councils for the judiciary in eu countries - world...

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Councils for the judiciary in EU countries

Dr. Wim Voermans

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Translated by Pena Language Services

June 1999European Commission/TAIEX

Tilburg University/Schoordijk Institute

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Index

CHAPTER 1. RESEARCH INTO COUNCILS FOR THEJUDICIARY IN EU COUNTRIES....................................................7

1.1. REASON FOR THE RESEARCH: A COUNCIL FOR THE JUDICIARY IN

THE CZECH REPUBLIC .........................................................................................71.2. THE PRINCIPLES OF THE REFORM OF THE CZECH JUDICIARY AND

THEIR IMPLEMENTATION......................................................................................81.3. CENTRAL RESEARCH QUESTION ...........................................................................91.4. RESEARCH APPROACH..........................................................................................9

THE EU COUNTRIES TO BE INCORPORATED IN THE RESEARCH ..................................... 9ASPECTS TO BE COMPARED..................................................................................... 10

CHAPTER 2. MODELS OF COUNCILS FOR THE JUDICIARYIN THE EUROPEAN UNION .........................................................11

2.1. NORTHERN AND SOUTHERN EUROPEAN MODEL OF COUNCILS FOR

THE JUDICIARY...................................................................................................112.2. COUNTRIES WITH A COUNCIL FOR THE JUDICIARY IN

ACCORDANCE WITH THE SOUTHERN EUROPEAN MODEL.....................................112.3. COUNTRIES WITH A COUNCIL FOR THE JUDICIARY IN

ACCORDANCE WITH THE NORTHERN EUROPEAN MODEL ....................................122.4. CASE STUDIES INTO EXAMPLES OF THE DIFFERENT MODELS:

EXPERIENCES .....................................................................................................14

CHAPTER 3. SWEDEN (DOMSTOLSVERKET) ................................................15

3.1. THE CONSTITUTIONAL POSITION OF THE JUDICIARY IN SWEDEN ........................15BASIC ORGANISATION OF THE JUDICIARY IN SWEDEN ................................................ 16

3.2. MINISTERIAL RESPONSIBILITY AND PUBLIC CONTROL IN SWEDEN......................173.3. THE SWEDISH COUNCIL FOR THE JUDICIARY

(DOMSTOLSVERKET): COMPOSITION AND COMPETENCES ..................................18THE JUDICIAL MANAGEMENT AND THE ADMINISTRATIVE SUPPORT ............................. 19ALLOCATION OF THE BUDGET FUNDS FOR THE JUDICIARY.......................................... 20THE MANAGEMENT AND THE SPENDING OF THE FUNDS ............................................. 21FINANCIAL ACCOUNTABILITY .................................................................................. 21SUPERVISION OF THE MANAGEMENT........................................................................ 22

3.4. INTERMEDIATE CONCLUSION, SWEDEN ..............................................................223.5. COMPARATIVE OVERVIEW OF THE TASKS AND COMPETENCES OF

THE SWEDISH DOMSTOLSVERKET ......................................................................23

CHAPTER 4. IRELAND (COURTS SERVICE) ...................................................24

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4.1. THE CONSTITUTIONAL POSITION OF THE JUDICIARY IN IRELAND ........................24THE JUDICIAL ORGANISATION IN IRELAND ................................................................ 25

4.2. MINISTERIAL RESPONSIBILITY AND PUBLIC CONTROL OF THE

JUDICIAL PROCEDURE IN IRELAND......................................................................264.3. THE IRISH COUNCIL FOR THE JUDICIARY (COURTS SERVICE):

COMPOSITION AND COMPETENCES......................................................................28OBJECTIVES TO BE REACHED WITH THE COURTS SERVICE ......................................... 30

4.4. INTERMEDIATE CONCLUSION, IRELAND..............................................................314.5. COMPARATIVE OVERVIEW OF THE TASKS AND COMPETENCES OF

THE IRISH COURTS SERVICE ..............................................................................32

CHAPTER 5. DENMARK (DOMSTOLSSTYRELSEN) ......................................34

5.1. THE CONSTITUTIONAL POSITION OF THE JUDICIARY IN DENMARK......................34JUDICIAL ORGANISATION IN DENMARK .................................................................... 35

5.2. MINISTERIAL RESPONSIBILITY AND PUBLIC CONTROL IN DENMARK...................355.3. THE DANISH COUNCIL FOR THE JUDICIARY

(DOMSTOLSSTYRELSEN): COMPOSITION AND COMPETENCES .............................375.4. INTERMEDIATE CONCLUSION, DENMARK ...........................................................395.5. COMPARATIVE OVERVIEW OF THE TASKS AND COMPETENCES OF

THE DANISH DOMSTOLSSTYRELSEN ...................................................................39

CHAPTER 6. FRANCE (CONSEIL SUPÉRIEUR DE LAMAGISTRATURE)..........................................................................41

6.1. THE CONSTITUTIONAL POSITION OF THE JUDICIARY IN FRANCE .........................41MAIN ASPECTS OF THE ORGANISATION OF THE FRENCH JUDICIARY............................. 42

6.2. SCOPE OF THE MINISTERIAL RESPONSIBILITY AND PUBLIC

CONTROL IN THE FRENCH SYSTEM .....................................................................446.3. THE FRENCH COUNCIL FOR THE MAGISTRATURE (CONSEIL

SUPÉRIEUR DE LA MAGISTRATURE): COMPOSITION AND DUTIES .........................46THE ROLE OF THE CSM WITH JUDICIAL APPOINTMENTS AND PROMOTIONS ................. 48THE ROLE OF THE CSM WITH THE DISCIPLINARY JURISDICTION.................................. 50

