Strasbourg, 22 mars 2011

CEPEJ-GT-EVAL(2010)5REV1

English only

European Commission for the Efficiency of Justice (CEPEJ)

Working Group on evaluation (CEPEJ-GT-EVAL)

Pilot co-operation process / Peer review on judicial statistics

2^nd cycle (2009 – 2010)

Visit reports:

Valetta (Malta), 18 – 19 May 2009 (n°4)

Moscow (Russian Federation), 29 – 30 October 2009 (n°5)

Oslo (Norway) (5 Nordic States: Denmark, Finland, Iceland, Norway, Sweden), 19 – 20 May 2010 (n°6)

1.             The exercise to evaluate judicial systems carried out by the European Commission for the Efficiency of Justice (CEPEJ) has the aim of progressively defining a core of quantitative as well as qualitative key elements, collected on a regular basis and examined in the same way in all member states of the Council of Europe. It will then allow the pinpointing of common indicators on the quality and the efficiency of the functioning of justice within the member states of the Council of Europe, in order to present a unique picture of the organisation of justice in Europe.

2.             Given the stakes at hand, practical precautions are necessary to give credit to such an exercise. With this end in view, the 47 members of the CEPEJ have framed an evaluation scheme which has been discussed and is to become constant, and has set up a system of national delegates permitting efficient communication with the secretariat of the CEPEJ. Finally, guidelines on statistics are being discussed.

3.             With a view to upgrading its methods, the CEPEJ decided at its 10th meeting (Strasbourg, 5-6 December 2007) to set up a pilot peer review co-operation process in order to strengthen the credibility of the data collected in the framework of the activity for evaluating European judicial systems[1]. This pilot co-operation process will consist in visits to three States every year on a voluntary basis. In 2008, for the first cycle of evaluation, France, Bosnia-Herzegovina and Poland welcomed the peers of the CEPEJ. In 2009, Malta and the Russian Federation were visited but this second cycle was achieved only in 2010 by a meeting in Oslo gathering 5 Nordic States.

4.             Peers are members of the Working Group on Evaluation of the CEPEJ (CEPEJ-GT-EVAL) which has also the task to prepare, every two years, the report on evaluation of European judicial systems. As a rule, the peers’ visit in the given State is organised by the member of the CEPEJ and the national correspondent responsible for the relevant data collection requested by the CEPEJ. In order to increase the various co-operation projects and exchanges, one of these latter persons may ask to assist peers in another visit within the same evaluation cycle.

5.             The main objectives of this co-operation are as follows :

§  Supporting CoE member states in:

-    improving the quality of their judicial statistics,

-    developing their statistics system so that judicial statistics at national level are in line with the common indicators defined through the CEPEJ's Evaluation Scheme.

§  Facilitating the exchange of experiences between national judicial statistics systems, sharing good practices, identifying benchmarks and facilitating knowledge transfer.

§  Contributing to the transparency and accountability of the CEPEJ process for evaluating European judicial systems and helping to improve the process.

6.             The report concerning the 1^st cycle can be consulted in the document CEPEJ-GT-EVAL(2008)1.

EVALUATION MISSION No. 4 (Valetta, Malta)

Date:

19 – 20 May 2010

Organiser:

Ministry of Justice and services of Chief Justice

Mr Francesco DEPASQUALE, Ministry of Justice and Home Affairs, member of the CEPEJ on behalf of Malta

Participants for the CEPEJ:

Mr Jean-Paul JEAN (France)

Ms Beata Z. GRUSZCZYŃSKA (Poland)

Mr Adis HODZIC (Bosnia and Herzegovina)

Ms Muriel DECOT (Council of Europe)

Programme:

19 May 2010

9.30: Meeting with the Chamber of Advocates (Mr Andrew Borg Cardona)

11.00: Meeting with the Director General of Courts (Mr Kenvin Mahoney), the registrar of Civil Courts (Mr Aldo Testone) and the registrar of Criminal Courts

13.00 – 14.00: Lunch break

14.00 – 17.00: Meeting with the Chief Justice, Mr Vincent De Gaetano, and Judges Giannino Caruano Demajo and Michael Mallia

20 May 2010

9.00: Meeting with Mr Carmelo M. Bonnici, Minister of Justice

11.00: Meeting with the Director General of Courts and the computer department

1.             General analysis of the organisation of the collection and transmission of data concerning Malta to the Council of Europe Secretariat of the CEPEJ

7.                The peers considered it useful to go to Malta since very few replies to the CEPEJ evaluation questionnaire had been provided, although it is a “small” state. It is true that the Maltese judicial system is relatively simple, being managed by a Chief Justice and composed of 18 judges (appointed after 12 years of legal practice) and 18 magistrates (appointed after seven years of legal practice) working at two judicial sites (the Court of Valetta and the Court of Gozo).

1.1.       Sources used / Technicalities of the collection and processing of judicial data

8.                The collection of CEPEJ data is the responsibility of the Maltese Ministry of Justice, which uses the Legal Case Management System (LECAM) used in the Maltese courts to collect judicial statistics. This system, which is relatively recent, comprises software that makes it possible to follow a civil or criminal case from the commencement of proceedings to the judgment. All civil hearings are recorded and then transcribed in order to be entered into the LECAM system, which also provides statistical management reports for national or international needs.

9.                Mr Francesco De Pasquale, representative of the Minister of Justice and CEPEJ member for Malta, is also the national correspondent for the CEPEJ. It is therefore he who is responsible for filling in the CEPEJ questionnaire on the basis of data from the LECAM system. It should be noted that Mr De Pasquale was neither a member of the CEPEJ nor national correspondent of the CEPEJ at the time of the previous CEPEJ evaluation round. During the meeting, he made a commitment to ensure that a maximum number of questions on the questionnaire were answered for the next round. Cooperation between the Maltese authorities responsible for the judicial system, namely the Ministry of Justice and the Chief Justice, and between them and the CEPEJ representative, appears to be real and effective.

10.             The Director-General of the courts is another key person in the judicial system and is particularly involved in the process of replying to the CEPEJ questionnaire. Before 2004, the Director-General of the courts was at the same time chief registrar and acted on instructions. Since 2004, his status has changed: he is responsible for the budgetary and administrative management of the courts (including human resources), while having, at the same time, para-judicial functions. Three chief registrars (one for civil cases, one for criminal cases and one for Gozo) cooperate with him.

1.2.       Main difficulties encountered in answering the questionnaire.

11.             The Maltese Chamber of Lawyers said that it regretted not being involved so far in the replies to the CEPEJ questionnaire. Some of its members have even learned of the existence of the CEPEJ and its questionnaire only during the peers’ visit. Cooperation between the Chamber of Lawyers and the Ministry of Justice, which is responsible for answering the CEPEJ questionnaire, should be strengthened during the next evaluation round.

12.             The LECAM system does not in fact provide much data useable by the CEPEJ for its evaluation work. Strictly speaking, it does not contain a system for evaluating the activity of the judicial system, let alone a system for the individual evaluation of judges. No data on the number of cases per category or on the length of proceedings was put forth because LECAM does not provide them. The two Maltese courts do not have a case management system, which explains why a lot of the information required by the CEPEJ is lacking and makes relations problematic with lawyers because judges impose individual management of each case, with no universal system.

13.             In short, LECAM has so far enabled the implementation of new technologies in the courts and has improved administrative work, but it is not yet a tool serving the efficiency of justice.

14.             The Chief Justice regretted that the draft report of the CEPEJ containing the analysis of the Maltese data had not been read more carefully by the Maltese judicial authorities before its final adoption by the CEPEJ, as that would have enabled clarifications to be made. For the next version of the report, he wanted a discussion group to be set up in Malta and made responsible for checking that national data had been accurately presented in the CEPEJ report.

2.             Specific analysis of the replies

Number of cases

15.             The judicial statistics, including those provided by LECAM, enable some information about cases to be obtained. According to the Director-General of the courts, judicial statistics were gathered on a monthly basis and concerned the number of new cases, the number of cases that had been the subject of a decision and the number of cases pending. LECAM automatically gathered data about civil cases: criminal cases still had to be entered manually. The LECAM system therefore made it possible to take stock each month of the work carried out and the backlog in the court.

16.             Only the overall data on the number of cases were given. No figure could be provided per category of cases. The overall figure for the number of cases was high because, by mistake, it included small claims, without being specified.

17.             The total number of criminal cases at first instance (163) was inconsistent with the number of criminal cases at the appeal stage (9,222): no explanation could be given. The Chief Justice explained that data for criminal matters were difficult to compile because many petty criminal cases were addressed directly to judges without even being registered. It would be necessary to go to every judge and establish how many petty criminal cases each of them was dealing with, something for which there was no provision as yet.

18.             The peers regretted that information on the number of cases was unavailable or inaccurate, although the presentation of the LECAM system they had been given suggested that the information could be provided. This is all the more regrettable in view of the fact that delays in proceedings are the crucial problem of the Maltese judicial system.

Length of proceedings

19.             LECAM provides no data on the length of proceedings because it is not recorded or monitored in the Maltese judicial system. Judges work at their own pace, without monitoring. The Chief Justice did say, however, that the length of judicial proceedings, which is the main problem in the Maltese judicial system, not only depended on the performance of judges but also suffered the consequences of judicial procedures which did not always operate in an optimal manner.

Legal aid

20.             Only the total amount allocated to legal aid was given. According to the Chamber of Lawyers, the lack of information in this field is explained by the fact that a legal aid system exists, essentially for criminal matters, but its operation is far from optimal; the Ministry of Justice seldom grants legal aid for a particular case and, when it does, the amount is very small. Financial incentives should be introduced in order to encourage lawyers to accept legal aid cases. It should be noted, however, that legal costs are not high in Malta.

Judicial staff

21.             In Malta, each judge or magistrate may have a large team for the performance of his work: a judicial assistant, a deputy registrar and a court assistant, to which are added in civil cases a registry clerk for the preparation of cases for trial. Judges and magistrates may also have a driver and messengers. There are 354 non-judges working in the country’s two courts, for 36 judges and magistrates. Although it is for the Chief Justice to decide on the staffing needs of each judge, the system remains relatively rigid because of a 2001 law specifying the number of people attached to each judge. It should also be noted that Maltese judges work part-time, only in the morning. The Government nonetheless plans to reduce the number of civil servants in the future.

Lawyers

22.             Very little data on lawyers was transmitted to the CEPEJ. One of the few figures concerned the number of lawyers. However, according to the representatives of the Chamber of Advocates, it was difficult to give an exact figure for the number of Maltese lawyers since they could practice without being registered at the Bar.

23.             For disciplinary measures, complaints can be made to the Commission for the Administration of Justice (CAJ) and are then examined by the Sub-Commission responsible for lawyers, which has powers to impose sanctions. It is then up to the Bar to “manage” those sanctions. Although this procedure is expressly provided for by the Maltese judicial system and involves the CAJ, it is surprising to note that there are apparently no data concerning such disciplinary proceedings and sanctions, either because there have been none or because they were not transmitted to the CEPEJ. According to the Bar, however, the figures are known and could be published. Such publication could go hand-in-hand with a joint effort by all judicial authorities to conduct an in-depth examination in order to resolve the problems that give rise to complaints: fee levels, length of proceedings, etc.

3.         Conclusion

24.             More information should be provided in the CEPEJ questionnaire in future, thanks to the recently installed LECAM system and the change of national correspondent. The Maltese judicial authorities also seem to have become aware of the need to read the preliminary CEPEJ report carefully before publication in order to supply replies or provide clarifications.

25.             The lack of precise data on the number of cases and the length of proceedings reflects the chronic problems of the Maltese system: a backlog, long delays in proceedings, no monitoring of judges’ performance or the quality of justice. The peers’ discussions, in particular with the Chief Justice and the Minister of Justice, demonstrated a concern to improve the situation regarding the efficiency and quality of justice.

EVALUATION MISSION No. 5 (Moscow, russian federation)

Date:

 29 – 30 October 2009

Organiser:

Supreme Court of the Federation of Russia (Judicial Department)

Mr Alexander GUSEV, Director General of the Judicial Department of the Russian Federation

Participants for the CEPEJ:

Mr Jean-Paul JEAN

Ms Elsa GARCIA-MALTRAS DE BLAS

Mr Georg STAWA

Ms Franz van der DOELEN

Ms Muriel DECOT

Programme:

Thursday 29 October 2009

10.00 - 12.30    Meeting with heads of the Judicial Department at the Supreme Court of the Russian Federation and Divisions of the Judicial Department (Board for Organisational and Legal Support of Courts, Board of Finance and Economics, Office of Civil Service, etc.). Getting acquainted with the methods of collecting and evaluating court statistics and other information on court activity.

12.30- 14.00                     Lunch

14.00 - 17.00    Visit of federal state unitary enterprise “Voskhod”: getting acquainted with technologies used in the State Automated System “Justice” (SAS “Justice”/GAS “Pravosudie”) for increased efficiency and quality of justice in courts of general jurisdiction, in the central computer hall of “Voskhod”.

Friday 30 October 2009

9.30 - 12.30      Visit of the Odintsovo district court of the Moscow region. Studying the practical use of GAS “Pravosudie in court as a means of increasing the efficiency and quality of justice.

           

Summing up the results of the visit.

Visit Report

1.         General analysis of the organisation of collection and transmission to the Council of Europe Secretariat of the CEPEJ data concerning Russian Federation

26.             The peers considered it useful to go to Russia in order to understand judicial data collection methods in such a vast country in which some courts are several thousand kilometres from Moscow. The reply rate was satisfactory for Russia, despite the number of courts (over 6,000) and the number of new cases each year (some 16 million).

27.             The changes of national correspondents for each CEPEJ evaluation round, namely Mr Mikhail Vinogradov (State Legal Directorate of the President of the Russian Federation) (also a member of the CEPEJ-GT-EVAL) for the 2006 round (2004 data), Ms Veronika MILINCHUK (Deputy Minister of Justice) for the 2008 round (2006 data) and Mr Georgiy Olegovitch MATYUSHKIN for the 2010 round (2008 data), has not facilitated dialogue on the subject with the Secretariat. The peers expressed the wish that in future a national correspondent familiar with the questionnaire and how to use it would be retained for successive rounds.

28.             The reform of the judicial system currently being undertaken by the Supreme Court of the Russian Federation makes provision, in particular, for a system for supervising judicial activity by extending the “GAS-Pravosudie” computer system to cover all the country’s courts (85,000 computer stations have already been installed). “GAS-Pravosudie” is a state service and not a private company. It also provides electronic services to the Government and the Duma, as well as linking up state authorities.

29.             This system, which received federal funding in 2004, is aimed at eliminating manual data collection; there had previously been no computer system in the courts or any software for collecting judicial statistics, even at the federal level. In July 2010, it is planned to publish all judicial decisions on the Internet after rendering them anonymous. A benchmarking project is also under study.

30.             “GAS-Pravosudie” provides, in real time, for each connected court, all data concerning judicial cases. This includes judicial statistics, judicial decisions, judicial practice, reference compilations, classifiers and other information  resources within a unified information space. The data are provided directly and only by judges who transmit it to judicial staff so that they can enter it into the system. However, some data are entered in the system automatically and not manually. Since the system includes a collection of statistics (results of all judicial activities and analysis of statistics), ittherefore also provides the data the CEPEJ requires for its evaluation round. It appears to be the sole source of CEPEJ data. Data that are not contained in the national system are indicated by the note “not available”.

31.             The CEPEJ experts had also the opportunity to visit the central computer hall of “Voskhod” where“GAS-Pravosudie” system was presented in details. The videoconference system was presented. It is used to avoid the transportation of detained persons from prisons to courts, which are often very far from the prisons. 122 prisons and 194 courts are equipped with such videoconference system. There is also a system which changes the voice of the witnesses. It also includes a legal database, an automatic system of calculation of judicial fees as well as a system of management of judicial expertises which is already used by 3500 courts (automatic identification of the type of the expertise and of the possible body which can deal with the expertise; according to the motivations given by the judge as regards a specific expertise, the system analyse the opportunity of the expertise; automatic nomination of experts).

32.             All judicial bodies are interconnected (regional and federal). One superior court can have access to a decision from an inferior court. All stages of the proceedings are now computerised. Models of decisions are also available for judges.

33.             The “GAS-Pravosudie” system has 3 levels of use: a public level (for all citizens), a level for judicial bodies (courts and court staff), and a “special” level (for military and special courts).

2.         General analysis of the services responsible for justice and aiming at reforming the judiciary

34.             The peers paid a lengthy visit to the Supreme Court’s Judicial Department, where they were received by it Director General, Mr Alexander GUSEV. M GUSEV explained that, since 1998, many areas that had been under the authority of the Ministry of Justice were now managed by the Judicial Department of the Supreme Court.

35.             That structural reform went hand-in-hand with an in-depth reform of judicial institutions. The Supreme Court was now responsible for all courts and judges and three directorates had been established for that purpose: the “Independence” Directorate, the “Accessibility” Directorate and the “High Authority of Justice” Directorate. Mr GUSEV said that, while the reform had been necessary because the burden of work had been too great for the Ministry when it was responsible for the whole judicial system, the Judicial Department of the Supreme Court had nonetheless taken more than ten years to resolve very major difficulties and it was only in the last year or two that the Department had been genuinely effective and operational.

36.             In parallel, the Ministry of Justice retained powers regarding the execution of judicial decisions and in respect of lawyers. The intention of the Supreme Court was to implement a statute for judges guaranteeing their efficiency and independence.

37.             The institutional reform was accompanied by a budgetary reform intended to improve the status of judges in Russia: when the activity was taken over from the Ministry of Justice, it had a budget of US$100 million. The budget is now $US3.5 billion.

38.             Judges’ salaries had been increased as follows:

- Justice of the Peace: about US$3,000 per month

- District court judge: $US 3,500 to 5,000 per month

- Judge of a higher court: US$4,500 to 6,000 per month.

Judges also received a bonus if they agreed to work in the north of the country, as well as annual leave. Judges were still not liable for income tax but wished to be in the future. For each judge, the state also funded: a flat, social and medical insurance, holiday expenses, clothing, city transport, etc. This was done in order to ensure that judges working in Russian territory had equivalent working conditions.

39.             The purpose of the in-depth reform was to tackle corruption in the judicial system and put in place a real judiciary capable of interacting with the executive and the legislature on an equal footing. According to the person responsible for it, the reform had not yet achieved all its objectives: judges were not yet completely independent, the population did not have a complete right to information about the judicial system, although a reform under way to be completed by June 2010 provided that by that date the courts should be “open to the population”.

40.             In order to be able to observe the direct effects of the current reform of the Russian judicial system in practice, the peers had the opportunity to visit the district court of Odintsovo, in the Moscow suburbs. It is a new (dated October 2008), very modern, functional, entirely secure, user-friendly court that applies all the possibilities offered by the “GAS-Pravosudie” computer system: case management, real-time monitoring of cases by the president of the court, statistical data collection and terminals providing very comprehensive information for users of the courts. This Court works with 26 judges (15 for civil matters and 9 for criminal matters) and 112 members of staff in total. It concerns more than 300.000 inhabitants. Each judge has his/her own hearing room and secretariat staff.

41.             The court is to serve as a model in the framework of the current wide-ranging reform. Other similar courts are under construction.

42.             Distribution of cases among judges of the Odintsovo Court is managed by “GAS-Pravosudie” system. In this framework, before distribution, each case is classified automatically by the computer according to various parameters: level of complexity of the case, number of cases given to the judge, level of specialisation of the judge. Then, the Chair of the court takes the final decision as regards distribution of the cases.

43.             This computerised system of management of cases enables each judge to see what are their colleagues doing. At any time, the President of the Court can check the state of the work by judges on each case. The system calculates also the rate of cancellation/reformation of decisions for each judge. The president of the Court explained to the CEPEJ experts that this very intrusive system was welcomed with a lot of suspicion at the beginning but is now accepted by all professionals, including judges.

3.         Specific analysis of the replies

44.             The “GAS-Pravosudie” system is the source of the judicial data which will be transmitted to the CEPEJ for the evaluation round. The system has its own indicators, which are not necessarily the same as those in the CEPEJ questionnaire. The peers hope that in the future, after a few years’ use of the national system, it can be adapted to satisfy more closely all the requirements of the CEPEJ.

Timeframes of proceedings

45.             Timeframes of proceedings are not a specific problem in Russia because of the procedural system put in place: the president of the court distributes cases and then each judge must set a date for hearing each case within two weeks. These are strict timeframes with set dates, which may force judges to sit at weekends. If a decision cannot be handed down within this timeframe, the judge is required to explain the exact reasons for his/her failure to comply with the timeframe (expert opinion, etc.). Expert opinions and their timeframes are also monitored by the “GAS-Pravosudie” system. The management of hearings is monitored by each court president and then by the President of the Supreme Court. Judges who do not comply with the timeframes set in this way may incur personal liability.

46.             This very strict system of setting and monitoring timeframes means that in Russia there are no cases that have been pending for more than three years.

