Strasbourg, 15 September 2005                                                                       CEPEJ (2005) 3 REV 2

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

EXPLANATORY NOTE

        Introduction

Background

In conformity with its terms of reference[1], the European Commission for the Efficiency of Justice (CEPEJ) adopted in December 2003 a Pilot Scheme for evaluating judicial systems, which was approved by the Committee of Ministers in February 2004.

 

The main aim of this Pilot Scheme, containing both qualitative and quantitative indicators, was to enable member States to compare the functioning of their judicial systems.

The Pilot Scheme was sent in May 2004 to all members States of the Council of Europe. The data for the year 2002 were thus collected and processed by the Dutch Research Institute of the Ministry of Justice (WODC) and the Working Group CEPEJ-GT-2004. The Report “European Judicial Systems 2002” was then adopted by the CEPEJ at its 4^th plenary meeting (December 2004), presented to the Committee of Ministers in January 2005 and published. A Conference on “Evaluating European judicial systems” was organised in The Hague (the Netherlands) on 2 and 3 May 2005; the results of this pilot exercise were presented to the public on this occasion.

This work was achieved with the support of the national correspondents designated in each member States to reply to the questionnaire. The CEPEJ is expecting that these national correspondents will constitute a genuine network working in a long-term perspective with the CEPEJ.

Although 45 member States replied by May 2005, the Report presents the results of those 40 members States of the Council of Europe which replied in due time so that their answers could be processed.

The Report contains precise and substantiated information, with detailed figures, where the reader can find comparative tables concerning essential items of the functioning of judicial systems. 

As the conclusion of a pilot exercise, it obviously contains limits and shortcomings because of its experimental character. Although the wording of the questions was agreed by the member States, this exercise highlighted the fact that some questions did not received satisfactory replies either because of differing interpretation or because there were not always relevant.

However it proves that this evaluation exercise is both possible and useful.

At their 3^rd Summit, organised in Warsaw on 16 and 17 May 2005, the Heads of State and government of the Member States of the Council of Europe "[decided] to develop the evaluation and assistance functions of the European Commission for the Efficiency of Justice (CEPEJ)”.

This experimental exercise conducted through the Pilot Scheme for evaluating judicial systems constitutes to that extent a solid basis in order to develop this essential task.

The CEPEJ is convinced that, by using the methodology developed in the framework of this pilot exercise and with the help of the national correspondents, it is possible to obtain a general evaluation of the judicial systems containing recent data. This will enable policy makers to act on the basis of that information. Therefore the CEPEJ wishes to pursue the evaluation on a regular basis.

In 2005, in order to set up a questionnaire which can be used in a systematic way for regular evaluation exercises, the CEPEJ entrusted the Working Group on evaluating judicial systems (CEPEJ-GT-EVAL) to collect all the comments submitted by CEPEJ members, observers, members of CEPEJ-GT-2004 and national correspondents during the pilot evaluation exercise and to take them into account for the preparation of a revised Scheme.

The revised Scheme was adopted by the CEPEJ at its 5th plenary meeting (15 – 17 June 2005) [and was approved by the Committee of Ministers at the 936^th meeting of the Deputies (7 September 2006.]

General recommendations                

The aim of this exercise is to compare the functioning of judicial systems in their various aspects, to have a better knowledge of the trends of the judicial organisation and to propose reforms aiming at improving the efficiency of justice. The evaluation scheme and the analysis of the conclusions which can result from it should become a genuine tool in favour of public policies on justice and for the sake the European citizens.

Because of the diversity of the judicial systems in the member states concerned, each state will probably not be able to reply to all questions. The objective of the Scheme is then also to stimulate the collection of data by the States in those fields where such data are still not available.

It must also be noted that the Scheme neither aims to include an exhaustive list of indicators nor aims to be an academic or scientific study. It contains indicators which have been considered relevant to assess the situation of the judicial systems and to enable the CEPEJ to work more in depth in promising fields as regards the improvement of the quality and the efficiency of justice.At the same time, the data collected will enable the CEPEJ to continue to work in depth in new essential fields for improving the quality and efficiency of justice.

        Comments concerning the questions of the Scheme

This note aims to assist the national correspondents and other persons entrusted with replying to the questions of the revised Scheme.

a.         General remarks

The year of reference for this Scheme is 2004. If 2004 data are not available, please use the most recent figures. In this case, please indicate the year of reference used under the relevant question.  

Please indicate the sources of your data if possible. The “source" concerns the institution which has given the information to answer a question (e.g. the National Institute of the Statistics of the Ministry of Justice) in order to check the credibility of the data.

All financial amounts should be given, if possible, in Euros.

You are invited to send by e-mail the WORD-file Scheme duly completed to the following address: [email protected]

Before sending back your reply, please change the name of the file to the name of your country and the year of reference (2004). For instance: "albania2004.doc".

