International Journal Court Administration Special Issue

International Journal For Court Administration
Research in Judicial Administration
Special Issue:
ISSN 2156-7964
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 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.Pter 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 fr 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 Fjrstad 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
Philip Langbroek Managing Editor managing_editor@iaca.ws Luis Maria Palma Journal Editor Linda Wade-Bahr Technical Editor
ADVISORY COUNCIL
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 OScannlain 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
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.
In this issue:
General Themes The European Commission for the Efficiency of Justice (CEPEJ)
By Jon.T. Johnsen, Norway
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)
. 1
Management Responses to Multiple Rationalities in Courts A Review
By Angela Eicher, Kuno Schedler, Switzerland
....... 20
Better Administering for Better Judging
By Loc Cadiet, Jean-Paul Jean, Hlne Pauliat, Aurlie Binet-Grosclaude and Caroline Foulquier, France 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 ICJAs 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 societys 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 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
Continued...
... 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 Seppl, Timo Pirttil, 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
The Role of Communication in the French Judicial System
By Emmanuel Jeuland and Anastasia Sotiropoulou , France
... 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 Autnoma 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 Managin g 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.
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 a nd 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 formed2 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.
(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
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1. Introduction My paper concerns the Council of Europes ( 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 peoples 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 CEPEJs 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 authors ow n 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.
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International Journal For Court Administration | December 2012
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.
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 Courts Annual Report 2005 the number of ap plications 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.
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 CEPEJs 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.
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.
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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. 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.
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12 CEPEJ-GT-EVAL. 13 14
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.
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
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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)
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 CEPEJs 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 34
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 lre av finsk rettshjelp Srskilt 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.
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.
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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.
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.
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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.
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.
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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 Italys 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.
Graph 4: Enforcement cases per 10 000 inhabitant. 2010.
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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. 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
44
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.
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Framework Programme and contains a wide rang e 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. 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. 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. 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. Best Practice Compendium is a compilation of time management practices collected especially from the pilot courts, but also from other available sources. 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.
49 48 47 46 45
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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. 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 Courts evaluation of reasonable time are: - The applicants 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 applicants 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, o r if it finds long periods of inactivity by competent authorities:
Violation of the reasonable time (Art. 6) summary
Type of case Criminal cases Civil cases Civil cases Administrative Administrative Diverse Priority cases Complex cases Priority Regular, complex Issues Length More than 5 years. More than 2 years (minimum 1 year 10 months) More than 8 years. More than 2 years. More than 5 years.
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Non-violation of the reasonable time (Art. 6) - examples

Type of case Criminal cases Criminal cases Civil cases Civil cases Issues Normal cases Complex Simple cases Priority cases (labour) Length 3 years 6 months (total in 3 instances); 4 years 3 months (total in 3 levels plus investigation) 8 years 5 months (investigation and 3 levels) 1 year 10 months in first instance; 1 year 8 months on appeal; 1 year 9 months Court of Cassation 1 year 7 months in first instance (labour); 1 year 9 months on appeal; 1 year 9 months Court of Cassation
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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 Franoise Calvez, Judge (France) Updated by Mr Nicolas Rgis Judge (France). (Final citation to be added after adoption by the CEPEJ plenary 06-07 December 2012.)
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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
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The principle expressed is detailed in several guidelines on monitoring. 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:
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51 52
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.
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Graph 5: CEPEJ Studies No 17. Figure 60 on total time use in criminal cases.
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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.
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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 cas es 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. 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 individuals capacity to represent himself; costs and the individuals capacity to carry them.
60
59 60
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.
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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. 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.
68
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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. 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
76
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.
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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 peoples 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 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 undertakin g 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 CEPEJs main instrument for stimulating the member states to carr y 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
79
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 syste ms 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.
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 CEPEJs 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.
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Graph 6: Caseload at the European Court of Human Rights in 2005 and 2011.
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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 Europes 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, CEPEJs 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.
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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 acciden t 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 organizations 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).
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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 Howards 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
10 9 8 7 6 5 4 3
court administration
local legal culture
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).
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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 organizations 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 organizations 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 organizations 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 n ot 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 routinizat ion in a quest for efficiency, productivity, and cost effectiveness () (1990, p. 6). This observation also coincides with Mille r and Friesen who note that the sophistication of an organizations 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 organizations 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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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 Analysis of the different perceptions and attitudes court actors have of each other Analysis of the relationship among different court actors Local Legal Culture Analysis of the impact local legal culture has on court performance
Empirical Focus
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 Implies multirationality through the existence of culture incongruences within a single organization (court)
Contribution to Multirationality
Multirationality is reflected in the different values, goals and attitudes of court actors
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 serv ices 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.).
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 Zuckers view the degree of institutionalization, w hich 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 accoun t 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 organizations 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, a nd 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 Zuckers micro level approach together (Thornton & Ocasio, 2008, p. 100). Besides Friedland and Alfords conception of institutional logics, there exist several slightly different approaches (Cloutie r & 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 an d 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 judges 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; Rhl, 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 rath er 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, 1 977, 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 judges 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, Carl son, 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 judici al 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 ex ample time standards varied quite substantively (Coolsen, 2009, p. 80, 83). Coolsens 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 Clarkes 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 organizations 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 Rowans 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
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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
Conscious dealing
Isolation Search for monorational context Avoidance Implicit dominance of one rationality monorational
Competence Ability to act multirationally Tolerance Intuitive mediation between rationalities between multirational
Unconscious dealing
(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 underst anding 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; Rhl, 1993, p. 127 ff.). As the literature shows, many judges consciously tried to constrain a court administr ators 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 administrators 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
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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 f act that courts are often lacking a clear command structure pose additional challenges on the management of courts.
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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 organizations 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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Better Administering for Better Judging

By Loc Cadiet, Jean-Paul Jean, Hlne Pauliat, Aurlie 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 lEurope) , led by the teams of the universities of Limoges, Poitiers and Paris 1 Panthon-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.
Scientific Directors: Hlne Pauliat, OMIJ (Observatoire des Mutations Institutionnelles et Juridiques de Limoges ; Loc Cadiet, CRPJ (Centre de Recherches sur la Justice et le Procs de Paris I) ; Jean-Paul Jean, EPRED (Equipe Poitevine de Recherche et dEncadrement Doctoral en sciences criminelles de Poitiers). Scientific secretariat: Aurlie 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 Systmes judiciaires europens : efficacit et qualit, d. du Conseil de l'Europe, Les tudes 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 Systmes judicaires europens and co-author with H. Jorry of the report Les enqutes de satisfaction conduites auprs des usagers des tribunaux, Les tudes de la CEPEJ, n 15, 2011 ; H. Pauliat is co-author with L. Berthier of the report Administration et gestion des systmes judiciaires en Europe , Les tudes de la CEPEJ n 10, 2009 ; they have contributed with L. Cadiet to the work La qualit des dcisions de justice, Les tudes 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 indpendance des magistrats : la rorganisation du systme judiciaire des Pays-Bas , RFAP 2008, n 125. 6 http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp
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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 judges 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 countrys 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 dIribarne, 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.