47.             Timeframes are also reduced by setting up, through “GAS-Pravosudie”, very efficient video-conferencing systems between geographically distant courts, which make it possible in particular to reduce delays caused by the transfer of persons (judges, lawyers, parties, accused) that could take several weeks. In this way, transfers are, for example, avoided for prisoners on remand.

Legal aid

48.             Legal aid is to be increased under the current reform in order to make justice more accessible, but this aspect has not yet been implemented, nor has any specific budget been allocated yet.

49.             The other parts of the questionnaire were not discussed between the peers and the Russian authorities.

4.         Conclusion

50.             Some data required by the CEPEJ are very easily obtained with the new “GAS-Pravosudie” system currently being installed in all Russian courts. Nevertheless, it would seem that much remains to be done at the national level to include further data in the system to make it easier to evaluate the judicial system, which would be useful for the CEPEJ and all the more so for the country itself. More active participation of the national correspondant as the contact person for the CEPEJ would be a real improvement over the present system.

EVALUATION MISSION No. 6 (OSLO, NORWAY - NORDIC COUNTRIES)

Date:

19 – 20 May 2010

Organiser:

National Courts Administration, Norway

Senior adviser Audun Hognes Berg, National Court administration and member of the CEPEJ on behalf of Norway

5 States concerned:

Denmark

Finland

Iceland

Norway

Sweden

Participants for the CEPEJ:

Mr Jean-Paul JEAN

Ms Elsa GARCIA-MALTRAS DE BLAS

Mr Georg STAWA

Ms Beata Z. GRUSZCZYŃSKA

Ms Muriel DECOT

Programme:

Wednesday 19^th May 2010

0900                   Opening of the meeting

0915                   The Nordic judicial systems

                            Each country presents their system. Including the public prosecutor, lawyers, but leaving out the                                correctional services. Highlighting the similarities and the differences.

                            Responsible country: Norway

                                                           

1015                  Break                                                                    

1030                   The case management systems in Nordic Countries as a basis for judicial statistics

                            Coordinating country: Sweden (Iceland)

                           

1145                   Break

1200                   The case management systems in Nordic Countries as a basis for judicial statistics

1300                   Lunch

1400                   Visit: The Supreme Court/Borgarting Court of Appeal/Oslo District Court

                            Or any other point of interest.                           

1530                   Judicial statistics

                            Coordinating country: Iceland (Sweden)

1630                   Break

1645                   Judicial statistics

                                                           

1800                   End of first day

2000                   Dinner

Thursday 20^th May 2010

0900                   Allocation of resources and efficiency

                            Efficiency related to the allocation. The use of case management systems in

                            the allocation process. 

 

                            Coordinating country: Denmark

1015                   Break

1030                   Presentation of the legal aid systems according to the CEPEJ EVAL. A comparison of the Nordic legal aid systems based on an analysis done by Professor Jon T. Johnsen, presented by Jon T. Johnsen.

           

                            Coordinating country: Norway

1300                   End - Lunch         

51.             When organising this meeting, the five Nordic States (Denmark, Finland, Iceland, Norway, Sweden) agreed in advance on a specific structure to be sure that they will deal with the same topics and issues. Indeed, this specific structure enabled these countries, for their own interests and also for the CEPEJ’s interest, to have reference items of comparison, in particular through an in-depth analysis of the following topics: the case management systems in Nordic countries as a basis for judicial statistics, the allocation of resources and efficiency. Before that, each country made a general presentation of its own system containing a detailed description of courts, public prosecution system and lawyers.

52.             The secretariat decided to keep this structure in this report. In Appendix II is a figure concerning Judicial Efficiency Scoring System.

53.             Moreover, Professor Jon T. Johnsen, Faculty of Law University of Oslo, made a presentation concerning “CEPEJ Statistics on legal aid in Scandinavia, How reliable is it”. It appears in Appendix IV of this document.

1.         General presentation of the Nordic systems (detailed presentation is in Appendix I)

54.             On a general basis the Nordic countries share to a large extent a common cultural, political and economical history, all the way up to the present day situation. It could be said that this also goes for the development of the legal systems (sociology of law). Indeed at a macro level:

§     The administration of the courts is separate from the administration of the public prosecutor;

§     The independency of the courts is anchored on a constitutional level;

§     Court administration is part of independent and separate bodies from the MoJ in Denmark,         Sweden, Iceland and Norway, whereas it is part of the MoJ in Finland;

§     There are no constitutional courts;

§     There are administrative courts only in Sweden and Finland;

§     There is a Parliamentary ombudsman;

§     Judges are appointed for an undetermined time;

§     Use of temporarily appointed judges, which have additional administrative functions in Iceland.

a.         Recruitment of judges

55.             Concerning the recruitment of judges in general, there are differences concerning the beginning of the carrier of the judge. In Denmark, Finland and Sweden, it is a system of a career path where a vast amount of judges are recruited from a position as “deputy judge” (Notarie, Assessor, Dommerfulmegtig). In Norway, the maximum time for position as a deputy judge is 3 years. Almost without exceptions, no judges are appointed directly from a position as a deputy judge. In Iceland, there is no deputy judge system and a very small number of temporarily appointed judges.

b.         Appointment of judges

56.             Judges are formally appointed by the executive power. All countries have a system with a nominating committee:

§     In Denmark, the queen formally appoints. The Judicial Appointments Board nominates 1 candidate;

§     In Finland, the President of the Republic appoints. Within the MoJ, there is a Judicial Appointments             Board;

§     In Iceland, the Minister of Justice appoints according to a system of nomination. Chief Judges are             selected by their peers, among their colleagues;

§     In Norway, the King appoints in Council. A Judicial Appointments Board exists;

§     In Sweden, all judges are appointed by the Government, after being suggested by the Judges     Proposals Board.

c.         Promotion of judges

57.             There are promotion systems in Denmark (where chief judges are appointed as by the Queen) and in Sweden (where chief judges are appointed by the Government and permanent judges may be appointed to administrative positions within the same court)

58.             In Finland, Iceland and Norway, there is no system of promotion. Chief judges and Heads of department are appointed by the same authority that appointed the judge initially in Finland. In Iceland, chief judges are elected by their peers. And in Norway, judges that become Head of Department are appointed by the King in Council.

d.         Dismissal of judges

59.             The dismissal of judges needs a judicial decision in Denmark (special court of indictment and revision), Finland, Iceland and Norway. In Sweden, the dismissal can be carried out after an administrative decision which is entitled to judicial review.

e.         Ethical guidelines, disciplinary reactions

60.             The Nordic countries have no written ethical guidelines for judges but disciplinary actions are possible by:

§     In Denmark: Special court of Indictment and Revision.

§     In Finland: Parliamentary Ombudsman, Chancellor of Justice.

§     In Iceland: Committee on Judicial functions

§     In Norway: Supervisory Committee for Judges.

§     In Sweden: Independent Government Liability Board, the Ombudsman.

f.          Training of judges

61.             In all the 5 countries, the training of judges is under the responsibility of the Courts Administration/MoJ. It is a systematic training. It is not a compulsory training per se in Norway and in Sweden but perceived as such.

g.         The size of the courts

62.             Nordic courts vary from courts with only one permanent judge (Norway) to courts with up to 100 permanent judges.

h.         Lay judges

63.             If, in Iceland, there are no lay judges in theory, with the exception of very extensive cases or cases of great importance, lay judges are sitting in Denmark in criminal cases, with the exception of minor cases or when the accused person pleas guilty, in Finland, in serious criminal cases only, in Norway, also in criminal cases with the exception of confession cases and where the public prosecutor has issued a fine, and in Sweden, in criminal and family cases

64.             The Jury is used in Denmark for serious criminal cases, in Norway in court of appeal (serious criminal cases with a sentencing limit above 6 years and question about guilt), but also in civil cases. In Sweden, juries are used in cases regarding freedom of expression, etc.

i.          Some procedural comments

65.             In all the 5 countries, in criminal cases, with few exceptions, all cases start in the first instance. The public prosecutor/the police is authorized to settle minor cases with fines. In civil and criminal matters, there are simplified procedures for certain cases and screening of appeals.

j.          The Public prosecutor

66.             In Norway and Denmark, in principle the public prosecutor may be instructed by the Ministry of Justice in singular cases, but this possibility is not exercised due to the political situation today. In Finland, the prosecutor considers the charges with total independence and cannot be instructed. In Iceland, the prosecutor cannot be instructed by other authorities, with some exceptions described by law. In Sweden, the prosecution services are independent offices under the Ministry of Justice. Similarly to the courts, no legislation exists about independence of the prosecutor in the Constitution.

67.             The prosecutor, with few exceptions (civil claims in criminal cases), has no role in civil matters. In general, there are two levels: Higher prosecuting authorities and public prosecutors within or connected to the police.

2.         The case management systems in Nordic countries as a basis for judicial statistics. Are these statistics in line with the ones requested by the CEPEJ?

a.         Do all courts use the same case management system?

68.             In Norway:

§     The district courts and the courts of appeal use the same system;

§     The Supreme Court and the 39 land consolidation courts have separate systems;

§     The same system is used for all categories of cases;

§     Wish to have a common platform for all courts, which will also allow the courts to share information.             Clerks and judges from the courts work together with the developers. The users can also             communicate their wishes and demands through the intranet or the support desk.

69.             In Iceland:

§     All courts, besides the supreme court, use the same system, but it is not centralized;

§     The system is used for all categories of cases;

§     Information is not shared between the courts;

§     The judicial council is responsible for development.

70.             In Finland:

§     The district courts use two systems – one for civil and one for criminal cases. The administrative courts use another system;

§     Only certain users in the courts and the Ministry of Justice have access to both of the systems in the             district courts. No information is being shared between the systems;

§     The courts are involved in the development projects and are represented in working groups or are             consulted as experts.

71.             In Denmark:

§     The district courts use the same system. The High Courts, the Maritime and Commercial court have          a common system. The Supreme Court has a system of its own;

§     The system is used for all categories of cases with a few exceptions;

§     The courts are not sharing any information between themselves, but information is shared with the             Danish Court Administration;

§     In the development process, the courts give their opinion on what needs to be done, but they are not             involved in the technical solutions. A group of court employees has been set up to monitor         development and to help introduce new functions to the courts.

72.             In Sweden:

§     The Swedish courts all use the same system with different set-ups;

§     The system is used for all categories of cases;

§     “Vera” is the Swedish court management system. Today, this system provides for registration,             communication, planning, trials, decisions, appeals. The first system was introduced in the 1990’s,          the pilot of new system in 2003, replaced in all courts in 2005, two releases are launched every year. In the     immediate future, Vera will have a new system architecture and will connect the authorities within the             judiciary.

§     Information is shared when a case is appealed to a higher court. The system also provides the    statistics system with data on a daily basis;

§     The users are involved in the development process in several ways, most noticeably by suggesting             changes to the courts administration, but also during the development projects.

b.         Recent developments concerning the data collection and the sharing of information

73.             In Norway:

§     A more detailed categorization of civil cases, to provide better statistics;

§     A better support for cases with strict deadlines, including reports on relevant cases and timeframes;

§     Adapted work-flows and statistics reports to meet changes in legislation;

§     Information shared with actors in both the public and the private sector, e.g. the National Centre   for Public Registers, the National Tax Administration, the Police, the Correctional Services etc.

§     Electronic communication between the courts and the parties etc. as a field of development.

74.             In Iceland:

§     The most recent changes are towards centralizing the system;

§     The courts still do not share information with other authorities.

75.             In Finland:

§     Data quality, which enables to compare the workload between the courts;

§     The systems provide Statistics Finland, the national authority of statistics, with basic data;

§     The administrative courts will begin to dispatch their decisions electronically to the Tax Authority, as        part of a current project;

§     In another current project, the Finnish Immigration Service will submit its applications to the          administrative courts electronically;

§     In the future, the intention is to connect the district courts to the system of prosecutors and to the             courts of appeal.

76.             In Denmark:

§     The land registration has been transformed into a process that is managed completely on-line;

§     A new enforcement system has been introduced;

§     The Danish courts are not sharing information with any other authority, such as the police or        prosecutors’ office.

77.             In Sweden:

§     The system in Sweden has recently been updated to provide the courts with a better tool for        planning their operations;

§     In criminal cases, the system communicates with the National Police Board and the prosecutors   office;

§     Electronic communication will be the primary field of development in the immediate future;

§     In 2012, “Vera” will provide for electronic summons applications and delivery of judgments as well as       for electronic exchanges with other authorities. For the moment, the following are not included in the coming             projects: planning instruments (calendars, common platforms, etc.) and functions to facilitate      relations with the public. In the future, Vera will be more modern, safe, will reduce amount of    printouts, will improve on-line services.

78.             Conclusion: All of the countries, except Iceland and Sweden, have several systems. A common aim is to improve in the field of electronic management in general and within the judiciary in particular. Digital signatures are used to a limited extent and electronic archives seem to be a field of interest in all countries. Norway and Iceland aim at a common platform for all courts. The court personnel is involved in the development of the systems.

c.         Connections between the case management system and the statistics system

79.             During the preparation of this meeting, 2 questions were addressed to each country concerning this matter: (1) Is data transferred into a particular database of statistics or are the statistics collected directly from the case management system?(2) Which are the obstacles and solutions to develop the case management systems, so that the required information and statistics can be collected from the case management systems?

80.             In Denmark, the statistics are collected directly from the case management system. The courts can order a report whenever they want and the Danish Court Administration orders comprehensive statistical reports each quarter. Danish Court Administration is working on developing a system with direct access to a data-base that will markedly chance the information opportunities the Court Administration and the courts will have.

81.             In Finland, data are transferred once a day from the case management system to a separate statistics system and then from the statistics system to Statistics Finland once a year. The objective is to add codes to the case management systems which function as links between the systems, so that cases can be tracked through the entire chain of actors handling criminal cases in the judicial system.

82.             In Norway, statistics are collected directly from the case management system and can be produced by using predefined reports and searches in the case management system or by extracting data directly from the case management system (by SQL scripts). The main obstacle for improving the quality of information for statistical purposes is the balancing of efficiency versus detailed registration of data. One solution could be to reuse structured data exchanged between actors in the public and private sector and reuse structured data registered internally in the case management system later in the case flow. Another obstacle is finding and using efficient tools for structuring and presenting statistics. A data warehouse project would cover such concerns.

83.             In Iceland, statistical information is collected directly from the case management system. The new case management system, which is currently under development, aims towards facilitating the centralized gathering of all statistical information needed from all the district courts.

84.             In Sweden, data are transferred from the case management system (Vera), into a database of statistics (SIV) which is updated every night with information from VERA. Every court and National Courts Administration have access to all available information in SIV which contains both historical data and data updated continuously. But there is a need to develop the information in the case management system and the contents of statistics (example: impossibility to calculate the rate of convictions per judgments, statistics are missing concerning the length of the intermediate stages in the proceedings, statistics for mediation are incomplete, need for more detailed categories of cases in the general courts, etc.). To improve the system, the following measures should be taken: to extract data from SIV in a new way, to transfer more information from Vera to SIV, to develop Vera with new functions as well as to instruct the court clerks to change the registration routines.

85.             The Nordic Countries extract statistics from the case management systems in different ways. In Finland and Sweden data is transferred from the case management system into a particular database of statistics. In Denmark, Iceland and Norway, the statistics are collected directly from the case management system. Both Denmark and Norway consider developing a statistical database. Sweden and Norway have initiated a data warehouse project. The collection of statistics from a particular database means an easy access to the statistics for everyone in the courts and National Courts Administration (the case management database is limited). But a database of statistics requires resources for development and maintenance.

86.             In Finland and Sweden, many activities are going on to link information between the authorities in the judicial system, which will develop the statistics of criminal cases. Both Denmark and Norway will develop the accessibility of statistics by developing a statistic database or a data warehouse. Iceland will centralize the process of gathering statistics. The essential challenge is balancing efficiency against carrying out a detailed registration of data.

87.             Another question was addressed to the 5 Northern countries: Is it a problem that different courts or different court clerks register information about the cases in a different manner?

88.             In Denmark, in the main categories, it is not a problem but the distribution of cases in minor categories may vary from clerk to clerk. Denmark is working on the codes used by the clerks entering data into the management system. In Finland, it may be a problem to some extent but there is no systematic research on this. In Norway, it is a problem to some extent. In Iceland, it has not caused any significant problems and it is expected that the coordination of registration will become considerably more significant when the case management system becomes more centralized. In Sweden, some information in Vera is registered in different manners between the courts and some information in Vera is missing by mistake in the registration.

89.             In order to prevent the case management systems’ differences in the registration process, the clerk’s possible choices by the clerk should be limited to a fixed and uniformed number of choices (predefined codes). Moreover, some illogical possibilities should be barred. The use of mandatory registration on crucial points in the case flow should be envisaged.

90.             Already, the Danish Court administration has set up Questions and Answers (Q and A) on the intranet and issued information letters on the correct process for registering cases. In Finland, detailed instructions for registration have been issued to ensure that consistent practices are followed in the registrations; in criminal matters, data is registered in the form it is received from the prosecutor. In Norway and Sweden, the National Courts Administration offers courses on the use of the case management systems. There is a large library of guidelines and Q & A available on the courts’ website and a help-line concerning the case management systems. In Iceland, instructions on registration in the case management system are contained in specific regulations (ex. Regulation no. 188/2009 on the registration of cases with the district courts).

91.             All Nordic Countries have to some extent problems with differences in the registration systems of the different courts. They have been working towards preventing differences in the registration but further improvements can be done to the systems, for instance by using mandatory fields for crucial points. The Nordic Countries use similar methods to inform the users but should focus to secure the quality of the most important statistics (key figures).

3.         Specific analysis of the replies concerning the budget: the allocation of resources and efficiency (Detailed replies in Appendix III)

92.             According to Nordic countries, the allocation process is important because “If you want to comply with the timeframes for case processing, you have to have the right amount of financial and human resources”.

Total annual approved budget allocated to all courts (prosecution and legal aid excl.)

Annual public budget allocated to all courts per inhabitant in 2006 (prosecution and legal aid excl.)

Annual public budget allocated to the courts (prosecution and legal excl.) in 2006, as a percentage of per capita GDP

93.             Each Nordic country has filled out a brief questionnaire concerning different aspects of allocation of resources (see details of the replies to the questionnaire in Appendix III).

94.             It appears from the replies that each court has its own budget, that the court budget includes judges’ salaries and other salaries. Except for Iceland, it doesn’t include computerization. In some Nordic countries, the budget includes maintenance and operating costs related to court buildings. Training and education is partly included in some countries; in other countries, these parts of the total budget are administered by the court administration.

95.             In Norway the budget allocation is to a large extent similar to those of previous years: the court administration has a model (based on time studies in the different cases) that can estimate the number of judges and other staff needed. In Sweden, the basis for each court’s budget is an average of incoming cases for the different case categories during the past two years (in general each case is weighted based on a time reporting system). In Denmark, the basis for each district court’s budget is an average of incoming cases for the different case categories during the past three years (50 % - 30 % and 20 %) (in general each case is weighted based on an agreed weight for each case combined with time reporting). In Finland, there are plans to develop the case management system in a way that allows comparisons of workloads between the courts. For the time being, the Finnish Department of Judicial Administration uses information concerning the quantity of cases and indicators that measure the productivity. In Iceland, the focus is on last years budget and includes a focus on the number of judges and other personnel, housing costs and then, also, the number of cases.

96.             All countries, except for Iceland, seem to have a reserve fund (if necessary the Council will transfer funds between the courts). In some countries, there are standard procedures and forms for applying for additional resources which are, for instance, used to reduce the number of pending cases, for complex and time consuming cases, for acute need for additional space or acute building maintenance needs.

97.             If a court exceeds the annual budget, in Norway a court can exceed/fall short of the budget by +/- 2,5 %, in Finland the court will have to account for the excess, in Sweden a court can exceed/fall short of the budget by +/- 1,5 %. If a court exceeds the budget by more than 1,5 %, it has to return the money the following year, in Denmark the courts may not exceed the budget and if it happens, they have to return the money the following year, in Iceland the Judicial Council may transfer funds between courts.

98.             As regards the follow- up of the budget, in Iceland and Sweden the courts have to report quarterly on the budget spending, in Denmark the courts have to report three times a year, in Finland the Department of Judicial Administration is able to follow spending on a daily basis, in Norway the courts are obligated to produce an annual report on the spending by the end of each year.

99.             The current challenges in the allocation process are:

§     Tight financial resources due to the financial crisis (despite an increase in the number of incoming                        cases) (Norway);

§     Reallocation of resources between courts;

§     To evaluate if the allocation model does allocate the resources in accordance with the differences in             workload between different courts (Sweden);

§     To develop an IT-system for the resource allocation model. Today, the Excel software is used for the budget             calculations (Sweden);

§     To get high quality in the time reporting;

§     The development of a new model for weighting the different kind of cases - on one hand the model             should reflect as well as possible the courts’ real situation, on the other hand, the model should be transparent, simple and easy to understand (Denmark);

§     Measuring the workload of each judge with regards to a large increase in the number of incoming cases             (Iceland)

§     To improve the follow-up, allocation of resources, etc. (Finland).

