Strasbourg, 8 December 2003

EUROPEAN COMMISSION

FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

PILOT-SCHEME

FOR

EVALUATING JUDICIAL SYSTEMS

EXPLANATORY NOTE

Introduction

In conformity with the Programme of activity of the CEPEJ for 2003, the Working Party N° 1 (CEPEJ-GT1) of the CEPEJ elaborated and finalised by consensus the the “Scheme for the evaluation of judicial systems”.

The main aim of this Scheme is to enable States to compare the functioning of (key elements of) their systems with that of other States, and provide the benchmarks to evaluate this functioning.

This Scheme contains both qualitative and quantitative indicators for evaluating each judicial systems’ performances.

This Scheme has already been tested by the members of the CEPEJ-GT1, which were able to answer most of the questions. Should a State/jurisdiction not be able to answer all the questions, this will not be a problem. It is hoped that the Scheme will also stimulate States to collect data where this is not yet the case.

It should also be noted that the Scheme does not intend to contain an exhaustive list of indicators nor does it intend to be an academic or scientific study. It contains indicators which, in all the aspects of the functioning of the judicial system, have been considered really necessary for States to understand better the functioning of their judicial system. Some of these benchmarks, for example on information technologies and mediation, will allow an in-depth work of the European Commission for the efficiency of justice in these questions which is very promising in terms of improving.

The present explanatory note has the sole purpose of assisting those who will ultimately be responsible for filling the Scheme.

Comments to the questions contained in the Scheme

General considerations

Please indicate the sources of your data when possible.

The year of reference for this first application of the scheme will be 2002. We’d like to ask you to, where possible, use figures on the year 2002. If not (yet) available, please use the most recent figures. In all cases, please indicate the year of reference used.

We would like to receive your response in electronic form, using the WORD-file you received. This will facilitate interpretation and data-entry.

Your answers can be sent either on diskette either by electronic mail to the following address : [email protected]

Before sending back your reply, please alter the name of the file to the name of your country and the year of reference (2002). For instance, ‘france2002.doc’.

In case of questions on numbers, year of reference and source, you can enter your reply above the dots. For instance, a reply on the first question may look like this:

1. Number of inhabitants

Number: 16.000.000 Year of reference: 2002

………………………………….. ……

Source: National Statistics Office

…………………………………..

On yes / no questions, the correct answer can be marked by a ‘Y’ or ‘N’. For instance, a reply on question 76 may look like this:

76. Is there in your country a system of temporary judges? Yes / No Y

About half of the questions in the list, a choice between ‘yes’ or ‘no’ is offered. It may, however, not always be possible to choose between these answers. Please feel free to enter an alternative answer of your choice. If certain information is not available, please use “NA”.

If a certain question can not be answered, is not clear, or seems ambigious, please comment on it. Your comments will be used not only for a right interpretation of your reply, but also to improve the questionaire itself.

Comments question by question

Question 1

Question 1 requires States to indicate the number of inhabitants in the country. If the data requested concern 2002, the number of inhabitants should be calculated on 1 January 2003.

Question 2

Question 2 requires States to indicate, if possible in Euros, the total annual State or regional budget. The term « regional » has been added to include the situation of federal States or States having a distribution of power between central and regional authorities. The answer to this question, will enable ratios to be made with respect to the real “investment” made by States in the functioning of justice (see, for instance, questions 4, 5, 27, 28 and 29).

Question 3

Question 3 requires States to indicate the average gross annual salary. This information will be important to make ratios with respect to salaries of all the main “actors” of the judicial system, particularly judges and prosecutors.

Question 4

Question 4 requires States to indicate, if possible in Euros, the annual public budget spent on legal aid. The budget covers all the public budget of the Ministry of justice and/or local communities devoted to legal aid (both legal representation and legal advice). This number concerns exclusively the amounts received by the beneficiaries or by their lawyers (administrative costs excluded).

For the purposes of this scheme, legal aid means an assistance by the States to persons who lack the financial means enabling them to protect their rights in court. As regards the characteristics of legal aid, see Resolution Res(78)8 of the Committee of Ministers of the Council of Europe on legal aid and advice. Legal aid may concern all the parties in a proceeding (eg. victims, defendants, etc…).