P. DIribarne, La logique de l'honneur, Le Seuil, 1989.
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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 States 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 judges and his staffs 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 indiv idual 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, bef ore the merger between the Tribunals Service and the Her Majestys 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
Systmes judiciaires europens : efficacit et qualit, d. du Conseil de l'Europe, Les tudes 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
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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 dEtat 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 specif ic to the complexity of the English judicial system. The Tribunals Service and Her Majestys Courts Service, because of their being the Ministry of Justices 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 14
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 Assemble Nationale n2857, 2010, rapporteur R. Couanau. 16 J-R. Brunetire, Les objectifs et les indicateurs de la LOLF, quatre ans aprs, RFAP, 2010/3.
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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 essentiall y 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 Majestys 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 dinstance) and local courts (juridictions de proximit). 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 18
J-P. Jean and H. Pauliat, Primes modulables, qualit et indpendance de la justice judiciaire , D. 2005, p. 2717. See in particular, Ph. Langbroek, Entre responsabilisation et indpendance des magistrats : la rorganisation du systme judiciaire des Pays-Bas , RFAP 2008, n 125, p 67 ; M. Fabri, J.-P. Jean, Ph.Langbroek and H. Pauliat (ed.), Ladministration de la justice en Europe et lvaluation de sa qualit, Montchrestien, 2005, spc., 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.
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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.
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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 programs operational budget and as the secondary authorizing officer s 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 programs 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 lheure 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.
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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.
Study within the framework of the research project Basic Research into Court Management in Switzerland which is supported b y 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).
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1.2 The Field in Question: Court Management 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 : 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.
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have produced a number of
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.
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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 REGG-STRM (2002). 29 See THOM/RITZ (2008), p. 41 ff.; SCHEDLER/PROELLER (2011), p. 19 ff., in particular p. 22.
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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 ;
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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).
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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, Graubnden, 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
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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).
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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.
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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
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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.
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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 Graubnden, 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, Graubnden, 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.
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An analysis of the results shows that the Federal Administrative Court and the Courts of Appeal in the Cantons of Graubnden 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. 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, Graubnden, 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.
60
58
58 59
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).
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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 Graubnden, 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, Graubnden, 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. 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 a ccording 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 Graubnden, St. Gallen and Zurich are the courts authorized in accordance with
68 69
69
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).
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their budget to acquire premises on their own. In the Cantons of Graubnden 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, Graubnden, 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, Graubnden, 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.
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72
71 72
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.
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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, Graubnden, Neuchatel, Solothurn, Thurgau, Ticino and Zug, candidates must hold a law degree, and in some cases must also hold a lawyers 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 Graubnden 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 Graubnden, 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. 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.
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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.
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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 Graubnden 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 Graubnden, 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 Graubnden 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 Graubnden, 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. 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 publics 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
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75 76
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.
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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, Graubnden (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 cantons 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 83
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).
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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 lawyers 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.
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.
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The differences in the level of implementation of the various elements of court management are undoubtedly due in part to Switzerlands 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 Bandli, Christoph (2009): Effizienz und Unabhngigkeit im Gerichtsbetrieb. Geschftslastbewirtschaftung Bundesverwaltungsgericht, Justice Justiz Giustizia 2009/3. Bandli, Christoph (2012). Das Bundesverwaltungsgericht als Eckpfeiler der Anpassungsbedarf, Zeitschrift des Bernischen Juristenvereins (ZBJV) 2012, p. 101 ff. Justizreform: Bewhrtes am
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Calvez, Francoise (2006): Analyse des dlais judiciaires dans les Etats membres du Conseil de lEurope partir de la jurisprudence de la Cour europenne des Droits de lHomme; rapport adopt par la CEPEJ le 6 -8 dcembre 2006. Council of Europe, Committee of Ministers, Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers' Deputies; Verwendet in der Textfassung von Gass/Kiener/Stadelmann (2012), p. 216 ff.