When the choice between ‘yes’ or ‘no’ is offered, please tick the appropriate box. It may, however, not always be possible to choose between these answers. Please feel free to give a more elaborated answer of your choice. If certain information is not available or not relevant, please use “N.A” (not applicable).

As the document has been prepared under WORD format, you can always add extra lines under the

questions or within the frames to complete your answer.

Complementary comments on the answers

In general, if certain questions cannot be answered or if you need to give details in particular due to the specificity of your judicial system, please comment on it.

A specific area has been left at the end of each chapter to briefly give, on the one hand, any useful comments for interpreting the data given in the chapter, and, on the other hand, the main characteristics or even a qualitative description of your system if your State has chosen specific system to cope with a specific situation.

You are not required to fill systematically this area. On the contrary, please feel free to add comments on certain questions where you deem it useful, even if no specific area for “comments” has been foreseen. Your comments will be useful for the analysis of your replies and the data processing.

If data indicated for 2004 differ significantly from the same data given for 2002 (within the framework of the pilot exercise), please give the explanation for this difference after your answer.

Help desk

Should you have any question as regards this Scheme and the way to answer it, please send an e-mail to Stéphane Leyenberger ([email protected]) or Muriel Décot ([email protected]).

b.   Comments question by question

For the data requested in this Chapter, please use if possible those available at the OECD to ensure a homogenous calculation of the ratios between member States. If the data concerning your country are not available at the OECD, please use another source and specify this source.

Question 1

The number of inhabitants should be given, if possible, as of 1 January 2005. If this is not possible, please indicate which date has been used.

Question 2

The new version of the Scheme requires an indication of the amount of public expenditure (all expenses made by the State or public bodies, including public deficits) instead of the amount of the “budget” which is deemed not to be precise enough and would not include certain “extra expenditure” which does not fall within the budget. The expression territorial authorities has been added in order to include federal States or States where power is shared between the central authorities and the territorial authorities. The reply to this question will enable ratios to be calculated which would measure the total real investment of member States in the operation of justice.

Question 3

Please indicate the Gross Domestic Product (GDP) of your country in 2004. This data will be useful to calculate several ratios enabling a comparative analysis.

Question 4

Please indicate the average gross annual salary and not the disposable salary. The gross salary is calculated before any social expenses and taxes have been paid; it is the amount that the employer has actually to pay out per employee.

 

Please use the same definition of “gross annual salary” in questions 79 to 82.

The annual gross average salary is an important piece of information in order to calculate ratios which would measure and compare the salaries of the principal “players” involved in the judicial system, in particular judges and prosecutors.

Question 5

Question 5 aims to establish the total amount of the budget covering the operation of the courts, whatever the source of this budget is.

This amount does not include:

        the budget for the prison system;

        the budget for the operation of the Ministry of Justice (and/or any other institution which deals with the administration of justice);

        the budget for the operation of other organs (other than courts) attached to the Ministry of Justice;

        the budget of the prosecution system.

Where appropriate, this amount should include both the budget at national level and at the level of territorial entities.

Question 6

The budgets to be addressed for the purpose of this question concern only those used for the operation of the courts (salaries, justice expenses, IT).

Salaries are those of all judicial and non-judicial staff working within courts, with the exception, where appropriate, of the prosecution system.

IT (Information Technologies) includes all the expenses for the installation, use and maintenance of computer systems, including the expenses paid out for the technical staff.   

Justice expenses borne by the State refers to the amounts that the courts should pay out such as expenses paid for expert opinions. Any expenses paid to the courts by the parties should not be indicated here.

Questions 7 and 8

Annual public budget allocated to legal aid refers to the amount of the public budget allocated by the Ministry of Justice or the institution dealing with the administration of justice and/or the territorial authorities to legal aid in its widest sense. This includes both aid given for representation before the courts and legal advice. Further information can be given in question 11. The total should include only the sums directly paid to those benefiting from legal aid or their lawyers (and not include administrative costs).

Please indicate separately the sums allocated to criminal cases and to all other cases.

Question 9

Public Prosecutor is to be understood in the sense of the definition contained in Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe on the role of public prosecution in the criminal justice system: "(…) authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system".  

If there is a single budget for judges and prosecutors please indicate, if possible, the proportion of this budget intended for prosecutors. If part of the Public Prosecution’s budget is allocated to the police budget, or to any other budget, please indicate it.

Question 10

The aim of this question is to know the institutions involved in the various phases of the process regarding the global budget allocated to the courts. This question does not concern the management of the budget at court level, to be addressed under question 47.   

As the European Convention on Human Rights guarantees legal aid in criminal matters, the questionnaire specifies legal aid in criminal cases from legal aid in other than criminal cases.

For the purposes of this Scheme, legal aid is defined as aid given by the State to persons who do not have sufficient financial means to defend themselves before a court. For the characteristics of legal aid, please refer to Resolution Res(78)8 of the Committee of Ministers of the Council of Europe on Legal Aid and Advice.