100.           How is productivity/efficiency measured?

§     Focus on case processing times (efficiency) in Norway and Iceland;

§     Finland has two key figures 1) productivity of the court (number of cases per court divided by the amount of staff) and 2) economic efficiency (yearly costs divided by the number of decided cases);

§     In Sweden and Denmark the following figures are calculated: costs per case for different case categories, number of settled cases per employee and per judge, number of pending cases in relation to incoming cases, average time to settle different types of cases.

GENERAL CONCLUSIONS

These meetings facilitate direct encounters between the “peers” and the persons collecting the data. The national correspondent, who delegates the data-collecting tasks at a national level and is the CEPEJ’s usual interlocutor (notably through his/her presence at the annual meeting of national correspondents), cannot report all the difficulties encountered during the data collection by the relevant courts and national administrations. For example, it follows from discussions with the persons directly responsible for the data collection that they lack information on the aims and final addressee (the CEPEJ) of the data collection, and have never read any previous editions of the Evaluation Report of judicial systems which would help them capture the general idea of the final result.

The visits provide peers with an overview of the judicial organisation of the visited country. The various encounters and exchanges of views inform them of specific national traits and legal traditions which are essential to knowledge if the European judicial systems are to be evaluated properly.

The visits provide a better understanding of the importance for member states of data collection registers and of the concurrent extent of the development of new technologies.

The visits have shown that it would be illusory to consider 1½ days of meetings in a given State sufficient to ascertain the reliability of the national statistical system. The best that can be done is to check whether the key data have been provided (see document CEPEJ(2007)27, “Key Data for Justice in Europe”), whether the “CEPEJ guidelines on judicial statistics” (document CEPEJ(2008)11) have been correctly implemented and whether the ratios, which the CEPEJ proposes to use, are meaningful for the State in question.

Given that, in short, the visit should prove whether the state visited is capable of producing reliable data usable by the CEPEJ. It would be interesting, in the context of future visits, to be able to return to states which had “poor marks” in some areas during previous exercises.

Visits cannot be organised to all CEPEJ member states as there are only enough budgetary and human resources to organise three visits per year. It should be stressed that visited states are chosen on the basis of a proposal from the state concerned.

Aa peer visit to a given state,  in which several geographically close states with comparable judicial organisations could also take part, would also be possible.

Good practice/Recommendations

Questions on the Scheme

Questions which have been interpreted differently by the various states, even after several editions of the CEPEJ evaluation report, should be reworded or clarified in the explanatory note.

Data collection system at the national level

The states must show transparency in respect of national data and concentrate efforts on providing accurate data rather than analysing their future positioning compared to the other member states.

The states should use a standard data collection software, or at least types of software that are as homogeneous as possible, in order to avoid manual data collection, facilitate data traceability and correct any errors more easily. They should draw on the experience of the many states which have recently changed their manual data collection system into a computerised one.

A proper balance must be struck between the need for statistics and the courts’ workload in terms of collecting such data.

Data collection should be considered as a task in itself, which cannot be given as a supplementary task to existing registrars.  A sufficiently large and well-trained staff must be provided for this work.

Solutions should be sought to problematical situations with courts failing to supply the requisite data.

Exploitation of the data published in the CEPEJ report

Dynamic use of the CEPEJ data should be encouraged in order to ensure that they are used as an internal management utility.  In this connection, care must be taken to ensure all judges and prosecutors, not just the court presidents, have access to the data.

It should be borne in mind that after their publication on the website the data also serves to exert political pressure. A warning should be included on the website informing that the data issued refer to the situation two years previously.

General conclusion

The peer review meetings are an effective tool to help the CEPEJ improve the quality of national data collection and to support it in its work of evaluating European judicial systems.

Peer evaluation meetings allow the CEPEJ-GT-EVAL to collect valuable information on “real life” allowing them to better apprehend the evaluation work of national judicial systems and the synthesis work translated into figures for improving the quality of the biannual report.

The meetings facilitate unique co-operation and co-ordination among all those involved in the exercise of evaluating judicial systems, namely members of the CEPEJ Secretariat, members of the CEPEJ-GT-EVAL/Peers, national members of the CEPEJ, national correspondents, persons responsible for data collection and those responsible for the organisation of the national judicial system.

Despite the title initially selected by the CEPEJ (Peer review of judicial statistics), the meetings do not consist in actually reviewing the data collection system. It is more a case for exchanging experience and knowledge among specialists from the European judicial community. It has already been noted that there is no great difference between rich and poor countries where data collection system efficiency is concerned.

After two cycles of peers evaluation, peers considers that the exercise has to be improved and the visits organised in this framework have to be more structured, with fixed working methods which should be identical for each visit. The “CEPEJ guidelines on judicial statistics” could be taken as a basis for the organisation of the visits.

Proposed future visits

The peers express the wish to continue the review meetings in future. While recalling that these visits are organised on a voluntary basis at the states’ request, the peers suggest that in 2011, for the third cycle, three new visits should be organised as follows:

Place	1) the Netherlands (the informationsystem with data concerning finance and production of courts is accountantproof; qualitysystem RechspraaQ; central datawarehouse for policy-analyses) 2) Austria (“good pupil” in term of data collection for the CEPEJ) 3) Turkey (which has a new computerised system in courts) or Moldova (which could improve the number and quality of data given to the CEPEJ) The CEPEJ is awaiting applications.
Participants	For the CEPEJ, a group of “peers” and a member of the Secretariat.  The peers include members of the CEPEJ-GT-EVAL and the Chair of the CEPEJ. For the host country, anyone who is liable to be involved in the CEPEJ’s exercise of evaluating judicial systems and who wishes to participate, and/or anyone with responsibilities in the national judicial organisation.
Budget	The Council of Europe will defray subsistence and travel expenses for the peers and the member of the CEPEJ Secretariat. The host country must provide, free of charge, (a) meeting room(s) and organise transport between the meeting venues, if remote from each other. There are no interpreting expenses, and the meeting is held in either French or English (to be decided by the host country).  The host country may finance interpretation from English or French into the national language.
Content of discussions	As an introduction to the discussions, a list of specific questions will be drawn up on the basis of the document “CEPEJ guidelines on judicial statistics” (document CEPEJ(2008)11). These questions will be the same for each visited state. Moreover, the peers will co-ordinate with the organisers in situ to select one or more subjects of specific interest to the country visited. Furthermore, in order to better grasp local realities, visits should be organised in courts and departments responsible for data collection. Finally, it should be agreed to receive a presentation of a specific type of service, different in each visited country. This type of service shall use the new technologies and be particularly efficient and innovative (ex. Civil hearings with electronic preparation for trial, criminal hearings with summons of witnesses by sms, having recourse to videoconference, etc). This will allow the peers to take stock of essential innovations in the justice system serving citizens.
Organisation of the work	One person per state must be declared responsible for preparing the agenda and organising the peers’ stay in the country; the CEPEJ Secretariat will assist him/her in this work.

7.             The team of peers and the Secretariat would like to express their sincere gratitude to the following seven host countries, Malta, Russian Federation, Denmark, Finland, Iceland, Norway and Sweden, as well as for the quality of their welcome and the motivation and strong commitment shown by all those encountered.

Appendix I

General presentation of the Nordic systems

(Courts, Prosecutors, Lawyers)

1.         Courts

a.         The Constitutional position of the Courts (Independence, appointment and dismissal of judges, constitutional level of the court administration)

Norway

Independence: due to constitutional customary law.

Appointment and dismissal of judges (protection of tenure)(article 21 of the Constitution): the King in Council appoints judges. Judges may only be dismissed by a judicial decision (article 22 of the Constitution).

Is court administration regulated on a constitutional level?No. National Courts Administration (NCA) was established by amendment of the Courts Act.

Other elements of the Judiciary regulated in the Constitution:The legal tradition in Norway is characterized by constitution conservatism. The constitution set forth the principle of legality (article 96 - no punishment without law and no verdict without sentence). The principle of judicial review of administrative decisions is considered as constitutional customary law.

Sweden

Independence: Guaranteed, inter alia, through the provisions of Art. 6 of the ECHR and through provisions in the Swedish Instrument of Government on the independence of courts and the employment conditions of judges. The Instrument of Government is one of the four fundamental laws that make up the Swedish Constitution.

Appointment and dismissal of judges (protection of tenure):It follows from the Swedish Instrument of Government that permanent judges are appointed by the Government. In principle, a permanent judge cannot be dismissed other than in cases specifically set out in the Instrument of Government.

Is court administration regulated on a constitutional level?The National Courts Administration (NCA) is a special central agency for the courts and is accountable to the Government. The mandate of the NCA does not follow from the Constitution but is established in a special Government regulation.

Other elements of the Judiciary regulated in the Constitution: The provisions on public access to official information in the Instrument of Government and the Freedom of Press Act serve to guarantee that the public have insight into the administration of justice. This principle, which is fundamental with respect to statutory acts, means that the public have access to hearings and other meetings of the court and that they have the right to access documents pertaining to a specific case or matter. To protect individuals and public interests in certain cases, this right of access may be restricted by secrecy regulations. Such restrictions must be clearly set out in an act of law.

Iceland

Independence: provided for in the Icelandic Constitution (Article 2: [...] Judges exercise judicial power; Article 59: The organization of the judiciary can only be established by law; Article 61: In the performance of their official duties, judges shall be guided solely by the law. Those judges who do not also have administrative functions cannot be discharged from office except by a judicial decision, nor may they be transferred to another office against their will, except in the event of re-organization of the judiciary. However, a judge who has reached the age of 65 may be released from office, but Judges of the Supreme Court shall not lose any of their salary).

Appointment and dismissal of judges (protection of tenure): Appointment of district court judges is based on Article 12 of the Act on the Judiciary No 15/1998; the selection of Supreme Court judges is based on Article 4 of the Act on the Judiciary. For dismissal: A judge may be relieved from his office temporarily if he has been admonished and fails to heed the admonition within a suitable period of time, or if his conduct provides an occasion for a new admonition within a period of three years. A judge may also be relieved of his office temporarily if he is no longer in possession of the general qualifications required for judicial office. This shall also apply if a judge is subject to a criminal investigation, or if a criminal action is brought against him where the charges, if sustained, would have the effect of depriving the judge of the general qualifications for judicial office (...) (article 29 but see also articles 30 to 32)

 

Court Administration: The Judicial Council is meant to further ensure the independence of the Judiciary from the executive, but with the creation of the Council, all the administration of the Judiciary, with the exception of the Supreme Court, was moved from the Ministry of Justice (now Ministry of Justice and Human Rights) to the Judicial Council, i.e., an independent administrative authority of the Judiciary.

Denmark

Independence: The courts must be separated from public administration (article 62 in the constitution (CS)) including from the Ministry of Justice. The Minister of Justice is not entitled to set down instructions to the Danish Court Administration (DSA).

Appointment and dismissal of judges (protection of tenure):Judges are appointed by The Judicial Appointments Council (Dommerudnævnelsesrådet). Judges can not be moved or dismissed against their will (article 64). Judges are employed till they become 70 years old where they retire.

Is court administration regulated on a constitutional level? No, by the Danish Court Administration Act

Other elements of the Judiciary regulated in the Constitution:Court hearings are public (article 65). In criminal cases lay judges are often used and in specific cases a jury is involved.

Finland

Independence of the courts: has traditionally been examined in relationship to executive power. The Constitution of Finland has adopted a tripartite doctrine whereby the Parliament together with the President of Finland exercises legislative power, the President of Finland and the Government supreme executive power and independent courts judicial power.

The Finnish Constitution:

-        guarantees everyone the right to have his case heard appropriately and without undue delay by a court or other public authority. Everyone also has the right to have a decision affecting his rights and duties reviewed by a court or other judicial body.

-        contains the basic provision on fair trial and good governance. The main guarantees of these are the publicity of proceedings, the right to be heard, the right to receive a decision containing the grounds, and the right to appeal against the decision.

The independence of the judiciary is constitutionally guaranteed. The courts are under the sole obligation to apply the law in force, without further restrictions. The provisions of the Constitution and other Acts of Parliament determine that judges shall act independently in deciding each individual case. Neither the executive branch nor any other authority can instruct the courts as to how they should decide specific cases, and the decisions of the Supreme Court and Supreme Administrative Court cannot be reviewed by any other authority. Moreover, the Constitution sets limits for what the legislative or executive powers can decide.

b.         The Courts and the executive power (Judicial review of the administrative decisions and the      scope for interference)

Norway

The courts control the legality of executive decisions, i.e. the application of the law and the facts and the discretionary application of the law. Furthermore, according to customary law the courts control that the administrative discretionary assessment is not arbitrary and that no irrelevant considerations are taken. The courts do not however review the discretionary administrative assessments.

Sweden

The possibility of appealing against an authority’s decision to a general administrative court means that the public authority’s application of the law is subject to supervision by the courts. The judicial examination by the courts also serves to create case law that the public authorities are obliged to follow.

Within the Swedish Government offices, responsibility for matters relating to the judicial system, including the budget and administration of the public agencies, rests primarily with the Ministry of Justice. The Ministry of Justice is also responsible for core legislation in the fields of civil law, penal law and procedural law. The modernisation of the judicial system is another important matter.

The Chancellor of Justice, who is the Government’s supreme ombudsman, is responsible for scrutinising the bodies involved in public administration, inter alia the courts, on behalf of the Government. The public can also turn to the Chancellor of Justice with their complaints. The Chancellor of Justice cannot review or modify the decision of another authority or a court.

Iceland

The courts control the legality of administrative decisions, i.e. the application of the lay. The courts also control that the administrative discretionary assessment is not arbitrary and that the procedures stipulated in the Administrative Procedures Act No. 37/1993 have been followed. According to Article 60 of the Constitution, the general courts are competent to review any and all decisions taken by the executive.

According to Article 70 of the Constitution, everyone shall, for the determination of his/her rights and obligations or in the event of a criminal charge against him/her, be entitled, following a fair trial and within a reasonable time, to the resolution of an independent and impartial court of law.

Denmark

Administrative decisions can, with a few exceptions, be tried by the courts. The courts do not interfere on a proactive basis.

Finland

A general right of administrative appeal exists in Finland. The Administrative Courts hear appeals of private individuals and corporate bodies against the acts of the authorities; cases such as tax, municipal, construction, social welfare, health care and alien cases. The Supreme Administrative Court finally decides the legality of the acts of the authorities. Usually no leave to appeal is required.

c.         The Courts and the legislative power (Judicial control of the constitutionality of legislation,        budget, supervision via the Parliamentary ombudsmen)

Norway

Judicial control of the constitutionality of legislation:Yes, but no Constitutional Court.

Budget: NCA proposes the budget for the courts to the Ministry of Justice. The Government will then decide what will be the final budget proposal to the Parliament. When the Parliament has decided on the annual budget, each Ministry will then allocate the budget to each sector according to the decision from the Parliament budget in letters of allotment. NCA receives the letter of allotment from the Ministry of Justice and will then allocate the budget to each court accordingly. NCA may notify the Parliament of the budget proposal that was transmitted to the Ministry of Justice. However, the budget proposal cannot be directly proposed to the Parliament. The formal budget proposal will always be in the hands of the Ministry of Justice.     

Supervision: Through the budgetary process, the Parliament might set up norms for the case processing time etc. According to article 4 of the Act concerning the Parliamentary ombudsman, the scope of the ombudsman does not include the courts.

Sweden

Judicial control of the constitutionality of legislation:Yes, but no Constitutional Court.

Budget: NCA proposes the budget for the courts to the Ministry of Justice. The Government will then decide what will be the final budget proposal to the Parliament. When the Parliament has decided on the annual budget, each Ministry will then allocate the budget to each sector according to the decision from the Parliament budget in letters of appropriation. NCA receives the letter of appropriation from the Ministry of Justice and will then allocate the budget to the courts after a budget dialogue with each court.

Supervision: The Parliamentary Ombudsmen are elected by the Swedish Riksdag (Parliament) to ensure that public authorities and their staff (including, inter alia, courts and their judges) comply with the laws and other statutes governing their actions. The Ombudsmen exercise this supervision by evaluating and investigating complaints from the general public, by making inspections of the various authorities and by conducting other forms of inquiry that they initiate themselves. The Parliamentary Ombudsmen cannot review or modify the decision of another authority or a court.

Iceland

Judicial control of the constitutionality of legislation: Yes, the Icelandic courts have on few occasions found that provisions of legislative acts are not in consistency with the constitution and that therefore the provision of the act will not be applied.

Budget: Althingi decides the annual budget of the courts in the state budget.

Supervision: The role the Althing Ombudsman is to monitor the administration of the State and local authorities and safeguard the rights of the citizens vis-à-vis the authorities. The Ombudsman shall take pains to ensure that the principle of equality is observed and that administration is in other respects conducted in conformity with the law and good administrative practice.

Denmark

Judicial control of the constitutionality of legislation: t may happen, yes. I.e. the Tvind law (a law against the Tvind conglomerate) was found unconstitutional by the court).

Budget: The Danish Court Administration is responsibility to keep the budget as set by the yearly Finance Act passed by the parliament (Folketing)

Supervision: The ombudsman has no authority over DCA.

Finland

Judicial control of the constitutionality of legislation: Yes, but only when the law is obviously in conflict with the Constitution. There is no Constitutional Court in Finland.

Budget: The budget guidelines for the courts are discussed between the courts and the Ministry of Justice before the MoJ prepares its budget proposal to the MoF. The Government will then decide what will be the final budget proposal to the Parliament. When the Parliament has decided on the annual budget, the MoJ will then allocate the budget to each court in the annual target and budget negotiations. The formal budget proposal is in the hands of the MoJ. Through the budgetary process the Parliament may set up norms for the case processing time etc.

d.         The administration of the courts (Separate administrative body or Ministry of Justice)

 

Norway

NCA is a separate administrative body and can only be instructed in concrete/individual cases by a decision from the King in Council.

Sweden

The National Courts Administration is a special central agency for the courts and is accountable to the Government.

Iceland

The judicial council is a special administrative body and can not be instructed regarding to general administration of the courts. The supreme court administrates its own matters.

Denmark

Yes, it is a separate administrative body.

Finland

Many of the duties and responsibilities of judicial administration and the development of courts of law still fall primarily within the jurisdiction of the Department of Judicial Administration within the MoJ. To make all this happen, the Department of Judicial Administration must ensure that the courts have: sufficient financial resources, sufficient staff, proper premises, facilities, communications and sufficient training to maintain the professional skills of the staff at a high level.

The staff of the Department of Judicial Administration also takes part in the drafting of new legislation, especially concerning the organisation of the courts, follows up that a legislative reform has been properly implemented, takes initiative in various areas of judicial administration (legal policymaking, preparation of the budget for the courts, reorganisation of the court system, (training of judges, performance indicators, etc.)

e.         The organization of the courts 

Norway

The number and size of the courts

The extent of specialized courts

The extent of specialization in the courts otherwise

Short description of criminal and civil procedures

·         Criminal cases:

- All criminal cases start in the first instance

- With the exception of confession cases and cases with a sentencing limit up to one year imprisonment or fines, the court is composted of professional and lay judges.

- Minor offences can to a large extent be settled by a pact between the public prosecutor and the offender (fine)

·         Civil cases:

- As a main rule civil disputes start with proceedings in the conciliation board.

- No administrative courts

- One professional judge as a main rule in civil cases in the first instance court. The parties may request lay judges/expert lay judges

- Mandatory mediation proceedings

- Appeals screening system

- Three professional judges in the courts of appeal

Simplified procedures in criminal cases

·                                                         Section 248 of the criminal procedure act:

- Unconditional confession in court

- Confession strengthened by the case documents 

- Consent

- Sentencing limit of 10 years

·                                                         Section 321 of the criminal procedure act:

- Appeals may be denied to be brought before the court of appeals if the panel of three court of appeal judges, unanimously hold that the appeal clearly will not succeed.

- Exception: Appeals from the convicted person regarding offences with a sentencing limit of more than six years. Unconditional right to new treatment.

Simplified procedures in civil cases

·                                                         Chapter 10 of the Dispute Act – small claims procedure

·                                                         Screening of appeals – Dispute Act section 29-13 (2)

Conciliation Boards

·                                                         No lawyers employed

·                                                         Municipal boards

·                                                         Not organized by the National Courts Administration

Lay judge element: The Jury system

Deputy judges

·                                                         Relatively young lawyers

·                                                         Temporarily appointed for a maximum of 3 years.

·                                                         Same protection of tenure as permanent judges.

·                                                         Limited to the first instance courts

·                                                         Constitute 31% of the judges work force in the first instance courts

·         With the exception of criminal offences with a sentencing limit of more than six years, there is no regulatory limitation as to what cases they may deal with.

·                                                         Hardly any prior training.

Education, training and career

·                                                         The principle of open recruitment of judges

·                                                         No internal judicial career

·         A start course consisting of five gatherings spread out on the first year after appointment, each with duration of 3-4 days.