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Council of Europe, Committee of Ministers, Recommendation CM/Rec(94)12 of the Committee of Ministers to member states on the independence, efficiency and role of judges, adopted by the Committee of Ministers on 13 October 1994 at the 516th meeting of the Ministers' Deputies; Verwendet in der Textfassung von Gass/Kiener/Stadelmann (2012), S. 202 ff.; Aufgehoben durch Recommendation CM/Rec(2010)12. Ehrenzeller, Bernhard/Ludewig-Kedmi, Revital (Hrsg.) (2006): Moraldilemmata von Richtern und Rechtsanwlten, St. Gallen 2006. European Commission for Democracy through Law (Venice Commission), CDL-AD(2010)040 Report on European Standards as regards the Independence of the Judicial System: Part II - the Prosecution Service - adopted by the Venice Commission - at its 85th plenary session, Venice, 17-18 December 2010. European Commission for the Efficiency of Justice (CEPEJ) (2008): Checklist for promoting the quality of justice and the courts, adopted in Strasbourg on 2-3 July 2008. European Commission for the Efficiency of Justice (CEPEJ) (2011): Scheme for Evaluating Judicial Systems 2010-2012 Cycle, revised at the 16th plenary meeting of the CEPEJ in Strasbourg, 8-9 December 2010. Gass, Stephan/Kiener, Regina/Stadelmann, Thomas (Hrsg.) (2012): Standards on Judicial Independence, Bern 2012. Haller, Walter (2009): Stellung der Gerichte in Bausachen im Kanton Zrich, Rechtsgutachten zuhanden des Obergerichts des Kantons Zrich, Die Schweizer Richterzeitung (Justice Justiz Giustizia) 2009/4. Hoffmann-Riem, Wolfgang (2001): Modernisierung von Recht und Justiz, Frankfurt a.m. 2001. Kettiger, Daniel (2003a): Wirkungsorientierte Verwaltungsfhrung in der Justiz: Ausgangslage Entwicklungen Thesen, in: Daniel Kettiger (Hrsg.), Wirkungsorientierte Verwaltungsfhrung in der Justiz ein Balanceakt zwischen Effizienz und Rechtsstaatlichkeit, Bern 2003, p. 7 ff. Kettiger, Daniel (2003b): Auf dem Weg zu einer leistungs- und wirkungsorientierten Justiz, in: Daniel Kettiger (Hrsg.), Wirkungsorientierte Verwaltungsfhrung in der Justiz ein Balanceakt zwischen Effizienz und Rechtsstaatlichkeit, Bern 2003, p. 176 ff. Kettiger, Daniel (Hrsg.) (2003): Wirkungsorientierte Verwaltungsfhrung in der Justiz ein Balanceakt zwischen Effizienz und Rechtsstaatlichkeit. Tagung vom 21. Mrz 2003 in Bern; Schriftenreihe der Schweizerischen Gesellschaft fr Verwaltungswissenschaften (SGVW), Bd. 44; Bern 2003. Kettiger, Daniel (2007): Parteien Rechtsunterworfene oder Kundinnen und Kunden?, in: Benjamin Schindler/Patrick Sutter (Hrsg.), Akteure der Gerichtsbarkeit, Zrich/St. Gallen 2007, S. 245 ff. Klopfer, Rainer (2005), NZZ Nr. 141 vom 20. Juni 2005, p. 35. Koller, Christophe/Hirzel, Alexandre H./Rolland, Anne-Cline/de Martini, Luisella (2012): Staatsatlas. Kartografie des Schweizer Fderalismus, Zrich 2012. Langbroek, Philip M. (2008): The Importance of Effective Court Administration, IJCA Nr. 1, Januar 2008, p. 1 ff. Lienhard, Andreas (2005): Staats- und verwaltungsrechtliche Grundlagen fr das New Public Management in der Schweiz Analyse, Anforderungen, Impulse, Habilitationsschrift, Bern 2005. Lienhard, Andreas (2007): Controllingverfahren des Bundesgerichts, Die Schweizer Richterzeitung (Justice Justiz Giustizia) 2007/2. Lienhard, Andreas (2009a): Oberaufsicht und Justizmanagement, Justice Justiz Giustizia, 1/2009. Lienhard, Andreas (2009b): Supervisory Control and Court Management, IJCA, 3rd issue, August 2009. Lienhard, Andreas (2010): Die bernische Gerichtsbarkeit auf dem Weg zur Selbstverwaltung, in: Ruth Herzog/Reto Feller (Hrsg.), Festschrift 100 Jahre Verwaltungsgericht des Kantons Bern, Bern 2010, p. 401-436
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Lienhard, Andreas/Kettiger, Daniel (2009): Geschftslastbewirtschaftung bei Gerichten: Methodik, Erfahrungen und Ergebnisse einer Studie bei den kantonalen Verwaltungs- und Sozialversicherungsgerichten; ZBl 8/2009, p. 413 ff. Lienhard, Andreas/Kettiger, Daniel (2010): Caseload Management in the Law Courts, IJCA, 5th issue, November 2010. Lienhard, Andreas/Rieder, Stefan/Killias, Martin/Schwenkel, Christof/Hardegger, Sophie/Odermatt, Simon (2010): Evaluation der Wirksamkeit der neuen Bundesrechtspflege, Zwischenbericht der Evaluationsphase I zuhanden des Bundesamts fr Justiz vom 31. Mrz 2010. Ludewig-Kedmi, Revital et al. (Hrsg.) (2007): Zwischen Recht und Gerechtigkeit. Richterinnen im Spiegel der Zeit, Bern 2007. Machura, Stefan (2006): Ehrenamtliche Verwaltungsrichter; Gesellschaft und Recht Band 3; Berlin 2006. Machura, Stefan et al. (2003): Ehrenamtliche Richter in Sdrussland. Eine empirische Untersuchung zu Fairness und Legitimitt, Gesellschaft und Recht Band 1; Berlin 2003. Meier, Patrick (1999): New Public Management in der Justiz, Bern 1999. Obergericht des Kantons Bern: BEJUBE. Beurteilung der Justizttigkeit im Kanton Bern oder Was halten die Kunden von unserer Arbeit?; Zusammenfassung der Ergebnisse, Bern 2001. Parlamentarische Verwaltungskontrollstelle (2001): Modernes Management in der Justiz, Bericht zuhanden der GPK des Stnderates vom 10. August 2001; BBl 2002 7641. Regg-Strm, Johannes (2002): Das neue St. Galler Management-Modell, Grundkategorien einer integrierten Managementlehre, der HSG-Ansatz, Bern 2002. Schauffler, Richard Y. (2007): Judicial Accountability in the US State Courts: Measuring Court Performance; Utrecht Law Review, Volume 3, Issue 1 (June) 2007, p. 112 ff. Schedler, Kuno/Proeller, Isabella (2011): New Public Management, 5. Aufl., Bern 2011. Schmid, Niklaus (2007): Art. 73, in: Hner, Isabella/Rssli, Markus/Schwarzenbach, Eva (Hrsg.): Kommentar zur Zrcher Kantonsverfassung, Zrich 2007. Schwarz, Peter (1984): Erfolgsorientiertes Verbands-Management, St. Augustin 1984 The Montreal Universal Declaration on the Independence of Justice, First World Conference on the Independence of Justice held on 10 June 1983 in Montreal. The Syracus Draft Principles on the Independence of the Judiciary, result of a conference of experts held from 25 to 29 May 1981 and organised by the Association of Penal Law and the International Commission of Jurists. Thom, Norbert/Ritz, Adrian (2008): Public Management. Innovative Konzepte zur Fhrung im ffentlichen Sektor, 4. Aufl., Wiesbaden 2008 Tiebel, Christoph (2006): Management in Non-Profit-Organisationen; Mnchen 2006. Tschirky, Anja (2011): The Council of Europe's activities in the judicial field; Schweizer Studien zum internationalen Recht, Bd. 136; Zrich 2011. Uhlmann, Felix/Kiener, Regina (2010): Einbezug der kantonalen Gerichte in die Immobilienstrategie des Kantons, legal opinion commissioned by the Canton of Graubnden dated 29 October 2010 (unpublished). Ulrich, Hans/Krieg, Walter (2001): Das St. Galler Management-Modell, Bern 1972; reissued in: Ulrich, Hans: Gesammelte Schriften, Band 2, Bern 2001. United Nations Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held from 26 August to 6 September 1985 in Milan.
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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) Graubnden (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.
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
Other
x x
91
92
x x x x x
x x
93
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
91
59
Graphic 1: Strategy
Graphic 2: Caseload management system
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Graphic 3: Quality management system
Graphic 4: Service level mandate and NPM
61
Graphic 5: Court management board
Graphic 6: Budget
62
Graphic 7: Right to make budgetary proposals
Graphic 8: Long-term plan for staff resources
63
Graphic 9: Communication concept
Graphic 10: Person responsible for communication and media spokesperson
64
Graphic 11: Surveys on satisfaction among the public
Graphic 12: Culture
65
Graphic 13: Current reform projects
Graphic 14: Status of court management
66
Graphic 15: Relation of court management with NPM
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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 courts jur isdiction is a less flexible or mobile resource than one who can tackle all aspects of the courts work.