Question 5

Question 5 requires States to indicate, if possible, the annual public budget spent on legal aid in criminal and in other (non-criminal) court cases. This amount should be indicated if possible in Euros. This number concerns exclusively the amounts received by the beneficiaries or by their lawyers (administrative costs excluded).

When answering the part of the question concerning other (non-criminal) court cases, please specify, if possible, which cases are concerned.

Question 6

Question 6 requires States to indicate the total number of legal aid cases (yearly). This question refers to the number of decisions granting legal aid to people involved in court cases. It does not include legal aid matters that are not brought to court.

Question 7

Question 7 requires States to indicate, if possible, the total number of legal aid cases in criminal matters and in other (non-criminal) court cases (yearly). When answering the part of the question concerning other (non-criminal) court cases, please specify, if possible, which cases are concerned. The remark above (question 6) also applies here.

Question 8

Question 8 requires States to indicate whether they have an income and asset test for granting legal aid.

Question 9

Should the answer to question 8 be affirmative, Question 9 requires States to indicate the maximum income level for granting legal aid. This refers to the annual income for a single person and should be indicated, if possible, in Euros.

Question 10

Question 10 requires States to indicate whether it is possible, under their legal system, to refuse legal aid for lack of the merit of the case (eg. concerning the abusive character of legal actions). If so, States should also indicate who takes such a decision of [according or] refusing legal aid, choosing one of the offered proposals. Please also indicate what factors are taken into account.

Question 11

Question 11 requires States to indicate whether exists a general rule according to which a person has to pay a court tax or fee to start a proceeding at a general jurisdiction court, for criminal matters and for other than criminal matters.

For the purposes of this scheme, courts 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.

Question 12

Question 12 requires States to indicate whether your country has a private system of legal expenses insurance for the individuals. This question does not refer to companies. For the purposes of this scheme, “legal expenses insurance” covers the costs of legal proceedings 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 13

Question 13 requires States to indicate whether the judicial decision given by the judge has an impact on who carries 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, other (non-criminal cases) or both.

For the purposes of this scheme, judicial costs include all costs of legal proceedings and other services relating to the case payed par the parties during the processing (taxes, legal advice, representation, travel expenses, etc).

Question 14

Question 14 requires States to indicate whether studies have been done, in their country, on the costs of cases brought to courts for users, for the State or for both. If so, please specify the references of these studies [for the reference’s year].

Question 15

Question 15 requires States to indicate whether there are official internet sites/portals (eg. of the Ministry of justice) on which the general public may have free access to (i) legal texts (eg. codes, laws, regulations, etc..), (ii) to the case-law of the higher court/s, (iii) to other documents (for example legal forms). In the affirmative case, States are required to indicate the internet address.

Question 16

While question 15 concerns the general public, Question 16 requires States to indicate, more specifically, whether there exists a public and free-of-charge for victims specific information system to inform and help victims of crimes.

Question 17

Question 17 is yet more specific as compared to questions 15 and 16. It requires States to indicate whether there exists a public, free-of-charge and personalised information system, managed by the police or the justice system, on the follow up given to complaints by victims of crimes. Such a system must be able to inform the person whether the complaint was dealt with, by whom, whether it has been transmitted, to which institution, what is the “state of affairs” of this deal, etc.

Question 18

Question 18 requires States to indicate whether they have a public compensation fund to compensate the victims of crime. If such a fund exists, please indicate for what kind of crimes/or damages the compensation can be obtained, and what is the maximum amount of this compensation.

Question 19

Question 19 requires States to indicate whether they have users’ or legal professionals’ (eg. judges, lawyers, officials) inquiries to measure the public trust and the satisfaction of the services delivered by the judiciary.

Please note that this question concerns inquiries of real users, directly involved in the judiciary (eg. Parties) and does not concern general public surveys.

If the country concerned has such inquiries, please specify whether they are carried out at a national or a court level.