Sweden

The number and size of the courts:

o    48 district courts (the employees differ between 11 and 265, permanent judges between 2 and 41), 6 courts of appeal ( the employees differ between 44 and 377, permanent judges between 13 and 83) and the Supreme Court (88 employees of which 16 are permanent judges, justices)

o    12 county administrative courts (the employees differ between 22 and 587, permanent judges between 4 and 79) , 4 administrative courts of appeal (the employees differ between 59 and 288, permanent judges between 17 and 62) and the Supreme Administrative Court (105 employees of which 16 are permanent judges, justices)

The extent of specialized courts:

o    25 of the district courts are also land courts, 5 of the district courts are also environmental courts and 7 of the district courts are also maritime courts.

o             3 of the administrative courts are also migration courts

The extent of specialization in the courts otherwise

o    Division into chambers according to branch of jurisprudence: The courts themselves are in general responsible of the internal organisation. Therefore some of them have departments which handle certain kind of cases such as family cases.

o    The system for allocation of cases between the judges (principle of randomness?): The principle of randomness prevails.

Short description of criminal and civil procedures

o    Criminal cases are normally instituted when a public prosecutor initiates prosecution proceedings against a suspect by submitting a summons application to a district court. The underlying principles of the process are those of orality, immediacy and concentration. The cases are normally tried by one professional judge and three lay judges. In the courts of appeal, criminal cases are decided by three professional judges and two lay judges.

o    Civil cases are tried by one or three judges (district court) and three or four judges (courts of appeal). In the settlement of family cases, lay judges normally take part in proceedings in both the district court and in the court of appeal.

Simplified procedures in criminal cases: There are no simplified procedures in criminal cases in court, but in some cases that can not lead to serious penalties the prosecutor can order a penal injunction which can be accepted by the suspect. Therefore the case does not have to be dealt with by court.

Simplified procedures in civil cases: According to the Swedish Code of Judicial Procedure there is a small claim procedure. This means for example that one professional judge will decide in the case and that there are limits for the costs that the loosing party can be obliged to pay.

Conciliation Boards: Does not exist in the courts only private. Although the courts have the possibility to appoint a mediator in some civil cases.

Lay judge element: There are a number of lay judges in the courts. They are appointed by the municipal council in the municipalities under the territorial jurisdiction of each district court and by the county council assembly in the counties under the jurisdiction of the county administrative court, the administrative courts of appeal or the court of appeal.

Education, training and career: As a basis for a career as a judge, candidates need a Master of Law degree (LL.M.) Even if there is a principle of open recruitment of judges many of those who are appointed as judges have followed a specific career path, beginning after graduation as a law clerk for two years at a district court or a county administrative court. After that it is customary to apply to become a reporting clerk at a court of appeal or an administrative court of appeal. After at least one year of service as a reporting clerk the trainee judge returns to a court of first instance for a period of at least two years. Thereafter follows at least one year of service at a court of appeal or administrative court of appeal, during which the trainee is co-opted to the bench. After completing this period of probation, the reporting clerk is appointed as an associate judge. Reporting clerks and associate judges are referred to as non-permanent judges.

A judge who is appointed permanently by the Government is educated through the Courts of Sweden Judicial Training Academy which is linked to the National Courts Administration.

Iceland

The extent of specialized courts: There shall also be a Labour Court (Félagsdómur) and a Court of Impeachment (Landsdómur). The provisions of other Acts apply to these courts of special jurisdiction. The Court of Impeachment has competence if Ministers, in pursuance of their official tasks, are impeached, see Art. 14 of the Constitution and Act No. 3/1963. Landsdómur was established in 1905 but has never been convened. Félagsdómur deals with trade union matters and industrial disputes according to the Act on Trade Unions and Industrial Disputes, No. 80/1938. (Article 14: Ministers are accountable for all executive acts. The accountability of the Ministers is established by law. Althingi may impeach Ministers on account of their official acts. The Court of Impeachment has competence in such cases.)

The extent of specialization in the courts otherwise: There is no official specialisation in the courts. Judges have equal qualifications and knowledge to judge both civil cases and criminal cases. If there is a need for expertness or any special knowledge, a judge can appoint expert assistant judges to a court

o     Division into chambers according to branch of jurisprudence?

o     The system for allocation of cases between the judges (principle of randomness?)

The number and size of the courts: In Iceland we have 8 district courts with 38 judges (soon 43) and one Supreme Court with 9 judges.

Lay judge element: If a case is very extensive or the subject matter is of a great importance the chief judge can decide that three district court judges or two district court judges and one expert lay judge from the court.

Education, training and career:

Education: Has completed a graduation examination in law, or graduated from a university with an education deemed equivalent thereto.

Training: In general linguistic training is not an aspect of training of judges, public prosecutors or lawyers. Linguistic seminars have been held for judges and other staff of the courts. Though the compulsory training is initial training, general in-service training, in-service training for specialised judicial functions and in-service training for the use of computer facilities in the court.

Career:

-           District courts career: Has for a period not shorter than three years been a Member of Parliament or has, without interruption, been a lawyer representing litigants in court, or has been, as a main occupation, engaged as a lawyer with national or municipal public authorities. The periods in each of these occupations may be added together.

-           Supreme court career: Has for a period not shorter than three years been a district court judge, Supreme Court lawyer, professor of law, commissioner of police, magistrate, Director of Public Prosecutions, Assistant Director of Public Prosecutions, public prosecutor, Director General of a Government Ministry, Chief of Office at the Ministry of Justice, or Ombudsman, or has for such period discharged a similar function providing similar legal experience.

-           Regarding career within the court there is no promotion system within the judiciary at the District Court Level. District court judges can apply to work in the Supreme Court, and the chief judge in each court is selected by his/her peers.

Denmark

The number and size of the court:

- Supreme Court (1 president and 19 judges)

- Eastern High Court (1 president and 62 judges)

- Western High Court (1 president and 37 judges)

- Maritime and Commercial Court (5 judges)

- 24 District Courts (24 presidents and 228 judges)

- Land Registration Court (1 president)

- The court at the Faeroe Island

- The court(s) in Greenland

The extent of specialized courts: The Land Registration Court is a clearly defined specialized court. Also the Maritime and Commercial Court could be considered a specialized court.

The extent of specialization in the courts otherwise:District courts are not specialised. They deal with all kinds of cases.

o        Division into chambers according to branch of jurisprudence: District courts are not divided into chambers.

o        The system for allocation of cases between the judges (principle of randomness?): It is decided locally how to distribute cases but for appointed judges the normal principle is, that cases are randomly distributed. Educational staff positions (deputy judges) as judges will gradually get cases to judge that fits with their educational program.

Short description of criminal and civil procedures:

o        Simplified procedures in criminal cases: In case of guilty plea, the procedure is simple

o        Simplified procedures in civil cases: The so-called Minor cases (småsager). Cases up to a value of DKK 50,000 may be dealt with without use of a lawyer and where the court helps the two parts about the procedure etc.

o        Conciliation Boards: It is relative new in Denmark but is used in different civil cases, for instance cases about custody, housing, family or divorce. 

Lay judge element: It is used in criminal cases but not in minor cases (i.e. minor offenses in the traffic) or when the accused plea guilty.

Deputy Judges: Deputy Judges is an integrated element in Danish jurisdiction.

Education, training and career: Staff at the court, judges as administrative staff, is offered further education to keep up the standard. Deputy Judges may have an educational position but may also have completed their education.

Finland

The extent of specialized courts:

o        Special courts are as follows: the Labour Court, the Market Court, the Insurance Court and the High Court of Impeachment,

-          The Labour Court hears disputes relating to collective agreements on employment relationships and on civil service relationships. Its decisions are not subject to appeal.

-          The Market Court hears i.e. disputes regarding public acquisition, competition between firms and improper marketing.  Depending on the nature of the case, the rulings of the Market Court are open to appeal before the Supreme Administrative Court or the Supreme Court.

-          The Insurance Court considers certain cases falling within the field of social insurance, e.g. occupational accident insurance and pensions. In certain cases related to accident insurance, the decisions of the Insurance Court are open to appeal before the Supreme Court, subject to leave by the Supreme Court.

-          The High Court of Impeachment, which has been convened only a few times, hears criminal cases relating to offences in office allegedly committed by a member of the Council of State, the Chancellor of Justice, the Parliamentary Ombudsman or a member of either the Supreme Court or the Supreme Administrative Court. In such cases the prosecution is the responsibility of the Prosecutor General, the Chancellor of Justice or the Parliamentary Ombudsman.

Specialization in the courts otherwise:

o        Division into chambers according to branch of jurisprudence

§     Firstly, as to the District Courts there is some specialization between the courts. The same applies to the Administrative Courts.

§     As to the District Courts the law provides that certain District Courts especially deal with certain type of cases such as maritime law, class action, real estate formation, appeals in enforcement of civil cases, military court cases (offenses of military personal).

§     As to the Administrative Courts the law provides that Helsinki Administrative court is forum for asylum cases,   (law on aliens 193 §), added value cases (law on added value 193 §) custom cases (law on custom 37 §). Vaasa Administrative Court has authority to hear appeals in environment and water cases (law on protection of environment and law on use of water)

§     A specialization within a court is possible to deepen knowledge in certain case categories or to guarantee rights of people of minority language group. Any court that finds this necessary may establish a department for this kind of purposes.

 

o        The system for allocation of cases between the judges (principle of randomness?

§     The cases should be allocated by the Chief Judge to the special department if one exists. Within the department the case is allocated between judges randomly. However, if a judge already has a great burden the chief of department may allocate the case to the next available judge. One should remember that there is no regulation on allocation of cases.  

§     Short description of criminal and civil procedures

 

o        Criminal cases:

 

§     Basically all criminal cases start in the first instance

§     With the exception of confession cases and cases with a sentencing limit up to one and half year imprisonment or fines, the court is composted of a professional judge.

§     In confession cases the defendant does not need to appear before a judge in case with sentencing limit max

§     Minor offences can to a large extent be settled by fines imposed by a police officer and confirmation of a prosecutor

o        Civil cases:

§     As a main rule civil disputes start with proceedings in the District Court

§     Administrative cases are dealt with by the administrative courts

§     One professional judge as a main rule in civil cases in the first instance court. A panel of three judges is possible.

§     No lay judges in civil cases

§     No mandatory mediation proceedings but appr. 2/3 of civil cases are settled

§     Appeals screening system being reformed.

§     Three professional judges in the courts of appeal

 

o        Simplified procedures in criminal cases

§     Simplified procedure in criminal cases is based on the quality or seriousness of a case or confession.

§     In confession cases the defendant does not need to appear before a judge in case with sentencing limit max 1,5 year in prison (in abstracto) and the sanction is fines (de facto).

§     Minor offences can to a large extent be settled by fines imposed by a police officer and confirmation of a prosecutor

o        Simplified procedures in civil cases

§     Simplified procedure was introduced to the Rules of Civil Procedure in 1993. It was designed to deal with cost and delay issues by reducing the number of pre-trial procedures in cases that are not disputed. 

§     In these cases the defendant can be obliged to pay the claim to the plaintiff by a so-called default judgment. The procedure is applied to all types of pecuniary claims which the parties concerned may specify by a contract between themselves.

§     There is no upper limit regarding the value of the claim. Any claims, whether large or small, can be processed in this procedure. The procedure is voluntary.

§     The case will go through all the different stages of full legal proceedings only if the defendant disputes the case in an efficient manner i.e. there are grounds for this. Otherwise, uncontested claims are processed in the simple procedure described above.

§     In most cases the case is filed by a credit management services company in an electronic format. However, starting next year it will possible also to the public to file this kind of a case through internet site.

 

o        Conciliation Boards: Do not exist in Finland.

The number and size of the courts

Lay judge element: The courts of first instance (District Courts) also have locally elected lay judge that take part in decision making in criminal matters of more serious nature only.

Deputy judges

there is no regulatory limitation as to what cases they may deal with. Of course, the most demanding or most serious cases are allocated to the judges.

 

Education, training and career

f.          Selection of judges and disciplinary reactions

Norway

Appointment of judges:

§     According to the Constitution article 21: The King (in council)

§     Judicial Appointments Board nominates (consists of three judges, one lawyer, one lawyer from the          public administration and to representatives from the public)

§     All appointments  (no promotion system)

§     Judges may only be dismissed by a judicial decision, c.f. article 22 of the Constitution.

Ethical framework: A work in progress. NCA appointed a committee, led by a former Supreme Court judge. A detailed draft for ethical framework. The proposal met considerable resistance among the judges, inter alia from the Norwegian Union of Judges. The Board of NCA rejected the draft and established a new committee. A new and much simpler draft is made.

Disciplinary reactions

§              The Supervisory Committee for Judges. An independent organ:

·                                                                     Two judges, one lawyer and two representatives from the public.

·                                                                     Limited remedies. Only decisions of criticism or warning, the latter in the most serious cases.

Sweden

Appointment of judges: Permanent judges are appointed by the Government after suggestion from the Judges Proposals Board.

Ethical framework: There is no written ethical framework

Disciplinary reactions:

Iceland

Appointment of judges: See above, question about appointment and dismissal of judges (protection of tenure)

Ethical framework: All judges are sworn into office by the signing of an oath. In addition, all judges must abide to the same ethical principles as those who hold a public office, as stipulated in the Government Employees Act No 70/1996. All judges must furthermore abide by the specific criteria laid out in Art. 5 of the Act on Civil Procedure No 91/1991 with regard to avoidance of conflict of interest.

Disciplinary reactions: If a judge is to be disciplined and/or removed from office, the articles 61 and 23 to 32 of the Constitution and the Act on the Judiciary No 15/1998 apply.

Denmark

Appointment of judges: Appointments are done by the Judicial Appointment Council. The council proposes judges to be appointed for vacant positions and the Queen approve the recommendations

Ethical framework: Of course the judges should be an excellent example of good behaviour.

Disciplinary reactions: The special court of Indictment and Revision may take action if a judge him or herself violate the law.

Finland

Appointment of judges

• Under the Act on Judicial Appointments, in force since March 2000, Finnish judges are appointed by the President of the Republic on recommendation from the Minister of Justice, as advised by a Judicial Appointments Board (the JAB).
• • The JAB is independent body of other public actors
  • The JAB is composed mainly of members of the judiciary, but three members come from outside the judiciary. One is a practising lawyer appointed by the Bar Association, another is a prosecutor appointed by the Prosecutor General (PG), and the third is an academic appointed by the MoJ.
  • The JAB is set by the Government for a term of five years at a time.
  • The appointment procedure starts by publishing an announcement of a vacant judgeship. After this the applicants' qualifications are assessed by the JAB. The president of the court in question also has the opportunity to deliver an opinion.
  • The JAB prepares and makes a reasoned proposal on an appointment to a position in the judiciary and deliver it to the Government to be presented to the President of the Republic.
  • The competence of the JAB includes, for example, the proposals on an appointment to the following positions: President of a Court of Appeal, Senior Justice of a Court of Appeal and Justice of a Court of Appeal, Chief Judge of an Administrative Court and Administrative Court Judge as well as Chief Judge of a District Court and District Judge.
  • The JAB has no jurisdiction regarding the appointment of Justices to the Supreme Court and the Supreme Administrative Court. These courts of final instance make their own appointment proposals to the President of the Republic, who is the final decision-maker also in these matters.
• Qualification requirement for an appointment of a judge
• • The professional judges must have a higher university degree in law. A judge cannot be dismissed except by the court order, e.g. if he has been convicted for an offence.

Ethical framework - Disciplinary reactions

3.         Public Prosecutors

a.         The Constitutional anchoring of the Prosecuting authority  

Norway

The task of the public prosecutors:

·         Handling of criminal cases

·         Plays, with few exceptions, no role in civil cases.

Independence: In principle the public prosecutor may be instructed by the Ministry of Justice in singular cases. But, such instruction is not exercised in the political situation in Norway today.

Sweden

The task of the public prosecutors: The prosecutor is responsible for leading the preliminary investigation when someone is reasonably suspected of an offence. In less serious crimes, these investigations are entirely conducted by police officers. When the investigation has been completed, the prosecutor takes the decision on whether or not to institute proceedings. The decision to prosecute and designation of the offence set the framework for the criminal proceedings and move the case forward.

Independence: The Swedish Prosecution Authority and the Swedish Economic Crimes Bureau are independent authorities under the Ministry of Justice, but there is no legislation about independence like the one according to the courts in the Swedish Instrument of Government

Iceland

The task of the public prosecutors: The power of prosecution is divided into two administrative levels, i.e., the power of prosecution held by 15 Chiefs of Police, including the Office of the National Commissioner of Police, and the Office of the Special Prosecutor in matters relating to the bank crisis, and the power of prosecution held by the Office of the Director of Public Prosecutions, and the Special Prosecutor in case of matters relating to the bank crisis. All prosecutor positions within the aforementioned offices are advertised as open for application. The Minister of Justice and Human Rights determines the appointments for said positions. Prosecutors shall meet the same criteria of eligibility as required by law from district court judges. The Ministry is responsible for evaluating the applicants‟ eligibility. The offices have legally trained representatives/prosecutorial representatives who are recruited by the heads of the relevant offices and who hold the prosecutorial power on their behalf.

Independence:

The autonomy of prosecutors is provided for in the Code on Criminal Procedure No 88/2008. Article 18(2) states that prosecutors shall not accept instructions from other authorities on prosecutorial procedures unless expressly stipulated by law. According to Art. 18(3), prosecutors shall aim to discover the truth and focus equally on factors of innocence or guilt. The Code on Criminal Procedure, which came into force on 1 January 2009, guarantees the independence of the Director of Public Prosecutions even more securely than before. Article 20 of the Code provides that the Director of Public Prosecutions is the highest holder of prosecution authority. S/he is appointed by the Minister of Justice and Human Rights for an indefinite period of time.

The independence of prosecutors is ensured in other respects by a wage committee determining their salaries. Only the Director of Public Prosecutions is appointed for an indefinite period of time and s/he enjoys the same legal terms of office as Supreme Court judges. The law does not stipulate that prosecutors shall maintain their knowledge of law, as applicable to judges; hence this is the responsibility of individual prosecutors. Additionally, there is no immunity system for prosecutors.

Denmark

The task of the public prosecutors: Handling of criminal cases. To represent the state or the police against the accused.

Independence: In principle the public prosecutor may be instructed by the Ministry of Justice in singular cases. But, such instruction is not exercised in the political situation in Denmark today.

Finland

Education, training and career of the prosecutor: The Finnish Prosecution Service recruits new prosecutors mainly through the so-called training system of junior prosecutors. Attending the training is not, however, an absolute prerequisite for obtaining an office as a prosecutor. A legal degree is a qualification requirement for the office. In practice, those who are selected have also completed a court training period.

Office of the Prosecutor General is responsible for planning and coordinating the training in the Finnish Prosecution Service. Training is either centralised or regional. Regional training is short-term training, and it concentrates on dealing with current themes. The Finnish Prosecution Service arranges on average 1,500 participant-days of training per year.

Training system of junior prosecutors: The training system of junior prosecutors consists of guided learning at work, and the local prosecution offices have the main responsibility for the training. The objective of the system is to provide the trainees with guidance and training needed in the prosecutor's work as well as to ensure through individual follow-up that they have the knowledge and skills required in the prosecutor's work. At the same time, the system provides the Prosecution Service with opportunities to evaluate the junior prosecutors' competence and thus their chances to be permanently recruited to the Prosecution Service.

During the training period of one and a half years, a junior prosecutor gets a broad picture of all the duties that a prosecutor is responsible for. The nature and scope of the criminal matters that are assigned for a junior prosecutor gradually become more demanding as he or she gains more experience and skills.

Office of the PG organises nationwide training events for junior prosecutors, the purpose of which is to deepen the knowledge and skills acquired in the otherwise practice-oriented training. The training programme ends with a final exam, which helps in determining whether the junior prosecutor has adopted the knowledge and skills required of a District Prosecutor.

Basic training programme for prosecutors: The core of the prosecutor training is a basic training programme which provides the newly appointed prosecutors with a sufficiently versatile and comprehensive overall picture of the prosecutor's role and position as well as the work itself.

The objective of the training program is:

·         to establish and deepen the prosecutors’ professional identity and to support the new prosecutors in being socialised to the profession,

·         to fulfil the requirements set for prosecutors in human rights conventions and basic rights provisions,

·         to meet the proficiency requirements for prosecutors set by the development of court proceedings in criminal matters, and

·         to take into account the new challenges that the internalisation process has brought to prosecutors' work.

·         Training is arranged in six separate periods within one year, each of the periods lasting for about one week.

Advanced training and updating training for prosecutors:

·    The focal areas of the advanced and updating training vary in accordance with the requirements brought by national and international legislative reforms, especially those relating to the EU.

·    The training consists of courses concentrating on different subject areas and varying in length between three days and a week. 

·    The key and special prosecutors are responsible for planning the advanced training for prosecutors.

The system of key and special prosecutors:

·    The duties of key prosecutor groups include monitoring and developing prosecutorial activity in the entire country, developing and deepening the special expertise of the key prosecutors as well as preparing the matters in their subject areas for the decision-making of the PG.