1 2
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 Australias 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: AttorneyGenerals Discussion Paper (1993, Commonwealth Attorney-Generals 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.
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A commitment to judges as generalists assumes substantial similarity in the kind of work, and the necessary knowledge and skills, across the courts c aseload. 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. 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
7
6 7
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 Bars 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.
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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 a nd 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. 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 courts work. A third concept of specialization relates to particular kinds of tasks within a wide range of a courts 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
29
16
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 Australi a, 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.
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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 courts flexibility. This is a particular
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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 ma gistrates skills through a variety of sources.
35 36
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; Apple baum, 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.
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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 judges 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 persons prior professional experience and expertise, or by means of subsequent or ongoing training.
47 48
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.
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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
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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
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work of these courts is dominated by the high-volume, criminal list; 72 high levels of satisfaction from a variety of work.
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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 everythingcapacity 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.
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interviewee: [I]f I dont have everybody potentially available to sit in that court, were going to come to a time where theres 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 dont 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 its nonsense to suggest that every judicial officer is good at every type of work we know theyre not its 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 h ave 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 thats known to be very strict, weve got Crimes Family Violence that sits four days a week, very vulnerable, mainly women, as you can imagine I wouldnt let him loose on the women, on the Monday, the Mondays the day when all the weekend bashings come in I wouldnt let him loose on them because hes, he just hasnt 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 Im 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 courts capa city to 80 exercise flexibility in deploying its judicial resources.
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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.
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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 courts 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 courts jurisdiction were dealt with as speedily and efficiently as possible. This view was expressed by one Allocating Magistrate as follows: On a busy day, its 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, youve always got to do that, because at the end of the day we think that weve 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 dont give building disputes to people who dont have any ability to manipulate complex technical information, complicated accounting and all that, because it will just go forever, and theyll never be able to take control at all and at the end of it theyll muck it up because they just didnt 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: Ive got a massive DVA [Domestic Violence] list, Ive 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.
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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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In the case of a slower magistrate: So if you get a big list of 100 or 90 or 80 youre 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 - couldnt tell you which ones 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 dont judge a magistrate by how quick or slow [s/he] is, theres other things to take into account, Ive got a particular magistrate whos very, very quick but none of the barristers like appearing before him because hes 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 Ive gained nothing by putting my huge big list in front of [...], because so much of its been adjourned, whereas the magistrate whos slow, the barristers love appearing before [...] because hes lenient, so its, um, more tempting to put my cases in front of him, so theres lots of things to t ake 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 Childrens 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: Efficiencyin 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 magistr ates skills and abilities and the magistrates 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, youd try and give it to them fairly regularly because its 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 magistrates skills and abilities did not tally with the magistrates o wn preference. In that situation, those allocating the caseload would normally try and find a way to avoid a direct refusal, as one explained: Ill be hoping when that happens that the people who volunteer will be the sort of people who wont 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 courts grief. I normally try and find something else they want to do that clashes with that and give them that. So they dont get that work its not apparent or obvious anyway that Im 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 youre limited as to how you can do that because, you know, you get certain dates where theres 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:
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I have to share work around, but Ill 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 doesnt upset the balance of things, then Im 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 expert ise (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 jurisdictions 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 practitionersand you get a sense of what do people think about your court,i n conversation I will see them at functions or wherever. Without spying on everyone, and I dont you just sort of hear people make comments. I know within the court here Ive got a pretty good handle on the practices of the magistrates even though Ive never been to see them in court. I really dont know how I know I dont 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, youll see it by how much work th ey get through. If a magistrate is given a list of 65 or 70 mention matters, and will need assistance if by lunchtime theres still 40 there, you know that their capacitys going to be 20/25 in the morning and 20/25 in the afternoon. One Allocating Court Officer expressed the judgment in instinctive terms:
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Now replaced by the Substance Misuse Assessment and Referral for Treatment Court (SMART Court).
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You know, you get a gut feel for it, too, whether theyre going to be good in that court or theres 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 Wale s, 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 case load 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 courts 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
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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.
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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 courts expertise.
Reference List Alford, John, Gustavson, Royston & Williams, Philip, The Governance of Australia's Courts: A Managerial Perspective (2004, Australian Institute of Judicial Administration) 72-3. Applebaum, Lee, Some Observations on Modern Business Courts and the Bars Role in Their Development (2008) (March/April) Business Law Today. Applebaum, Lee, The Steady Growth of Business Courts Future trends in State Courts (2011, National Center for State Courts) 70. Baum, Lawrence, Probing the Effects of Judicial Specialisation (2009) 58 Duke Law Journal 1668. Baum, Lawrence, Specializing the Courts (2010, University of Chicago Press). Berman, Greg & Fox, Aubrey, Lasting Change or Passing Fad? Problem-Solving Justice in England and Wales (2009, Policy Exchange). Butler, Petra, 'The Assignment of Cases to Judges' (2003) 1 New Zealand Journal of Public and International Law 83. Chase, Deborah J & Hora, Peggy Fulton, The Implications of Therapeutic Jurisprudence for Judicial Satisfaction (2000) 37 (1) Court Review 12, 18. Freiburg, Arie, Innovations in the Court System (Paper delivered to the Australian Institute of Criminology Crime in Australia Conference, Melbourne, Australia, 30 November 2004). Freiburg, Arie, Problem -Orientated Courts: Innovative Solutions to Intractable Problems? (2001) 11 Journal of Judicial Administration 8. Friesen, Ernest C, Gallas, Edward C & Gallas, Nesta M, Managing the Courts (1971, Bobbs-Merrill). Goldberg, Susan, Judging for the 21st Century: A Problem-solving Approach (2006, National Judicial Institute) 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. King, Michael, Judging, judicial values and judicial conduct in problem-solving courts, Indigenous sentencing courts and mainstream courts (2010) 19 Journal of Judicial Administration 133. King, Michael, Solution-Focused Judging Bench Book (2009, AIJA). King, Michael, Freiberg, Arie, Batagol, Becky & Hyams, Ross, Non-Adversarial Justice (2009, The Federation Press). Laing, Rachel, Righarts, Saskia & Henaghan, Mark, A Preliminary Study on Civil Case Progression Times Report (15 April 2O11, The Law Foundation New Zealand) 18-9. Langbroek, Philip M, & Fabri, Marco, Is There a Right Judge for Each Case? A Comparative Study of Case Assignment in Six European Countries (2007, Intersentia) 24. Lavarch, Michael, Judicial Appointments: Procedure and Criteria: Attorney-Generals Discussion Paper (1993, Commonwealth Attorney-Generals Department). Law Council of Australia, Policy on the Process of Judicial Appointments (September 2008, Law Council of Australia). Law Reform Commission of Western Australia, Court intervention programs: final report (2009, Law Reform Commission of Western Australia).
