cantons. In the same way, it was argued that the frequency of prison
sanctions was not only related to the severity of crimes committed, but had to be understood with regard to unequal
8
treatment of offenders for equal offences . The subject received no more attention until the beginning 1990s, despite the
fact that the publication of the SFSO became from decade to decade more voluminous and more differentiated with
regard to cantonal statistics. For the first time in the 1990s, the differentiations of sentencing practices among cantons
were used to complete a comparative analysis of the efficiency of sentencing practices. It was supposed that in examining
the overall offence rate in the fields of mass delinquency cantons would have the full range of offences, from simple cases
to more complex ones. This could be the case with offences such as drunk driving, consumption of drugs, theft, burglary,
fraud, threats, among others. By comparing persons sentenced for the first time for such an offence exclusively, one could
compare the outcome, e.g. the recidivism rate. The results showed that the recidivism rate was completely independent
from the sanction, which means that cantons sanctioning offenders severely and those less severely have the same
9
recidivism rate . Later in the 1990s, differences in sentencing practices were studied with regard to illegal immigrants and
10
the judicial handling of illegal stays by immigrants among cantons . More recently, administrative decision making
11
relating to residence permits for foreigners were the objects of a study of cantonal migration services . Since the year
2000, the SFSO published, through the statistical web portal, a continually more expansive set of statistics on the
6
The first attempts made by the SFSO to establish conviction statistics were in 1906 and in 1909-1911, and then in 1929, extended
analyses were undertaken to evaluate differences in the application of penal law in the cantons. The objectives were to assess the
quality of reporting and also evaluate and compare the reported conviction data to the crime level in the cantons and in the country.
Since 1946 (using data dating back to 1936), Switzerland disseminates annual data on convictions. Despite the fact that in the study of
1906, there were strong doubts that the differences in cantonal conviction rates expressed differences in crime levels, no validation
studies undertaken on such issues until late in the 1990s when differences in drug policies or prosecution of people with refugee or
foreigner status were undertaken. The fundamental question of equality before the law has never been studied in Switzerland.
7
Schweiz. Kriminalstatistik für das Jahr 1906, Berne, 1908; idem. von 1909 bis 1911, Berne 1917; idem 1929, Berne, 1931.
8
As Switzerland had not yet introduced its national criminal code, the differences between cantons could have been linked to
differences in the content of the cantonal criminal codes. Nevertheless, it was predicted “that the differences among cantons, as far as
they are based on the mentality of the population, the organization of the justice and the practices of the courts, will not disappear as
the new Swiss criminal code will have been introduced.” in: Schweiz. Kriminalstatistik 1929, Berne 1931, p. 9; translation of the authors.
9
See for a summary of these studies of the 1990s: Storz Renate, Strafrechtliche Verurteilung und Rückfallraten, Berne, 1997.
10
See Storz Renate, Strafrechtliche Verurteilung von Ausländern, Berne, SFSO 1998.
11
Koller Christophe, Services de migration et évolution de la population étrangère dans les cantons suisses, 2002-2008, Cahier
IDHEAP 258, Lausanne, 2010.
International Journal For Court Administration | December 2012
122
cantonal level; whereas these data are quite frequently used by cantonal administrations for internal studies, they are also
12
becoming more frequently used for large scale and systematic comparative analysis by universities . In the last five
years, the SFSO substantiated former studies undertaken in the field of cantonal sentencing practices and recidivism. The
methodologies used to study differences in judicial practice were mostly descriptive statistics; until now no more
sophisticated statistical methods have been mobilized in order to find shared judicial policies or to analyze judicial
practices.
1. The Data and Methodology
The data for this explorative study on cantonal differences in judicial practices are all taken from tabulated data sheets
13
disseminated by the SFSO on its website . The Office uses the criminal registry as an initial source. In principal, all
14
convictions for felonies and misdemeanors must be registered; in few cases, even contraventions will have to be
introduced. The data are aggregated on the basis of convictions and not by person which means that a person who is
convicted twice in a year is counted twice once for each conviction. Whereas convictions are counted once, all offences in
one conviction will be counted according to the law broken (the law however counted once only) or the offences
15
committed . This means that no major offence rule is applied. The same is not the case for the sanctions: only the major
sanction will be counted, the hierarchy being prison sanctions preceding monetary penalties which precede community
work orders. The partially suspended prison sanction is counted with the unsuspended prison sanction.
The methods used in this explorative paper are based on comparative analysis of aggregated data at cantonal level. For
the time being, the comparisons between the cantons are based on four indicators in sentencing and its outcome, which
are: (1) the total number of convictions and the total number of convictions for criminal code offences, (2) the number of
pre-trial detentions among all convicted persons, (3) the number of prison sanctions imposed, and (4) the reconviction
rate. There are many more aspects of sentencing which will have to be taken into account when comparing sentencing
practices including: the number of trials undertaken, the duration of trials, or the amount of fines imposed, just to quote
three examples. The comparisons among cantons are undertaken based upon data weighted by resident population.
2. Sentencing Practices of Cantons
The first point relates to the application of penal law in the cantons. Before starting the analyses of differences, we want to
provide some information on the background of the application of penal law: Switzerland has only had a unified criminal
16
code since 1942. Before that date, the penal law was a cantonal matter. Since 1942, some 250 additional federal legal
regulations with penal provisions were added, of which the military criminal code, the traffic code, the drugs law and the
law on foreigners are the most important and the most often applied ones. The application of the penal laws and the
execution of sentences in Switzerland are in the responsibility of the cantons.