Question 12

This question concerns the annual number of decisions granting legal aid to persons involved in cases going to court. It does not concern legal advice regarding questions that are not addressed by the court.

Question 14

If the reply to the question is “yes”, you can indicate in your comments the maximum annual income (if possible for a single person) for which legal aid can be awarded.

Questions 15 and 16

These questions require from the States an indication whether it is possible, according to the law, to refuse legal aid in other than criminal matters for reasons such as frivolous or vexation actions.

Question 17

A general rule can exist in States according to which a person is required to pay a court tax or fee to start a proceeding at a general jurisdiction court. This general rule can have exceptions - please indicate these exceptions. This tax does not concern fees of lawyers. Please also indicate if this court tax applies in criminal cases only or also to other case.

For the purposes of this question, courts of general jurisdiction means those courts which deal with all those issues which are not attributed to specialised courts according to the nature of the case.

Question 18

This question does not refer to insurances offered to companies. For the purposes of this question, “legal expenses insurance” covers the costs of legal proceedings, including lawyers' fees and other services relating to settlement of the claim. If possible, please give some indications about the development of such insurances in your country. Please also specify whether this is a growing phenomenon.

Question 19

For this question, please indicate whether the judicial decision given by the judge has an impact on the repartition of judicial costs. In other words, States should indicate whether, for instance in a civil case, the losing party has to bear the costs of the winning party. In the affirmative case, States should indicate whether this concerns criminal cases or other cases.

Judicial costs include all costs of legal proceedings and other services relating to the case paid by the parties during the proceedings (taxes, legal advice, representation, travel expenses, etc).

Question 20

The web sites mentioned could appear in particular on the internet web site of the CEPEJ.

Question 21

This question can apply to all types of cases.

A mandatory provision of information to individuals on the foreseeable timeframe of the case in which they are parties is a concept to be developed to improve judicial efficiency. It can be simple information to the parties or for instance a procedure requiring the relevant court and the opposing parties to agree on a jointly determined time-limit, to which both sides would commit themselves through various provisions. Where appropriate, please give details on the existing specific procedures.

Question 22

The question aims to specify if the State has established structures which are known to the public, easily accessible and free of charge, for victims of criminal offences.

Question 23

This question aims to learn how States protect those groups of population which are particularly vulnerable in judicial proceedings. It does not concern the police investigation phase of the procedure.

Specific information mechanism might include, for instance, a public, free of charge and personalised information mechanism, operated by the police or the justice system, which enables the victims of criminal offences to get information on the follow up to the complaints they have launched

Specific hearing modalities might include, for instance, the possibility for a child to have his/her first declaration recorded so that he/she does not have to repeat it in further steps of the proceedings.

Specific procedural rights might include, for instance, in camera hearing for the victims of rape or the obligation to inform beforehand the victim of rape, in case of the release of the offender.

Please specify if other specific modalities are provided for by judicial procedures to protect these vulnerable groups (for instance, the right for a woman who is a victim of family violence to enjoy the use of the common house).

  

This question does not concern compensation mechanisms for the victims of criminal offences, which are addressed under questions 24 to 27.

Questions 24 to 27

These questions aim to provide precise information on the existing compensation mechanisms for the victims of criminal offences. These details concern the nature of the compensation mechanisms, the type of offences for which compensations can be claimed and the quality of the recovery of damages awarded by the court.

Question 28

This question concerns every user of justice and the compensation for a damage suffered because of dysfunctions of the justice system. Where appropriate, please give details on the compensation procedure and the possible existing scales for calculating the compensation (e.g. the amount per day of unjustified detention or condemnation).

Questions 29 and 30

These questions concern the surveys carried on with the persons who had a direct contact with a court and are directly involved in proceedings (for instance the parties). It does not concern opinion surveys.

You can give here concrete examples in indicating the titles of these surveys, the web sites where they can be consulted, etc.

Questions 31 and 32

These questions refer to the existence of a procedure enabling every user of the justice system to complain with regard to a fact that he/she thinks to be contrary to the good functioning of the judicial system. If such a procedure exists, please specify in the table under question 32 the modalities for managing these complaints. It must be specified what is the competent body to address the complaint and, where appropriate, if this body must, on the one hand, answer to this complaint in a given timeframe (to acknowledge receipt of the complaint, to provide information on the follow up to be given to the complaint, etc.) and, on the other hand, to address the complaint in a given timeframe.

If possible, please give details on the efficiency of these procedures, indicating for instance the timeframes or the number of complaints filed.

A court can be considered either as a legal entity or a geographical location. Therefore it is required to number the courts according to both concepts, which enable in particular to give information on the accessibility to courts for the citizens.

Question 33

For the purposes of this question, a court means a body established by the law appointed to adjudicate on specific type(s) of judicial disputes within a specified administrative structure where one or several judge(s) is/are sitting, on a temporary or permanent basis.

