[ccje2004/docs/CCJE(2004)25e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
the delegation of Iceland
A. ACCESS TO JUSTICE
Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.
Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.
Have measures been taken to ensure an effective "legal aid" system?
Yes, in civil cases. Chapter XX of the Act of procedure in civil cases, law no. 91 from 1991, Art. 125 to 128, define the access to legal aid.
If so, please describe the system, with specific reference to:
(a) eligibility requirements;
A general requirement is that an applicant for legal aid, whether it is a plaintiff or a defendant, has a reasonable cause for litigation. In addition i) legal aid may be granted if the applicant does not have sufficient means to cover legal costs; b) if the applicant is litigating or defending a cause that is found to be of a great importance or of general concern.
(b) identification of authorities entitled to grant the aid;
The ministry of justice grants legal aid, but only on the recommendation of the Legal Aid Committee. The Legal Aid Committee consists of three lawyers, all appointed by the Minister of Justice, thereof two on recommendation by the Association of Judges and by the Association of Advocates. Its role is to evaluate applications for legal aid and make a recommendation, supported by arguments, on each case to the ministry of justice.
(c) budgetary arrangements.
After a final opinion is passed in court, legal costs of the beneficiary are paid by the State.
4. Have other measures been taken? For example,
a) conditional fee agreements (“CFAs”), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if her or she wins;
b) legal costs insurance for
- a party’s own legal costs and/or
- any costs which if her or she loses he or she has to pay to the winning party;
No, not directly, but sometimes legal costs are included in insurance, like if you suffer physical injuries legal costs are included in the coverage.
c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.
No, however, the court decides in the judgement whether legal costs are paid, which party pays, and the amount of that payment which very often is much lower than the lawyer will in fact charge for his or her services.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
Have measures been taken to relieve judges from non‑judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.
Alternate dispute resolutions and mediation are not characteristic of the judicial system. At present, however, certain parts of the law on procedure in civil cases is under review, focusing on ways to lessen the excessive workloads in courts. Many of the tasks listed in appendix of R(86)12 used to belong to the services provided by courts but are now provided by civil magistrates. A few still remain.
Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.
In the civil field certain claims, defined in law, can be taken straight to the civil magistrate in order to secure them by attaching property belonging to the debtor.
In the criminal field, the police has the authority to solve minor offences such as less serious traffic violations and petty thefts.
There are some administrative bodies and/or committees that may rule on disputes in a specific fields, such as in disputes relating to property, or privacy, or equality, or ethical behavior of an individual belonging to a certain profession etc. These rulings are however not binding and may be brought to court later. Many of these disputes would hardly, however, be described as small claims, but in some instance a court proceeding may be avoided by the process.
Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.
Within each court there is a regular review of the workloads. Also The Judicial Council, composed of five members appointed by the Minister of Justice, collects information on the number of cases in the district courts, and the conclusions of cases, and is supposed to make, as the need may be, any proposals related thereto. The Council controls the financial affairs of the district courts, makes proposals to the Minister of Justice on financial appropriations to them, and distributes among them the funds to be appropriated to them. As today, however, in the light of steadily arising workload, the Council does not succeed in convincing the Minister to supply the lower courts with sufficient funds.
What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?
Regular judges have little say in the management of the judicial infrastructure apart from airing their opinions. Chief judges play a considerable role in court management. They hire staff and take all decisions concerning staff, apart from the judges, distribute cases and other assignments, take decisions about technology equipments in the court. Nevertheless, their actions are quite limited by the finances. The same is to be said about the Judicial Council. In addition to insufficient budget to run the courts today, constant demand is made by the government to cut the costs. The number of judges is decided by law and the Judicial Council has the power to decide how many judges each court gets, also the number of other staff. Two chief judges sit on the Judicial Council and two regular judges. One member of the Council is appointed by the Minister. The Council has no power over the Supreme Court. The Council can issue rules on co-ordinated judicial practices, which the Council may give binding effect to the extent they do not relate to the handling of a court case for which a judge is solely responsible.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.
Please describe the operation of quantitative statistical data collection concerning judicial activity. Please identify, in particular:
(i) institutional subjects (centralised and/or decentralised) in charge of data collection, data analysis, as well as receiving follow‑up;
There is a regular data collection and analysis organized by the Judicial Council. Also the National Registry collects data information from all courts on yearly basis.
(ii) judicial activities that form the object of data collection and analysis;
Types and number of cases, results, time-span, judge responsible.
(iii) relevance of statistical data in professional evaluation of individual judges;
As mentioned above this data is used for evaluating the workload within individual courts and individual judges and to correct imbalances if those do arise. May establish a cause of admonition, but are more used as self-control/critic device of individual judges themselves.
relevance of statistical data in evaluation of performance of judicial offices and/or chief judges.