17
In 1985, Swiss courts handed down 46,500 convictions , 22,000 for criminal code offences, 21,000 for traffic offences
18
and 3,500 for offences due to other laws . In 2010, there were 98,000 convictions pronounced (+111%), of which 30,000
were criminal code offences (+36%) – over one third concerned theft and other property related offences – and 56,000
traffic law offences. The rest were drug law offences and foreigners sentenced for illegal entry or stay in the country. In
terms of the weighted figures, in the year 1985, there were 716 convictions per 100,000 of the population and 335
convictions for offences of the criminal code. In 2010, the weighted number of total convictions increased to 1,200 per
19
100,000 population whereas the criminal code offences accounting for 360 per 100,000. One further distinction: we
12
The Institute of Criminology of the University of Zurich has launched a project to replicate the studies conducted by the SFSO in the
field of sentencing of foreigners.
13
See www.statistik.admin.ch > Crime and justice.
14
The official translation of the Swiss criminal code uses to express the hierarchical order of offences as follows: felonies,
misdemeanors and contraventions. In the US the last term covers summary or ordinance violations or transgressions. Those are nonjailable violations, but punished with fines. In Switzerland, traffic offences such as drunk driving and severe violations of the traffic rules
are misdemeanors.
15
To provide just one example, one may think of an offender who has been convicted for bodily harm, theft, drunk driving and a drug
offence. This counts as one conviction; on the level of the laws broken, the criminal code will be counted once (even though there are
two offences according to the criminal code, e.g. bodily harm and theft), the traffic law once, and the drug law once. However, on the
level of the offences, each offence will be counted.
16
In this paper we use the two concepts of criminal code (cantonal criminal codes until 1941, Swiss criminal code as of 1942) and penal
law. The criminal code is a more narrow description defining offences against physical integrity, property, family, sexual integrity and
the State. Penal law is a much larger concept and includes all laws (e.g. criminal code, drugs law, traffic law, etc.) in which there are
penal sanctions. The criminal code contains some 310 offences; there are some other 250 federal laws with penal provisions/sanctions.
17
In this contribution we speak of convictions being closest to “condamnation”, “Verurteilung”, implying a guilty verdict and a sanction.
18
Source for all data: SFSO, topic “Crime, criminal justice”.; the most actual figures refer to 2010, published in October 2011.
19
Population data from SFSO, topic Population.
International Journal For Court Administration | December 2012
123
speak here of the total work load of the courts and tribunals, because in Switzerland at least one third of the sentenced
foreigners every year are not members of the resident population in strictest sense, as they are foreigners in transit, on
20
holiday, without documents (the so-called “sans-papiers”) or illegally in the country .
Note: The source for all data is the conviction statistics of the Swiss Federal Statistical Office (SFSO), adult convictions.
The graphs have been designed by the authors.
For a first comparison of conviction policies, two rates are used, on the one side the prevalence of convictions per
100,000 population, keeping in mind that 57% of all convictions relate to traffic offences, on the other side the rate of
convictions for criminal code offences per 100,000 population. As the graph shows, there are strong differences among
the cantons in their sentencing frequency; the variation is 1 to 6 at the extremes or 1.0 to 1.5 on the average for the bulk
of the cases. The extremes are quite easily explained: nearly all cases in the canton of Uri (UR) relate to traffic offences,
due to the location of the important transit highway through the Alps in the jurisdiction of this canton; weighted by the
population, there is a high sentencing for traffic offences. On the other extreme are also three cantons (AR, GL, AI) which
are quite small, located in hilly or even mountainous and more rural areas. For the other cantons, we find quite some
opposition in the handling of delinquency by cantons with similar structures, such as the canton of Vaud (VD) convicting
many more people than Zurich (ZH), even though Zurich has a much more urban population. But there are other
differences: whereas the canton of Vaud has a higher overall rate of sentencing than Geneva (GE), the latter has a much
higher rate of criminal code convictions. However, the canton of Geneva conviction rate is overrated with regard to
criminal code offences by a smaller much less urbanized canton: Neuchâtel. Generally speaking, we find on the
repressive side of the divide the French speaking cantons (FR, JU, GE, NE, VD) with higher conviction rates and on the
other the more German speaking ones with lower ones.
Using the differences in conviction rates as a starting point, we want to look at the ways the input is congruous with the
sentencing and how the output in terms of sanctions, especially prison sanctions, is in agreement with the sentencing.
Due to the fact, that pre-trial detention is one of the most coercive measures prosecutors and judges can take, we first
have to examine the use of these measures in the cantons. Two further clarifications on the next graphs: As explained
above, the canton of Uri has jurisdiction over the major transit highway through the Alps which results in a high offence
rate comprised mainly of traffic offences. The canton has therefore been left out of the following analysis. As detailed
analyses have shown, the canton of Basel-City is also quite atypical, because it is a city-canton without any more rural
area. We aggregate therefore the statistics for the canton of Basel-City and the canton of Basle-Countryside, as they are
more valid for inter-cantonal comparisons. One finds therefore in the following graphs the details for Basel-City (BS) and
Basel-Countryside (BL) along with the aggregated ones (BS+BL).
20
Despite of the politicization of the issue, Switzerland will have to improve its reporting system on delinquency of foreigners. The
Swiss Federal Statistical Office published a first study for differentiated and weighted population groups in 1998 with the reference year
1994. In 2000 the report of an Interdepartmental working group on “Criminality of foreigners” provided actualized figures on the subject
with the reference year 1998. Since then, no study has been undertaken. Currently, it is at the University of Zurich that a research team
is getting ready to conduct a new detailed statistical study with judicial data (Prof. Christian Schwarzenegger, University of Zurich).
International Journal For Court Administration | December 2012
124
3. Application of Pre-Trial Detention Orders
Pre-trial detention is one of the most coercive measures the judiciary may impose on a person presumed innocent – and
21
every person is innocent until he or she has been convicted. The Swiss Criminal Procedure Code (CPC) states therefore
that “an accused person remains in liberty” (Art. 212 CPP). Pre-trial detention has to be used with extreme restraint, as
the code regulates that “pre-trial detention may not last longer than the prison sanction which may be expected” (Art. 212
para. 3 CPP).