For the purpose of this question, a first instance court of general jurisdiction means those courts which deal with all those issues which are not attributed to specialised courts owing to the nature of the case.

Please give the list of specialised courts and, if possible, their number.

Should your system require it, you could indicate the criteria used to number these courts.

Question 34

For the purposes of this question, please indicate the total number of geographical locations (premises) where judicial hearings are taking place, numbering both the courts of first instance of general jurisdiction and the specialised courts of first instance. Please do not count simple annexes to a court within a same city. 

Should your system require it, you could indicate the criteria used to number these courts.

 

Question 35

This question aims to compare the number of courts (geographical locations) with jurisdiction for specific and standard cases. It should enable a comparison between member States in spite of the differences in the judicial organisation.

Small claims are not specified to take into account the differences in the living conditions of the European States. Please specify the maximum amount to define a "small claim" in your country, which is generally used as criteria of procedural jurisdiction. 

Should your system require it, you could indicate the criteria which are used to number these courts.

Questions 36 to 39

These questions aim to count all persons entrusted with the task to deliver or to participate in a judicial decision.

For the purposes of this Scheme, judge must be understood according to the case law of the European Court of Human Rights. In particular, the judge decides, according to the law and following an organised proceeding, on any issue within his/her jurisdiction. He/she is independent from the executive power.

Therefore judges deciding in administrative or financial matters (for instance) must be counted if they are included in the above mentioned definition.

Question 36

For the purposes of the question, professional judges means those who have been trained and who are paid as such. Please indicate the number of actually filled posts at the date of reference and not the theoretical budgetary posts. The information should be presented in full time equivalent and for permanent posts.

Question 37

This question concerns professional judges but who do not perform their duty on a permanent basis.

In a first phase, in order to measure to what extent part time judges participate in the judicial system, the gross data could be indicated.

 

In a second phase, in order to compare the situation between, member States, the same indication could be given, if possible, in full time equivalent.

Question 38

For the purposes of this question, non-professional judges means those who sit in courts (as defined in question 33) and whose decisions are binding but who do not belong to the categories mentioned in questions 36 and 37 above. This category includes lay judges and juges consulaires.

If possible, please indicate, for each category of non-professional judges, the average number of working days per month. Neither arbitrators, nor those persons who have been sitting in a jury (see question 39) are subject to this question.

Question 39

This category concerns for instance the citizens who have been drawn to take part in a jury entrusted with the task of judging serious criminal offences.

Question 40

The whole judicial (administrative or technical) non-judge staff working in all courts must be counted here, in full time equivalent for permanents posts. This includes court clerks, secretaries, technical staff, etc. Precisions according to the various categories of non-judge staff can be given under questions 41 and 42.

Questions 41 and 42

This question aims to specify the various functions of administrative staff working within the courts.

Technical staffmeans staff in charge of execution tasks or assuming technical and other maintenance functions such as cleaning staff or electricians.

Question 42 concerns specifically the Rechtspfleger, for those States which experience this quasi judicial function.

Question 43

For the purposes of this question, prosecutors are defined according to the Recommendation R(2000)19 of the Committee of Ministers on the  role of  public prosecution in the criminal justice system, as public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system.

Question 44

In some States, some persons (private workers or police officers) are specifically entrusted with duties similar to those exercised by public prosecutors. Please specify whether these persons are included in the data concerning the number of public prosecutors. Please give also information on these categories (statute, number, functions). This excludes lawyers who are bringing an accusation in a criminal hearing. This excludes also victims who can go directly to the judge without intervention of the public prosecutor.

Question 45

This question aims to situate the prosecutorial system in the organisation of the judicial system in your country. Please specify if it is an independent body or if it is placed under the authority of the Ministry of justice; if it is an independent body, please indicate if it is a hierarchy apart from the judicial power or if it belongs however to the judicial power.

Question 46

For the purposes of this question, please number the non-prosecutor staff working for the prosecution system, even when this staff appear in the budget of the court.

Question 47

Contrary to question 10 which concerns the elaboration of the budget before it is actually allocated between the courts, this question concerns those persons within the courts who enjoy specific powers as regards the budget.

Questions 48 and 49

These questions aim to evaluate the quality of the computerised support to judges and court clerks in their various judicial and administrative tasks.

Please tick the boxes according to the rate of courts which are equipped with the computer facilities indicated in the table. For instance, if it is not possible in your State to introduce a judicial case by electronic form, tick the case “-10% of courts” in the row “electronic form”.

Question 51

The annual report of the court includes e.g. data on the number of cases processed or pending cases, the number of judges and administrative staff. It might also include targets and an assessment of the activity.

Questions 52 to 55

Various court activities (including judges and administrative court staff) are nowadays subject, in numerous countries, to monitoring and evaluation procedures.

The monitoring procedure aims to assess the day-to-day activity of the courts, and in particular what the courts produce.