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Mack, Kathy, Roach Anleu, Sharyn & Wallace, Anne, Everyday work in the magistrates courts: Time and tasks (2011) 21 Journal of Judicial Administration 34, 40-1. Mack, Kathy & Roach Anleu, Sharyn, '"Getting Through the List": Judgecraft and Legitimacy in the Lower Courts' (2007) 16 Social and Legal Studies 341. Mack, Kathy, (forthcoming). Roach Anleu, Sharyn & Wallace, Anne, Judicial Workload: Time, Tasks and Work Organisation
Marchetti, Elena & Daly, Kathleen, Indigenous Courts and Justice Practices in Australia (2004) Trends and Issues in Criminal Justice No. 277, Australian Institute of Criminology, Canberra. Maffei, Paul, 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 (CCEG, Strasbourg, 20 March 2011) Mazur, Robyn & Aldrich, Liberty, What Makes a Domestic Violence Court Work? Lessons from New York (Sp ring 2003) The Judges Journal 5. Phelan, Andrew, 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. Plotnikoff, Joyce & Woolfson, Richard, Review of the effectiveness of specialist courts in other jurisdictions , Research Series 3/05 (2005, Department of Constitutional Affairs). Popovic, Jelena, Mainsteaming Therapeutic Jurisprudence in Victoria: Feelin Groovy? in G Reinhardt & A Cannon (ed s) rd 3 international Conference on Therapeutic Jurisprudence: Transforming Legal Processes in Court and Beyond (2007, AIJA) 187. Roach Anleu, Sharyn & Mack, Kathy, 'Gender, Judging and Job Satisfaction' (2009) 17 (1) Feminist Legal Studies 79. Roach Anleu, Sharyn & Mack, Kathy, Magistrates Courts and Social Change (2007) 2 Law & Policy 183. Roach Anleu, Sharyn & Mack, Kathy, 'The professionalization of Australian magistrates: Autonomy, credentials and prestige (2008) 44 Journal of Sociology 185. Roper, Christopher, A Curriculum for Professional Development for Australian Judicial Officers, (National Judicial College of Australia, January 2007) 15. Sage, Caroline, Wright, Ted & Morris, Carolyn, Case Management Reform: A Study of the Federal Court's Individual Docket System, (2002, Law and Justice Foundation of New South Wales). Sentencing Advisory Council, Victoria, Sentence Indication and Specified Sentencing Discounts: Final Report (2007, Sentencing Advisory Council). Spigelman AC, Hon James Jacob, Implications of the current economic crisis for the administration of justice (2009) 18 Journal of Judicial Administration 205. Steelman, David C, Goerdt John A & McMillan, James E, Caseflow Management: The Heart of Court Management in the New Millenium (2004, National Center for State Courts). Steering Committee for the Review of Commonwealth/State Service Providers , Report on Government Services 2012 (2012, Productivity Commission). Williams, David, Technology Boom Prompts Call for a Specialised Court CNN News Center, 2 October 2000. Zimmer, Markus B, Overview of Specialized Courts (2009) International Journal for Court Administration 6.
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Evaluating Court Performance: Findings From Two Italian Courts

By Luigi Lepore , Concetta Metallo , and Rocco Agrifoglio
1 2 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 e 6 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 courts 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 dellEconomia 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
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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 ind icators: 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 . 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.
10
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.
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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. T he model was created by Kaplan and Norton in the early 1990s 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 individuals 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).
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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 courts 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 courts 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 courts 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.
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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 users 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 22
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.
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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 Torkzadehs (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 Farhoomands (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 p0.010 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.
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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
600000 500000 400000 300000 200000 100000 0 2007 2008 incoming resolved 2009 pending 2010
Civil cases Bari

300000
250000
200000
150000
100000
50000
0
2007 2008 2009 2010
incoming
resolved
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 fo r 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. 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
29
See note 17 supra.
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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 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
Case Management Style
Judge-Staff Relations
Change Management
Courthouse Leadership
Internal Organization
Tab. 2 Bari and Naples Courts comparative analysis for current and preferred court culture
Content dimension Culture type 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
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
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 5.00 HIERARCHICAL 0.00 NETWORKED Bari (current) Bari (preferred) Naples (current) Naples (preferred)
AUTONOMOUS
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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 courts goals, judges are r elatively 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 Relations Judge-Staff Relations
COMMUNAL 35.00 30.00 25.00 20.00 15.00 10.00
5.00 HIERARCHICAL
Bari (current)
NETWORKED
0.00
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 Napless 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
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
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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
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 5.00 HIERARCHICAL 0.00 NETWORKED
Bari (current) 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.
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Tab. 3 The IS Successs results Court IS Success System quality Information quality User satisfaction IS use Individual impact Bari Mean 3.57 3.35 3.47 5.71 4.91 1.08 0.98 0.98 1.74 1.64 Naples Std. Dev. Mean 3.32 3.32 3.34 5.54 4.48 Std. Dev. 1.24 1.03 1.06 1.69 1.81 t-test "t" value 1.416 0.265 0.882 0.632 1.673 Sig. 0.161 0.792 0.381 0.529 0.098
Findings have highlighted that both systems 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 perspectives indicators have shown a good civil case management for both courts and for Bari i n 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. DAtri, M. De Marco, A.M. Braccini an d F. Cabiddu, Management of the Interconnected World, Springer, Springer-Verlag Berlin Heidelberg.
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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.
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Designing And Implementing Delay Reduction Projects In Courts

By Petra Pekkanen , Maija Eronen, Pauliina Seppl and Timo Pirttil 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.
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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
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Contact: Lappeenranta University of Technology, Department of Industrial Management, P.O. Box 20, FI-53851 Lappeenranta, Finland, E-mail: petra.pekkanen@lut.fi
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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. Hagsgrd, 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 (Hagsgrd, 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; Hagsgrd, 2008; Lowendahl, 2005; Price and Brodie, 2001). Hagsgrd (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. Hagsgrd (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 co urts 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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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) 03/0612/09 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
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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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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.