·    The key prosecutor groups are responsible for charting the needs for training in their field as well as for planning, implementing and monitoring the training. In addition to this, the key prosecutors provide guidance for other prosecutors in problem situations and deal with the most demanding criminal cases in their field of expertise. 

·    The fields of expertise of the key prosecutors are:

o    narcotics offences

o    cyber crimes and freedom of expression offences as well as racist and other hate crimes

o    employment offences, offences in public office, military offences and corruption offences

o    environmental offences

o    procedural law and offences with international connections

Educational cooperation with interest groups:

·    Educational cooperation is conducted with several different interest groups. The cooperation with universities brings in theoretical viewpoints and the latest research data to the study of criminal matters.

·    In training pertaining to economic crime, the Prosecution Service collaborates with the Ministry of Justice and the National Bureau of Investigation.

·    An in-service training event on current topics is arranged every year together with the Finnish Customs. The cooperation with the Finnish Bar Association continues in the form of regional in-service training events.

The Constitutional anchoring of the Prosecuting authority:

·         Appointment and dismissal of public prosecutors

·         Independence

District prosecutors are full-time prosecutors.

The question of the relationship between the PG and the bodies exercising supreme executive power naturally arose when the Finnish prosecution system was reorganised. It was decided to solve the problem by emphasizing the independence of the prosecution system. A PG was provided for under constitutional law and, it is worth noting that the provision was included in the section of the Constitution of Finland applying to the courts. An amendment to the Constitution provides that “The prosecution system is headed by the PG in capacity of supreme prosecutor. The prosecution system is enacted by law.”

The prosecution system is prescribed in the Public Prosecutors Act (11.3.1997/199), section 1 of which deals with the important responsibilities in principle of a prosecutor and includes a provision applying to status:

“A prosecutor

-          shall be responsible for ensuring the execution of penal liability in the handling, consideration of charges and legal proceedings in the manner required by legal protection and the public interest. In taking any legal decisions and other measures associated therewith, a prosecutor shall observe fairness, promptness and economy.

-           has independent power to consider charges in the matters coming before him.

-          shall also be responsible for issuing summary penal judgments as specially provided.”

This provision highlights theindependent power of each prosecutor to consider charges, something which is deemed one of the cornerstones of the Finnish prosecution system. No executive body, not even the President, the Government or the MoJ, can issue binding instructions or directions telling the public prosecutor how they should resolve the matter at hand.

The PG may issue general guidelines and instructions to prosecutors. Nevertheless, not even the PG may issue instructions to a prosecutor as to the content of the consideration of charges, in other words, instructions as to how a prosecutor should resolve the matter at hand. With respect to the consideration of charges, the PG may only prescribe the content of a decision made in individual cases by taking the case to his own consideration, after which the PG may decide to waive prosecution, to bring charges himself or to order a lower prosecutor to bring charges. However, in such cases responsibility for the decision rests with the PG at all times.

With respect to the independence of the entire prosecution system, the PG’s right of devolution, in other words the power to take any criminal case for his own consideration of charges, is very significant as a matter of principle. For this very reason, the office and function of the PG might be subject to political pressures and expectations from a body wielding executive power. Owing to the powers vested in the PG, it could be said that the independence of the entire prosecution system ultimately depends on how independent the PG is.

A link to the MoJ has been provided whereby before publishing general instructions to prosecutors, the PG must first notify the MoJ about them.

The appointment procedure, the fixed term of the appointment to office, the obligation to comply with the instructions of executive power and the right to stay in office could affect the PG’s independence. Taking all these aspects into account Finland has adopted solutions highlighting the independence of the PG. On recommendation by the Government, the President of Finland appoints the PG. Appointment to office is not fixed-term and in principle exists until retirement age. Under the Public Prosecutors Act, in his capacity as the supreme prosecutor, the PG exercises consideration of charges independently, unless otherwise provided by law. Such exceptions are, for instance, bringing of charges against a judge or a member of the Government of Finland for an offence committed in office. Decisions on bringing of charges against a judge are made by the Chancellor of Justice or the Parliamentary Ombudsman, whereas decisions involving a member of the Government are made by the Parliament.

The PG’s right to stay in office is not as strong as that of a judge, who may only be dismissed by virtue of legal investigation and judgment. In Finland, heads of central administration authorities, including the Chancellor of Justice who earlier acted as the supreme prosecutor, can be dismissed as so-called “elected officials” also for weighty reasons of expedience, in other words more easily than other officials. However, In order to ensure the PG’s independence, his and other prosecutors’ right to stay in office was made the same as that of officials in Finland in general, in other words very strong in practice.

To ensure the independence of the prosecution system, virtually all the power of decision concerning the body of prosecutors is centred on the PG. He appoints all local prosecutors and exercises the disciplinary authority concerning them. The PG also decides on the official organisation and most important administrative matters within the prosecution system.

The importance of the PG’s position is reflected in the fact that, in considering the government bills pertaining to the establishment of the PG’s office, the Legal Committee of parliament deemed that the key position of PG could best be compared to the power of the Supreme Court and the Supreme Administrative Court as the supreme court of instance on the judicial side.

b.         The Prosecuting authority and the executive power

Norway

Budgets: Divided between the Higher Prosecution Authority and the public prosecutors that form part of the police.

Sweden

Governmental instruction:

o        Provisions in the Swedish Code of Judicial Procedure and in two special Government regulations.

o        The two prosecution authorities propose the budget to the Ministry of Justice. The Government will then decide what will be the final budget proposal to the Parliament. When the Parliament has decided on the annual budget the Ministry will allocate the budget to the prosecution authorities in letters of appropriation.

Iceland

Governmental instruction: Article 18(2) states that prosecutors shall not accept instructions from other authorities on prosecutorial procedures unless expressly stipulated by law.

Budgets: Allocations in the state budget are decided by Altingi.

Denmark

Budgets: Divided between the Higher Prosecution Authority and the public prosecutors that form part of the police.

Finland

Budgets: The sum allocated to the prosecution system is included in the MoJ’s estimate of expenditure in the state budget. Even so, the Parliament makes explicit decision which is the sum allocated to the prosecution services.

Although the PG holds talks with the MoJ about the prosecution system budget, the PG decides on how the sums allocated to the prosecution system are used. The MoJ, however, determines the general objectives of the Prosecution Service.

c.         The organization of the public prosecutor

Norway

Number:

o                730 public prosecutors, including the public prosecutors in the police.

o                85 related to the Higher Prosecuting Authority

o                Per 100 000 inhabitants: 15.6

Sweden

Hierarchical structure and number:

o        The Swedish Prosecution Authority employs around 1 300 people of whom 900 are prosecutors. There are 39 local offices. Among these 32 are general public prosecution offices, three are international public prosecution offices and four are national public prosecution offices, one dealing with anti-corruption, one with environment and labour cases, one with suspicions of crime among police officers and one for security cases.

o        The Prosecutor-General is the head of the Swedish Prosecution Authority and supervises the work of the authority. The Prosecutor-General is the only public prosecutor entitled to institute or pursues proceedings at the Supreme Court.

Iceland

Hierarchical structure: The office of the public prosecutors has 13 employees. One public prosecutor and five other prosecutors. Temporarily we now also have a special prosecutor and an acting prosecutor. On 1 February 2009 the Special Prosecutor took office. According to Act No. 135/2008 the Special Prosecutor is responsible to direct the office of public investigation and prosecution. The Special will investigate suspicions of criminal actions in the period preceding, in connection with or in the wake of the collapse of the Icelandic banks, whether this is connected to activities of financial undertakings, other legal entities or individuals, and as the case may be, follow up on these investigations by bringing charges in court against those concerned. Three other prosecutors work for The Special Prosecutor. Then we have one, and soon two, prosecutors working in the Economic Crime Department, for the National Commissioner of the Icelandic Police.

Number: Director of Public Prosecutions (1) and the Police Commissioners (15). Temporarily, because of the bank collapse in 2008, there is also the office of the Special Prosecutor, with 4 independent prosecutors.

Denmark

Hierarchical structure:

·                                             Director of Public Prosecution, Ministry of Justice

·                                             Public prosecutor

·                                             District Attorneys

Number

·                                             560 public prosecutors

·                                             Approximately 80 related to the Higher Prosecutor’s Authority

·                                             Per 100,000 inhabitants: 10.3 Public prosecutors.

Finland

The Prosecuting authority and the courts:

• The adjudicative function of the public prosecutor

• Judicial review of the adjudicative function and the prosecutorial decisions
• Administrative separated?

It is the duty of a prosecutor to see to the realisation of criminal liability on behalf of the public. Police or some other pre-trial investigation authority performs the pre-trial investigation. The prosecutor works in co-operation with them, as described below.

The prosecutor shall decide whether the material gathered in the pre-trial investigation is a sufficient ground for consideration of charges. When charges have been brought, the prosecutor, representing the public right of action, pursues the charges in court. In each individual case the prosecutor shall, for his part, make sure that the legal safety of neither the complainant nor the suspect is violated. The prosecutor is also obligated by the principle of objectivity: when a matter is being investigated, also circumstances speaking in favour of the innocence of the accused shall be taken into account.

Once the criminal investigation is finished, the case dossier is transferred from the police to the public prosecutor, who decides whether or not there is probable cause to suspect that a crime has been committed and that there is sufficient evidence against the suspect.

If the prosecutor finds that there is probable cause, they have to decide, whether the perpetrator should be charged with the offence or whether the criminal charges should be waived. This assessment is based on the principle of legality, which requires that the offence should be prosecuted whenever there is sufficient evidence.

However, the prosecutor may decide to drop the case even when there is sufficient evidence to bring charges.  In these situations prosecutor has judicial power comparable to that of a court. The prosecutor refutes the presumption of innocence and gives a sanction, which in this case is an expression of blame. This has been possible since 1942, but was not significantly used until 1991.

The grounds for this decision can be the offence being of little significance, the offender being young, trial and punishment being deemed unreasonable etc.

The offender, who disagrees with the prosecutor’s decision, may take the case to court and ask the court to declare him innocent. Even if the court agrees with the prosecutor, it may not impose any punishment.

If prosecutor decides not to prosecute, either on technical or policy grounds, they have to inform also the injured party of his decision. The injured party then has the opportunity to bring charges themselves.

 

In less severe cases the prosecutors may solve the case themselves by issuing summary penal orders. Imprisonment is not an available sanction in this procedure.

In the trial by court the prosecutor presents to the court the charge as well as the evidence. The proceedings are strongly accusatorial by nature; a court may not impose penalties on its own initiative.  While the fundamental objective of a criminal procedure is to find the material truth in the matter, the prosecutor also presents the facts and circumstances favourable to the defendant.

In Finland it is the task of the same prosecutor to prosecute the case in all instances. Any correspondence with the Supreme Court however goes via the PG’s Office.

According to the Finnish Criminal Procedure Act, a civil claim arising from the offence for which a charge has been brought may be heard in connection with the charge. On the request of the injured party, the public prosecutor is obliged to present to the court the victim’s legitimate civil claim for damages, unless pursuing of the victim’s claims is not possible without essential inconvenience of when the claim is obviously ill-founded. The prosecutor is only obliged to pursue the civil claim of the direct victim of the offence.

Because of the independent position of the prosecutors there is no organisational or other dependence between the prosecutors and the courts. In a trial by court the prosecutor is considered as one of the parties.

The position of the defence in Finland complies with the demands of the principle of equality of arms. The defence has unrestricted access to all investigation documents at the latest when the case is forwarded to the prosecutor for the consideration of charges. As far as a larger case is concerned, the police normally grants the defence and other parties full access to investigation documents even earlier: the dossier of the case is handed over to the parties and their final statements received before the police shifts the case to the prosecutor.

The duties of public prosecutors do not involve exercising executive power or any significant tasks outside the field of the pursuing of criminal liability. However, for certain historical reasons the prosecutors act as attesting notaries as far as purchasing of real property is concerned.

The Prosecuting Authority and the Police:

 

The main criminal investigative authority in Finland is the police, most crimes being investigated by the local district police. Other significant police authorities are the National Traffic Police and the National Bureau of Investigation. In order to accomplish its tasks, the police are invested with sufficient investigative powers as well as authority to decide on the use of many coercive measures, such as the search of premises and confiscation of evidence. Besides the police, officials of the Customs Service, Frontier Guard and Defence Forces may act as investigative authorities as regards to offences, which take place in their field of government.

The prosecution service is not an actual investigative authority. One basic assumption in the Finnish criminal procedure is that the assessment of the charges should be completed separately and independently of the investigative stage. Accordingly, the police authorities fall under a different branch of administration than the prosecution service; the police are subordinate to the Ministry of Interior.

Even if the prosecutors are not investigative authorities, their investigative role has become more active recently. For instance, the police are obliged to inform the prosecutor of an offence which has been reported to it for investigation, when someone can be suspected of the offence. However, this does not if the matter is a simple one. Furthermore, on the request of the prosecutor, the police must carry out a criminal investigation or further investigations, as well as comply with the instructions issued by the prosecutor. The prosecutor is, however, not entitled to forbid the police to carry out investigations.

Accordingly, the prosecutors in Finland have accepted consultative meetings with police for a regular part of their work, especially when a larger investigation is under way.

As an exception of the main rule the public prosecutor is always directly in charge of the pre-trial investigation, when it is suspected that an offence was committed by a police officer. It is however another prosecutor who carries out the consideration of charges after the pre-trial investigation is finished.

The organization of the public prosecutor:

• Hierarchical structure
• The police and the prosecutor
• Number

As the central administrative agency for the prosecution service, the Office of the PG  sees to the operative administration of the whole of the service, so that the prosecutors’ task of realising criminal liability can be performed impartially, rapidly and economically, as required by the rule of law and the public interest.

The organisation of the Finnish prosecution service is hierarchically two-tiered:

-     On the first level there are today some 340 district prosecutors who operate in 15 local prosecution offices.

-     On the second level is the PG, who is the chief prosecutor and head of the Office of the PG.

The PG directs the Office of the PG and is responsible for its performance. To assist him there is also the Assisting PG. For operative expediency, the Office has been organised into units: the Administrative Unit, the Prosecution Unit, the Steering and Development Unit and the International Unit. The Office has presently 37 officials including 13 state prosecutors, legal advisors and clerical staff.

The State Prosecutors try criminal cases with significance to the society as a whole and deal with a multitude of other matters in connection with the role of the PG’s Office.

The PG has authority over all prosecutors as explained above. The chief-prosecutors of the local prosecution offices have authority over respective district prosecutors, but only in administrative matters.

The prosecution service operates under a so-called target and results management system as the courts do too. The objective of results management is to develop the management traditions of the public administration towards a more negotiations-oriented system. Under the system, the Office of the PG negotiates annually with the local prosecution offices on the results objectives to be set for the prosecution service and monitors their achievement.

International co-operation

The management of the international activities of the prosecution service is in the hands of the Office of the PG. The Office has an International Unit responsible for the strategic development of international activities, of improving the know-how of prosecutors on the topic, of following international crime trends and case-law, of noticing changes affecting the prosecution service, and reacting to those changes.

Today, an increasing number of cases, especially of serious cases under consideration by prosecutors, include as part of them criminal acts abroad. Finnish criminal law can be applied very widely. The basic rule is that an offence committed abroad may not be tried in a court of law unless the PG has issued a prosecution order. The purpose of this is to secure consistency and functionality as regards the question of how widely Finnish criminal law is applied.

As far as the investigation of a case of international character is concerned, the role of a Finnish prosecutor includes coordination of the investigation with the investigation authorities and prosecutors of the foreign state in question, and the selection of the most appropriate forum for the prosecution of the case. The prosecutors apply full range of mutual legal assistance like inquiries into dual punishability, acquisition of evidence and use of coercive measures. It may also be necessary to make requests for extradition or to transfer prosecutions to other countries. Prosecutors and members of the court may have to travel to the courts of another state for purposes of obtaining evidence, too.

Finland has sent national representatives to Eurojust and has also since year 2001 a liaison prosecutor (liaison magistrate) in Estonia.

Statistics

In 2009 the total number of employees in the prosecution service was 529, out of which the number of prosecutors was 342 and the number of clerical staff 187. The prosecutors dealt with 79860 cases, out of which 60408 led to indictment and 9896 to waiver of charges. An average time of consideration of charges was a little under two months. The budget of the prosecution service in 2009 was 42.543.000 Euros.

4.         Lawyers

a.         Education, authorization, disciplinary reactions 

Norway

Education, training and career

• Compulsory course in order to accede and perform as a lawyer, c.f. below.
• Compulsory continuous training. All members of the Norwegian Bar Association are obliged to do post-qualifying education.

Authorization

• Requirements for practice as an advocate

- The Supervisory Council for Legal Practice

- The courts act chapter 11, part II, section 220;

- A recognized law degree

- Two years of legal practice either as an assistant advocate, deputy judge, public prosecutor

- Pass a test connected to a compulsory qualifying lawyer’s course.

 

• Requirements for practice as a lawyer in the Supreme Court:

- The courts Act chapter 11, part II, section 221

- The general requirements, c.f. section 220

- 1 year practice as a lawyer

- Demonstrated the capability of conducting cases in front of the Supreme Court through passing on the test case in the Supreme Court.

 

Disciplinary reactions

- The Supervisory Council for Legal Practice for members of the Norwegian Bar Association,

- The Disciplinary Committee; handles complaints directed at lawyers who are not members of the Norwegian Bar Association, and deals with appeals on decisions from the Supervisory Committee

- Loss of authorization: Lawyers Licensing Committee, c.f. Courts Act chapter 11, part II, section 230

Sweden

Authorization

Requirements for practice as a lawyer:

§     Under Swedish law, only members of the Swedish Bar Association may use the professional title “advokat”.

§     Among the requirements for membership are:

§     Domicile in Sweden or another country within the European Union, the European Economic Area, or Switzerland,

§     Passed proficiency examination required for competency to a judge’s office – i.e. in Sweden, a jur. kand. (LL.B.) degree,

§     Minimum five years’ experience of practicing law, the applicant offering legal services to the public at the time of application,

§     Passed the Swedish Bar Examination after completing the mandatory training courses,

§     Reputation for integrity, and also otherwise considered suitable for the legal profession.

Disciplinary reactions

Loss of authorization: all members of the Swedish Bar Association must follow the professional and ethical standards of the legal profession. The Bar Association’s Code of Conduct is a codification of these standards. If someone is dissatisfied with a member, he or she may write to the Bar Association to make a complaint. Complaints against members are dealt with by the Bar Association’s Disciplinary Committee. The sanctions are reprimand, warning (which may be combined with a fine) and disbarment. The Disciplinary Committee may also confine itself to issuing a statement.

Iceland

Education, training and career: To become a lawyer in Iceland you must complete 5 years in University. To represent a client in court you must finish a special course.

Authorization: Requirements for practice as a lawyer

Act No. 77/1998 on professional lawyers - Licenses for legal practice.

Disciplinary reactions - Loss of authorization

Article 13.

[The Icelandic Bar Association shall control that a lawyer fulfils at all times the conditions provided for in Articles 6, 9 and 12 for holding a lawyer’s licence.

A lawyer has the duty of providing to the Icelandic Bar Association, or an authorised public accountant whom the Association may appoint for the purpose, all and any information necessary for assessing whether the lawyer fulfils the conditions provided for in Article 12.  The persons exercising such control shall keep confidential any matters discovered, that do not concern the purpose of the control. If the board of the Association has decided to entrust the Association’s auditor with an examination of a lawyer’s financial management, and the examination has been of extensive scope and has revealed misconduct on the part of the lawyer in the course of his functions, the Association may demand payment of the costs of the examination from the lawyer.

If control exercised in accordance with the first paragraph reveals that a lawyer does not fulfil the conditions referred to there, the Icelandic Bar Association shall propose to the Minister of Justice that his licence be revoked. The Minister shall take a reasoned stand with respect to such proposal within two months from receiving it.

If a lawyer to whom the provisions of Article 23 apply has not, prior to the first day of October each year, provided the board of the Icelandic bar Association with a statement of trust account balance as provided for in Article 23, the second paragraph, or is such statement has not proved satisfactory, the Icelandic Bar Association shall propose to the Minister of Justice that his licence be revoked. The Minister shall take a reasoned stand with respect to such proposal within two months from receiving it.]

Article 14.

[If the Resolution Committee of Professional Lawyers receives a complaint against a lawyer, and the Committee is assured that the lawyer has seriously or repeatedly violated the rules referred to in Article 5, the second paragraph, to the extent of rendering further licensed legal practice unacceptable, the Committee may, in a reasoned opinion sent the Minister of Justice, propose a suspension of his licence, or, a revocation of the licence in serious cases. The Committee may propose suspension or revocation even if the lawyer has returned his licence to the Ministry of Justice and the licence has been declared out of effect as provided for in Article 15, the second paragraph.