The evaluation procedure refers to the performance of the court systems with prospective concerns, using indicators and targets.

In question 52, please indicate the main items which are regularly assessed by the monitoring procedure. The list which is mentioned is not exhaustive and can be completed.

In question 54, it might be interesting to compare among States what are the most important issues to be considered in view of improving their system and to know if the States define specific targets to the courts.

Question 56

The aim of this question is to know if there are standards as regards for instance the formal drafting of a judicial decision (wording used, motivation) or the timeframe between the hearing and the issuing of the decision.

Question 57

Backlogsare composed of filled cases which have not yet been decided. Please give details concerning your system to measure backlogs.

For the purposes of this Scheme, "civil cases" refer in general to all those cases involving private parties, including namely family law cases, commercial cases, employment cases.

Question 58

Queuing time means time in which nothing happens  during a procedure (for instance because the judge is waiting for the report of an expert). It is not the general length of procedure.

Question 59

This question concerns the same types of monitoring or evaluation procedures as those under questions 52 to 54, but applied to the prosecution system.

Question 60

This question aims to know to what extent procedural rights guaranteed under Articles 6 and 13 of the European Convention of Human Rights are protected by the law. 

Question 61

This question refers to situations in which a judgement is taken without actual defence. This may occur – in some judicial systems – when a suspect is at large or does not show up for trial. The aim of this question is to know if the right to an adversarial trial is respected, in particular in criminal cases in first instance. The right to an adversarial trial means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party (see amongst others Ruiz-Mateos vs. Spain, judgment of the ECHR of 23 June 1993, Series A no. 262, p.25, para. 63).

Question 62

This questions aims to provide information on procedures which enable to guarantee to the user of justice the respect of the principle of impartiality, in line with Article 6 of the European Convention on Human Rights.

Question 63

This table concerns the number of cases regarding the violation of Article 6 of the European Convention on Human Rights for 2003 and 2004, specifying civil and criminal cases. In the first column, please indicate the number of cases communicated by the Court to your government, which is the beginning of the adversarial procedure.

Data requested for your country in this question are available at the European Court of Human Rights.

European Convention on Human Rights - Article 6 – Right to a fair trial

       1      In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

       2      Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

       3      Everyone charged with a criminal offence has the following minimum rights:

               a     to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

               b     to have adequate time and facilities for the preparation of his defence;

               c     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

               d     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

               e     to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Question 64

Such a procedure of urgency can be used so that the judge can take a provisional decision (e.g. decision on the right to control and care of a child) or when it is necessary to preserve elements of proof or when there is a  risk of imminent or hardly repairable damage (for instance emergency interim proceedings).

Question 65

Such a simplified procedure can be used in civil matters for instance when it concerns the enforcement of a simple obligation (e.g. payment order).

For criminal matters, the question aims to know whether petty offences (for instance minor traffic offences or shoplifting) can be processed through administrative or simplified procedures. These offences are considered as incurring sanctions of criminal nature by the European Court of Human Rights and shall therefore be processed in the respect of the subsequent procedural rights.  

Question 67

This question refers to agreements between lawyers and the courts which can be concluded in order to facilitate the dialogue between main actors of the proceeding and in particular to improve timeframes of proceedings. Such agreements can concern the submission of files, the setting up of deadlines for submissions of elements, dates for hearings, etc.

Question 68

States should indicate in this question the total number of civil cases received by first instance courts, including non-litigious cases (e.g. change of civil status or measures to preserve rights).

Question 69

This question, which appears as a table, aims to gather data regarding the total number of litigious incoming cases (filed in the current year) and the length of proceedings (in number of days), first in civil and administrative matters in general, second as regards divorce without mutual consent (see below) and employment dismissal. The number of cases concerns first instance proceedings.

In the row decisions on the merits, States are required to count the total number of decisions on the substance which end the dispute at the level of first instance (provisional decisions or decisions regarding the proceeding should not be counted here). The average length of proceedings concerns the first and second instance proceedings. Only litigious cases are addressed here.

Pending cases by 1^st January 2005 means cases which have not been completed in 2004.

If the average length of proceedings is not calculated from lodging of court proceedings, please specify the starting point for the calculation. Please calculate the timeframe until the judicial decision is given, without taking into account the execution procedure.

An administrative case means a case which is considered as such according to domestic legislation. It concerns generally a dispute between a private person and the State or one of its organs.

Data regarding divorce concern only adversarial divorce lodged to a court (in which the judge totally or partly settle the dispute). They do not concern divorce in which an agreement between parties concerning the separation of the spouses and all its consequences (procedure of mutual consent, even if they are processed by the court) or ruled through an administrative procedure. If your country has a totally non-judicial procedure as regards divorce or if you can not isolate data concerning adversarial divorces, please specify it and give the subsequent explanations. Furthermore, if there are in your country, as regards divorce, compulsory mediation procedures or reflecting times, or if the conciliation phase is excluded from the judicial proceeding, please specify it and give the subsequent explanations.