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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 judges 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 judges 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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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 easie r 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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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. Previousl y 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; Hagsgrd, 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
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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 organizations 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 t he solutions. In addition, the external experts role in transferring best improvement practices and lessons from one court to another should be highlighted more in process improvement studies. References Aikman Alexander. 1994. Total Quality Management in the Courts: A Handbook for Judicial Policy Makers and Administrators. National Center for State Courts, Court Services Division, Williamsburg. Brashier Leon, Sower Victor, Motwani Jaideep, Savoie Michael. 1996. Implementation of TQM/CQI in the health-care industry A comprehensive model. Benchmarking for Quality Management & Technology, Vol. 3, No. 2, pp. 31-50. CEPEJ (European Commission for the Efficiency of Justice). 2005. Time Management Checklist Checklist of indicators th for the analysis of lengths of proceedings in the justice system. Adopted by the CEPEJ at its 6 plenary meeting, 7-9 December 2005. Cheng Sheung-Tak. 1990. Change Processes in the Professional Bureaucracy. Journal of Community Psychology, Vol. 18, July, pp. 183-193. Cicmil Svetlana. 1999. Implementing organizational change projects: impediments and gaps. Strategic change, MarchApril 1999, pp. 119-129. Coolsen James Peter. 2008. Case Management Innovation in a Large, Urban Trial Court: the Critical Importance of Legal Stakeholder Attitudes. The Justice System Journal, Vol. 30, No. 1, pp. 70-90. Di Vita Giuseppe. 2010. Production of laws and delays in court decisions. International Review of Law and Economics, Vol. 30, pp. 276-281. Fernandez Sergio and Rainey Hal. 2006. Managing Successful Organizational Change in the Public Sector. Public Administration Review, Mar/Apr 2006, pp. 168-176. Fernie John and Rees Clive. 1995. Supply Chain Management in the National Health Service. The International Journal of Logistics Management, Vol. 6, No. 2, pp. 83-92. Hagsgrd Marie B. 2008. Internal and External Dialogue: A Method for Quality Court Management. International Journal For Court Administration, October 2008. Hammer Michael. 2001. The Superefficient Company. Harvard Business Review, September 2001, pp. 82-91. Korhonen Kirsi. 2008. Facilitating coordination improvement efforts in cross-functional process development programs. Lappeenranta University of Technology, Lappeenranta, Finland. Longenecker Clinton, Papp Greg and Stansfield Timothy. 2006. Characteristics of Successful Improvement Initiatives. Industrial Management, Vol. 48, No. 5, pp. 25-31.
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Lowendahl Bente. 2005. Strategic Management of Professional Service Firms. 3 Copenhagen.
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McWilliams Michael. 1992. Setting the Record Straight: Facts About Litigation Costs and Delay. Business Economics, vol. 27, No.4, pp. 19-24. Ongaro Edoardo. 2004. Process management in the public sector The experience of one-stop shops in Italy. The International Journal of Public Sector Management, Vol. 17, No. 1, pp. 81-107. Ostrom Brian, Hanson Roger, Ostrom Charles, Kleiman Matthew. 2005. Court Cultures and their Consequences. Court Manager, Vol. 20, Iss.1, pp. 14-23. Price Reg and Brodie Roderick. 2001. Transforming a Public Service Organization From Inside out to Outside in The Case of Auckland City, New Zealand. Journal of Service Research, vol. 4, No. 1, pp. 50-59. Roberto Michael and Levesque Lynne. 2005. The Art of Making Change Initiatives Stick. MIT Sloan Management Review, Summer 2005, Vol 46, No.4, pp. 53-60. Steelman David and Fabri Marco. 2008. Can an Italian Court use the American approach to delay reduction? The Justice System Journal, Vol. 29, No. 1, pp.1-23.
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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 Europenne (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 studie s, 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.
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 (IRSIGCNR) 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).
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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 papers 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.
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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.
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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 Nations 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 Jrgensen & Andersen, 2010; Beck Jrgensen & 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 Jrgensen 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.
Even the OECD with its traditional emphasis on efficiency has paid increased attention to the variety of public values (OECD, 1996, 2000, 2008).
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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. 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).
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Lanzara and Contini (2012) use the expression institutional interoperability rather than organizational, as it underlines the institutional features of public administrations.
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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 - governance models: cultural administrative tradition - governance networks: actors, rules, linkages, etc.
Interoperability - technical - semantic - legal - organizational
Public Values - 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 Europenne (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.
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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 fr Justiz sterreich (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 Informao na Justia (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 Europenne (CNUE) BELGIUM; the National Research Council of Italy (CNR) ITALY.
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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 r elevant 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. 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. 44/20 01 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
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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 paymen t procedure falls under the competence of notaries https://e-justice.europa.eu/content_european_payment_order_forms-156-en.do
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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 courts jurisdiction choosing from 14 options, one of which is open and needs to be spe cified. 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. 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 shal l 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 creditors 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
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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
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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
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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 necessa ry 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).
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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. 9. e-CODEX Technological and Organizational Infrastructure Lets 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
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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 cou rt 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 part ies; (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 (ibid em). 37 This section builds on e-CODEX D7.3 High Level Architecture Definition v0.2, v0.4 and v1.0.
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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. Accor dingly, 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 States 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 countr y. 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.
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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.
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Figure 2 e-CODEX Components Source: e-CODEX D7.3 v1.0 The above picture provides a representation of e-CODEXs 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 Lets 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
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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 countrys 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):
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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.
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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
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For an interesting presentation of the problems faced by a claimant see Ng G.Y. (2012).
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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. References Alford, J. (2002), Defining the client in the Public Sector: a social -exchange perspective, Public Administration Review, 62, 3. Archmann S., and A. Guiffart (2011) Public value as a driving force for public administration reform in the Balkans, Jean Monnet International Conference, 15-16 July, Bucharest, Romania Bannister, F. (2002), Citizen Centricity: A Model of IS Value in Public Administration, Electronic Journal of Information, p. 21-35. Beck Jrgensen, T., & Andersen, L.B. (2011). An Aftermath of New Public Management: Regained Relevance of Public Values and Public Service Motivation. In T. Christensen & P. Lgreid (Eds.), The Ashgate Research Companion to New Public Management (335-348). Oxon: Ashgate. Beck Jrgensen, T., & Bozeman, B. (2007) Public Values: An Inventory, Administration and Society, 39(3), p.354-381. Ciborra, C.U., et al. (2000), From control to drift: the dynamics of corporate information infrastructures . Oxford University Press, USA. Contini, F. and G.F. Lanzara (eds.) (2009), ICT and Innovation in the Public Sector. European Studies in the Making of EGovernment, Basingstoke, Palgrave Macmillan. Contini, F. and G.F. Lanzara (2012), BEYOND INTEROPERABILITY: Designing Systems for European Civil Proceedings Online, Research Conference - Bologna, 15-16 June 2012. de Graaf, G., & van der Wal, Z. (2010) Managing Conflicting Public Values: Governing With Integrity and Effectiveness The American Review of Public Administration, 40(6), 623-630. Fabri, M. (ed.) (2007), Information and communication technology for the Public Prosecutor's Office , Clueb, Bologna.