The Minister shall take a stand with respect to a proposal made in accordance with the first paragraph within two months from receiving it.]¹⁾

Denmark

Education, training and career

Authorization

Disciplinary reactions

Finland

Education, training and career

• Five-year education to qualify as a lawyer (Master of Laws – oikeustieteen maisteri)
• Since the institution of the Bologna Process in 2005, all students of law must first obtain a three-year Bachelor of Laws degree (oikeusnotaari)
• Students have to pass an entrance examination to gain admission to one of the three Finnish law faculties
• A Master of Laws degree is required to apply for a court trainee period, which lasts for 12 months
• Trainees work in district courts (tingsrätt, käräjäoikeus)
• The number of trainees is limited, and each district court decides on which applicants are accepted and what their number will be
• Trainees’ competence is linked to the duration of their service in the bench; eg. after four months in the office, a trainee may preside at a trial
• A committee has proposed diversification of lawyers’ training on the bench:

After six months in the district court, half of the trainees would transfer either to an administrative court (hallinto-oikeus) or to a court of appeal (hovrätt, hovioikeus)

• Lawyers trained on the bench are awarded a honorary title (varatuomari)
• Not strictly a necessary qualification for any position, but is an essential merit for any lawyer working either as an advocate or a judge and for many other legal professionals
• Ca. half of graduates go trough training on the bench

Authorization (Requirements for practice as a lawyer)

• A Master’s degree in law is the academic requirement for

-Judiciary

-Membership of the Bar Association

-Acting as an attorney in general courts (not in administrative courts)

-Acting as a private or public legal aid attorney

Advocacy

• Only a qualified lawyer may act as an attorney in general courts
• Only members of the Finnish Bar Association may use the professional title of asianajaja or advokat.
• No direct regulation on provision of legal services but consumer protection law restricts marketing and supply of legal services (no special legislation)

Current developments in advocacy

• A committee has proposed setting up of a license system for trial lawyers that wish to appear at general courts.
• Only an advocate, a public legal aid attorney or a licensed trial lawyer could appear as counsel
• Licensed trial lawyers would be required to adhere to the code of conduct and would be under the supervision of the Supervisory Board of the Bar Association and the Chancellor of Justice

Disciplinary reactions (Loss of authorization)

• Members of the Bar Association and legal aid attorneys are required by law to observe the rules of proper professional conduct for advocates
• The Bar Association maintains a Supervisory Board that hears complaints on the conduct of advocates and public legal aid attorneys

The Supervisory Board

• An advocate will be expelled from the Bar if they act dishonestly or otherwise harm another in performing their duties
• If mitigating circumstances exist: a fine or admonition
• Other breaches of proper code of conduct are punishable by a fine or admonition

Other disciplinary measures

• The Chancellor of Justice supervises that the actions of advocates or public legal aid attorneys comply with the requirements of the code of ethics of the Bar

-Cannot interfere with the actual work of an advocate or impose any disciplinary sanction

-May initiate disciplinary action in the Supervisory Board against an advocate on the basis of a complaint or on his own initiative

-Reviews all decisions by the Board of the Bar Association concerning the supervision of members

• If an attorney proves to be dishonest or inept in a singular case, a court may forbid him from acting as an attorney in that particular case.
• If there is reason to do so, the court may also forbid him from acting as an attorney in that court for up to three years.

b.         Organization

Norway

Number of lawyers:

The Bar Association

Sweden

Number of lawyer: The Swedish Bar Association has 4 400 members

Iceland

Number of lawyers: 728 lawyers have the right to represent their clients in courts.

The Bar Association

Denmark

Number of lawyers:

Finland

Number of lawyers:

• The Association of Finnish Lawyers (a trade union, in Finnish Lakimiesliitto) has 11.380 regular members and 3.670 student members
• The Finnish Bar Association has approximately 1,850 members
• The total number of lawyers in Finland is about 18 000

The Bar Association:

Only lawyers who have been accepted as members of the Finnish Bar Association are allowed to use the professional title of asianajaja or advokat.

Eligibility criteria of the Bar Association include:

-Passed the academic requirements stipulated in Finland for judicial office

-Four years of work experience in legal professions, two of which in advocacy tasks

-Must pass a special examination covering the basic elements of the legal profession and professional ethics.

Appendix II

Appendix III

ALLOCATION OF RESOURCES

in Iceland, Finland, Norway and Sweden

2.             Budget for the courts

2.1.          Does each court have its own budget?

Iceland

Each district court prepares its own budget, which is dispatched to the Judicial Council and upon which the Judicial Council bases the total budget of the district courts. The appropriations to the courts are then decided in the national budget as one total amount. According to Article 14, paragraph 1, of Act no. 15/1998 on the Judiciary, the role of the Judicial Council includes responsibility for the finances of the district courts, presenting proposals to the minister of justice on the joint appropriations to them, as well as on the division of the funds allocated them in one sum according to the national budget. According to Article 5, paragraph 2, Act no. 15/1998 on the Judiciary, the president of the Supreme Court of Iceland is the chief director of the Supreme Court and is responsible for its operation and financial management.

Finland

Yes

Norway

Yes

Sweden

Yes

2.2.         What does the budget include?

Iceland

The district courts' budget includes the salaries of the judges and the other personnel, computer software, hardware and other equipment, the retraining of staff and the operating costs, for example, housing costs.

Finland

Judges salaries   YES

Other salaries       YES

Computerization (equipment, investment, maintenance)          NO

Court buildings (maintenance, operation cost)

Maintenance like cleaning, security etc is included. In addition to that utilities (electricity, etc) are included into the budget of the court, as well as all kind of services like telephone, mail etc and stationery (office supplies). However, maintenance of the building is responsibility of the owner of the building and is included in the rent.

Training and education      YES and NO.

It is the MoJ that mainly is responsible for arranging the training and stands for the costs on that part. However, the Courts are responsible for the travel costs of the participants in the training arranged by the MoJ. Secondly, the courts may buy training services into some extent within the limits of their own budge

Norway

Judges salaries   Yes

Other salaries       Yes 

Computerization (equipment, investment, maintenance)          Yes[2]

Court buildings (maintenance, operation costs, mainly rent)     Yes

Training and education:     partly 

Other expenses – please indicate

Most of the budget funds are given to the courts so that they should be able to cover the running costs themselves. It's basically up to the individual court to decide how they choose to use the budget. Project funds are mainly controlled by the National Courts Administration (NCA).

Sweden

Judges salaries   YES

Other salaries                       YES

Computerization (equipment, investment, maintenance)          NO 

Court buildings (maintenance, operation cost)                             NO

Training and education      Partly 

Other expenses – please indicate Spending on office supplies are included in the budget.

Any comments:

The courts doesn’t receive budget for specific purposes (budget is based on incoming cases, see question 2.3). It is up to the courts to decide how they want to use their funds as they are their own authorities.

Most of the costs for training/education are financed by central funds

2.3.         Describe how you use the case management system in the process of allocation and resources (What are the essentials in the model? Does efficiency play a role in the model? What is the procedure if you want to change the model?)

Iceland

                When assessing the financial needs of any district court, the focus is on its budget. This includes a focus on the number of judges and other personnel, housing costs and then also the number of cases, i.e. first and foremost for assessing the human resources needs of any of the courts. Case efficiency has not been considered in the allocation of funds. The most important information from the case management register in this respect is the statistics about the number of cases.

Finland

The Finnish district courts have separate case management systems for the time being, one for civil and another one for criminal cases. The district courts have one system for criminal and another one for civil cases. The administrative courts have just one system of their own. These cases measure more or less only qualitative aspects of cases.

However, the latest plans for development deal with the qualitative aspects of the data. There are plans to develop the systems in a way that allows comparison of work load between the courts. That would require amendments to the systems in order to indicate for example weigh of cases. There is a working group report on this. This would require amendments to the systems in order to indicate for example weight of cases.

Norway

Resources are not allocated directly on basis of the information in the case management system. To a large extent, the budget allocation is similar to previous years.

However, The National Court Administration has a model that can estimate the number of staff (judges and clerks) needed in each District Court and each Appeal Court. Results frommodel calculation constitute part of the decision basis whenever changes in the number of staff are considered, for instance in the budget process if a court applies for more resources.

The model is based on regression analysis, and shows the relations between the number of cases of various types, significant characteristics of the cases of each type (number of witnesses, use of interpreters, use of experts etc.) and the amount of time spent by judges and clerks to handle the cases. In the model each type of case is given a particular weight according to a stipulated number of witnesses, experts et cetera. The stipulation is based on a time study done in 2006.The input data for making the model calculations are based on last years statistics from the court, collected from the case management system.

To illustrate the model:

X District Court reports a need for an increase in the number of judges and court staff. The National Courts Administration will assess the request by holding last year’s production of each type of cases in X District Court together with the fixed weight of each case for that particular court. The model will then automatically suggest the needed number of judges and court staff.

Sweden

Basis for each courts budget is an average of incoming cases for the different case categories during the past two years. In the district courts and the county administrative courts different case categories are valued different. Weighting factors are based on how much time the employees put in each case category. For this the courts use a time reporting system. All courts working hours are summarized per case category. From this each case category get a proportion (weight) of the total time spent. In the courts of appeal and the administrative courts of appeal all case categories are valued the same.  Further components in the resource allocation model concerns criminal cases which include detained persons or minor offenders (priority cases). The budget amount per case for these cases are 1,5 times higher than other criminal cases. The courts are also compensated for criminal cases and civil cases were the main hearing exceeds twelve hours. The budget amount per case for these criminal cases is eight times higher than other criminal cases and for these civil cases is the budget amount per case 16 times higher than other civil cases.

Efficiency don’t play a direct/automatic role in the resource allocation model as the basis for the model is incoming cases, not settled cases or time spent on a case (only if they exceed twelve hours).

2.4.          If you do not use the case management system, how do you decide the allocation of resources?

Iceland             

See reply to question 2.3.

Finland

The allocation of resources is, of course, based on quantity of cases but not only on that. The Department of Judicial Administration together with the courts has established indicators to assess the operational performance of the courts. Their performance is assessed by indicators that measure the productivity, economy etc. In the assessment process different categories of cases are given a weigh of their own. Through this kind of estimation it is possible find out what is resource needed to take care of each category of cases.

There is also another system (Tarmo) that is being used how much resources was used on different kind of cases. The staff of the courts including judges are supposed to follow and report use of their work (time).  The reporting takes place twice a year during a period of two weeks, one in spring another one in fall. This data is gathered through a computer based system and it gives additional information about resources needed for certain kind of cases.

Norway

See section 2.3.

Sweden

2.5.          Do you have a reserve fund, so that courts in need have the possibility to apply for additional resources? What is the procedure if a court wants to apply for additional resources?

Iceland

There is no such reserve fund. The role of the Judicial Council includes the allocation of resources to the district courts and if needed, the Council will transfer funds between the courts. The Supreme Court, however, turns directly to the Ministry of Justice and Human Affairs.

Finland

Yes. The MoJ does not allocate all the funds but leaves part of that in reserve (2-6 %).

The courts may during the year apply for additional resources and it will be allocated in case it is necessary.

Norway

Yes. Courts can apply for further resources to the National Courts Administration. There are standard procedures and forms for this. Situations where courts do apply for further resources are for example an acute need of additional space or acute building maintenance needs.

Sweden

Yes, there is a sort of reserve fund. Courts can apply for further resources to the National Courts Administration. There are standard procedures and forms for this. Situations when a court can apply for further resources is for example to reduce pending cases, for complex and time consuming cases, when people retiring (to employ a person before the retiring person leave the court) etc.

2.6.          What happens if a court exceeds the annual budget?

Iceland

See reply to question 2.5.

Finland

The court will asked for reasons and additional / extra funds will be allocated.

Norway

The courts can exceed/fall short of budget between +/- 2, 5 %. If they exceed the budget with more than 2, 5 %, National Courts Administration will review the court’s economic situation and consider a reduction of the budget for the next year.

Sweden

The courts can exceed/fall short of budget between +/- 1,5 percent. If they exceed the budget more then 1,5 % they have to return the money. If they fall short of more then -1,5 % they have to bring the deficit in to next year.

2.7.          Is each court obligated to send a follow-up on the budget to the court administration/Ministry of Justice during the year? If yes, how many times a year?

Iceland

The Judicial Council monitors that the district courts remain within their budgetary appropriations and the council obtains information from the courts for this purpose four times per year.

Finland

Not really as the MoJ is able to follow up spending even on daily basis if it wishes to do so.

Norway

The courts are obliged to produce an annual report at the end of the year.

Sweden

Quarterly, four times per year.

2.8.          If each court does not have its own budget, please briefly describe the process of allocation of resources.

Iceland

As stated earlier the allocation of resources to the district courts is decided in the national budget. This involves one amount which the Judicial Council then allocates to the individual district courts. The appropriations to the Supreme Court of Iceland are also determined in the National Budget.

Finland

Norway

Sweden

2.9.          What are the current challenges in the allocation process?

Iceland

Due to the greatly increased number of cases with the district courts in the southern/south-western parts of Iceland, the main focus of late has been on measuring the workload of every district judge in order to seek ways to balance such workload.

Finland

·               A budget year is calendar year, which is a short period of time to set targets for a court. However, we are tight to the budget and it is difficult to negotiate/agree on longer term objectives.

·                The case managements need to be developed to improve the follow up, allocation of resources etc.

·                As Finland has only 27 district courts it makes administration easier.

Norway

The main challenge is currently tight financial resources. Despite an increase in the number of cases, the board of the National Courts Administration found it necessary this year to adopt a temporarily cease in new employments, due to the actual budgetary situation.

There are also challenges related to the reallocation of resources between courts. A reduction of the number of judges in one court, is for example depending of turnover (see section 3.2)

Sweden

The main challenge is to evaluate if the model allocate the resources in accordance to the differences in workload between different courts. On one hand the model should reflect the courts real situation as good as possible, one other hand the model should be transparent, simple and easy to understand. A main issue is that different cases in the same case category can differ a lot and need different resources. How can we measure the workload for different cases in a better way? A challenge is also to get high quality in the time reporting. The time reporting is the base for weighting the case categories. Another challenge is to develop an IT-system for the resource allocation model. Today excel is used for the budget calculations.

3.             Efficiency, etc.

3.1.          Do you measure productivity/efficiency? If yes, please describe the method briefly.

Iceland

The district courts have set a goal in the guideline rules regarding case-handling efficiency; cf. the Judicial Council's current Notification no. 4/2009. Each chief judge of the district courts regularly measures case efficiency. A part of the supervisory role of the Judicial Council is to monitor that cases are not unduly delayed. In such instances, however, the Judicial Council requests explanations and, as appropriate, refers cases to the Committee on Judicial Functions; cf. Article 23 of Act no. 15/1998 on the Judiciary.

Finland

The main performance indicators that are employed to assess court management performance?

1)            Productivity of the courts:

Productivity means either the number of judicial decisions per judge or the number of judgments made by the court divided by the number of personnel working in that court.

2)            Economy or operational efficiency of the courts:

This key figure is arrived at by dividing the expended appropriation by the number of judicial decisions the court has made.

3)            The effectiveness of the court system:

The first two indicators are based primarily on mathematical calculations. Effectiveness as a concept is considerably more difficult to define and quantify. It could mean the qualitative criteria governing the operations of the court. In Finland one measure of the effectiveness of the court is the length of court proceedings.

Norway

The focus is on case processing time. For each court and each type of court, the average time to settle different types of cases is reviewed according to the targets established by the Parliament. These targets, 6 months case processing time in civil cases, three months in criminal cases, and one month in criminal cases with a singular judge, apply to each court. In addition to this, also the number of pending cases is followed up.

It is worth mentioning that the chief judge in the first and second instance courts can monitor the case processing time in each case through the case management system. The case processing time in each case is marked with a red line, showing the time spent.

Sweden

The following measures are calculated for each court and for each type of court.

Cost per case for different case categories

Number of settled cases per employee and per judge

Number of pending cases in relation to incoming cases

Average time to settle different type of cases

We analyses differences between different courts and differences over time.

3.2.          Are the numbers of judges at each court fixed or is it possible to increase or decrease the number of judges at each court, for example, based on the number of incoming or pending cases?

Iceland

The number of district court and Supreme Court judges is determined in Act no. 15/1998 on the Judiciary. According to the Act's Article 14, paragraph 2, the roles of the Judicial Council includes determining the number of judges and other personnel at every district court, as well as setting general rules on the transfer of judges between the courts. The Act's Article 15, paragraph 1, stipulates that the Judicial Council shall determine to what district court a judge shall be permanently assigned. It is permissible, however, to determine that up to three district court judges shall not have permanent seats in a court; instead that they shall work at any district court depending on cases assigned to them at any such court on grounds of the general authorization by the Judicial Council. The Judicial Council shall determine work venue of such judges.

Finland

In Finland it is possible to in-/decrease the number of judges in various courts. However, a permanent judgeship (position) must be established through a state budget. In this way it is the parliament who has the last word. It is the duty of the MoJ then allocate the positions between the courts.

Norway

It is possible to adjust the number of judges if that is considered needed. Due to the fact that the appointment of permanent judges is without time limits, the only way to decrease the number of judges is not to replace a judge retiring or leaving the court.

To some extent the Nation Court Administration uses temporarily appointed judges and deputy judges to adjust the number of judges to the needs at any given time. Currently the

deputy judges make up ca. 31% of the total judicatory capacity in the first instance courts.

Sweden

It is possible to increase the number of judges. The only way to decrease the number of judges is to not replace a judge retiring or leaving the court, as they have a “life time” contract.

3.3.          If is possible to increase or decrease the number of judges at each court, who will decide an increase in the number of judges in a court?

Iceland

See reply to question 3.2.

Finland

The MoJ, Department of Judicial Administration

Norway

If a court has a need for an increased number of judges they apply to the National Court Administration. The National Court Administration suggests to the government whether a further judge is needed or not. The post is announced and you can apply. “Innstillingsrådet” (the Judicial Appointments Board, a special board responsible for recruitment of judges) is responsible for the recruitment process. Based on interviews and references they propose candidates to the Ministry of Justice, who in turn proposes a candidate for the Government (King in Council). The King in Council finally appoints the judge.

Please bear in mind the use of temporarily appointed judges, c.f. section 3.2 above. Administration, the Judicial Appointments Board or the King in Council may Depending on the duration of the temporary appointment, the chief judge, National Courts appoint temporary judges.

Sweden

If a court has a need for further judge they apply to the National Court Administration. The National Court Administration suggests to the government whether a further judge is needed or not. The post is announced and you can apply. “Domarnämnden” (a special board responsible for recruitment of judges) is responsible for the recruitment process and ranking the applicants. The government finally appoints the judge.

Appendix IV

CEPEJ STATISTICS ON LEGAL AID IN SCANDINAVIA. HOW RELIABLE IS IT?

Professor Jon T. Johnsen, Faculty of Law University of Oslo. Presentation May 20, 2010

1              INTRODUCTION. LEGAL AID AND ACCESS TO JUSTICE.

I would like to discuss with you the CEPE statistics on legal aid in “European judicial systems. Edition 2008 - Efficiency and quality of justice”  and how it works in the Nordic countries. 

What is my background for raising this issue with you?

                - First I have been involved in legal aid research since the start of my career. It is an issue that has not stopped fascinating me over the years, although set backs have been frequent from a reformist point of view.

                - Second, I have been involved with CEPE since 2003 and spent my first two years in the expert committee that produced the first and much smaller version of the statistics on the European judicial systems. I experienced the work both as a great learning experience for an international comparativist and also immensely complicated, due to the great variations of the judicial systems in Europe. Developing a methodology  and statistical categories that could work across Europe’s close to fifty jurisdictions meant a challenge that I sometimes thought impossible to overcome.

                - Thirdly, I  increasingly have become aware of the importance of the doctrine of access to justice in human rights and its meaning to the development of legal aid schemes. In fact, an important motivation for me to carry on as an expert member of CEPE, was the promise  in the Medium-Term Activity Programme from 2005 for the period until 2009 on Legal aid that:

                Means: a working group of the CEPEJ could analyse the situation of legal aid in the member states and the existing solutions, giving priority to a comparative analysis ... in order to recommend specific measures to member states.”

                - Fourth, in 2008 the Norwegian Ministry of Justice commissioned me to do a comparative study of legal aid in Norway and Finland, with focus on features in the Finnish system that could serve as models for Norwegian reforms. My report is publishes as an appendix to the Governmental Policy Report to Parliament No 26 (2008-2009) On governmental legal aid and is titled “Might Norway learn from Finnish legal aid?” (”Hva kan vi lære av finsk rettshjelp? En sammenlikning av rettshjelpordningene I Norge og Finland.” Vedlegg 1 Stortingsmelding 26 (2008-2009) Om offentleg rettshjelp. Rett til Rett. (“Might Norway learn from Finnish legal aid?” Appendix 1 to Parliamentary Policy Report No 26 (2008-2009) On governmental legal aid)) It became an extensive study in which I attempted to analyse all major elements in the two legal aid schemes.