In general, as the conviction figures increased regularly over the last 25 years, so did the absolute figures for pre-trial
22
detention which increased from 9,000 cases in 1985 to 14,500 cases in 2010 . However, in relative figures, there has
been during this period a marked reduction of the frequency of the application of pre-trial detention among all convicted
persons; the percentage declined from 19% to 14%. Again, these changes are not equally distributed as one finds 20
cantons with decreased use of pre-trial detention, while a few other cantons, more urban ones, increased their reliance
on pretrial detentions (BS, GE, LU, SZ, ZG, ZH).
There are also large differences among the cantons in the application of pre-trial detention in 2010, stretching in terms of
percentage differences from 1 to 10. A vast majority of cantons have 10% or less of their convicts who have been placed
in pre-trial detention. On the other end of the spectrum is the canton of Geneva, which orders up to 55% of all those
convicted to be placed into pre-trial detention, followed by Basel-City, Zurich and Schaffhausen. If we sum with BaselCountryside, the rate normalizes the figures of the two cantons coming closer to the national average; the figure for the
pre-trial detention remains however quite high.
Another way of looking at the use of pre-trial detention is to consider the percentage of those with an unsuspended or
partially suspended prison sanction, taken together, with the percentage of those receiving pre-trial detention. Comparing
both rates, one would expect, as the criminal procedural code demands, that most of those in pre-trial detention will face
an unsuspended prison sanction. This however, is not the case as more than half of those sentenced to an unsuspended
prison sanction in Geneva, Basel-City or Zurich, or Schaffhausen will not be sentenced to such a sanction. Nationally, the
rate of those being sentenced to an unsuspended prison sanction with a previous pre-trial detention period is 48%.
Three cantons show rates which point in the other direction. In the cantons of Bern, Jura, Neuchâtel and Vaud, the
number of persons sentenced to an unsuspended prison sanction is higher than the percentage of those having faced a
pre-trial detention, showing a higher severity in sentencing. The differences are most important in Neuchâtel, where twice
as many persons will get a prison sanction compared with those who were put into pre-trial detention.
These figures provide some initial evidence, on the one side, of a massive use of pre-trial detention in the majority of the
cases where the outcome is a conviction without an unsuspended prison term. The cantons where prosecuting offices
most frequently impose pre-trial detention – Basle-City, Geneva, Zurich – are also among those cantons in which courts
most often impose unsuspended prison terms or convictions. On the other side, the four cantons with more unsuspended
prison sanctions compared to the use of the pre-trial detention show, to say the least, a problematic severity in punishing.
21
22
Swiss Criminal Procedure Code, RS 312.0, on http://www.admin.ch/ch/e/rs/312_0/index.html
Data from SFSO Datasheet 19.3.3.5.2, dated 30.06.2011.
International Journal For Court Administration | December 2012
125
Again, included among them are the more severe cantons of the French part of Switzerland (Jura, Neuchâtel, Vaud) and
the traditionally severe canton of Berne.
Here as with convictions, we will have to look closer to internal and external causal factors for the frequency of use of pretrial detention – it is however from the outset clear, that it cannot be the crime rate which is solely the cause. The rates
just analyzed show no evidence of a strong parallel link between the conviction rate and the pre-trial rate or between the
pre-trial part and the prison sanction part, which means there must be extraneous factors involved for the explanation for
these diverse relationships.
4. Unsuspended Prison Sanctions
In 2007, a revised sanction system was enacted. It was explicitly designed to produce a strong reduction of the use of the
23
short prison sanction (up to 6 months of duration) . Daniel Fink characterizes this process as The Vanishing of the Prison
24
sanction in Switzerland .
Until 2006, courts handed down annually some 80 to 90,000 convictions, 25% of which contained a fine as a penalty. The
other 75% of convictions noted a prison sanction, of which 75% of the cases (2006: 56,000) were suspended, 95% of
25
which were of a duration of 3 months and less . The same holds true for unsuspended prison terms: 85% of those were
unsuspended and short, e.g. of 6 months or less. Between 1984 and 1995, there were some 14,000 prison sanctions
annually; this figure drops to 12,000 for another 8 years, before elevating to 16,000 in 2004.
The revised penal code of 2007 requires that short prison sanctions of up to 6 months shall only be imposed if no other
26
penalty is suited to punish the offender (art. 41 para. 1 CC ). Moreover, the court has to motivate in a detailed way the
choice of the short prison term (art. 41 para. 2 CC). This change of the regulation brought the prison sanctions down from
27
16,000 to 6,’500, whereby 9 out of 10 were unsuspended ones, and only 1 was partially suspended. . Since 2007, the
trend of unsuspended prison punishments is slowly increasing (2010: 6950). Nevertheless, nearly half of those (45%)
have still a duration of 6 months or less, imposed mostly on persons without a permanent residence status in Switzerland,
meaning foreigners. The suspended prison sanction fell from 42,000 cases in 2006 to 2500 in 2007 and has been stable
since that year. More importantly, the short suspended prison sentence of up to 6 months disappeared completely – it
vanished. This information provides a short hand description of the current situation.
In 2010, in terms of differences of sanctioning, we find the following picture. The national average of unsuspended prison
sanctions is 80 per 100,000 inhabitants. The cantons of Geneva, Vaud, Basel -City and Neuchâtel impose highly above
23
For a presentation of the criminal code reform: see Swiss Ministry of Justice (Office federal de la justice), www.bj.admin.ch under
“terminated law reform projects”.
24
Paper presented at the Annual Conference of the European Society of Criminology 2011, Vilnius, Lithuania. A more extended version
of the subject has been developed for the Guest lecture at the Max-Planck-Institut für ausländisches und internationales Strafrecht in
Freiburg im Breisgau, Germany. Publication planned for early 2013.