Please describe monitoring procedures in operation in your country that, employing assessment data as above, may result into actions aimed at a better control of reasonable duration of proceedings or better allocation of resources (such as variations of judicial and/or administrative staff, revision of territorial or subject matter distribution of cases, "performance contracts" and the like);
In case that some or all of the above actions are the task of agencies other than the judiciary, what is the role played by the judiciary in the same actions?
Does not apply.
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialised schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favour of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.
There is no scheme of administrative or civil mediation, and no trained mediators outside of courts. However, the code of procedures in civil cases provides the possibilities for parties to seek mediation by the civil magistrate. Also a judge can send parties to the civil magistrate for mediation on the request of the parties. This option is not much used.
Prior to divorce couples are generally required to seek mediation by their priest or religious patron. These tend to be more a formality. If one of the parties does not belong to any religious group a civil magistrate or a judge mediates. In other family cases civil magistrates do mediate between the parties, if both parties agree to that, otherwise a judge does when case comes to court.
In criminal cases the concept of mediation does not apply.
Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?
Is legal aid applicable to all or some ADR procedures?
Does not apply.
Is confidentiality protected? Is any document of the ADR procedure apt to be produced in court, in case mediation failed?
Does not apply.
In the case of a civil magistrate’s mediation, there is an unwritten ethical rule, that discussions and proposals during mediation are unbinding and confidential if the case proceeds and the same goes for any documentation.
May the judge consider refusal to access ADR or to accept an amicable settlement when making orders relating to trial expenses or costs?
Does not apply. However, in certain circumstances and depending on the results of the case the settlement procedure in court might influence the judge’s evaluation of reasonable payment.
b) in‑court ADR
What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent? May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in‑court mediation.
Judges are required to seek mediation at the beginning of any civil case and later in the process if an occasion arises. The same judge proceeds with the case. Possible conflict is resolved by the ethical rule that parties may speak freely in mediation without compromising their stand in the case and that it is not allowed to use anything that comes up in the mediation. The judge is cautious not to compromise his or her position as an impartial mediator. If that were to happen the judge may be able to disqualify himself and return the case to the chief judge. No special costs arise in connection with the judges attempts to settle a case as it is a necessary part of the proceedings. A party may however request a ruling on costs.
If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?
Does not apply.
What legal relevance does an in‑court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?
The same as a final judgement has. The same applies in the case of settlement before a civil magistrate.
Sometimes mediation in court results in settlement outside of court, then the case is withdrawn, and the settlement has no legal relevance apart from what any other contract would have.
c) out‑of‑court ADR
What kind of judicial control is possible on out‑of‑court ADR agreements?
Does not apply.
d) ADR in administrative law disputes
Is it possible under your system that a public entity participates in an ADR procedure? Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?
Administrative cases are handled as regular civil cases and the same procedure applies to those as other court cases.
e) criminal law and ADR
Please describe the role and extent of ADR proceedings vis‑à‑vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?
The notion of settlement does not apply in the criminal field in the sense that fine or other punishment is negotiable. We have no plea bargaining. We do however sometimes use the term settlement when a fine is decided by the police, or in court by a booking instead of a judgement. The condition for this is that the accused pleads guilty and consents to the fine. This only applies in cases where the punishment will not exceed fines and the accused does not have a serious criminal record.
E. CASE MANAGEMENT
a) in general
Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.
In the district courts the average duration of civil proceedings is about eight months and criminal under three months. This is bases on data gathered by the Judicial Council. In simplified proceedings this may be three to four weeks.
Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgement, to determine the calendar and the time‑limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?
Yes. Note “to resort to a summary judgement” does not apply.
Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?
The general rule at the lower courts is that cases are adjudicated by a single judge. Increasingly, however, a panel of three judges is needed both in civil and criminal cases. In both civil and criminal cases this is due to the fact that cases have become more complicated and/or concern serious interests. In civil cases it has always been the rule that two lay judges sit on the panel if an expertise is needed to solve the case. In criminal cases a panel of three judges is more often needed because the Supreme Court does not in general hear witness, thus a panel of three is needed for example if the only evidence is witness’ statements.
b) in civil disputes
Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.
Generally speaking the main principles of R(84)5 are implied in the act on civil procedure.
Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003.
There are no specific simplified or summary procedures. However if the defendant has not reacted to the summon the case can be decided on its merits without a hearing. At the outset the judge attempts mediation and if successful the case is settled or withdrawn.
As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:
(i) simplified methods of commencing litigation;
Does not apply.
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
(iii) exclusively written or oral proceedings, as the case may be;
(iv) prohibition or restriction of certain exceptions and defences;
Does not apply.
(v) more flexible rules of evidence;
Does not apply.
(vi) no adjournments or only brief adjournments;
Does not apply.
(vii) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings;
Does not apply. Only at later stage in the proceedings, and usually delays rather than speeds up the case.
(viii) an active role for the court in conducting the case and in calling for and taking evidence;
It is the role of the parties to gather and call for evidence, the judge shall nevertheless follow the process in a critical manner.