Data regarding employment dismissal concern only dismissals within the private sector and not dismissals of public officials following a disciplinary procedure, for instance. Dismissal means the end of the working relationships at the initiative of the employer.

Questions 70 to 72

The role of the prosecutor varies significantly among member States. Therefore it was difficult to get useful information from the questions of the Pilot Scheme. Another approach has been used this time: a non exhaustive list of his/her functions has been established, to be answered by yes or no. You can give further details about such functions.

In civil matters (question 71), the prosecutor can, in some member States, be entrusted for instance with safeguarding the interest of children or persons under guardianship. In administrative matters, he/she can, for instance, represent the interest of children vis-à-vis the State or one of its organs.

Question 72 aims to provide information about the number of criminal cases to be addressed by the prosecutor in first instance. As traffic cases represent a large volume of cases, please specify whether the data indicated includes or not such cases.

Discontinued criminal cases mean cases received by the prosecutor, not brought before the court without any sanction or other measure had been taken. If information on the number of cases is not available, it can be given in number of persons concerned (a same case may concern several persons). Please indicate the number of cases discontinued because the case could not be processed, either (i) because no suspect was identified or (ii) due to the lack of an established offence or (iii) a specific legal situation (e.g. amnesty).

Question 73

This question, which appears as a table, aims to gather the number of cases (filed during the current year) and the lengths of proceedings (in number of days), first in criminal matters in general, second as regards robbery cases and intentional homicides. The number of cases concerns only first instance proceedings for a criminal offence and excludes all decisions that the judge can take as regards the application of the sentence (e.g. pre-trial detention, release on parole).

Pending cases by 1^st January 2005 refers to those cases which have not been completed in 2004.

The average length of proceedings concerns first and second instance proceedings.

If the average length of proceedings is not calculated from lodging of court proceedings, please specify the starting point for the calculation. The average length of proceedings excludes the police investigation period. Please calculate the timeframe until the judicial decision is given, without taking into account the execution procedure.

Robberiesmeans stealing from a person with force or threat of force. If possible, these figures include: muggings (bag-snatching) and theft immediately followed by violence (cf. European Sourcebook of crime and criminal justice statistics). This notion does not include attempts.

Intentionalhomicides means intentional killing of a person (cf. European Sourcebook of crime and criminal justice statistics). This notion does not include attempts.

Questions 74 to 76

Question 74 concerns only judges and question 75 concerns only prosecutors. If judges and prosecutors are designated according to the same procedure, please indicate it.

Recruited and nominated refers to the whole procedure resulting in the nomination of a judge/prosecutor and not only the formal and official act to nominate the person as judge/prosecutor.

Question 76 on the mandate of judges and prosecutors specify two existing situations: mandate for an undetermined period or mandate for a determined period. If, in your country, judges or prosecutors generally belong to the first category, please specify if there are however exceptions to this "life term nomination” (e.g. for certain categories of elected judges). If, in your country, judges or prosecutors belong to the second category, please specify if the mandate is renewable.

Question 77

There are substantial differences among European States with respect to the initial training of judges. Some countries offer lengthy formal training in specialised establishments, followed by intensive in-service training. Others provide for a sort of traineeship under the supervision of an experienced judge, who imparts knowledge and professional advice on the basis of concrete cases.

Considering the complexity of cases, judges' specialisation in very specific fields (economy, financial cases, health law, sport law, etc.) has been made necessary. This training, which might result in specialised functions, is different from the general in-service training that judges shall or can follow during their career and which namely enables them to remain up to date as regards legislative or case law reforms.

 

To these two types of training can be added the training for specific functions (e.g. court president) which require from judges, in addition to their judicial functions, to have e.g. administrative, management or financial skills, for which they have not necessarily been trained within the framework of their initial or continuous training

Question 78

This question, which repeats the content of the question above, concerns the training of prosecutors and is accurate in particular for those judicial systems where the training of prosecutors is different from the training of judges. However this question does not specify, as regards prosecutors, specialised or specific functions, contrary to the question above. Should such a distinction appear to be relevant in your country, please specify it.

Questions 79 to 82

Please use the same definition of salary as the definition used in question 4.

Question 79

The question concerns the annual gross salary of a full time first instance professional judge at the beginning of his/her career. If a bonus given to judges increases significantly their income, please specify it and, if possible, indicate the annual amount of such bonus or the proportion that the bonus takes in the judge's income. This bonus does not include the bonus mentioned under question 85 (productivity bonus).

The gross salary is calculated before any social expenses and taxes have been paid.

Question 80

This question concerns the annual gross salary of a full time Supreme Court or last instance judge.

If a bonus given to judges increases significantly their income please specify it and, if possible, indicate the annual amount of such bonus or the proportion that the bonus takes in the judge's income.

The gross salary is calculated before any social expenses and taxes have been paid.