Question 20

Question 20 requires States to indicate whether there is a national or local procedure for complaints regarding the bad functioning of the judiciary. This question refers to both internal and/or external handling (eg. through an ombudsman) of complaints. Please choose between the four possibilities proposed.

Question 21

Question 21 requires States to indicate whether there is an obligation for the institution which receives a complaint to respond and/or to deal with the request within a certain time limit.

Question 22

Question 22 requires States to indicate the total number of courts on their territory. Please specify, if possible, the different kinds of courts concerned. For this question, please count only the principal seats of common and specialised courts.

Question 23

Question 23 requires States to indicate the number of general jurisdiction first instance courts. For the purposes of this scheme, courts 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 (see the next question).

When providing this information, please count only the main seats of the court.

Question 24

Question 24 requires States to indicate the number of specialised first instance courts, if any. The definition of specialised courts is meant a contrario of the definition of general jurisdiction courts contained above.

Question 25

Question 25 requires States to indicate the number of professional judges sitting in courts. The information should be presented in full time equivalent and for permanent posts.

For the purposes of this scheme, professional judges are those trained and paid as such. Please refer to the number of actually filled posts and not the theoretical budgetary posts.

Question 26

Question 26 requires States to indicate the number of non-professional judges sitting in courts. The information should be presented in full time equivalent and for permanent posts. If this data is not available, you can indicate for each category of non professionnal judges the average number of days worked every month.

For the purposes of this scheme, non-professional judges are those giving binding decisions in a public forum, but who do not fall in the category of the preceding question. Arbitrators are not concerned by this question.

Question 27

Question 27 requires States to indicate the number of non-judge administrative staff (eg. court clerks, secretaries, etc..) who are working in courts. The information should be presented in full time equivalent and for permanent posts.

Question 28

Question 28 requires States to indicate the annual budget alloocated to all courts. This budget concerns neither the penitentiary system nor the Ministry of Justice itself and the bodies related to it. It should be indicated, if possible, in Euros.

Question 29

Question 29 is complementary to the previous question. It requires States to indicate, if possible in Euros, the annual budget allocated to the Ministry of justice or the institution which is responsible for the functioning of courts (for example the Judicial Council).

Question 30

Question 30 requires States to indicate whether the budget for justice has increased during the last 5 years and where possible amounts should be indicated showing this trend. Please indicate the global budget for justice and the ratio budget for justice/budget for State. Does this budget includes the budget of the police ? Of the penitentiary ? Of the other organs linked to the Ministry of justice/Ministry of the Interior (for example probation officers) ?]

Question 31

Question 31 requires States to indicate which institution is formally responsible to set up the amount of budget allocated to the courts.

Question 32

Question 32 is related to question 31 and requires States to indicate who manages the budget of the courts (The President of the Court ? The person administratively responsible for the Court).

Question 33

Question 33 requires States to indicate which institution is responsible for arranging and scheduling the court hearings/sessions in criminal cases and in cases other than criminal cases.

Question 34

Question 34 requires States to indicate the total number of criminal cases received by the public prosecutor (in a year).

Question 35

Question 35 requires States to indicate the total number of criminal cases dropped by the public prosecutor (in a year). A dropped criminal case is a case, received by the public prosecutor, that is not taken to court ans is concluded without any sanction or measure. If the answer cannot be given in terms of cases, it can be given in terms of individuals concerned (as in a single case, there might be more individuals concerned, whose situation may be considerably different.

Out of this total, States are also required to indicate those dropped because the author has not been identified.

Question 36

Question 36 requires States to indicate the total number of criminal cases which are concluded by a sanction/measure imposed/negotiated by the public prosecutor (in a year).

Question 37

Question 37 requires States to indicate the total number of criminal cases charged by the public prosecutor before the courts (in a year).

Question 38

Question 38 requires States to indicate the total number of incoming cases in the courts concerning robbery cases. This question refers only to the first instance. For the purposes of this scheme, robbery means stealing from a person with force or threat of force. Where possible, these figures include: muggings (bag-snatching) and theft immediately followed by violence (see the European Sourcebook of crime and criminal justice statistics). This notion does not include attempts.