(ix) the rendering on the part of the judge of a mere "oral" judgement.
Does not apply.
As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:
4.1 the judge has the power to decide summarily on:
(i) disputes on which an early decision is required (urgent cases procedure);
(ii) disputes concerning recovery of certified uncontested debts;
(iii) small claims (please specify monetary limit);
(iv) employer‑employee relations;
(v) landlord and tenant relations;
(vi) questions of family relations (divorce, custody of children, maintenance);
(vii) disputes involving consumers;
(viii) disputes relating to road accidents;
(ix) manifestly ill‑founded claims.
Yes, in case of (ii) and (ix). Others do not apply.
4.2 a summary judgement has or does not have the force of "res judicata";
4.3 a summary judgement is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated.
Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).
Certain commercial papers can be brought to the civil magistrate for injunction relief, without taking the case first to court, provided this was originally agreed and is stated in the document. On the basis of bills of change and checks. Certain taxes according to legal provisions.
Please describe the relevance of time‑limits and interlocutory judgements to assure a reasonable duration of ordinary proceedings.
The general rule is to speed up proceedings as possible, time limits are often set for that purpose.
What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.
A party may seek interlocutory measures at the civil magistrate. If the request is accepted the party must within a week bring a case to court in order to get a ratification of the measure concerned. The other party has then the opportunity to bring in counter arguments. These measures can be directed against property of debtor in order to secure funds to pay a legitimate claim and if there is evidence that otherwise the fulfilment of the claim might be endangered. Another type is to prohibit temporarily some action that might hurt legitimate interests of the claimant.
Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?
A party can ask the court to appoint experts, one or two, to do a research and write a report and thereby answer specific questions. This may for example be for the purpose of evaluating a fault in a building or a car, decide the monetary value of an object, or decide on the degree of disability a plaintiff seeking remedies has suffered.
In what circumstances is a first degree judgement provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions the party filing an appeal may obtain suspension of enforcement?
Only final judgement is enforceable. Exception, preliminary decisions in child custody cases.
Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?
The court system has two levels: district courts and a Supreme Court. All cases decided by the district courts can be appealed to the SC, however, if the value of the interests concerned are ISK 300.000 or less, a special permission for appeal must be obtained from the SC. Also there is a time limit. Many procedural decisions on which the judge rules during trial may also be appealed.
Please express your view concerning measures to improve:
(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;
(ii) transparency of information concerning assets of debtors;
(iii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
c) in criminal matters
Please describe, in general, implementation in your country of Recommendations No. R (87) 18 concerning the simplification of criminal justice and No. R (95) 12 on the management of criminal justice. Some specific aspects will be dealt with by following questions.
In general the same principles are upheld. The judiciary and the prosecution authority are separated. A criminal case only commences when a charge is presented by the prosecution. The prosecution can withdraw its case at any time before a judgement is handed down.
Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003 (although these materials mainly concern civil justice).
In minor offences the prosecution (chief of police in this case) can issue a writ and decide on a fine. In less serious cases where the accused gives an unreserved confession in court the case may be resolved in one session, either by a summary decision or by a judgement depending on the nature of the case. Both the prosecution and the accused have to consent to this procedure.
Please indicate (and provide details) if in your country:
(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);
This power lies with the prosecution, which, however, by law is supposed to prosecute if sufficient evidence of guilt is present. In such circumstances proceedings would hardly be discontinued.
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;
This depends on the nature of the case, a fine outside of court might be issued.
(iii) out‑of‑court settlements are possible;
Not a settlement in fact. A fine may be offered, which the defendant must then accept or reject, in the latter case the matter is usually brought to court.
(iv) penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);
Penal orders such as described in R(87)18 are employed in very minor offences, and concluded by a small fine by the court but without a session in court. A prior notice has been presented to the defendant who has not reacted to it. Approximately half of all criminal cases come under this classification.
(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed;
In less serious cases where the accused gives an unreserved confession in court the case may be resolved in one session, either by a summary decision or by a judgement depending on the nature of the case. Both the prosecution and the accused have to consent to this procedure.
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution;
If the case as presented for the court does not fulfil formal requirements stated in the law it is thrown out of court.
(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail;
No, usually by policemen.
(viii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions).
Does not apply.
Please describe the role of the bench in the several stages of investigations (concentrating on the three stages referred to Principle III, a.6 of Recommendation No. R (87) 18). Please also describe the role of the bench as to "guilty pleas" and sentencing, if such phases may take place out of court. Please describe the respective role of professional judges and juries in findings of guilt and determination of penalties, in those cases that are tried before a jury.
The court has no role in the criminal investigation. Nevertheless the judge can point out to the parties if something is unclear or apparently missing. Custody (when person has been detained 24 hours) must always be decided by a court with an argued opinion, and is always to end no later than at a certain date stated. May be renewed by a judge as necessary and reasonably appropriate.
There are no juries.