25
Data from SFSO Datasheet 19.3.3.3.11.
26
Swiss Criminal Code, RS 311, www.admin.ch/ch/f/rs/311_0/index.htm
27
Data from SFSO Datasheet 19.3.3.3.32.
International Journal For Court Administration | December 2012
126
the national average of unsuspended prison terms. Geneva has a rate of 300 unsuspended prison sanctions for 100’000
of its resident population, Vaud 150, Basel-City 133 and Neuchâtel 100. Geneva and Basel-City are border cities without
large rural areas, where as Vaud has a large rural area, as for example do St. Gallen or Aargau, which however have
rates quite below average (resp. 59 and 50 per 100,000). To indicate that there are differences in sanction practices it
must also be suggested that there are 13 out of 26 cantons which impose 10 or more times less prison terms than
Geneva.
In the next sentencing graph, the three series of figures are combined. They show the uncorrelated relationship of the
frequency of convictions, pre-trial detentions and unsuspended prison sanctions. The cantons with the highest rate of
convictions are not those with the upmost number of pre-trial detentions and not those with the largest number of prison
sanctions. Geneva, with highest rates of pre-trial detentions has also the highest rate of prison sanctions (possibly to
th
cover the excessive use of pre-trial detentions), but ranks only at 8 place for the rate of sentenced persons. On the other
hand, whereas Zurich places a large number of people into pre-trial detention, in most of the cases, they get away without
a prison sanction.
To explain these differences, one will have to pay attention to the input into the process of prosecution and of output in
terms of efficacy of the policies pursued. In order to explore these factors, a large number of additional data series will be
International Journal For Court Administration | December 2012
127
needed such as geographical, economic, social and cultural information, combined with additional data on personnel,
priorities in crime matters and the police crime records.
In order to further complicate these pictures of quite unrelated distributions, one has to pay attention to the question of
recidivism which is here used to evaluate the actions and efficiency of the administration of justice. In Switzerland, the use
of short prison sanctions has been very strongly criticized on the grounds that it is a massive, life intrusive and a
stigmatizing way of sanctioning nonviolent and non-sexual offenders. It has been shown that this way of sanctioning is not
more efficient than the other ways of punishing, or said in another way, less severe sanctions – shorter prison terms,
community service orders, monetary penalties – for less severe offences are substitutable and equally efficient. The
28
SFSO has, in the past years, elaborated several findings on that issue which may here be summarized .
5. Differences in ways of sanctioning and efficiency of sanctions
There are not many universally valid results in criminology; some regarding the efficiency of sanctions measured on the
29
recidivism rate however are. For instance, it has been demonstrated by dozens of studies , that men have higher
recidivism rates than women, young men higher ones than older men, people with previous convictions higher ones than
those without previous records. Finally, all over the world, those with prison sanctions have higher reconviction rates than
those with any other sanction. Especially with regard to the short prison term, the differences among the cantons are the
most valuable statistical raw material to undertake comparative analyses in the way sanctions work. Without going into
30
details on technicalities , let’s have a look on people who have been sentenced for drunk driving exclusively, without any
31
previous conviction. The figures are selected according to the most severe to the least severe cantons .
28
For an overview of the current analytical principles of recidivism studies and technicalities, see Fink D. and Vaucher S., Recidivism
studies in Switzerland 1996-2010, in: Jehle J.-M., Recidivism studies in Europe, forthcoming 2013.
29
For an overview on the subject see Kerner H.J., Rückfallstudien, in Kaiser G. et alii. Kleines Kriminologisches Wörterbuch, Munich,
2004.
30
For more details consult explanations on the SFSO website about Recidivism analyses.
31
The graph is taken from the website of the SFSO www.statistik.admin.ch.
International Journal For Court Administration | December 2012
128
People sentenced for the first time for drunk driving will in general get a suspended prison sanction. There are still
however, a great number of cantons which also impose fines in a great number of cases, the unsuspended prison
sanction being imposed less. One can group the different styles of sanctioning in three groups, the 10 most severe
cantons, the less severe 8 and a last group of the 8 least severe cantons. If one looks however at the specific recidivism
rate, there are no differences: in all cantons the recidivism rate lies between 8% and 12%. The two cantons imposing the
most severe sanctions, Schaffhausen and Fribourg are quite equal to the cantons of Zug and Obwalden which impose the
less severe – or more lenient sanctions. And the two neighboring cantons of Vaud on the severe side and Geneva on the
side of more tolerant cantons have no significant difference in terms of recidivism of those sentenced.
One may now push forward this examination and look at those who were convicted for a second time: we find that the
majority will get an unsuspended prison sanction on their second conviction, whereas the others who were fined will get a
suspended prison term. The recidivism rate is more varied, covering a wider range of values, but there is no correlation
between cantons sanctioning in a severe or in a less severe way. One finds no argument in favor of the efficiency of
prison sanctions.
32
This result has been confirmed for many other offences with similar outcomes, including theft . They show, even confirm,
that the recidivism rate is not dependent on the sanction imposed and that sanctions may be exchanged without a loss of
efficiency of special or general deterrence, at least in the domain of lesser severe delinquency. Combining the argument
with economic considerations, one might consider, in times of major budget constraints, that the imposition of monetary
penalties is much more beneficial, in financial and social terms, to society than imposing prison sanctions.
32
For Switzerland see : Storz, R., Strafrechtliche Verurteilung und Rückfallraten, Berne, 1997; Vaucher S. et alii., Strassenverkehrsdelinquenz und Rückfall, Neuchâtel 2000; for Germany see: Heinz W., Rückfall- und Wirkungsforschung – Ergebnisse aus
Deutschland, see: www. http://www.uni-konstanz.de/rtf/kis/Heinz_Rueckfall-und_Wirkungsforschung_he308.pdf, accessed on
1.10.2010.