6.4. INTERMEDIATE CONCLUSION, FRANCE...............................................................516.5. COMPARATIVE OVERVIEW OF THE TASKS AND COMPETENCES OF

THE FRENCH CONSEIL SUPÉRIEUR DE LA MAGISTRATURE.....................................52

CHAPTER 7. ITALY (CONSIGLIO SUPERIORE DELLAMAGISTRATURA)..........................................................................54

7.1. THE CONSTITUTIONAL POSITION OF THE JUDICIARY IN ITALY ............................54ORGANIZATION OF THE JUDICIARY IN ITALY ............................................................. 55

7.2. MINISTERIAL RESPONSIBILITY AND PUBLIC CONTROL IN ITALY .........................55SUPERVISION OF THE ACTIVITIES OF THE JUDICIAL ORGANIZATIONS ............................ 57BUDGETING OF THE JUDICIAL ORGANIZATION ........................................................... 57

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7.3. THE CONSIGLIO SUPERIORE DELLA MAGISTRATURA:COMPOSITION AND COMPETENCES .....................................................................58

NON-JUDICIAL MEMBERS IN THE ITALIAN CSM........................................................ 59FUTURE ................................................................................................................. 59THE ROLE OF THE CSM IN APPOINTMENT, PROMOTION AND POSTING ........................ 60THE ROLE OF THE CSM IN THE DISCIPLINARY JURISDICTION ...................................... 62OTHER COMPETENCES OF THE CSM........................................................................ 62

7.4. INTERMEDIATE CONCLUSION, ITALY..................................................................627.5. COMPARATIVE OVERVIEW: TASKS AND COMPETENCIES OF THE

ITALIAN CSM ....................................................................................................64

CHAPTER 8. THE CZECH REPUBLIC ...............................................................65

8.1. THE CONSTITUTIONAL POSITION OF THE JUDICIARY IN THE CZECH

REPUBLIC ..........................................................................................................65ORGANIZATION OF THE JUDICIARY IN THE CZECH REPUBLIC...................................... 65

8.2. MINISTERIAL RESPONSIBILITY AND PUBLIC CONTROL IN THE

CZECH REPUBLIC ..............................................................................................678.3. A ‘SUPREME JUDICIAL COUNCIL’ IN THE CZECH REPUBLIC..............................708.4. INTERMEDIATE CONCLUSION, THE CZECH REPUBLIC ........................................728.5. COMPARATIVE OVERVIEW OF THE TASKS AND COMPETENCES OF

THE ‘SUPREME JUDICIAL COUNCIL’ IN THE CZECH REPUBLIC ..........................74

CHAPTER 9. FROM AN UNDIVIDED MODEL TO A COUNCILFOR THE JUDICIARY: THE NETHERLANDS...........................76

9.1. THE NETHERLANDS AND THE CONSTITUTIONAL POSITION OF THE

JUDICIARY..........................................................................................................76A. WHY THE NETHERLANDS?.................................................................................. 76B. THE CONSTITUTIONAL POSITION OF THE JUDICIARY IN THE NETHERLANDS.............. 76

9.2. MINISTERIAL RESPONSIBILITY AND PUBLIC CONTROL IN THE

NETHERLANDS ...................................................................................................779.3. A COUNCIL FOR THE JUDICIARY IN THE NETHERLANDS .....................................78

A. REVISION OF THE JUDICIAL ORGANIZATION IN THE NETHERLANDS ......................... 78B. DUTCH COUNCIL FOR THE JUDICIARY .................................................................. 80

9.4. INTERMEDIATE CONCLUSION, THE NETHERLANDS .............................................819.5. COMPARATIVE OVERVIEW OF TASKS AND COMPETENCES OF THE

COUNCIL FOR THE JUDICIARY IN THE NETHERLANDS .........................................82

CHAPTER 10. CONCLUSIONS AND RECOMMENDATIONS...........................84

10.1. LEARNING FROM THE EXPERIENCES WITH OTHER EUROPEAN

COUNCIL FOR THE JUDICIARY? ..........................................................................8410.2. THE EMERGENCE OF COUNCILS FOR THE JUDICIARY IN EUROPE .......................8510.3. NEW COUNCILS FOR THE JUDICIARY BASED ON THE NORTH

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EUROPEAN MODEL .............................................................................................8510.4. PRACTICAL MOTIVES OR IDEAL MOTIVES FOR QUALITY

MONITORING ......................................................................................................8610.5. PROMOTION OF THE INDEPENDENCE ..................................................................8710.6. CONSTITUTIONAL ESTABLISHMENT ....................................................................8710.7. BROADLY COMPOSED COUNCILS FOR THE JUDICIARY ........................................8710.8. ‘EXTERNAL’ MEMBERS IN THE ADMINISTRATION ...............................................8810.9. BROADLY DESCRIBED TASKS AND COMPETENCES ...............................................8810.10. THE COMBINED ACTION OF PUBLIC CONTROL AND THE ROLE OF

THE MINISTERIAL RESPONSIBILITY .....................................................................8910.11. RECOMMENDATIONS TO THE CZECH REPUBLIC .................................................89

APPENDIX A ...........................................................................................................91

QUESTIONNAIRE A: JUDICIAL COUNCIL ........................................................................91I. THE POSITION OF THE JUDICIAL COUNCIL.............................................................. 91II THE DIVISION OF RESPONSIBILITIES BETWEEN THE COUNCIL FOR THE

JUDICIARY AND THE MINISTRY OF JUSTICE (THE DIRECTORATE)................................. 93QUESTIONNAIRE B: MINISTRY OF JUSTICE ...................................................................94