If it is not possible to provide for a determined amount, please indicate the minimum and maximum annual gross salary.

Question 81

The question concerns the annual gross salary of a full time prosecutor at the beginning of his/her career.

If bonus given to prosecutors increase significantly his/her income, please specify it and, if possible, indicate the annual amount of such bonus or the proportion that the bonus takes in the prosecutor's income.

The gross salary is calculated before any social expenses and taxes have been paid.

Question 82

This question concerns the annual gross salary of a full time prosecutor to the Supreme Court or the last instance court.

If bonus given to prosecutors increase significantly his/her income, please specify it and, if possible, indicate the annual amount of such bonus or the proportion that the bonus takes in the judge's income.

The gross salary is calculated before any social expenses and taxes have been paid.

If it is not possible to provide for a determined amount, please indicate the minimum and maximum annual gross salary.

Question 83

This question aims to provide information on financial advantages that judges and prosecutors might be given because of their functions.

Question 84

Teaching means for instance exercising as University professor, participation in conferences, in pedagogical activities in schools, etc.

Research and publication means for instance publication of articles in newspapers, participation in the drafting of legal norms.

Cultural functionmeans for instance performances in concerts, in theatre plays, selling of his/her own paintings, etc.

If rules in this field exist in your country, which require in particular an authorisation to perform the whole or a part of these activities, please specify it.

Question 85

This question refers to the productivity bonus that judges could be granted, for instance based on the number of judgements delivered in a given period of time.

Question 86

This question, which appears as a table, specifies the number of disciplinary proceedings against judges or prosecutors and the sanctions actually decided against judges or prosecutors. If a significant difference between those two figures exists in your country, and if you know why, please specify it.

In the second column, breach of professional ethics (e.g. rude behaviours vis-à-vis a lawyer or another judge), professional inadequacy (e.g. systematic slowness in delivering decisions), criminal offence (offence committed in the private or professional framework and open to sanction) refer to some mistakes noticed from judges or prosecutors which might justify disciplinary proceedings against them. Please complete the list where appropriate. The same applies as regards the type of possible sanctions (reprimand, suspension, dismissal, fine).

If the disciplinary proceeding is undertaken because of several mistakes, please count the proceeding only once and for the main mistake.

Questions 87 and 88

For the purposes of this chapter, lawyers refer to the definition of the Recommendation Rec(2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer: a person qualified and authorised according to national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters.

As some countries had experienced difficulties to count precisely the number of lawyers according to this definition without taking into account the solicitors (lawyers who have not the competence to represent users in courts), please give a global figure, and specify whether this figure includes solicitors. If you have figures for both categories, please specify them. If possible, please indicate also whether this figure includes trainees.

Question 89

This question aims to get information concerning persons entitled, according to the type of cases, to represent their clients before courts and/or at measuring the scope of the "monopoly of lawyers".

The answer to this question might vary whether first or second instances are considered. If appropriate, please specify it.

Question 90

This question aims to know at which level is organised the profession of lawyer (for instance registration of lawyers, disciplinary procedures, representation of the profession vis-à-vis the executive power). It can be organised both at national and regional/local levels. Where appropriate, please indicate the number of regional or local bars.

Question 91

If a specific training or exam is not required, please indicate however if there are specific requirements as regards diploma or university graduation.

Question 93

Specialisation in some legal fields refers to the possibility for a lawyer to use officially and publicly this specificity, such as "lawyer specialised in real estate law".

Questions 94 and 95

As the systems for defining lawyers' fees vary significantly and taking into account the principle of freedom for defining fees in numerous countries, the pilot evaluation exercise has shown the quasi-impossibility to get detailed information on the amount of lawyers' fees.

Therefore these questions aim only to provide information on the way fees are determined and on the possibility for the users to have easily access to prior information on the foreseeable level of amount of fees (the fees that the lawyer estimates that he/she must request when he/she opens the file).

Question 98

The question refers to complaints which might be introduced by the users who are not satisfied with the performance of the lawyer responsible for their case. This complaint can concern for instance slowness of proceedings, the omission of a deadline, the violation of professional secrecy. Where appropriate, please specify.

Please specify also, where appropriate, the body entrusted with receiving and addressing the complaint.

Question 99

The question refers to disciplinary proceedings which are generally introduced, for instance by other lawyers or judges. This question, which appears as a table, specifies the number of disciplinary proceedings against lawyers from the sanctions actually decided against lawyers. If a significant difference between those two figures exists in your country, and if you know why, please specify it.

 

Where appropriate, please complete or modify the list of reasons for disciplinary proceedings and the type of sanctions mentioned in the second column.

If the disciplinary proceeding is undertaken because of several mistakes, please count the proceeding only once and for the main mistake.

The pilot exercise of evaluation demonstrated that the drafting of a common definition of mediation is very difficult and that States are currently at various stages concerning the development of mediation.