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129
6. Conclusion
The results shown in this research paper are a first illustration of a much more ambitious work currently in progress at the
University of Lausanne, based on the data available at the BADAC (www.badac.ch). They confirm that the data allow for
strong comparisons among cantons with regard of the application of penal law and measures of crime policy. For the time
being, we used only data from conviction statistics. There will be a need to expand these studies in the future using input
data such as police crime statistics and output data such as after care of persons released to probation services.
The comparison of the operations of the administration of justice among cantons shows on one side large differences in
the three major types of sentencing, in the use of pre-trial detention and the unsuspended prison sanction. When
combined, one finds however very weak relationships when considering absolute, percentage or weighted results. On the
other side, the outcome of these different policies is much paradoxical as there are no differences when comparing
recidivism rates among cantons, despite strong differences in the use of pre-trial detention and the sentencing with prison
sanctions.
The paradoxical outcome of crime policies in terms of recidivism – e.g. the absence of differences of the outcome based
on sanctions in the domain of less severe delinquency – suggests the need for more empirically informed crime policies.
The role of justice administrators could be to participate in the dissemination of those findings as well as the dissemination
of best practices among cantons with regard to outcomes and the use of resources – especially with consideration to the
use of the prison sanction as it is the most costly and the most inefficient of all sanctions. Furthermore, the observance of
the principle of equality before the law would be most likely be promoted.
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Braithwaite, John, Inequality, crime, and public policy. London: Routledge and Kegan Paul, 1979.
Bridges Georges S., Inequality, crime, and social control. Boulder: Westview Press, 1994.
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accessed www.ismcorum.org on 20 October 2012.
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199-214.
Fink Daniel, The Vanishing of the prison sanction in Switzerland, forthcoming, 2013.
Fink Daniel, Überwachen statt Einsperren, Du boulet au bracelet, Neuchâtel, 2009, available on www.statistik.admin.ch.
Fink Daniel, Die Konstanz des Rückfalls, in: Hilgendorf Eric, Rengier Rudolf (Hrsg.) Festschrift für Wolfgang Heinz,
Baden-Baden, 2012.
Fink Daniel, Vaucher Steve, Recidivism studies in Switzerland, in: Jehle, Recidivism studies in Europe, forthcoming 2013.
Hagan John D., Crime and inequality. Stanford: Stanford University Press, 1995. (UniBE-UB JFB).
Grover Chris, Crime and inequality. Cullompton: Willan Publishing, 2008.
Heinz Wolfgang, Gleiches (Straf-)Recht – ungleiche Handhabung?(!) Kriminalpolitischer Föderalismus und seine Folgen,
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Killias, Martin, Kuhn André, and Aebi Marcelo F., Grundriss der Kriminologie eine europäische Perspektive. Bern:
Stämpfli, 2002.
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Killias, Martin, Lamon P., and Aebi, Marcelo F., Crime and punishment in Switzerland, 1985-1999. Chicago: University of
Chicago Press, 2005.
Le système pénal de la (dé) responsabilisation des acteurs, Déviance et société, Volume 36, numéro, 2012.
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suisse, Zurich, 2012.
Koller Christophe, Services de migration et évolution de la population étrangère dans les cantons suisses 2002-2008,
Cahier de l’IDHEAP 258, Lausanne, 2010.
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Pyramides, no. 15, Bruxelles, 1/2008.
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1997.
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http://www.nationalaffairs.com/publications/detail/justice-inequality-and-the-poor accessed on 12.11.2012.
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de débats dans Déviance et Société (1977-1997), In: Déviance et société. 1999 - Vol. 23 - N°1. pp. 3-40.
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public organizations, Lappeenranta: Acta Univesitatis, 2011.
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Storz Renate, Strafrechtliche Verurteilung von Ausländern, Berne, 1998.
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Terribilini, Serge. Fédéralisme, territoires et inégalités sociales. Paris: L'Harmattan, 2001.
Vogel, Mary E., Crime, inequality and the state. London: Routledge, 2007.
Vaucher Steve, et alii., Strassenverkehrsdelinquenz und Rückfall, Neuchâtel, 2000.
International Journal For Court Administration | December 2012
131
The Role of Communication in the French Judicial System
By Emmanuel Jeuland and Anastasia Sotiropoulou
1. Introduction
Communication has recently acquired a central role in the French judicial system. Being an integral part of the
1
management of courts , it is crucial in building the image of justice, as it can affect procedural principles, in particular, the
principles of impartiality and of reasonable time. A good image of justice promotes the appearance of efficiency and
impartiality. Justice has not only to be fair, but also to be seen as such, according to the well-known proverb.
The role of communication was not necessarily understood ten years ago, when communication with respect to legal
cases was very limited. Both judges and prosecutors were prohibited from expressing themselves publicly on pending
cases. At the same time, the courts did not disseminate their judicial policies and lawyers were not accustomed to
addressing the media in a professional way. However, cases involving illegal funding of political parties and, most
importantly, the Outreau case represented a turning point on the issue. The latter landmark case dating from 2001 dealt
with the claims of several children that had suffered sexual abuse by several adults. The investigating judge (juge
d’instruction) in charge of the case, Mr. Burgaud, decided, after two years of thorough investigations, to bring charges
against 18 people, including the parents of the children. The first instance court convicted 10 people, the majority of whom
had claimed to be innocent, to 15-20 years in prison. In 2005, one of the plaintiffs admitted that she had lied, which
resulted in the conviction being overturned by the Court of Appeal. The media had actually taken an active role, which
went beyond simply disseminating information, reaching sensationalism and, thus, compromising the presumption of
innocence. A combination of mass media, public pressure, expert psychologists, manipulating parties and inexperienced
judges led to this “judicial Chernobyl” (see F. Aubenas). The miscarriage of justice in this case led to the appointment of a
parliamentary commission whose task was to determine what went wrong and to make proposals for reform.