I. THE POSITION OF THE JUDICIAL COUNCIL.............................................................. 94II THE POSITION OF THE MINISTRY OF JUSTICE (THE DIRECTORATE RESPONSIBLE

FOR THE COURT ORGANIZATION) ............................................................................. 95III THE DIVISION OF RESPONSIBILITIES BETWEEN THE COUNCIL FOR THE

JUDICIARY AND THE MINISTRY OF JUSTICE (THE DIRECTORATE)................................. 95IV THE ALLOCATION OF FUNDS, ACCOUNTABILITY AND CONTROL............................. 96

QUESTIONNAIRE C: COURTS .........................................................................................97I. THE POSITION OF THE JUDICIAL COUNCIL.............................................................. 97II. THE COURT ORGANIZATION................................................................................ 97III THE ALLOCATION OF FUNDS BY THE COURTS, ACCOUNTABILITY AND

CONTROL ............................................................................................................... 98QUESTIONNAIRE D: LAWYERS AND LEGAL SCHOLARS..................................................99

I. THE POSITION OF THE JUDICIAL COUNCIL.............................................................. 99II THE POSITION OF THE MINISTRY OF JUSTICE (THE DIRECTORATE RESPONSIBLE

FOR THE COURT ORGANIZATION) ........................................................................... 100III THE DIVISION OF RESPONSIBILITIES BETWEEN THE COUNCIL FOR THE

JUDICIARY AND THE MINISTRY OF JUSTICE (THE DIRECTORATE)............................... 100

APPENDIX 2 .........................................................................................................102

OVERVIEW OF THE INTERVIEWEES IN FRANCE, ITALY AND SWEDEN ...........................102FRANCE............................................................................................................... 102ITALY.................................................................................................................. 102SWEDEN .............................................................................................................. 103

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Chapter 1. Research into Councilsfor the judiciary in EU countries.

1.1. Reason for the research: a Council for the judiciary in the CzechRepublic

In various European countries Councils for the judiciary – called ‘Councils for theJudiciary’ or ‘Council for the Magistrature’ – function as intermediaries betweenGovernment and the judiciary in order to guarantee the independence of the judiciaryin some way or in some respect. These Court Administration Authorities havedifferent competences in different EU countries. Some of them act as boards for theappointment of judges and disciplinary action against judges (e.g. France and Italy),other administration authorities play an active role in the budgeting and general(financial and administrative) management of Courts, as well as housing, education,computerisation etc. (e.g. Sweden and Denmark).

At present there is a European trend to establish Court Administration Authorities incountries that hitherto relied on Ministerial management and budgeting of the Courtsand the judiciary. This shift has lead to the establishment of Court AdministrationAuthorities in Ireland (1998) and Denmark (1999). The Netherlands are alsocontemplating the establishment of such an authority, just like the Czech Republic is.This contribution reports on some of the characteristics of some Court AdministrationAuthorities, especially on the issues of public or constitutional responsibility for themanagement of the judiciary by Councils for the judiciary. In most EU countries thepublic responsibility for the management of the judiciary was, until recently, mainlyexpressed via and governed by Ministerial responsibility of a Minister of Justice (orof the Government) to Parliament. A Court Administration Authority brings aboutchanges in the former pattern of responsibility-arrangements.

The research reported on was originally undertaken for the benefit of the DutchGovernment and its plans to establish a Judicial Council. They wanted somecomparative research in order to help them in their discussions on the constitutionalposition and shape of their Authority. The background for the comparison in theoriginal research was the Dutch plans. For better comprehension, they are set out insome detail in this report. However, this report aims to serve as a means for reflection,by way of comparison, for the plans of the Czech Republic that is also considering theestablishment of a Court Administration Authority, as part of an operation to reformthe Czech judiciary.

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1.2. The principles of the reform of the Czech judiciary and theirimplementation

On April 14th of 1999 the Government of the Czech Republic discussed the draft ofthe Principles of the reform of judiciary. These principles are reflections and reactionson the findings of the mission of experts of the EU in the area of the judiciary and theInterior Affairs in the Czech Republic of November 1997 and the report about theprogress in the pre-association period of the Czech Republic.

The Government of the Czech Republic ordered the Ministry of Justice to submit adraft of the Concept of the reform that will be based on the approved Principles before15 June 1999. This concept should include both the proposals for necessary legalarrangements and for proposals of technical and organisation measures related to theirimplementation in practice.

The key aspects of the prepared reform of judiciary should be the following:

- the establishment of a Council for the judiciary which will function independentlyfrom the Government. The Council will have the competence to solve issuesconcerning the organisation of the judicial decision-making process in the Courts,judges’ personal affairs including the disciplinary proceeding, training of judges, etc.;

- the new solution concerning the agenda, so far executed by presiding judges ofCourts in the area of administration of the national property and State executiveadministration and the related new definition of the position of presiding judges andtheir relation to judge self-administration;

- the simplification of the four-level system of Courts and its change to a functionalthree-level system.

- organisational arrangements of the activity of Courts concerning the quick settlementof cases on the one hand and guaranteeing the constitutional rights and liberties on theother hand.

The implementation of reform of judiciary is left to the Ministry of Justice (as thesupplement to the principles approved by the Government). The expected deadline forthe submission of specific drafts for statute laws is the end of 1999. Thecorresponding sub-law regulations should be prepared during the first half of the year2000, the large-scale implementation of reforms is expected at the turn of 2000/2001.

These policy plans require an elaborate legislative program at relatively short notice.This research aims at giving comparative insights into the legislative arrangements ofEU countries that have established authorities such as the State administration ofjudges of the Czech Republic. The research results may serve as inspiration or merelyas food for thought for the Czech plans. Concluding remarks are made andrecommendations are given at the end of the report.