My study builds on two national research projects. The Norwegian research was conducted by Statskonsult.[3]The Finish study was carried out by the National Research Institute of Legal Policy (OPTULA).[4]Additional materials have been used when substantiated. In 2003 professor Francis Regan and I did a comprehensive study of Finnish legal aid, which is used in the comparison.[5]Both the Norwegian and the Finnish Ministry of Justice (FIMOJ) have supported the project and, upon request, they have provided the research project with all data and materials that they possess. In my analysis I used data from 2006 like the European judicial systems.  I also used the legal aid statistics from the CEPE study in my analysis.

When Audun Berg asked me to speak at this meeting and we considered a suitable theme for my presentation, it struck me that I had a golden opportunity to confront the CEPE statistics on legal aid in Scandinavia with the findings of my comparative study and see to what extent the results correspond, and to what extent interpretations of the CEPE statistics that seemed viable in the first place would still be so in a more thorough analysis.   

My presentation falls into five distinct parts. As you will see from my outline, the starting point is the human rights requirements on governments to establish legal aid schemes. Human rights are the foundation also for the establishment of CEPEJ and its work with the statistics on European judicial systems.

First I will summarize the main human rights principles on legal aid. I will stick to the ECHR which I label “the European Convention” and the case law of the ECtHR which I label  “the European Court.” I will stick to article 6 in ECHR. The text is appended to the Outline of my presentation. Then I present the CEPE statistics on legal aid for the Nordic countries with some comments. Thirdly I will discuss the CEPEJ statistics in light of the human rights requirements that I have outlined and compare what can read from them with my comparative study of Finland and Norway and – if time permits – I will ask you whether the findings bear on the other Nordic countries and on other European countries as well. Next, I leave the human rights requirements and ask how the overall picture of the legal aid schemes that can be drawn from the CEPEJ statistics relate to the findings of the comparative study of the coverage produced by the schemes.

My last main issue addresses the completeness of the statistics. Do they cover all major elements of the legal aid systems or are important parts let out?

2              HUMAN RIGHTS AND LEGAL AID

2.1          Access to justice: The human rights approach to legal aid

The human rights approach to legal aid is closely connected to access to justice.  In international law the issue first arose because of aliens who suffered infringements in another country rather than in their country of citizenship.[6] Redress for war crimes has been another field of international law that saw early development of rules on access to justice.[7]Rules on access to justice have spread globally as part of human rights and are now part of virtually all human rights treaties since the 1948 UN Universal Declaration on Human Rights article 10.[8]

Human rights therefore incorporate legal aid as part of a broader rule of law and access to justice obligation for governments.

Human rights instruments form complex system. Many international organizations both inside and outside the UN have developed provisions on access to justice. The wording might differ to some extent, but the main understanding is  similar.  A resent formulation that captures the meaning well is found in the Charter of Fundamental Rights of the European Union.[9]

Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. 

Although limited to the “law of the Union” I think this provision neatly expresses the main ideas about access to justice embodied in human rights. We should emphasize the word effective in the title. Access to justice must work in practice for everyone. If legal aid is necessary for people without sufficient means for proper access, it is a duty for the states to provide it.

2.2          The Legal Aid Doctrine of the ECtHR

2.2.1       Article 6

Article 6 (1) of the Convention entitles everyone to a fair hearing ‘in the determination of his civil rights or obligations or of any criminal charges against him’. ECHR Article 6 (3) regarding criminal cases reads:

‘Everyone is entitled to ... defend himself in person or through legal assistance of his own choosing, or if he has not a sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’.

The wording appears discretionary and leaves many issues open to interpretation. Article 6 (3) labels its entitlements as ‘minimum rights’ in criminal cases. They must be understood as specifications of the general principle of the right to a fair trial in Article 6 (1). Since Article 6 (1) covers criminal charges as well as civil rights and obligations, the ‘interests of justice’-standard is not limited to criminal cases. States must also provide legal aid in civil cases when it is deemed necessary to make the right to a fair trial effective. Since they are referred to as ’minimum rights’, Article 6 (1) might be used to expand the rights in Article 6 (3) – including free legal assistance – beyond their wording.

2.2.2       Case law

Few cases on the entitlement to legal aid have been brought before the ECtHR. Still, some principled decisions exist. I will comment on three of them:

Airy v Ireland[10] from 1979 contains important specifications on the right to legal aid. The judgment relates to civil legal aid, but bears on criminal aid as well. Airy wanted a judicial separation from her husband, only obtainable at the Irish High Court. Airy was a low-wage earner and a homemaker with four children and at times on unemployment benefits. She could not afford to pay for legal representation and legal aid was not available. ECtHR accepted that self-representation in the High Court would not be effective, due to the character of the substantive matter, the complexity of the proceedings and Airy’s personal capacity. None of the petitioners in the 255 judicial separation proceedings initiated in Ireland in the period 1972-1976 had been unrepresented (§ 20-28).

The decision set the precedent which obliges governments to provide sufficient funding for legal aid according to the following discretionary criteria:

-     the importance of the case to the individual (applicant);

-     the complexity of the case;

-     the individual’s capacity to represent himself;

-     the costs and the individual’s capacity to carry them.

ECtHR applies the criteria to the concrete circumstances of the complaint. Access to courts is meant to be effective for all citizens, independent of their economic situation. A violation will be established if the costs act as an actual barrier to access to court.

The judgments contain important requirements to national legal aid schemes. Generally, states cannot set priorities in a way that conflicts with the individual rights embodied in Article 6. All states have a responsibility to organize their judicial systems in a manner that corresponds to human rights. The wording does not allow for any ‘margin of appreciation’ or leeway for the member states if they should want to deviate from the principles laid down by the Court by adopting less comprehensive schemes.

Although the principles laid down in Airy appear discretionary and flexible, they have important consequences for the shaping of legal aid schemes. I will discuss three issues about coverage, namely:

- limitations on the scope of legal problems covered,

- limitations on persons

- economic limits or limitations on persons covered, contributions and coverage of costs to the counterpart

- legal advice outside the courts.

The principles of Airy has been confirmed in several judgements. We shall look closer into two of them.

2.2.3       Problem criteria

Several jurisdictions limit the scope of their schemes either by excluding certain types of legal problems, or by restraining them to selected categories. According to article 6 legal aid must be provided “when the interests of justice so require.” We might therefore ask if this minimum requirement for is compatible with restrictions on the types of problems that are covered.

The Airy criteria of the ECtHR do not distinguish between different types of legal claims. The main criterion is the problem’s importance to the individual, not the legal category. The ECtHR decision in Steel and Morris v the United Kingdom from 2005[11] develops on the principles of Airy:

Steel – a part-time bar worker – and Morris – a postal worker – had joined London Greenpeace, a small group unconnected with Greenpeace International, promoting environmental issues. The group published a leaflet accusing McDonald’s of contributing to ’the starvation of the third world’ by ‘hungering’ for profit, economic imperialism, gross misuse of resources, destroying rainforests, producing unhealthy food using a lot of chemicals, exploiting children as consumers, inhuman slaughtering of animals used in the hamburger production and exploiting young unskilled workers as staff (§ 12). McDonald’s sued the applicants for slander.

The proceedings became one of the largest in English history with 313 court days at the first instance and 23 for the appeal hearings, involving 40,000 pages of documentary evidence and 130 oral witnesses, several of them expert witnesses giving evidence on a range of scientific questions. Legal arguments took some 100 days in court. The judgments alone filled more than 1, 100 pages (§ 65).

Although the applicants fulfilled the means test, defamation proceedings were outside the legal aid scheme in England. They were mainly left to represent themselves, while McDonald’s used a team of experienced lawyers, and were estimated to have spent more than £ 10 million in legal expenses (§ 58, 68). Although the applicants had been given considerable latitude by the presiding judge, and also had conducted their case ’forcefully and with persistence’ (§ 68), ECtHR found that in a matter of such complexity, neither the sporadic help from volunteer lawyers nor the extensive assistance from the judge, could form ’any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel ...’. The disparity between the levels of representation ’was of such a degree that it could not have failed ... to have given rise to unfairness, despite the best efforts of the judges at first instance and on appeal’ (§ 69). The Court concluded that the denial of legal aid was a violation of ECHR Article 6 (1) (§ 72).

The UK argued in vain that

 

                “states did not have unlimited resources to fund legal aid systems, and imposing restrictions on eligibility for legal aid in certain types of low priority civil cases were therefore legitimate, if such restrictions were not arbitrary” (§ 53).

The Court accepted that a defamation action on average might be of lesser importance to vital personal interests than a claim for legal separation as in Airy. However, defamation issues had to be considered according to the Airy criteria too. The applicants did not start the defamation proceedings, but acted as defendants to protect their right to freedom of expression. The damage claim, which amounted to £ 100,000 at the outset, would have ruined both applicants. Schemes, that keep certain types of legal problems outside the legal aid coverage, might therefore conflict with Article 6. The court therefore found that UK had violated Steel and Morris’ entitlement to access to justice and legal aid. 

Legal aid schemes therefore cannot exempt selected categories of problems from legal aid independent of their importance to the individual.

               

Some additional issues arise:

Individual exemptions. Will an exemption clause suffice? Perhaps, since the evaluations of ECtHR focus on the individual circumstances. On the other hand, from a principled point of view, legal aid schemes should explicitly grant dispensation when “the interests of justice so require.” An individual should be certain that the government will honour its human rights requirement before a decision about going to go to court or not is made.  People should not be denied access to justice from fear that governments will not honour their human rights.

Administrative cases. According to its wording, Article 6 only covers ’civil rights and obligations’ and ’criminal charges’. It does not mention rights and duties regulated by administrative law. The Court, however, has gradually expanded the scope of Article 6. Today, its guaranties also apply to public law claims that are parallel to civil rights and obligations. Public approval of private land sale, public licensing of professionals or private business, expropriation and social security are all examples of issues that Article 6 protects.[12]It seems safe to infer that the ’interest of justice’ -standard must expand similarly and that the states’ obligation to provide sufficient legal aid must cover court proceedings in such administrative matters.

Criminal cases. ECtHR interprets the concepts of the convention autonomously – according to its own understanding – independent of the interpretation of punishment concepts in national law or doctrine. According to its case law, ’punishment’ and ’criminal’ charge have a more comprehensive meaning than in most national codes and doctrines (Engel and others v the Netherlands).[13]

 

2.2.4       Person criteria

Human rights standards. Human rights also bear on means testing. According to the Airy principles trial costs must be adjusted to the economic capacity of the individual. Legal service costs must not make legal assistance unavailable when it is deemed necessary in the interests of justice. Both economic limits and contributions must be in accordance with this principle.  Steel and Morris also develops on the principles of Airy with respect to trial costs:

For people of means the human rights consequence is that they might claim access to legal aid if trial costs become exorbitant. Human rights do not lay down a right to free trials, but costs must be adjusted to the economic capacity of the individual. This principle obviously bears upon the framing of both economic limits and contributions. Legal aid cannot be limited only to the poor. If costs become exorbitant, as in Steel and Morris, middle income and possibly high-income people might also be in need for public support.

A legal aid system that demands middle-income people to pay ordinary legal aid costs themselves, will not conflict with human rights if it protects against exorbitant costs. For the upper part of the income ladder, contributions might be steep. However, legal aid schemes that only cover costs up to a certain limit, or use percentage contributions without any ceiling, might conflict with article 6 if costs become high.

2.2.5. Legal aid outside trials

The “access to justice”- approach to legal aid focuses on access to courts and similar judicial institutions. The human rights obligations for governments to provide legal aid is therefore mainly limited to what is necessary for proper use of them.

To what extent do human rights oblige states to provide legal assistance outside the courts? Many disputes that end in court might well become resolved otherwise, had the parties had access to legal advice at an early stage, be it by resignation, settlement, conciliation, mediation, arbitration, etc.

We also know that an efficient use of the right to a fair trial presupposes that the decision whether to go to court or not, is an informed one. Most people need expert advice on whether to sue or dispute a claim in court. Especially among poor people, many are not capable even to decide properly whether to seek a lawyer‘s assistance about a legal dispute. A legal aid system that limits itself strictly to court assistance might be criticized for not helping its citizens sufficiently in finding out whether they need the protection provided by Article 6.

In Golder v UK,[14] a prisoner wanted legal advice on whether to sue a guard for defamation. The prison denied him to write to a lawyer. The majority of the ECtHR stated that the entitlement to a fair trial also comprehended a right to make an informed decision as to whether to use this entitlement or not. If a person lacks sufficient means for necessary counselling, legal aid might become a prerequisite for effective access to court, and I would expect the Court to make Article 6 (1) bear upon the issue.

However, since the main aim of Article 6 is to protect access to court for claims with merits and not the unfounded ones, governments’ obligation to provide access to pre-trial legal counselling might be shaped accordingly.

Most disputes end with solutions other than a court decision, and a decision to sue is often made late in the course of a dispute. Still, most solutions of legal disputes outside the courts are arrived at in the ‘shadow’ of the court outcome – especially if legal experts are involved. The court alternative appears as the ‘last resort’; the options for settlement or alternative dispute resolution (ADR) are compared to the court alternative. If poor people lack access to legal aid at the pre-trial stage, they might be without the opportunity to choose their strategy from an informed evaluation of the alternatives. Making legal aid available only after the court alternative has been chosen might pressure poor people to overuse of the courts.

States differ significantly in their handling of administrative cases. A complex issue is at what stage in the case handling process the principles of Article 6 come into play. If the state in question has an administrative complaint procedure before the claim can be brought before the courts, it might well happen that the interest of justice requires representation also at the administrative stage.[15]

Criminal cases are processed in a complex chain with many actors and stages, running from the discovery or reporting of the offence, until after the sentence is served and the case closed. While Article 6 requires that courts decide the guilt and punishment, the courts’ involvement in investigation and indictment differs significantly between the European jurisdictions. However, many decisions made by the police and prosecution or the accused before the case is sent to the court, might significantly impact on the final outcome. If access to legal counsel is important to the accused in such matters, we might argue that the principles for access to legal aid in Article 6 also apply to investigation and prosecution

2.2.6       Simplifications in Law and Procedures

When handling delays, 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 requirements’.[16]The statement gives member states freedom to choose different strategies to fulfil their obligations.

An alternative to providing legal aid is to reorganize the judicial system in a way that diminishes the need for legal assistance. Governments might simplify both substantive and adjective law, and educate citizens in legal matters or develop ‘do-it-yourself’-systems that might diminish the need for professional legal counselling and representation. Many matters might be resolved faster and more inexpensively through ADR. Such strategies might become alternatives for governments to improving their legal aid schemes. However, Article 6 might still demand the states to secure that all persons possess the opportunity to make an informed choice between ADR and courts.

 

3             STATISTICS IN “EUROPEAN JUDICIAL SYSTEMS” Edition 2008 (data 2006) CEPE ON THE NORDIC COUNTRIES.

Let us now look at the statistics of CEPE and see what they offer to elucidate the  legal aid schemes in Scandinavia, and to what extent they conform to the human rights standards that I have outlined.

3.1 The Nordic legal aid schemes in the CEPEJ statistics

The statistics are located on p18-53 together with other statistics on court budgets and prosecution. I will summarize the most important figures on the Nordic countries for you. We find them both in chapter 2 on Public Expenditures; courts, prosecution system and legal aid and in chapter 3 on Access to Justice

Table 1: Public budgets allocated to legal aid and public prosecution in 2006 in million euros.

Country/Ranking	Budget Mill euro
1 UK-England and Wales	3020,1
7 Norway	151,6
8 Sweden	150,8
14 Finland	55,1
23 Denmark*	2,9
30 Iceland	1,5
41 Malta	0,015

*”- in Denmark the total annual approved public budget allocated to legal aid only relates to civil cases;”

Five states did not give figures.

Source:  Table 2 Public budgets allocated to courts, legal aid and public prosecution in 2006 in million Euros. European judicial systems. Edition 2008 (data 2006) p 20-21

The differences in total budgets do not tell us much, since differences in population obviously will impact. Still it is worth noting that Norway has a budget of the same seize as Sweden although only half the population. Norway, Denmark and Finland have populations of approximately the same seize. Finland’s budget is a bit over a third of the Norwegian figure, while Denmark only has reported on civil cases. Still the figure seems low compared to the other Nordic countries.

The differences become clearer if look at the legal aid budgets per inhabitant: 

3.2.2 Table 2: Legal aid budget per inhabitant

Country/Ranking	Budget per inhabitant Euro
1 UK-England and Wales	56,2
4 Norway	32,4
6 Sweden	16,5
8 Finland	10,5
13 Iceland	5,0
27 Denmark*	0,5
41 Ukraine	0,01

 

*”- in Denmark the total annual approved public budget allocated to legal aid only relates to civil cases;”

Source: Figure 9: Annual public budget allocated to legal aid per inhabitant in 2006 in euro (p 34)

The differences are significant. Norway uses twice as much as Sweden per inhabitant, three times as much as Finland and six times as much as Iceland. Still the gap to UK at the top also is significant

If we compensate for differences in wealth, the differences diminish:

Table 3: Legal aid budget per 1 000 inhabitant as a percentage of per capita GDP in 2006

Country/Ranking	Percent of per capita GDP per 1 000 inhabitant
1 UK- Northern Ireland	240
5 Norway	60
6 Sweden	50
8 Finland	30
21 Iceland	10
27 Denmark*	1
41 Hungary	0,2

*”- in Denmark the total annual approved public budget allocated to legal aid only relates to civil cases;”

Source: Figure 10:  Annual public budget allocated to legal aid per inhabitant as a percentage of per capita GDP in 2006 (p 35)

Still Norway also spends the highest share per capita GDP.

Table 4: Types of legal aid granted in criminal and other than criminal cases

Country	Criminal cases			Other than criminal cases
	Representation in courts	Legal advice	Other	Representation in courts	Legal advice	Other
Denmark	Yes	Yes		Yes	Yes
Finland	Yes	Yes		Yes	Yes
Iceland		Yes		Yes	Yes
Norway	Yes	Yes		Yes	Yes
Sweden	Yes		Yes	Yes	Yes	Yes

Source: Table 5: Types of legal aid granted in criminal and other than criminal cases (p 49)

We might ask what the precise definitions of the three categories are. The report provides little guidance for understanding the difference between the categories.  Especially the distinction between “advice” and “other” seems unclear and might explain the differences in answers from the Nordic countries.

The last table I would like to comment is:

Table 5: Number of legal aid cases per 10 000 inhabitants and the average amount of legal aid spent per case in 2006, in euro

Country/Ranking	Criminal cases per 10 000	Civil cases per 10 000	Average spending per case in euro
1 UK-England and Wales	297	198	1 136
4 Finland	70	90	657
Sweden	na	7	na
Denmark	na	na	na
Iceland	na	na	na
Norway	na	na	na

Ranking based on the total number of legal aid grants.

Source: Table 6: Number of legal aid cases per 10 000 inhabitants and the average amount of legal aid spent per case in 2006, in euro (p 50-51)

Only 26 of 46 countries have provided one figure or more. Only 6 could provide all five figures that CEPEJ asked for. Finland is the only Nordic country that has provided the three figures selected in the table I show. Not even Finland could differentiate their legal aid budgets on criminal and civil legal aid. 

Sweden is astonishingly low on civil cases compared both to the Finnish figure and the money spent. We might have some doubt whether it is complete. 

Except for Finland, it is difficult to read from the CEPEJ statistics what the Nordic countries actually produce from the money they spend on legal aid.

3.2 Human rights requirements

What do the CEPEJ statistics tell about the compliance with the human rights requirements in the Nordic countries?

The Report generally restrains itself to descriptive comments, closely connected to the figures presented. That also goes for legal aid.  On p 16 it says:

                “The ultimate aim of the regular evaluation exercise is to develop recommendations and set up concrete tools to improve the quality, equity and efficiency of judicial systems. Some qualitative indications and main trends are highlighted in the report. They appear in conclusion  (chapter 16). However, it is only during a seconds phase that the CEPEJ will be able to make a more in-depth analysis form the whole of the data processed, addressed prospectively.”

In its comments to table 4 above on p 48 an exception is made for legal aid. Here the Report says that legal aid is an essential  guarantee for equal access to justice for all, as provided for by Article 6 (3) which relates to criminal law cases.  It goes on by stating that all member states comply (at least as far as the legal norms are concerned) with the minimum requirement of the ECHR, providing legal aid for representation in criminal law cases. In the majority of the member states, legal aid is provided for representation, legal advice or other forms of (legal) assistance. A number of countries grant legal aid for legal representation or legal advice in non-criminal cases too.

In its concluding remarks in chap 16 p 248, the positive interpretation of the statistics is repeated.

Looking at the quite complex criteria developed by the European court, I find it difficult to subscribe to this optimistic conclusion. Three points:

-       The table builds on Q 20 that only asks whether legal aid concerns criminal, civil and other matters. It does not ask how extensive the aid is – for example if all criminal cases are covered or only the most serious ones.

-       The report seems to presume that the minimum human rights requirements on legal aid schemes only relate to criminal legal aid, by saying that “The European trend seems to go beyond this requirement, in offering legal aid for non criminal cases too.” (p 248)  To me this statement does not fit well with the Airy criteria.