The Outreau case seriously damaged the image of justice and the reputation of the parties involved. This case has
demonstrated for the first time the importance of communication in legal cases and the need to handle it properly.
Communication has many meanings. It may refer to the communication to the public (external), or to the communication
2
between judges or with other judicial professions (internal) . There is a dialectic relationship between internal and external
communication. Good internal communication has an impact on external communication, and conversely, communication
3
to the public may also affect the members of the judicial system . This article is essentially an attempt to examine the
functioning of these types of communication in the French judicial system and to assess their impact on procedural rules.
To this respect, some examples of case law will be developed. Our hypothesis is that communication may have an impact
on the due process of law, in particular on presumption of innocence, investigative secrecy, impartiality of judges and
reasonable time. It is a new kind of judicial rhetoric which could tend to replace due process one day. Part I will examine
the external communication to the public and Part II the internal communication between judicial professions.
2. External Communication to the Public
We will focus on the role of the parties and the judges in the process of communication to the public, leaving outside its
scope the role of the media. In particular, we will address the impact of their communication on procedural guarantees
such as impartiality, publicity, the presumption of innocence and the obligation to give reasons in judgments. It should be
noted from the outset that the judge handling a pending case cannot communicate on that particular case but rather on
general policies and other judgments, while the parties may communicate during the proceedings under certain
conditions.
2.1 Communication by the Parties
A distinction can be made between communication by the prosecutor as a public party, and the one made by private
parties.
Communication by the Public Prosecutor
th
The public prosecutor is the only person who can legally communicate on a pending case. The statute of June 15 , 2000,
provides that he may disclose some objective elements of the case. Before the enactment of this statute, it was the police
that used to inform the public in order to prevent the dissemination of misleading information. Nevertheless, under French
1
The Council of Europe strongly recommends considering the aspect of communication in court administration (rec. 2003-13, advice
n°7 2005 by European judges and advice n°4 2009 by European prosecutors).
2
The communication of documents between parties will be left out of the scope of this article.
3
We visited a tribunal in the suburb of Paris in order to understand internal and external communication.
International Journal For Court Administration | December 2012
132
procedural law, the authority to lead an investigation is entrusted to the public prosecutor. Thus, communication on the
part of the police is illegitimate and inappropriate.
The more sensitive the case, the more likely it is to attract public attention and media turmoil, and the more the public
4
prosecutor is expected to be familiar with his new function as a “communications officer” . There are even instances
where public prosecutors meet journalists on a day-to-day basis. An illustrative example in this respect is the Dominique
Strauss Kahn (DSK)case, where a French journalist, Mrs. Banon accused DSK of rape, an accusation which was
ultimately dismissed by the public prosecutor on the basis of the statute of limitations. Given the high risk of public
misunderstanding, the public prosecutor released a statement explaining that the time limit set for prosecution had
passed.
However, public prosecutors communication risk to infringe well established principles of procedural law, such as
confidentiality over investigative facts and presumption of innocence. This explains why public prosecutors are only
allowed to reveal objective facts without expressing their own personal appreciation of these facts. In this respect, one of
the recommendations given to the public prosecutor in the Guide elaborated by the Ministry of Justice is to consider an
act of communication as a procedural act that can be invoked by a party in the proceedings. This particular
recommendation is interesting since it reveals the strong link between communication and procedure.
Communication by Private Parties
Traditionally, lawyers have been the only persons who were able to communicate to the media. They are open to
questions from journalists especially after the hearing. However, a new actor has recently emerged, especially in sensitive
cases: the communications agent. His/her role is to design and put in place a communication strategy whose objective is
to improve the image of his/her client. Evidently, communications agents are not lawyers, but experts in communication,
the direct equivalent of a spin doctor who is well versed in politics. They are not involved in the case and do not
disseminate information about it; rather, they present a good image of their clients as a safeguard of the presumption of
innocence. Therefore, their role is closely linked with the respect of this procedural principle. For example, in the Kerviel
case, a trader was accused of entering into financial transactions resulting in a loss of 5 billion Euros for the French bank
Société Générale and seriously jeopardizing the stability of the institution itself and of the French financial system as a
whole. In this particular case, the communications agent sought to present Kerviel as a mere victim, whereas the bank
claimed that they were unaware of his transactions. The communications agent advised his client to avoid any public
statements given the risk of being treated by the media as an arrogant trader. The communication strategy was quite
successful until Kerviel disregarded the advice of his communications agent to remain silent, and decided to publish a
book just before the public hearing of his case. This publication worked against him, as the judges considered it as an
attempt to influence them under the pretext of informing the public.
Communication by the Judge
In order to prevent any interference with pending litigation and avoid accusations of partiality, judges are not allowed to
communicate on pending cases. This prohibition is stipulated in Article 11 of the French Criminal Procedure Code which
guarantees investigative secrecy and allows only the above-mentioned exception in the case of the public prosecutor.
However, both general communication and communication on specific cases are developing before the courts.
Communication on General Policy
The Ministerial Office of Information and Communication created, in 2003, a new position in each Court of Appeal of a
judge specialized in communication (“magistrat délégué à la communication” MDC). His role is not to comment on
individual cases but to enhance the image and the credibility of the judiciary.
A typical example of the role of such a judge is the initiative of the magistrat délégué à la communication of the Court of
Appeal of Aix-en-Provence to organize, from 2008, breakfast meetings with the regional media allowing him to present the
general policy of the tribunals. This gave him the possibility, for example, to warn of the intended severity of tribunals’
policies with respect to arson and forest fires (which are frequent in this region of France during summer). His aim was to
stress the priority given by the tribunal to these cases and, thus, to act as a deterrence. These particular judges are in
5
charge of preparing sensitive and mediatized cases . They have to decide on the number and places reserved to
journalists in the courtroom and to organize meetings with them. Despite the fact that their role is limited to the practical
aspects of the case (organizing access to the courtroom by journalists) and has nothing to do with its substance, their
4
Since 2002, the Ministry of Justice has introduced media training courses in the curriculum of the National School of the Judiciary (see
Chapelotte p.65). Initially perceived as an infringement on the independence of the judiciary, this initiative was not welcome and even
led to a strike organized by the younger magistrates (see Carole Richard).