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1.3. Central research question

The central question in this research project is: in which way have the nationallegislation from the EU countries shaped the legislative relation between independentCouncils for the judiciary (if any) – or comparable agencies – and the Minister ofJustice (or Government) on the one hand and, between the Council for the judiciaryand the Courts/judiciary, on the other?

1.4. Research approach

The EU countries to be incorporated in the research

This comparative study sets out to research the constitutional situation of Courtsadministrations or Council for the judiciary arrangements in various EU countries. Onthis basis it will give an inventory of the different ways the national legislationorganizes the relations between the Council for the judiciary and the Minister ofJustice on the one hand and the Courts/judiciary on the other. Special attention willfocus on the way in which an independent Council for the judiciary and the legislativearrangement governing it contribute to the quality of the administration of justice andjudicial self-government.

The following countries will be included: Sweden, Denmark, the Netherlands, France,Italy and the Czech Republic. In choosing these countries, we took into account thevariation in models existing in Europe as regards the constitutional configurationconcerning public supervision of the relationship between the judiciary and thosepolitically responsible (the Minister of Justice or the Council of Ministers as a whole).

This choice from among the various countries will also facilitate the comparisonbetween the models used to administrate the Courts and the judiciary in the differentcountries. In fact, three main models exist in Europe as regards the relation betweenthe judiciary, Councils for the judiciary or similar agencies, and the politicallyresponsible authorities, viz. the Northern European model (with far-reaching powersfor independent Councils for the judiciary, also in the fields of budgeting, logistics,control, supervision, appointments, disciplinary measures, recruitment, etc. withregard to the judiciary), the Southern European model (with only advisory powers toappoint members of the magistrature/judiciary and to take disciplinary measuresregarding magistrates), and the Undivided model, in which there is no intermediaryinstitution such as a Judicial Council, but in which the management of the judiciary isvested in the politically responsible Government authorities. Examples of the NorthernEuropean Model are to be found in Sweden and – within a year – in Denmark andIreland. Italy, France and Sweden are examples of the Southern European Model andthe Federal Republic of Germany and the Netherlands (still) represent the UndividedModel. The situation in the Netherlands is interesting because a transition from theundivided model to the Northern European model is under consideration. Ireland andDenmark underwent this transition only recently.

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Aspects to be compared

The comparative study of the constitutional and legislative configuration of therelationship between the independent Councils for the judiciary or similar institutions,the judiciary and the politically responsible authorities will focus on a number ofissues, viz.:

1. Background of the constitutional system (system of Government, position of thejudiciary, history of the relationship between the judiciary and the Government/statusof the independence of the judiciary)

2. Constitutional and legislative form of the relationship between the judiciary,politically responsible officials, and (if there is such an institution) the Judicial Council

3. The competences of the Council for the judiciary in the field of policy, such as

public relationspublic servicejudicial co-operationpersonnel policyappointment policyresearch policyadvice to the Ministry of Justicequality monitoring

4. The competences of the Council for the judiciary in the field of management, suchas

housing and securityautomationadministrative organisationpublic information

5. The competences of the Council for the judiciary in the field of budgeting andbudgeting procedures, such as

budgeting policyallocation of resourcesspending policy

The data for each of the countries studied will be analysed and compared on the basisof this scheme (where relevant). Where possible, the analysis will take experienceswith the functioning of Councils for the judiciary into account.

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Chapter 2. Models of Councilsfor the judiciary in the European Union

2.1. Northern and Southern European model of Councils for the judiciary

I have already pointed out that different member states of the European Union – inorder to safeguard the independence of the judiciary and/or for the purpose of efficientmanagement and administration of judicial organisations – established independentintermediary organisations positioned between the (functional) judiciary and thepolitically responsible administrators in the Government or Parliament itself. Withinthose Councils existing in Europe a distinction can be made between the SouthernEuropean model in which the body is constitutionally rooted and only fulfils primaryfunctions in safeguarding judicial independence – such as, for example, giving adviceas regards the appointment of members of the judiciary or exercising disciplinarypowers with regard to members of the judiciary – and the North European model inwhich the Councils, in addition to primary functions such as advice on appointmentsand on disciplinary judicial procedure, also have rather far-reaching competences inthe area of administration (supervision of judicial administrations, case loads and casestocks, flow rates, promotion of legal uniformity, quality care etc.) and law-courtmanagement (think of housing, automation, recruitment, training, etc.) and, in additionto that, with the budgeting of law-courts an important role is allotted (involvement insetting the budget, distribution and allocation, supervision and control of theexpenditure, etc.).

2.2. Countries with a Council for the judiciary in accordance with theSouthern European model

The Southern European model of Councils for the judiciary is to be found in France,Italy, Spain and Portugal.

In France a High Council for the magistrature (Conseil supérieur de la magistrature)exists since 1946. The President of the Republic chairs this Council. Furthermore, theConseil consists of the Minister of Justice (vice-chairman) twelve members areappointed for four years by and from the judicial organisation and the PublicProsecutor, a member of the ‘Conseil d’Etat’ and three members appointed by theHead of State. The Conseil has competences in the domain of the appointment of

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members of the judiciary – members of the judiciary are appointed by or onrecommendation of the Conseil by the Head of State – disciplinary judicial procedureand promotion of members of the judiciary.

Italy also has a High Council for the magistrature (Consiglio Superiore dellaMagistratura). This Council is closely related to the French Conseil Supérieur de laMagistrature and is also chaired by the Head of State. It consists of the First Chairmanof the Supreme Court of Appeal, the Attorney General with this Court, twentymembers appointed by and from the judicial organisation and ten qualified juristschosen by Parliament. The competences of the Council embrace appointment, transferand promotion of the members of the judiciary, the appointment of other persons whoare serving on Courts of justice of the ordinary judiciary, and disciplinary judicialprocedure with regard to the members of the judiciary.