Question 39

Question 39 requires States to indicate the total number of judicial decisions in robbery cases (in a year). This question refers only to the first instance. Please also indicate the number or % of convicted persons, and the number or % of acquitted persons.

Question 40

Question 40 requires States to indicate the percentage of decisions concerning robbery which are subject to an appeal to a higher court (yearly).

Question 41

Question 41 requires States to indicate the total number of incoming criminal cases in the courts concerning intentional homicide (yearly). This question refers only to the first instance.

For the purposes of this scheme, intentional homicide means intentional killing of a person (see the European Sourcebook of crime and criminal justice statistics). This notion does not include attempts.

Question 42

Question 42 requires States to indicate the total number of judicial decisions concerning intentional homicide (yearly). This question refers only to first instance cases. Please indicate also the number or % of convicted persons, and the number or % of acquitted persons.

Question 43

Question 43 requires States to indicate the percentage of decisions concerning intentional homicide subject to an appeal to a higher court (yearly).

Question 44

Question 44 requires States to indicate the total number of incoming civil and administrative cases in the courts (yearly). This includes only litigious disputes (this remark also applies to questions 45 and 46). This question refers only to first instance cases.

Question 45

Question 45 requires States to indicate the total number of judicial decisions in civil and administrative matters (yearly). This refers to judgments actually pronounced by courts. This question refers only to first instance cases.

Question 46

Question 46 requires States to indicate the percentage of decisions concerning civil and commercial matters subject to an appeal to a higher court (yearly).

Question 47

Question 47 requires States to indicate the total number of incoming divorce cases in the courts (yearly). This question refers only to first instance cases.This includes only litigious divorces judged by courts and not those divorces which are mutually agreed by the parties and only require an administrative registration procedure.

Question 48

Question 48 requires States to indicate the total number of judicial decisions in divorce cases (yearly). This question refers only to first instance cases.

Question 49

Question 49 requires States to indicate the number of divorce cases other than those prononced by mutual agreement subject to an appeal to a higher court (yearly).

Question 50

Question 50 requires States to indicate the total number of incoming dismissal cases in the courts (yearly). This question refers only to first instance cases. For the purposes of this scheme, dismissal means a termination of employment at the initiative of the employer (Appendix II to the Revised European Social Charter, Part II, Article 24).

Question 51

Question 51 requires States to indicate the total number of judicial decisions of dismissal cases (yearly). This question refers only to first instance cases.

Question 52

Question 52 requires States to indicate the percentage of decisions concerning dismissal cases subject to an appeal to a higher court (yearly).

Question 53

Question 53 requires States to indicate, if possible in Euros, the annual IT budget allocated to the courts. This budget shall include both human and material resources.

Question 54

Question 54 requires States to indicate whether, in general, the courts in the country have computer facilities for judges and for non-judges court staff.

Question 55

Question 55 requires States to indicate whether there is a centralised institution which is responsible for collecting statistical data regarding the functioning of the courts. If yes, please specify its name and address.

Question 56

Question 56 requires States to indicate the what kind of facilities can be used by the clients of the courts to communicate with the courts (multiple choices are possible):

Telephone

Mail

Fax

E-mail

Internet

Question 57

Question 57 requires States to indicate whether there is an electronic form to carry out certain procedural steps (eg. e-filing system).

Question 58

Question 58 requires States to indicate the percentage of adversary judgements in criminal cases in first instance. For the purposes of this scheme, 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 23 June 1993, Series A no. 262, p.25, para. 63).

Question 59

Question 59 requires States to indicate whether there is a right to an interpreter for all those within their jurisdiction if the persons cannot understand or speak the language used in court.

Question 60

Question 60 requires States to indicate whether there is an effective remedy to a superior jurisdiction for all cases.

Question 61

Question 61 requires States to indicate whether all judgments to prison are given or reason for or are duly motivated. For the purposes of this scheme, a decision is motivated when it indicates those de jure and de facto considerations which are at the basis of the sentences and is understandable for users.