5
See Guide méthodologique sur l’organisation d’un procès sensible, Ministère de la justice, janvier 2011.
International Journal For Court Administration | December 2012
133
decisions may prove important for achieving smooth proceedings during the trial. This special treatment of sensitive cases
has also been applied in the Tunnel du Mont Blanc case, which concerned a fire in this tunnel having caused the death of
around 40 people. In this case, a special provisional courtroom was set up with room for the families of the victims and
journalists: it therefore created a trial environment where unnecessary tensions were avoided.
In short, judges are allowed to communicate only on general policies of their tribunals and not on pending cases. They
can, however, communicate on judgments of a particular relevance.
Communication on Judgments
The traditional structure of French judgments leaves little room for explanation and argument. A judgment of the Court of
Cassation or the Council of State may indeed be very elliptical and brief. A reason for this may be that the pre-revolution
judgments did not have any motivation whatsoever since the judges who represented the King could not know what he
might have thought of the case. French Supreme courts only present the ruling with few reasons for judgment perhaps
echoing this tradition. Even nowadays, a judgment of the Court of Cassation includes little if no argument in a few
condensed lines. This tradition is, however, no longer tolerated by public opinion since the meaning of a judgment can be
difficult to interpret.
This is the reason why, for the last decade, all French supreme courts, namely, the Court of Cassation, the Council of
State and the Constitutional Council publish a special report (“communiqué”) explaining the meaning of their judgments.
6
This practice may prove problematic since sometimes the communiqué may either add information to the judgment, or
explain the judgment in a different way. Instead of clarifying the essence of the judgment, it may be the source of
additional difficulties in its interpretation. Therefore, it becomes a new source of law often creating confusion. In this case,
communication serves a substitute for the motivation of judgments but, in order to avoid confusion, it would be much
preferable to improve the judgments themselves.
3. Internal Communication
Internal communication certainly refers to the communication between judges or between judges and clerks inside a
tribunal. A question arises as to whether communication between police and judges is considered internal or external. The
availability of a broad definition of judicial work along with the assumption that the work of the police and of lawyers
contributes to the adoption of the final decision, leads to the conclusion that communication between all these
professionals may be considered as internal or at least quasi-internal. We can thus draw a line between strict internal
communication between judges and clerks (1) and broad internal communication between judges and other judicial
professionals such as police, lawyers and experts (2). In all these forms of internal communication, the procedural
7
principle that is at stake is the principle of reasonable time .
3.1 Strict Internal Communication between Judges
The way that internal communication functions will be illustrated through the experience of a visit to the office of the
President of a Civil High Court, in the suburb of Paris.
During the visit the president explained that internal communication was conducted by means of two large screens on his
desk which were interconnected and allowed him to be informed about every event in his tribunal. On the left screen,
there was the timetable of the day with all the hearings and the names of the judges, clerks and lawyers, which could be
changed at any time. On the right screen he could read his e-mails. He explained that there are three e-mail boxes, not on
the internet but on the judicial intranet (private network of justice). There is a functional e-mail box as a President of the
tribunal, where he receives all the official messages coming from the Ministry of Justice. There is a nominal box (with his
name in the address) for individual relationships with the judges of his tribunal and what he calls a communication box
where he sends every day to all the judges legal news: new supreme court case law, new regulations, statutes etc. There
is also on the left screen an internal communications record, where each judge registers his/her decision. The clerk
checks the arrival of new decisions and may print them and send them to the lawyers. The president has an overview of
the work done by each judge. It could be possible that judges work entirely on computer without seeing each other. In
reality, according to the president, there is no loss of communication since the judges visit each other in their office all the
time. So, it seems that vertical and horizontal communication is working well in the tribunal we visited. However, it remains
doubtful whether this is true for other tribunals and a further research on internal communication should be carried on a
wider scale.
6
See P. Deumier, Les communiqués de la Cour de cassation : d'une source d'information à une source d'interprétation, RTD civ.,
2006, p. 510.
7
It can also be defended that managerial principles are also at stake, such as the efficiency principle (see English CPR).
International Journal For Court Administration | December 2012
134
Nevertheless, internal communication is not only conducted electronically but also physically. The internal communication
between judges traditionally takes place during the first annual meeting of the tribunals and the Courts of Appeal (“rentrée
8
solennelle”), an event which, however, seems by now outdated and increasingly formalistic . The president of the tribunal
is in charge of this internal communication. He organizes special meetings among the judges where the organization of
sections is discussed and a rotation order is established. Usually, there is no conflict about this order. But the president
may impose unilaterally this order and there is no recourse against this decision. In the Clearstream case, the president of
the tribunal declared to the media that he had decided to set up a special section to try this case and the former Prime
Minister Mr. Villepin. This decision was not respectful of the rotation order and the principle of natural or legal judge, which
does not really exist in French law, even though it is imposed by the Council of Europe and the European Court of Human
Rights.
3.2 Broad Internal Communication between Judicial Professions
The internal communication between judicial professions is conducted electronically.
In civil justice, the software WinCi TGI is used to organize the management of cases. This software allows communication
between the case management judge, lawyers, clerks and even the bailiff. For each case, all the events appear on the
computer screen: the first meeting with the president of the section, the communication of a document or of pleas, the
closing of a case management period etc. Even the first meeting with the president is not a real meeting; it takes the form
of a series of emails sent by the president who proposes a calendar for the case management and by the parties who
comment on it. This software communicates with the intranet of lawyers and bailiff (the first writ may now be sent online).