In Spain a General Council functions for the judiciary (El Consejo General del PoderJudicial). This consists of the president of the ‘Tribunal Supremo’ (chairman) and oftwenty members appointed, on the recommendation of Parliament, for a period of fiveyears by the Head of State. Twelve of them come from the circles of the judiciary andeight from that of barristers, solicitors and other jurists. The competences of theConsejo concern appointments, promotion and supervision via inspection anddisciplinary judicial procedure.

The last example of a High Council for the magistrature according to the SouthernEuropean model is to be found in Portugal. There the president of the Supreme Courtchairs the so-called ‘Conselho Superior da Magistratura’. Furthermore, it consists ofsixteen ordinary members, two of whom are appointed by the Head of State, sevenby Parliament and seven by and from the judicial organisation. Like in Spain, thepublic prosecution is not part of the Portuguese Council. The competences of theCouncil include appointments, posting/transferring and promotion of judges.

2.3. Countries with a Council for the judiciary in accordance with theNorthern European model

At present, examples of countries where a Council for the judiciary functions, set upin accordance with the Northern European model, are Sweden, Ireland and (soon)Denmark.

The ‘fatherhood’ for a Council for the judiciary in accordance with the NorthernEuropean model remains with the Kingdom of Sweden. In Sweden, namely, the so-called ‘Dolmstolsverket’ exists since 1975. This Council for the judiciary is set up asan independent administrative body led by a director-general. The executive of theCouncil is under his chairmanship and further consists of four judges (two Courtpresidents and two presidents of Courts of appeal), two members of Parliament, alawyer and two union representatives. The competences of the Swedish Council forthe judiciary consist of, among other, administrative tasks with regard to the draftingof the budget and the apportionment of the national budget for the judiciary amongthe law-courts, and further the execution of managerial competences such assupporting the law-courts in, among other things, the area of personnel and training

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management, housing, automation and computerisation (business administrationsystems, jurisprudence databases, and suchlike), administrative organisation andbearing the responsibility for accounting information concerning the spending ofmeans. In addition to this, the Council principally fulfils regarding the recruitment andappointments

1 of judges.

Since a short time ago (16th April 1998)2 Ireland also has a – for the time being

provisional – Council for the judiciary (Courts Service).3 The Council is under the

chairmanship of a Chief Executive Officer (appointed on 1st January 1999) and isfurther made up of nine judicial members from the different ranks of the judicialinstances in Ireland, the Attorney General, two lawyers, members from the echelonsof the administrative and legal staff of the judiciary (clerks office, registrar, etc.), apublic prosecutor/district attorney, a member representing the interests of the clienteleof the law-courts, a member designated by united unions and a juridical expert. TheCouncil has a number of tasks and competences in the area of the administration andmanagement of law-courts, including apportioning of the budget, inspection on andjustification of spending of the budget funds by the law-courts, the generaladministrative assistance to law-courts, supporting departments for judges (includingthe auxiliary personnel), external relations (among other things public information),responsibility for housing, taking care of facilities for clients of the judicial procedure,training programmes, provision of information and responsibility concerning datarelating to the working process of the law-courts, providing annual reports andstrategic policy plans and – more in general – advising the Minister of Justice in thedomain of the judicial procedure.

Denmark on 26th June 1998, voted a Law on the Council for the judiciary (Lov omDomstolsstyrelsen), by which, inspired by the Swedish example, an independentCouncil for the judiciary is being set up. The Council for the judiciary which willfunction from its coming into operation on 1st July 1999 in Denmark, is under thechairmanship of a director and an administration of five – independent – committeemembers from the different judicial instances (Supreme Court, High Court and TownCourts) two committee members from the circles of the juridical staff of the law-courts, and two from the supporting departments. Furthermore, a lawyer and twocommittee members with management-expertise will have a seat in the Council. Thedirector and the daily administration do not have any independent competences, whichthey could exercise independently from the general executive of the Council. TheCouncil, in addition to supporting tasks for the Juridical Appointments Council (aseparate body), has competences in the domain of the budget (among other thingsmaking budget proposals to the Minister of Justice) and the competence, should theoccasion arise, to address Parliament directly if the Council considers the allocated

1

The bureau of office support for the Appointments Review Committee for the Judiciary that functionsindependently from the Domstolsverket. See Appointment of permanent judges and the position of theAppointments Review Committee for the Judiciary and its working method, published by Domstolsverket,Jönköping 1997.

2Date of implementation of the Courts Service Act, 1998.

3In Gaelic the Council is called ‘An tSeirbhís Chúirteanna’. Expectations are that the Council will formallyacquire a permanent status before the end of 1999.

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means to be insufficient). In addition to this the Council has the authority to set upstrategic policy plans for the judicial procedure, the authority to apportionate thebudget funds among the law-courts, to inspect the spending, the responsibility ofdrawing up annual reports and annual statements of accounts, and a generalcompetence in the area of managing law-courts (varying from housing to trainingprogrammes). In addition to this, the Council will play a supporting role in providinginformation and in automation.

2.4. Case studies into examples of the different models: experiences

As was already stated in chapter 1, not all countries in the European Union with aCouncil for the judiciary are involved in this research. A thorough case study has beenmade of the experiences in Sweden, France and Italy only. Denmark and Ireland havealso been examined more closely but, as the Councils for the judiciary have been setup so recently, a study trip in search of acquired experiences would provide littleadditional value. Literature studies into the Councils in Denmark and Ireland havebeen started.