Question 62

Question 62 requires States to indicate the average length, in days, of robbery cases from the formal beginning of the prosecution until the first instance judgment. This period excludes the period of police investigation.

Question 63

Question 63 requires States to indicate the average length, in days, of robbery cases from the formal beginning of the prosecution until the judgment of appeal (when there is an appeal).

Question 64

Question 64 requires States to indicate the average length, in days, of divorce cases from the deposit of the complaint until the first instance judgment. This includes only litigious divorces judged by a court.

Question 65

Question 65 requires States to indicate the average length, in days, of divorce cases from the deposit of the complaint until the judgment of appeal (when there is an appeal). This includes only litigious divorces judged by a court.

Question 66

Question 66 requires States to indicate the average length, in days, of dismissal cases from the deposit of the complaint until the first instance judgment.

Question 67

Question 67 requires States to indicate the average length, in days, of dismissal cases from the deposit of the complaint until the judgment of appeal (when there is an appeal).

Question 68

Question 68 requires States to indicate whether they measure, on a regular basis, the size of backlog cases in the courts.

Question 69

Question 69 requires States to indicate whether they have a way of analysing the queueing time (ie. time when nothing happens) during judicial procedures. If so, please specify.

Question 70

Question 70 requires States to indicate the gross annual salary of a first instance professional judge at the beginning of his/her career – working full time.

Question 71

Question 71 requires States to indicate the average gross annual salary of a judge of the Supreme Court or of the highest appelate court. If the answer to this question causes difficulties, you can indicate the minimum and maximum gross annual salary.

Question 72

Question 72 requires States to indicate whether judges can combine their work with other professions (eg. university professors, arbitrators, consultants, etc..). If so, please specify.

Question 73

Question 73 requires States to indicate whether judges are recruited and nominated by an independent institution, and, if so, to give the composition of this institution (please choose between the three proposed possibilities). It asks also to indicate whether the process of selection and nomination is carried out according to pre-established procedures.

Question 74

Question 74 requires States to indicate whether they have a system of initial and/or continuous training of judge and, if so, whether it is compulsory for judges. Please specify also the average annual percentage of judges who followed a continuous training session.

Question 75

Question 75 requires States to indicate whether they have a system of supervision and control on the judiciary - other than through appeal - for example an inspection for the judiciary or a system of evaluation of the judicial and non-judicial tasks of judges. If so, please specify.

Question 76

Question 76 requires States to indicate if they have a system of temporary judges ? And, if any, whether these judges are paid on the basis of their activity. If so, please specify.

Question 77

Question 77 requires States to indicate the annual number of disciplinary proceedings lodged against judges.

Question 78

Question 78, which is related to the previous question, requires States to indicate the annual number of sanctions against judges (following disciplinary proceedings).

Question 79

Question 79 requires States to indicate the annual budget for the public prosecution. For the purposes of this scheme, the terms “Public prosecutors” is meant in accordance with 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: they are 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.

If the budget is the same for judges and prosecutors, please show the ratio indication of the results.

Question 80

Question 80 requires States to indicate the number of professional public prosecutors (in fulltime equivalent).

Question 81

In parallel to the similar questions on judges, Question 81 requires States to indicate the gross annual salary of a public prosecutor at the beginning of his/her career.

Question 82

In parallel to the similar questions on judges, Question 82 requires States to indicate the average gross annual salaray of a public prosecutor of the Supreme Court or of the highest appelate court. If the answer to this question causes difficulties, you can indicate the minimum and maximum gross annual salary.

Question 83

In parallel to the similar questions on judges, Question 83 requires States to indicate whether public prosecutors can combine their work with other professions. If so, please specify.

Question 84

In parallel to the similar questions on judges, Question 84 requires States to indicate whether public prosecutors are recruited and nominated by an independent institution, and, if so, to give the composition of this institution (please choose between the three proposed possibilities). It asks also to indicate whether the process of selection and nomination is carried out according to pre-established procedures.