In this respect, it is noteworthy to mention that a protocol was ratified in 2012 between the Melun bar and the tribunal
which makes this software the only means to manage the case. The written goals of the protocol were the acceleration
and the transparency of the proceedings (article 1). For example, the lawyer messages must comply with a certain model
and the protocol provides that the message which does not comply with the model will be rejected (article 7).
In criminal justice, the software “Cassiopée” is the communication platform between the examining judge and the police
(for criminal cases where more than 3 years of imprisonment are possible) or the public prosecutor and the police (for the
offences condemned with less than 3 years of imprisonment). Every event of the examining period is registered by the
police, the judge or the public prosecutor, so that information about the accused person is available through this software.
Therefore, Cassiopée allows for automatic investigation and cross referencing of information of several possible offenders
and is even connected to the software used in prisons called APPI. On June 4th, 2012 Cassiopée had registered over 20
million cases.
The French judicial software system is not public. That means that the judicial intranet which is connected with the lawyer
intranet is not accessible either to the parties or the public in general (recently a software bug resulted in a 24 hours
system downtime). Even the lawyers cannot have any access to the judicial intranet, except for sending a message.
Consequently, they cannot follow the state of their cases, as it is possible in administrative proceedings.
These civil and criminal pieces of software give statistical information to another software package called Pharos, which
calculates the performance of each tribunal and makes comparisons with tribunals having an equivalent number of judges
and cases. A benchmark table is drawn-up for the management meeting with the Court of Appeal. Another software
package called Corus specializes in accountability. The forecast for the budget is calculated on the basis of the results of
9
the management meeting with the Court of appeal . This system should have led to an allocation of resources according
to the needs of each tribunal, as stated in the general review of public policy scheme (RGPP). Nevertheless, the
constraints imposed on the budget of the ministry of justice did not allow for this evolution.
Lastly, there is a software package called Pilote, which calculates the tribunal’s case load and the approximate total time
that the judges and clerks of the tribunal need to deal with cases. Each judge indicates the time spent per case and on the
basis of this declaration, an assessment interview is conducted with the president of the tribunal. Thus, internal
communication starts with the case management software which provides statistics, and ends with the personal
assessment of judges by the president of the tribunal which leads to setting new objectives for the subsequent year.
However, the quantitative indicators are not sufficient to assess the work of judges. This is the reason why some
presidents prefer to read some of the decisions rendered by their tribunal in order to assess the quality of this work.
8
It could be replaced in the future by a small meeting of coordination organized by the judge specialized in communication (see rapport
Cadiet).
9
There is another management dialog meeting between the court of appeal and the ministry of justice.
International Journal For Court Administration | December 2012
135
The interconnection of judicial, prison and the police software could help avoid communication problems between judicial
professionals, as those occurred in the Pornic case. In this case, a man raped and killed a young girl. The man had been
arrested for a small offense, but not properly supervised after being released because of the work overload of the
probation officer. At the same time a complaint for an attempt of rape was not investigated by the police due to lack of
sufficient resources/personnel. Former President Nicolas Sarkozy stated that the guilty judges will be punished before any
investigation was conducted. The Union of judges decided to go on strike because they could not accept being
considered guilty by the media without proof and a judgment. At the end of the day, the investigation report concluded that
there had been a failure of the judicial system but no fault. The interconnection of the different types of software could
have avoided this kind of failure. Conversely, it would allow making the judge more clearly accountable and in certain
occasions liable. However, French rules only provide for the liability of the French State in case of judicial failure. Judges
are not personally liable. They are only exposed to disciplinary sanctions (the heaviest sanction which is very rare in
practice is the forced retirement).
New technology in internal communication has an impact on the delay of the proceedings. Time is better managed and
efficiency can be achieved. It is possible though that, as physical communication is restricted, the litigation in itself is
avoided and that parties bring an appeal because they are not satisfied with the judgment. However, this hypothesis is not
confirmed.
4. Conclusion
To conclude, external communication may have an impact on the presumption of innocence, investigative secrecy and
even the impartiality of judges. Internal communication has an impact on the principle of reasonable time. The functioning
of external and internal communication in French judicial system after the Outreau case seems that it has not caused
serious infringements of these principles. But, considering that communication has become, over the past decade, a new
aspect of court administration in France and that this aspect remains mainly unexplored by French literature (except for
the abovementioned case of the communiqué), some general theoretical questions should be raised as to the impact of
communication on procedure: Is communication compatible with the fact that litigation presupposes an absence of
communication between parties? Is there not a temptation to communicate what cannot be communicated, meaning the
core of the issues, which is essentially contrary to well established legal principles? What can the relationship be between
the classical judicial rhetoric and this new extra judicial rhetoric? Is the ideology of transparency that often underlies
communication, compatible in all cases with the presumption of innocence and investigative secrecy? Is the influential
aspect of communication compatible with the objectivity of judicial information? What is the risk, if any, of communication
serving to avoid or evade the litigation? External communication is reassuring public opinion via the media whilst
investigation is led through the police, lawyers, and judicial software that helps them communicate without the presence of
the parties. If this hypothesis were true, it would mean that communication starts replacing procedural rules. In this
context, a case would be solved without real confrontation or an actual hearing, merely by the “magical” use of
communication technology. In other words, and in a more provocative way, would it be possible for communication to
replace due process one day? For example, the Outreau case led to a reform bill providing for the suppression of the
investigative judge. The suppression was never adopted and only a few minor points were modified. As a matter of fact,
the project of reform and the new statute were mere communication, which may imply that communication could be, in
certain cases, a substitute for law and justice. But if this statement seems hypothetical, one conclusion remains rather
obvious: legal academics should learn from the science of communication in order to better understand the effects of
communication on procedural law.
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