-       Statistics on what the schemes actually produce are very limited. For the Nordic countries, the statistics on the legal aid provided is grossly insufficient except for Finland.

I will now turn to the comparative study of Finland and Norway for further elucidation of the question of whether the Nordic legal aid schemes fulfil the human rights requirements as described previously.   I do not possess similar data for the other Nordic countries, but I invite the participants from Denmark, Iceland and Sweden to comment on my findings and to what extent they apply to their schemes.

4             FINDINGS IN THE COMPARATIVE STUDY OF NORWAY AND FINLAND. DO THE SCHEMES FULFIL THE DEMANDS OF HUMAN RIGHTS?

4.1Introduction

I am now going to evaluate  to what extent the legal aid systems in the two countries satisfy the human rights requirements. Let emphasis that what I will do is to estimate the potential for violations, not actual breaches. An ascertainment of actual violation presupposes a complaint, and most violations are for many reasons never forwarded to the ECtHR. Second, in handling complaints, the court thoroughly considers the concrete circumstances of the case. Violations are always found  in relation to individuals, systems are considered as such. But as mentioned, 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 requirements’.[17]

4.2 Problem criteria

Civil schemes. Finland uses general, discretionary criteria for identifying the problems that qualify for civil legal aid under the general schemes. The wording in the Finnish Legal Aid Act (FLAA) appears simple. The main rule is that all legal problems qualify when legal aid is necessary, unless certain specified exceptions apply (FLAA 1 §).

Norway uses an opposite technique and specifies in considerable detail the types of problems that qualify. The Norwegian Legal Aid Act (NLAA) makes a major distinction between litigation aid and aid for other legal problems. The list contains eleven major categories for legal assistance outside the courts and fifteen for legal representation before the courts and some other judicial bodies (NLAA §§ 11, 12, 17). Other categories of problems are excluded from legal aid unless the circumstances appear extraordinary. The provisions leave limited space for discretion and appear far more complex than the Finnish provisions.

The main provision for civil legal aid in Finland covers most legal problems that the target groups experience. Few problems are left outside if they are serious. The Norwegian LAA scheme only comprehends selected parts of the service needs.    

Defender schemes.[18] Both countries have separate defender schemes in their criminal procedure codes. In Norway a defender is obligatory and entitles the accused to legal aid whenever a criminal charge is decided in ordinary hearings. If simplified procedures apply due to confession of guilt, and the main issue is the sentencing, the maximum statutory penalty must be more than six months in prison for qualifying. 

In Finland an accused only qualifies for a defender if the minimum statutory penalty of the charge is four months or more. If the accused has confessed on the guilt issue, the court shall consider if he can defend himself also when the minimum penalty exceeds four months.[19]

However, the Finnish legal aid act supplements the scheme in the criminal procedure code, since it does not distinguish between legal aid before the courts and outside the courts. People that qualify according to the means test, will also receive criminal legal aid independent of the limitations in the defender scheme in the criminal procedure code. The legal aid act, however, does have an exception for “simple criminal offences” that only carry fines as the maximum penalty or when neither the penalty nor the complexity of the case justifies a defender. For people covered by the legal aid act their access to defenders seems comparable to Norway.  

Evaluation. Let us start with the civil schemes. I think the discretionary problem criteria in the Finnish scheme conform well to the Airy criteria. All types of problems that have a certain degree of seriousness will qualify. The Norwegian criteria seem far more problematic. According to Airy, the standard “when justice so require” demands an individual assessment of the circumstances in each case, also for low or non priority problem areas. It follows from Steel and Morris that states cannot totally exclude certain categories of problems like Norway does.

The Finnish criminal scheme in the criminal procedure code appears significantly more restrictive than its Norwegian counterpart.  I do not know the Finnish criminal code very well, but I would suspect that using minimum statutory punishment of four months as the main criterion, opens for quite severe punishment without a defender, which seems problematic according to the Airy criteria. However for the part of the population that qualify for legal aid, the coverage is significantly better. Still I think that also the exceptions in the Norwegian scheme might conflict with the Airy criteria under special circumstances.

From now on I only speak about the civil schemes, unless I explicitly state otherwise.

 

4.3 Person criteria

Eligibility limits. The economic limits are set to fixed sums in both countries which mean that their effects change with inflation and general shifts in the household economies unless they are updated. Both countries have been unwilling to use mechanical adjustment techniques – for example  similar to the adjustments systems for social insurance and pension schemes for securing that the poverty demand is kept reasonably stable. Adjustments then depend on policy considerations.

The limits are differentiated according to several criteria and therefore are complex. I cannot go into detail. In Finland the income limits relate to monthly (disposable) income, in Norway to the yearly income in the latest available tax return.  Since property is added to income, Finland only uses income limits, while Norway has separate limits for property.  Limits differentiate between free legal service, service with contributions and the upper limit for coverage under the schemes. 

Limits also differentiate between single persons and multi person households. The main reason is that people in multi person households on average have lower expenses per person for maintaining a comparable standard of living than singles. They pay less for housing, food, clothes, car, TV and other consumer utilities because they can share and utilize them more efficiently than singles. Therefore the economic limits for multi person households are significantly lower per person than the limits for persons living for themselves. 

Nominally, the Norwegian limits appear more liberal. It is, however, difficult to compare the limits in the two systems, both because they relate to different ways for calculating people’s values and because Finland looks at average monthly income while Norway considers the yearly taxable income. Rough estimates indicate that the Finnish limits are significantly more liberal for households with two or more persons, while they are approximately equal for singles.

Contributions. In both countries the limits for free legal services are approximately half the limits for legal services with a contribution. Finland charges a basic contribution of 560 from everyone above the contribution limit. In addition, progressive contributions from twenty to seventy-five percent of the costs apply, depending on the grantees income. Finland does not use maximum contributions. A cost of 6 250 euro will therefore result in a contribution of more than 4 625 for grantees with a disposable monthly income around 2 500 or close to two months’ income. 

At present, Norway does not use progressive contributions, but they will come into use when the 2009 reforms are implemented and the income limits significantly extended. Today, grantees above the contribution limit are only charged a basic contribution of 106,50 euro for non litigation aid and twenty-five percent of the costs for litigation aid.  The maximum litigation contribution is 531 euro independent of the actual costs. The Finnish contributions therefore are significantly larger than in Norway, especially for legal aid outside courts

These calculations are hypothetical. The actual differences also depend on the cost level.

Legal aid without means testing. Finland uses means testing almost without exceptions,[20] while Norway provides legal aid to everyone in a range of cases that primarily relates to serious interventions into people’s integrity, like criminal charges which carry a prison sentence, compensation to crime victims, sexual crimes, female circumcision, forced marriage, involuntary expulsion, public child custody, involuntary health treatment (drug abuse, mental illness, infectious diseases), conscious objectors, loss of legal competence. Neither do contributions apply. The policy justification for this exception is not poverty, but an idea that when subject to such serious involuntary intervention from public authorities that means loss of freedom, no one ought to pay for the legal costs inflicted by the measure. Similarly, when someone is victim of criminal acts that cause serious bodily

or mental harm or suffering, no one ought to pay the costs for using legal means for redress and rehabilitation.

Evaluation: For people of means the human rights consequence is – as spelled out in Steel and Morris – that they might claim access to legal aid if trial costs become exorbitant. Human rights do not lay down a right to free trials, but costs must be adjusted to the economic capacity of the individual. This principle obviously bears upon the framing of both economic limits and contributions. Legal aid cannot be limited only to the poor. If costs become exorbitant, as in Steel and Morris, middle income and possibly high-income people might also be in need for public support. Since both Norway and Finland have upper income limits for coverage, the schemes do not fully conform to the  human rights requirements.

A legal aid system that demands middle-income people to pay ordinary legal aid costs themselves, will not conflict with human rights if it protects against exorbitant costs. For the upper part of the income ladder, contributions therefore might be steep. However, legal aid schemes that only cover costs up to a certain limit, or use percentage contributions without any ceiling, might conflict with Article 6 if costs become high. The Finnish scheme does so today, and Norway will introduce a similar system when the 2009 reforms – that significantly enlarge the income limits – are implemented.

4.4 Costs to the counterpart

In  Scandinavia a party has to carry the litigation costs of the counterpart if he looses his case.  Both Finland and Norway except such costs from coverage by legal aid. It means that the cost risk if loosing usually must be carried fully by the applicants, independent of their economy. A Finnish study of legal aid reforms from 2002 showed that this risk kept people from using litigation aid.[21]

Evaluation.  When litigation costs to the counterpart are kept outside coverage, the economic consequences of going to court might become unpredictable. According to human rights the total costs for the individual should be reasonable. Access to justice should not expose people to cost risks that make it possible for wealthy and ruthless counterparts to intimidate poor litigants by threatening to ruin them.  Although England does not award costs to the counterpart, I think Steel and Morris bear on this issue as well. ECtHR pointed to the seize of the damage claim of £ 100 00 which would have ruined both Steel and Morris. Mc Donald’s trial costs were estimated to more than  £10 mill. It seems to me that keeping costs to the counterpart outside the scheme, amounts to a contradiction. If contributions are set from the costs it seems reasonable to expect the grantee to carry, additional costs is bound to cause unreasonable harm.

4.5 Legal aid outside trials

The problem criteria in the Finnish legal aid act apply to all sorts of legal problems whether it is civil or criminal or whether they relate to court cases or outside court problems. I therefore think the problem criteria in the Finnish scheme fulfil the human rights demands for pretrial legal aid.

As mentioned, Norway has separate problem criteria for civil legal aid in court cases and in other matters, but they mainly overlap. Problems that falls outside the defined categories are generally not covered, which might conflict with the human rights demands also at the pretrial stage.

The defender schemes in the criminal procedure codes in both countries mainly cover preparations and representation at the trial stage. Generally they do not include assistance when the case is under investigation by the police or consideration at the prosecution unless the suspect is in custody. Opposite to its Finnish counterpart, the Norwegian legal aid act does not supplement the defender scheme neither on the trial- nor on the pretrial stage. 

The deficits in the economic criteria also apply on the pretrial stage both in Finland and in Norway. It is, however, less probable that pretrial costs will become exorbitant. 

4.6 Some conclusions

To CEPEJ:

- The need for more extensive and accurate statistics

- A need for a more refined understanding of the human rights demands on legal aid.  (Example (CEPEJ F DEL’s commission of the Calvez study of the case law of the ECtHR on the length of proceedings.)

To the Nordic countries except Finland:

- The need for better statistics

To Finland and Norway:

                - Improvements in the legal framework for legal aid to make it better conform to the human rights                 demands.

5 THE COVERAGE ACTUALLY PRODUCED BY THE FINNISH AND NORWEGIAN SCHEMES 

According to the Report on European judicial systems, the minimum demands of human rights are just one aspect of legal aid that concerns CEPEJ. The CoE has adopted several resolutions and recommendations that encourage member states to develop liberal and generous schemes.

P 48 in the Report says it will group the different states in five clusters according to generosity, (but it does not seem to do so, since the following table (table 5 in the report, my table 4) is arranged alphabetically.) It seems that 10 states will rank in group 1, Sweden will rank in group 2 with the Netherlands, Norway, Finland and Denmark in group 3 with 21 other states and Iceland in group 4 with 6 states according to the answers in the table.

My next task is to use data from the comparative study to elucidate what the huge differences in budgets and spending between Norway and Finland shown in the CEPEJ statistics means for the coverage in practice. According to table 5 the Finnish schemes produce 70 criminal cases per 10 000 inhabitant and 90 civil cases. According to table 2, the Norwegian budget per inhabitant is three times as high as in Finland. Do the Norwegian schemes also produce three times as many cases per inhabitant?

My data also show that Norway’s over all expenditures on the LAA schemes are almost three times as high as in Finland (138 mill euro against 52 mill euro) which is quite similar to the CEPEJ findings in table one. But the variations in spending on the different types of legal aid are significant:

Norway spends approximately fifty percent more on legal advice outside courts, three times as much on criminal cases and six times as much on civil court cases as Finland. The difference is astonishingly large.

Court expenses do not show any similar difference. According to CEPEJ, Finland used 42 euro per inhabitant and Norway 37 euro.[22]

Coverage and major case categories.[23] Although far cheaper, the Finnish schemes produce the most extensive coverage.  Seventy persons per ten thousand inhabitant received help under the civil schemes in Norway against eighty-five persons per ten thousand inhabitants in Finland according to my estimates, which is fairly close to the CEPEJ figure of ninety in table 5. No figures are available on Norwegian the number of cases covered by the criminal legal aid scheme, and I therefore limit my discussion to civil legal aid. 

Finland provides legal aid in approximately fifty family cases per ten thousand inhabitants compared to approximately thirty-five cases per ten thousand inhabitants in Norway. The figures mean that family cases in a broad sense constitute the main part of the case load according to the legal aid acts in both countries. 

Finland provides legal aid for problems concerning other private law (with real property, housing, damages, and labour law as the main categories) in approximately twenty cases per ten thousand inhabitants compared to ten cases per ten thousand inhabitants in Norway.

Welfare law (social help, social security, pensions, health service, etc.) amount to approximately five cases per ten thousand in both countries. Norway also funds a significant number of cases (five per ten thousand) about involuntary psychiatric treatment.

Finland delivers legal aid in four times as many debt cases per ten thousand inhabitant as Norway, although the overall rate is not very high (0,8 cases pr 10 000 inhabitant in Finland towards 0,2 in Norway).

In Norway, immigrant cases makes up one fifth of legal aid outside court. In Finland, both the legal aid offices and the private lawyers have few immigrant cases. Norway has significantly more asylum seekers than Finland and a larger immigrant population.

Means testing. None of the countries gather statistics on the income and property of the clients. It is still possible to make rough estimates how well the schemes cover the poor.  Contributions are asked in twenty cases per ten thousand inhabitants in Norway and in thirty per ten thousand inhabitants in Finland. Legal aid with a means test and without a contribution amounts to twenty cases per ten thousand in Norway compared to fifty per ten thousand in Finland.

Almost all of the Finnish civil legal aid is provided to applicants after a means test, while almost one third of the Norwegian civil grants are provided regardless of income and property.

The distributive profile therefore differs significantly. The Finnish schemes provide a far better coverage of the poorest part of the population than in Norway and also a better coverage of the lower middle class. Norway allocates considerably more of the resources to the cases that relates to serious interferences with people’s physical and psychic integrity without asking about their means. We might assume that most of them also are fairly poor, but statistical information is lacking.

Volume and resource use. Taken together the Norwegian civil schemes handled approximately 33 000 cases in 2006 compared to 45 000 in Finland.[24] Considering the huge differences in overall costs it is surprising to learn that the totalnumber of cases handled in Finland’s civil LAA schemes exceeds the Norwegian ones with almost one third. The factors behind the huge cost differences are complex:

Norway spends more than twice as much per case on civil legal aid outside courts (1 000 euro against 425 euro) and more than three times as much per court case as Finland (4 750 euro against 1 500 euro). Average time use for non court cases in the Finnish legal aid offices is estimated to 4-5 hours in Finland and 9 hours in Norway. Time use for civil court cases handled by private lawyers in Finland is estimated to ten hours compared to fifty hours in Norway, and the average time use on court cases in the Finnish public legal aid offices probably are even lower.

The distribution of the case load on the two categories differs. The Norwegian schemes deliver 50 outside court cases per 10 000 inhabitant against 70 in Finland, while Finland has only 15 court cases per 10 000 inhabitant against 20 in Norway, which explains some of the cost difference.  Parts of it might also be explained from differences case structure and from differences in the time costs of the private lawyers and also from the somewhat lower time costs in the public legal aid offices. The major explanation, however, seems to be that most comparable categories of cases are solved faster and in a less resource demanding manner in Finland than in Norway.

Some conclusions:            

                - As I found the method used in (my) table 4 (table 5 in the Report) to rough for estimating human rights      ulfilment, I also am reluctant to accept it as a basis for ranking the generosity of the schemes.

- Spending (or budgets) also is a rather unreliable indicator on what coverage the schemes produce in       practice.

6 WHAT IS LEFT OUT?

I will end with some remarks on what is left out in the CEPEJ statistics that I have discussed. 

My comparative report approaches legal aid as part of the overall provision of non commercial legal services in society. A major distinction is made between the general public schemes enacted in the legal aid statutes[25] and the criminal procedure codes[26] of the two countries contrary to the flora of more specialized schemes that exist independent of the general legal aid legislation. Schemes established in the legal aid statutes and codes of criminal procedure are labelled LAA (Legal Aid Act) schemes and other non commercial schemes non LAA schemes.

Both in Finland and Norway, the criminal procedure codes contain two schemes in addition to the defender scheme. The first covers a lawyer for the victim in serious criminal cases. The second obliges the defender and prosecutor to handle civil claims from the victim against the accused without any payment from the accused or the victim. Although no recent statistics exists, previous analyses in Norway show that the volume of the last scheme is significant. I would estimate the number of compensation claims to be in the area of 10 000 a year – or approximately the same volume as under the Norwegian scheme for civil litigation under the Civil legal aid Act. I suppose that these schemes are outside the statistics delivers to CEPEJ both in Finland and Norway. 

Previously the importance of the non LAA schemes in the Nordic countries have been poorly researched and understood and the report attempts at getting a better idea of this “third” sector in non-commercial legal service provision. The main impression is that the sector is large in both countries and that its major features are common.^[27] It consists of numerous enterprises with diverse purposes, organizing and service delivery.

The mapping of legal aid activity in the third sector turned out to be difficult and is incomplete in both countries. Still the minimum figures and estimates that can be drawn from the research show that the importance of the third sector has been significantly underestimated in previous legal aid policy.

The mapping comprehended around thirty different schemes in each country.[28] Some were small and provisional with a limited service offer; others were established institutions that handled significant caseloads.

Such non commercial schemes operated both in the public and in the private sector. The analysis divides them into:

 

-       public enterprises – distinguishing between ombudsmen and other public providers;

-       membership organizations – providers that are organizations within trade and labour or other interest organizations

-       volunteer organizations – organizations especially for deprived or vulnerable groups and include both interest organizations, NGOs, grassroots organizations and charity.

The criterion for counting a non commercial legal service enterprise as a legal aid scheme is that the enterprise provides at least some services itself. Pure financial arrangements, like legal expense insurance (LEI) and unions that only pay their members bills for using private lawyers, are discussed separately.

Among the public enterprises both countries have several ombudsmen that handle complaints from the public against public administration and hospitals and over discrimination, consumer issues and data protection. We also find important schemes for legal service from public administration, in consumer matters, student clinics, counselling of crime victims and debt refurbishing. Norway also had a test scheme on municipality advice offices.

The membership organizations had service offers for farmers, homeowners, tenants, car owners, taxpayers, consumers etc, and the unions had extensive services in employment matters.

A wide range of voluntarily schemes also existed. The advocate organizations offered short, free advice according to rota schemes at several locations in both countries, and the organizations for the poor and deprived had a broad spectre of schemes. The different organizations for the handicapped had schemes and so did organizations for immigrants, refugees, prostitutes, raped and battered women, victims of incest, gay and lesbians, debt victims and consumers.  

Both countries also have extensive LEI-coverage. Many membership organizations had arrangements for covering legal costs for their members when using lawyers in private practice; mainly in matters that fall within the working area of the organization. 

Since the Finnish legal aid legislation cover all sorts of problems, it overlaps with the third sector. Within the overlaps, the public legal schemes might therefore be used either as a supplement or as a primary provider, according to the client’s choice. The Norwegian legal aid act states that the schemes contained are subsidiary to other providers and might only be used if alternatives are lacking. Neither does the Norwegian third sector cover all of the categories of problems that fall outside the scope of its LAA schemes. 

A full mapping of all institutions that provide non commercial legal services to the public has never been carried out in any of the two countries. No precise statistics on clients or cases exists that might provide a reliable overview. 

Several services have, however, provided information about their caseloads for the two national reports. The quality of the reporting varies a lot. Put together, the reported figures show approximately 250 000 cases in Norway and 200 000 in Finland.  The numbers are incomplete and the real figures are far higher.  Still the reported figures alone show that the LAA legal schemes only handle a limited share of all the cases where non commercial legal services are provided. 

The significant overlap between the access criteria of the LAA and non LAAA schemes that was found in the comparison of the access criteria also appeared in the statistics of the aid actually provided. Several of these overlaps seem unintended and the providers might not be aware of them either. 

Non LAA schemes provide a huge and important share of the total supply for non commercial legal services both in Finland and Norway. They cover a far larger volume of service needs than the general legal aid schemes and both countries allocate significant public means to them. It is a challenging and important task to map and study these suppliers thoroughly and develop a well founded strategy for development, division of tasks and cooperation between the different providers of legal aid and other non commercial legal service. 

The challenge for CEPEJ statistics and human rights:

-      How does the third sector fit in with the human rights demands? Can governments withdraw public legal aid if the needs are reasonably covered by a third sector organization?

-      Many third sector organizations are financed fully or partly from public means.  Some of their public means are spent on legal aid. Should they be included into the budgetary statistics?

-      How should the legal aid they provide be counted?