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Chapter 3. Sweden (Domstolsverket)

3.1. The constitutional position of the judiciary in Sweden

The independence of the Swedish judiciary is regulated in the Swedish Constitution(Regeringsform 1975) in chapter 11. The independence of judges is – indirectly – guaranteed at the level of the position of individual judge, from the point of view ofthe legal position

4 and functionally, at the level of the jurisdictional function

(organisation and independent administration of justice5). Judges in Sweden are

independent on account of the fact that they can be dismissed only in cases cited bythe Constitution and receive a permanent appointment from the Government.

6 An

appointment as judge is incompatible with the membership of Parliament.7 Article 2

of chapter 11 of the Swedish Constitution forbids Government organs and Parliamentin any way to determine how a Court of justice must interpret the law or administerjustice in an individual case. In addition to this, article 11:3 of the SwedishConstitution assigns settlement of disputes between citizens exclusively to law-courts.A further indirect guarantee for independence is situated in the way the Constitutionoutlines the judicial organisation and the further interpretation of the judicialorganisation and reserves the procedural law for the legislator.

With this, the constitutional position of the judiciary in Sweden has, at first sight, anaffinity with the independent position of the judiciary in the Dutch Constitution. Yetthe position of the judiciary in Sweden, on closer consideration, strongly differs fromthe Dutch on a number of points. That is chiefly due to Sweden’s very characteristicconstitutional and administrative tradition, which is characterised by substantial formsof territorial decentralisation but also – and to a much more substantial extent thanis the case in the Netherlands – through functional decentralisation. Particularly, the

4

See articles 11:5 (employment protection), 11:7 (incompatibilities), 11:9 (appointment and selectionrequirements) and 11:10 ( legal position of judges by law) of the Swedish Constitution.

5See among other things articles 1:9 (requirement of objective and impartial administration of justice), 11:1(main features of judicial organisation), 11:2 (independent guarantee of administration of justice for law-courts),11:4 (judicial organisation and procedural law by law) and 11:11 (cassation possibilities with a leave system).

6See among other things articles 11:5 and 11:9 Regeringsform 1975. This guarantee, however, is only applicableto judges, who are permanently appointed. Temporary judges can also be dismissed for other reasons. This gaverise to some unrest when, at the start of the 90s many temporary judges were dismissed within the frameworkof savings policy.

7Article 11:8 Regeringsform 1975.

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varied and far-reaching attribution of administrative powers to independentadministrative organs (ämbetsverk) at central Government level are characteristic ofthe Swedish system.

8 Local administrations and certainly independent administrative

organs operate, just like the Councils for the judiciary, independent of the centralGovernment administration. In the Swedish system, administration of justice andadministration have so much in common that it is often difficult to make a strictdistinction between the administrative and judiciary function.

9 This is expressed in

various ways in the Swedish Constitution: judiciary and administration (not insofar asimplemented by the central Government itself) are, for example, dealt with collectivelyin chapter 11, and the independence of the decentralised administration is in manyaspects dealt with in the same way as that of the (members of the) judiciary.

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Basic organisation of the judiciary in Sweden

The administration of justice in civil and criminal matters in Sweden is assigned to the ordinaryjudiciary, administration of justice in administrative matters is assigned to the separatelyorganised, administrative judiciary. Both the ordinary as well as the administrative judiciaryhave two instances, i.e. both have a possibility of appeal to appeal Courts and subsequent appealto a Supreme Court, respectively appeal to an administrative appeal Court and subsequentappeal to an administrative Supreme Court in administrative matters. Civil or criminal mattersare dealt with in the first instance by a district Court (Tingsrätten). Sweden has 96 districtCourts that vary in size from small district Courts with only one or two judges to large districtCourts with dozens of judges and hundreds of employees (for example Stockholm). To appealdecisions from district Courts, one can lodge an appeal at 6 Courts of appeal (Hovrätter). Aftera verdict at a higher Court it is possible to submit a case to the Supreme Court (Högstadomstolen). Sweden, however, has a leave system that is designed in such a way that only thosematters which the Supreme Court itself deems important for the development of thejurisprudence are permitted to be dealt with by the Council.

The administrative jurisdiction – which since 1979 has been reorganized in its ownadministrative jurisdiction organization – has the same set-up for administrative lawsuits. Inthe first instance, matters are dealt with by an administrative law-court (one of the 23Länsrätter), appeal rests with the administrative Courts (4 Kammarrätter) and an appeal withthe administrative Supreme Court (Regeringsrätten) is possible via leave.

8

See also J.L. Boxum, J. De Ridder and M. Scheltema, Independent administrative organs in soorten[Independent Administrative Organs in sorts], Deventer 1989, p. 186 and further. As a result of thedifferent administrative organisation in Sweden that, in comparison with, for example, other WestEuropean countries, has small ministries (average size about 120-130 people) and many independentadministrative organs to which the major part of administrative implementation tasks has been left.

9See also J.M. de Meij, Het Koninkrijk Sweden [The Kingdom of Sweden], in: L. Prakke, C.A.J.M.Kortmann (ed.), The constitutional law of the countries of the European Union, 5th impression, Deventer1998, p. 908.

10See, for example, article 11:2 and article 11:7 that both, in comparable ways, forbade interference fromother Government bodies with exercising jurisdiction functions, exercising, respectively, administrativecompetences in individual cases.

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3.2. Ministerial responsibility and public control in Sweden

Due to the other set-up of the Swedish system, which is founded in a typical – non-revolutionary – tradition, and also the way in which the public control of theadministration is shaped, fundamentally differs from for example the Dutch or Czechsystem. That – in turn – again has important consequences for the constitutionalposition of the judiciary.