Recommendation Rec(2002)10 of the Committee of Ministers of the Council of Europe gives a definition of the mediation in civil matters: it is a dispute resolution process whereby parties negotiate over the issues in dispute in order to reach an agreement with the assistance of one or more mediators.

Recommendation Rec(1999)19 of the Committee of Ministers of the Council of Europe gives a definition of the mediation in penal matters: it is any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator).

Generally, for the purposes of this Chapter, mediation is to be considered as a judicial process, or a process developed within a judicial context (e.g. required by a judge) in which a third party, who has no immediate interest in the matters in dispute, facilitates discussion between the parties in order to help them to resolve their difficulties and reach agreements.

Question 101

This question, which appears as a table, aims to indicate, for each type of cases, the degree of implementation and compulsion of the mediation in the framework of judicial proceedings and which are the persons authorized to act as mediator.

For the purposes of this specific question, "civil cases" exclude family cases and employment cases, to be addressed in the specific rows below in the table.

Question 102

For this question, presented deliberately open, please indicate, if possible, the number of accredited mediators, the modalities of their designation, their specific attributions, etc.

Question 103

This question is mainly directed to those States in which precise figures concerning mediation procedures by type of cases are available. If figures available do not enable you to reply completely to the question or, for example, if these figures cover partially the civil cases (divorce), please indicate it.

The interest of this question is to understand in which fields mediation is more used and considered as a successful procedure.

For the purposes of this specific question, "civil cases" exclude family cases and employment cases, to be addressed specifically below .

Question 104

While questions 101 to 103 concern judicial mediation, this question refers to all other types of alternative dispute resolution and in particular for cases which, being non litigious, are bringing out of the jurisdiction of the courts.

This question aims inter alia to identify the type of cases which can be, in some member States, addressed by non judicial bodies (for instance divorce cases addressed by Conciliation Boards in some Scandinavian countries).

Please specify the cases concerned by such ADR.

In accordance with the definition contained in Recommendation Rec(2003)17 of the Committee of Ministers of the Council of Europe on enforcement of court decisions: the enforcement agent is a person authorised by the state to carry out the enforcement process irrespective of whether that person is employed by the state or not.

Please note that questions 105 to 117 concern only the enforcement of decisions in civil  matters (which include commercial matters or family law issues for the purpose of this Scheme).

Question 105

Some countries have court employed execution officers, some are in public service outside the courts and, in some countries, they work as private professionals (entrusted with public duties).

Question 108

This question aims to know at which level is organised the profession of enforcement agent (for instance registration, disciplinary procedures, representation of the profession). It can be organised both at national and regional/local levels.

Questions 109 and 110

These questions aim to provide information on the way enforcement fees are determined and on the possibility for the users to have easily access to prior information on the foreseeable level of amount of fees in order for an enforcement agent to execute the judicial decision.

Question 111

Enforcement agents are entrusted with public duties. It is therefore important to know who supervises them, even if their status can be very different.

Question 113

The pilot exercise of evaluation demonstrated that all countries that answered the questionnaire provide in their legislation for complaints which can be filed by users against enforcement agents. The answers should give deeper knowledge about the reasons of such complaints.

Question 114

Please indicate, where appropriate, which are the items that your country wishes to improve, which are the foreseen or the adopted measures undertaken to improve the situation and, where appropriate, which are the difficulties in this field. In other terms, please evaluate the situation in the State concerning the enforcement procedures.

Question 115

This question refers to the setting up of a statistical system, which can also be used for measuring the length of judicial proceedings, enabling to indicate, in number of days for example, the length of the enforcement procedure as such, from the service of the decision to the parties. One of the reasons of the difficulty to have statistics in this field can be that, in civil matters, the execution of the decision depends on the wish of the winning party.

Question 116

The aim of this question, which appears as a specific case, is to compare the situation between countries concerning the notification of the judicial decision enabling the beginning of the enforcement procedure.

Question 117

This question, which appears as a table, specifies the number of disciplinary proceedings against enforcement agents from the sanctions actually decided against them. If a significant difference between those two figures exists in your country, and if you know why, please specify it.

 

If appropriate, please complete or modify the list of reasons for disciplinary proceedings and the type of sanctions mentioned in the second column.

If the disciplinary proceeding is undertaken because of several mistakes, please count the proceeding only once and for the main mistake.

Questions 120 to 122

Functions and status of notaries are very different in member States. These questions aim to define only the status, the judicial functions exercised by the notaries (e.g. drawing up friendly settlements) as well as the nature of the supervision when exercising these functions.

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Question 123

As a general conclusion, this open question offers the possibility to indicate general or more specific remarks concerning the situation in the replying State and the necessary reforms to be undertaken to improve the quality and the efficiency of justice.

Though it is not compulsory to reply to this question, concrete suggestions from national experts would be very useful for the future work of the CEPEJ.

Thank you very much for your valuable co-operation!