Question 85

In parallel to the similar questions on judges, Question 85 requires States to indicate whether they have a system of initial and continuous training for public prosecutors and, if so, whether it is compulsory for them. Please specify also the average annual percentage of prosecutors who followed a continuous training session.

Question 86

In parallel to the similar questions on judges, Question 86 requires States to indicate whether they have a system of supervision and control on the public prosecutors – for example an inspection or a system of evaluation. If so, please specify.

Question 87

In parallel to the similar questions on judges, Question 87 requires States to indicate the annual number of disciplinary proceedings against public prosecutors.

Question 88

In parallel to the similar questions on judges, Question 88 requires States to indicate the annual number of sanctions against public prosecutors (following disciplinary proceedings).

Question 89

Question 89 requires States to indicate the number of practising lawyers. For the purposes of this scheme, the term “Lawyers” is meant in accordance with the definition contained in Recommendation Rec(2000)21 of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyers: they are persons qualified and authorised according to the national law to plead and act on behalf of their clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters.

If possible, indicate also the evolution of the number of lawyers in the last 5 years.

Question 90

Question 90 requires States to indicate whether they have a national bar association.

Question 91

Question 91, which is related to the previous question, requires States to indicate, if quality standards have been formulated for lawyers. If yes, please indicate who is responsible for the formulating of these standards choosing from one of the specified options.

Question 92

Question 92 requires States to indicate whether disciplinary proceedings exist for lawyers.

Question 93

Question 93 requires States to indicate the annual number of disciplinary proceedings against lawyers.

Question 94

Question 94 requires States to indicate the annual number of sanctions against lawyers (following disciplinary proceedings).

Question 95

Question 95 requires States to indicate whether there is an official way of complaining on the lawyers’ performances. If so, please specify.

Question 96

Question 96 requires States to indicate the amount paid by the State in respect of legal aid for a first instance divorce case.

Question 97

Question 97 requires States to indicate the number of persons registered as mediators. For the purposes of this scheme, the term “Mediation” is meant in accordance with the definition contained in Recommendation Rec(2002)10 of the Committee of Ministers of the Council of Europe on 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.

Question 98

Question 98 requires States to indicate how much public budget is devoted to mediation. This refers to both human and material resources, at the State and/or local level.

Question 99

Question 99 requires States to indicate the number of incoming mediation cases (yearly) in criminal cases and in cases other than criminal cases as defined by Recommandation Rec (2002)10 referred to above.

Question 100

Question 100 requires States to indicate the number of cases solved through mediation (yearly) in criminal cases and in cases other than criminal cases.

Question 101

Question 101 requires States to indicate in which area of law is mediation most pracised and successful in criminal cases and in cases other than criminal cases.

Question 102

Question 102 requires States to indicate the number and type (eg. bailiffs, sheriffs, tax officials, etc…) of enforcement agents in criminal cases and in cases other than criminal cases. For the purposes of this scheme, the term “Enforcement agent” is meant in accordance with the definition contained in Recommendation Rec(2003)17 of the Committee of Ministers of the Council of Europe on enforcement: it 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. The information provided under this section concerns civil matters, including commercial, consumer, labour and family law matters. The information provided under this section does not apply to administrative matters. The information provided under this section may apply to those criminal matters which do not concern the deprivation of liberty.

Question 103

Question 103 requires States to indicate whether they have an institution responsible for supervise or control the activity of enforcement agents. If so, please specify. Yet again a distinction might be made between criminal cases and cases other than criminal cases.

Question 104

Question 104 requires States to indicate the annual number of disciplinary proceedings against enforcement agents, if possible with a distinction between the different categories of agents.

Question 105

Question 105 requires States to indicate the annual number of sanctioned enforcement agents (following disciplinary proceedings).

Question 106

Question 106 requires States to indicate whether there exists a possibility of filing complaints against enforcements agents. If so, please specify.

Question 107

Question 107 requires States to indicate whether courts have a role to play in the execution of court decisions. If so, please specify.

Question 108

Question 108 requires States to indicate whether the courts have the competence to decide against public authorities, and if they are involved in the execution of decisions against public authorities.