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Fabri, M. , & Contini, F. (2001). (Eds.) Justice and technology in Europe: How ICT is changing the judicial business . The Hague, The Netherlands: Kluwer Law International. Frederickson, H.G. (1999) The Repositioning of American Public Administration. Political Science, pp. 701-11. Kearns, I. (2004) Public Value and E-Government, Institute for Public Policy Research, London Mellone, M. (2012), Legal Interoperability: The Case of European Payment Order and of European Small Claims Procedure. Building Interoperability for European Civil Proceedings Online Research Conference - Bologna, 15-16 June 2012 Meynhardt, T. (2009) Public Value Inside: What is Public Value Creation? International Journal of Public Administration, 32, 192-219. Misuraca, G., Alfano, G. and G. Viscusi (2011a) Interoperability Challenges for ICT-enabled Governance: Towards a pan-European Conceptual Framework, Journal of Theoretical and Applied Electronic Commerce Research , VOL. 6, 95111. Misuraca, G., Alfano, G. and G. Viscusi (2011b) A Multi-Level Framework for ICT-Enabled Governance: Assessing the Non-Technical Dimensions of 'Government Openness, Electronic Journal of e- Government Vol. 9 Issue 2, 152 165. Misuraca, G. Reid A.and M. Deakin (2011c) Exploring emerging ICT-enabled governance models in European cities, Luxembourg: Publications Office of the European Union. Moore, M. (1995) Creating Public Value: Strategic management in government, Cambridge, MA, Harvard. Ng, G.Y. (2012) EPO and ESCP simulation UK-Italy claim Regulations (EC) no. 1896/2006 and 861/2007. Building Interoperability for European Civil Proceedings Online Research Conference-Bologna, 15-16 June 2012. OECD (1996). Ethics in the Public Service. Paris: OECD. OECD (2000). Building Public Trust: Ethics Measures in OECD Countries. Paris: OECD. OECD (2008). Observatory on Ethics Codes and Codes of Conduct in OECD Countries Retrieved , 31-10-08. Paris: OECD. Ojo A. , T. Janowski, and E. Estevez (2009), Semantic Interoperability. Semantic Interoperability Framework. Electronic Government. Enterprise Architecture, 10th Annual International Conference on Digital Government Research: Social Networks: Making Connections between Citizens, Data and Government (D.GO'09). Onsrud, H.J. and G. Rushton (1995). "Sharing geographic information: an introduction", New Brunswick, New Jersey: Centre for Urban Policy Research. Onsrud, H.J., 2010, Legal Interoperability in Support of Spatially Enabling Society. In Abbas Rajabifard, Abbas, Joep Crompvoets, Mohsen Kalantari, and Bas Kok, Spatially Enabling Society: Research, Emerging Trends and Critical Assessment, 163-172. Entire Book at http://memberservices.gsdi.org/files/?artifact_id=902 Reiling, D. (2012), Technology In Courts In Europe: Opinions, Practices And Innovations, International Journal For Court Administration,pp. 1-10. Rhodes, R.A.W. (1996) The New Governance: Governing without Government, Political Studies, 44: 652667. Toikka, A. (2011), Governance theory as a framework for empirical research , PhD dissertation, Department of Social Research University of Helsinki, Finland. United Nations (2006), Public administration and democratic governance: Governments Serving Citizens , United Nations publications.
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Velicogna, M. (2008) Use of Information and Communication Technologies (ICT) in European Judicial Systems, CEPEJ Studies No. 7, Council of Europe, http://www.coe.int/t/dg1/legalcooperation/cepej/series/Etudes7TIC_en.pdf Velicogna, M. (2007) Justice Systems and ICT, What can be learned from Europe?, Utrecht law review, Volume 3, Issue 1 (June) 2007 Special on Adjudication in a Globalizing Context, pp.129-147; http://www.utrechtlawreview.org/publish/articles/000041/article.pdf Velicogna, M., Contini, F., (2009) Assemblage-in-the-making: Developing the e-services for the Justice of the Peace Office in Italy, in Contini, F. Lanzara, G.F. (eds.) ICT and Innovation in the Public Sector - European Studies in the Making of E-Government, Palgrave, 2009, pp. 211-243. Wasim, A. (2011) Governance and government in public administration, Journal of Public Administration and Policy Research Vol. 3(5), pp. 123-128.
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Justice and Court Administrations, Their Workings and Efficiency in Switzerland: Aspects Of Sentencing And Its Outcome In Swiss Cantons1
By Daniel Fink, Ph.D., ICDP, University of Lausanne and Christophe Koller, Ph.D., IDHEAP-BADAC, University of 3 Lausanne
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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
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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 donnes 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), Graubnden (GR), Jura (JU), Lucerne (LU), Neuchtel (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 Fderalismus / Atlas de lEtat, Cartographie du fdralisme suis se, Zrich, 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.
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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 Dviance et socit (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 fr 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 Rckfallraten, Berne, 1997. 10 See Storz Renate, Strafrechtliche Verurteilung von Auslndern, Berne, SFSO 1998. 11 Koller Christophe, Services de migration et volution de la population trangre dans les cantons suisses, 2002-2008, Cahier IDHEAP 258, Lausanne, 2010.
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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. 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
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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.
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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: Neuchtel. 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).
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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, Neuchtel 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 Neuchtel, 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.
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Again, included among them are the more severe cantons of the French part of Switzerland (Jura, Neuchtel, 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 Neuchtel impose highly above
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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 fr auslndisches 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.
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the national average of unsuspended prison terms. Geneva has a rate of 300 unsuspended prison sanctions for 100000 of its resident population, Vaud 150, Basel-City 133 and Neuchtel 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
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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 , lets 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., Rckfallstudien, in Kaiser G. et alii. Kleines Kriminologisches Wrterbuch, 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.
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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.
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
32
For Switzerland see : Storz, R., Strafrechtliche Verurteilung und Rckfallraten, Berne, 1997; Vaucher S. et alii., Strassenverkehrsdelinquenz und Rckfall, Neuchtel 2000; for Germany see: Heinz W., Rckfall- 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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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.