Where, for example, the Dutch constitutional system uses the political Ministerialresponsibility as the pivoting point for public control of the administration and, withit, components of the organisation of the dispensation of justice, this is less obviousin Sweden. Sweden also has the institution of the political Ministerial responsibilityand there too it has developed into a general Ministerial responsibility, in the sensethat Ministers can also be held responsible for matters which only can be attributedto acting or not acting via assignment. However, the scope of the Ministerialresponsibility in Sweden is fundamentally different from what we have, for example,in the Netherlands. Thus the collegiate responsibility of the Government is the rule andindividual responsibility the exception. The reason for this is simple: in Sweden,Ministers are never independently empowered, but act only in collegiate Governmentconnection. In addition to this there is a tradition by which, for matters concerning theactivities of independent administrative organs (henceforth: IAOs), Ministers are nomore responsible than their actual competence of intervention extends. If problemsarise with the functioning of independent administrative organs, the Minister is nottackled any further than for his responsibility on information about the IAO,appointment or dismissal of the administration or of a director of an IAO, or thefunding of and financial accountability by an IAO. The greater part of the publiccontrol of the fulfilment of responsibilities by IAOs is accomplished differently inSweden, via the instrument of the Ministerial responsibility. First of all, there is theinspection via the judge who can, through offering legal protection, supervise IAO sothat their activities remain within the limits of the law. Furthermore, according to theSwedish Constitution the IAOs are obliged to follow the general instructions andpolicy directives which Parliament, on the proposal of the Government, issuestogether with the budget.

11 The non-compliance with these general instructions issued

with the budget can have different, namely financial, consequences. In addition to this,the composition and appointment of the administrations of IAOs is a way to carry outinspections of the fulfilment of responsibilities of IAOs. In the IAO administrations,appointed by the Government, headed by directors-general, IAOs often have sittingmembers of Parliament and unions, as well as members of interest groups. Anadditional form of inspection is via the regulations concerning the publicity of theadministration. In Sweden these regulations are far-reaching, certainly in comparisonwith the Netherlands, and make it possible for the public – and, as it happens, alsothe press – to follow the fulfilment of responsibilities by IAOs in detail. Anotherinstrument of inspection regarding the activities of IAOs lies in the existence of theParliamentary ombudsmen, who carry out inspections of the decent treatment of the

11

See article 9:7 Regeringsform 1975.

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citizens by the Government. A last public form of control consists of the so-called‘auditing’. In Sweden nearly all IAOs are subject to an annual report and/oraccounting report obligation. These reports, in turn, are inspected by virtue ofstatutory obligation of by the national Auditor General’s Office or by the special,Parliament-appointed, accounts committees or accountants. Both the report and theaudit report are public.

Against this background, not surprisingly, it is no surprise that Sweden chose toassign the management and a large part of the administration of justice to anindependent administrative organ, the Domstolsverket, i.e. the Swedish JudicialCouncil. The Council functions as an intermediary between the Government and theSwedish law-courts and is engaged in important policy and managerial tasks. In theSwedish system it is unusual to call the Government to account for the fulfilment oftasks which are the responsibility of the Council for the judiciary itself. For thismanagement the Council for the judiciary itself is generally addressed. The inspectionthat Parliament – together with the Government – carries out on the way thejudiciary is managed has the form of the general instructions, which accompany thebudget. In general these instructions relate to the way the budget targets should berealised, such as the policy to be followed with disposing of the case stock and certaintarget figures.

3.3. The Swedish Council for the judiciary (Domstolsverket): compositionand competences

For the budgeting and administrative and policy support of the judiciary anindependent administrative body (Domstolsverket), which was set up especially forthat purpose, exists since 1975. Among other things it is in charge of apportioning thenational budget for the judiciary among the law-courts, and has competences in thearea of judicial management and support. This Domstolsverket’s administrationconsists of judges (6), members of Parliament (2), union representatives (2) and adirector-general.

12 Each year, the administration of the Domstolsverket decides on the

apportioning of the budget made available by the legislator under the budget law. Inaddition to this, the administration is mainly in charge of approving the annualstatement of accounts that the Domstolsverket has to produce for inspection by theGovernment, in which the spending of the money is justified and advising in matterssubmitted to the administration by the director-general. The director-general isresponsible for the decision-making in all other matters assigned to theDomstolsverket for decision. Thus the director-general, supported therein by hisdivision directors, is in charge of taking budgeting decisions in concrete cases andimplementing training and support policy for the law-courts. The support that theDomstolsverket offers to the different law-courts is exceptionally extensive. Thus, forexample, the Domstolsverket takes care of different forms of provision of financial

12

At present Mr. Bertil Hubinette is director-general of the Domstolsverket. Hubinette himself has also been ajudge, first in a law-court, later in a tribunal.

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services13

for law-courts, such as accountants support with the financial accounts thatlaw-courts must make periodically,

14 but also for help with law-courts’ salary records,

expense account systems, automation support and the delivery and provision ofcentral data files (also central juridical databases) and business administration systems.The Domstolsverket also helps in recruitment of personnel, the personneladministration and the personnel management.