Bibliography, Sitography BADAC, Database of Swiss cantons and cities, www.badac.ch. 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. Cdiey Eric (dir.), La mesure des discriminations lies lorigine, Actes du colloque organis par ISM CORUM, 2007, accessed www.ismcorum.org on 20 October 2012. Cottino Amedeo, Fischer Maria.-Grazia, Pourquoi lingalit devant la loi? In: Deviance et socit, 1996,Vol. 20, No. 3, pp. 199-214. Fink Daniel, The Vanishing of the prison sanction in Switzerland, forthcoming, 2013. Fink Daniel, berwachen statt Einsperren, Du boulet au bracelet, Neuchtel, 2009, available on www.statistik.admin.ch. Fink Daniel, Die Konstanz des Rckfalls, in: Hilgendorf Eric, Rengier Rudolf (Hrsg.) Festschrift fr 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 Fderalismus und seine Folgen, in: Interdisziplinre Kriminologie, Festschrift fr Arthur Kreuzer zum 70. Geburtstag, Fkt. a. Main, 2008. Heinz Wolfgang, Rckfall- und Wirkungsforschung Ergebnisse aus Deutschland, see: www. http://www.unikonstanz.de/rtf/kis/Heinz_Rueckfall-und_Wirkungsforschung_he308.pdf, accessed on 1.10.2010. Interdepartemenale Arbeitsgruppe Auslnderkrimiminalitt, AGAK, Schlussbericht 2001, Berne, 2001. Killias, Martin, Aebi Marcelo F., and Kuhn Andr, Prcis de criminologie. Berne: Stmpfli (3e d.), 2012.. Killias, Martin, Kuhn Andr, and Aebi Marcelo F., Grundriss der Kriminologie eine europische Perspektive. Bern: Stmpfli, 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 systme pnal de la (d) responsabilisation des acteurs, Dviance et socit, Volume 36, numro, 2012. Koller Christophe et al., Staatsatlas, Kartografie des Schweizer Fderalismus, Atlas de lEtat, Cartographie du fdralisme suisse, Zurich, 2012. Koller Christophe, Services de migration et volution de la population trangre dans les cantons suisses 2002-2008, Cahier de lIDHEAP 258, Lausanne, 2010. Koller Christophe, La fonction publique en Suisse : analyse gopolitique dun fdralisme gomtrie variable, in : Pyramides, no. 15, Bruxelles, 1/2008. Kunst Anton, Cross-national comparison of socio-economie differences in mortality, Rotterdam: Erasmus University, 1997. Lienhard Andreas, Kettinger Daniel, (2010) Caseload Management in the Law Courts, IJCA, March 2010. Masclet Oliver, Sociologie de la diversit et des discriminations, Paris, 2012. Morris, M.D. Immigration--the beleaguered bureaucracy. Washington, D.C.: Brookings Institution, 1985. Messmore, Ryan, Justice, Inequality, and the Poor, National Affairs 2012 (10). http://www.nationalaffairs.com/publications/detail/justice-inequality-and-the-poor accessed on 12.11.2012. Mucchielli, Laurent, Les champs de la sociologie pnale. Vingt ans de recherches et de dbats dans Dviance et Socit (1977-1997), In: Dviance et socit. 1999 - Vol. 23 - N1. pp. 3-40. Pekkanen, Petra, Delay reduction in courts of justice. Possibilities an challenges of process improvement in professional public organizations, Lappeenranta: Acta Univesitatis, 2011. Rapport CEPEJ, Conseil de lEurope, Strasbourg, 2012. Swiss Statistics, web portal: www.justice-stat.admin.ch for sentencing and recidivism data. Swiss Federal Statistical Office, Kriminalstatistik fr das Jahr 1906, Bern, 1908. Idem., Schweiz. Kriminalstatistik von 1909 bis 1911, Berne, 1917. Idem., Schweiz. Kriminalstatistik 1929, Berne, 1931. Storz Renate, Strafrechtliche Verurteilung von Auslndern, Berne, 1998. Storz Renate, Strafrechtliche Verurteilung und Rckfallraten, Berne, 1997. Terribilini, Serge. Fdralisme, territoires et ingalits sociales. Paris: L'Harmattan, 2001. Vogel, Mary E., Crime, inequality and the state. London: Routledge, 2007. Vaucher Steve, et alii., Strassenverkehrsdelinquenz und Rckfall, Neuchtel, 2000.
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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 dinstruction) 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 (s ee 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 n7 2005 by European judges and advice n4 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.
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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 Socit Gnrale 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 dlgu 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 dlgu 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 mthodologique sur lorganisation dun procs sensible, Ministre de la justice, janvier 2011 .
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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 (communiqu) explaining the meaning of their judgments. 6 This practice may prove problematic since sometimes the communiqu 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 communiqus de la Cour de cassation : d'une source d'information une source d'interprtation, 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).
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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 (rentre 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 Cassiope 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, Cassiope 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 Cassiope 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 tribunals 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.
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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 communiqu), 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.
BIBLIOGRAPHY F. Aubenas, La mprise: laffaire Outreau, 2005, Seuil, 2010, Points. D. Bougnoux, Introduction aux sciences de la communication, La dcouverte, 2002. P. Chapelotte, De Kerviel Clearstream, l'art de communiquer lors des grands procs, Eyrolles, 2012. P. Deumier, Les communiqus de la Cour de cassation : d'une source d'information une source d'interprtation, RTCiv, 2006, p. 510. E. M. Falcon, Comunicacion y proceso, Revista de Processo, Brazil, Maro 2008, pp. 103-128. J.M. Ferry, Lthique de la communication, PUF, 1987.B. Frydman et M. Meyer (dir.), Cham Perelman, De la nouvelle rhtorique la logique juridique, PUF, 2012.
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J. Lenoble, Droit et communication, Humanits, Cerf, 1994. C. Perelman et L. Olbrechts-Tyteca, Trait de l'argumentation, la nouvelle rhtorique, Bruxelles, d. de l'universit de Bruxelles, 1970. L. Sfez, la communication, Que sais-je ? PUF, 2011. C. Thomas, La communication par le bas au ministre de la justice, Revue Communication et organisation, n35, 2009,http://communicationorganisation.revues.org/810 M.H. Westphalen, Communicator, 5 d. 2009, Dunod. Avis n7 (2005) du conseil consultatif des juges europens sur justice et socit (Conseil de l'Europe). Avis n4 (2009) du conseil consultatif de procureurs europens sur "juges et procureurs dans une socit dmocratique" (Conseil de l'Europe). Communication judiciaire et relations presse, Guide pratique pour les magistrats, DSJ, Ministre de la justice, 2011. Recommandation du Conseil de l'Europe sur la diffusion d'informations par les mdias en relation avec les procdures pnales, Rec. (2003) 13.
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local legal culture

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(Source: Schedler, 2012, p. 19)

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Better Administering for Better Judging

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P. DIribarne, La logique de l'honneur, Le Seuil, 1989.

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Status Of Court Management In Switzerland1

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have produced a number of