15 During the last years the

Domstolsverket has also become more active in the area of training. In addition, asregards juridical courses and training programmes, proficiency-training courses arealso being developed nowadays. Thus in 1998 a management course for executivejudges within tribunals and Courts has started for the first time. In addition, theDomstolsverket, among other things, takes care of the housing and office design andfurnishing of the law-courts

16 and it grants financial loans to law-courts that have to

contend with deficits in the budget. The role that the Domstolsverket plays withregard to law-courts can mainly be characterised as general and technical. The Councilhas actual competences to a very limited extent only as regards individual law-courts.The law-courts, through the system of integrated management, are largelyautonomous in their own management affairs and budgetary matters. However, as aresult of the scale of certain law-courts this autonomy produces a heavy burden. Inorder to be able to judge the role that the Domstolsverket plays it is important toexamine how the management and the budgeting of Swedish law-courts are organised.

The judicial management and the administrative support

Within the Swedish law-courts and tribunals (but also within the Supreme Court andother Courts in charge of the administration of justice) there is a system of integratedmanagement, this is a system by which separate law-courts are mainly responsible forthe defrayment and the management of their own organisation. The managementstructure for the law-courts is arranged via separate instructions for (administrative)law-courts, (administrative) tribunals and the (administrative) Supreme Court. Themain common feature is that the organisation for every Court of justice, however, isset up according to the same model. With most law-courts it is ‘collegium plenaryassembly’, which means that the judicial meeting is the basic principle of theorganisation. This collegium has actually only one competence, being the annualelection of the presidium of the Court of justice. This presidium, in which thepresident of the Court of justice also has a seat, functions as a kind of dailyadministration and is mainly responsible for two matters, namely to determine thebasic apportioning of money internally, to determine the criteria for the distribution

13

The remarkable element in the financial management of the Domstolsverket is that the Domstolsverketitself enters into loans with private institutions in order to get the budget balanced. This lending, in fact, iseffectuated on the Government’s instructions.

14For example by making a central financial management system available, called Agresso.

15In this way the Domstolsverket also functions as a supporting service for Advisory committee for thejudiciary. This otherwise independent committee, which consists mainly of judges, advises the Governmenton the candidates to be appointed. The Government on the recommendation of this Appointments advisorycommittee appoints judges in Sweden.

16Many of the judicial instances are in rented office buildings, the rent of which is dealt with by theDomstolsverket. The Domstolsverket, however, if it is expedient, also buys premises.

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of the workload and determining the annual report. Further management affairs areassigned to the chairman/president of a Court of justice who usually operates amonghis judges as primus inter pares, but with regard to the supporting staff also has theauthority to give instructions, even the competence to appoint and to dismiss.

This system of integrated management – which, according to the interviewed judge,works satisfactorily and promotes in particular the self-responsibility for the primaryprocess – is from a more recent date than the establishment of the Domstolsverket.They changed over to this system around 1990.

Allocation of the budget funds for the judiciary

In Sweden the budgeting of the judiciary takes place at several levels. First of all, thereis – based on the budget approved by Parliament – an allocation of the Governmentbudget to the Domstolsverket which, subsequently, apportions the money and passesit on to the different law-courts. For determining the budgets earmarked for thejudiciary a three-year budgetary cycle applies. During the first year, on 1st March, theDomstolsverket makes a budget proposal to the Government, which submits it on20th September in a budget proposal to Parliament. Between 1st March and 20thSeptember the Government negotiates with the Domstolsverket about the policy forthe coming budgetary year: the policy objectives and target figures are set during thisperiod and translated into instructions that the Government gives to theDomstolsverket when the budget is approved. The budget proposal goes out on 20thSeptember, after which the Government and Parliament debate on the budgetproposals. The management information from the annual reports of theDomstolsverket about previous budgetary years plays, of course, an important rolehere. Subsequently Parliament usually fixes the budget in December. Once the budgetis approved, the Domstolsverket implements an apportionment and thus determinesthe budgets for the individual law-courts. This always takes place on 1st January. Forthe calculation of the budgets, the Domstolsverket uses a four-step procedure. Firstof all, a distribution in proportion to the sort of Court of justice, subsequently adistribution in proportion to the size of the Court of justice, after which the influx ofmatters is involved in the calculation,

17 and in the final analysis it is checked, on the

basis of exceptional circumstances, if a further surcharge on the budget is stillrequired. This surcharge system, which mainly favours the smaller law-courts, hasbecome so detailed that the overview for many law-courts on the basis of thedistribution threatens to disappear. Much criticism is voiced on this by the law-courts.At present the Swedish Auditor General’s Office is examining if a simpler and moremanageable variant of this system could be considered.

The budget, made available by the legislator in December to the Domstolsverket,becomes a lump sum, which means that still no predestination at all is given for thegranted money, prior to it being placed at the disposal of the Domstolsverket. Thesystem from before 1989, in which one still worked with certain forms of earmarkedfunds, has been abandoned in the meantime.

17

This takes place via a calculation of averages: the average intake of the previous two years is used as thecriterion.

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The management and the spending of the funds

The use of the funds through the agency of the Domstolsverket has already beenmentioned above. At the level of the law-courts the daily administration, usuallyrepresented by the president/chairman (lagman) of a Court of justice decides on theappropriation of the budget. The daily administration usually decides on the budgetand the annual account, the chairman/president of the Court of justice decides on thedaily appropriation, spending and justification of the credits within the framework ofthe budget. Most of the money is spent on the salaries. Because Government appointsthe judges rather than of being placed by a Court of justice, the president/chairman isnot free to use his budgets on his own discretion. Yet it can happen that extra supportfrom judges in training is called in to eliminate backlogs. This flexibility in themanagement within the budget is usually possible. In order to take care ofcontingencies, law-courts can also conclude loans with the Domstolsverket amountingto 3-5% of the total budget.

Many law-courts have the policy of holding on to reserves. In principle they do nothave to be repaid. These reserves, which can be spent freely, are increasing at manylaw-courts at present, while the case stock and the backlog in the settlement of casesare increasing too. Within the Domstolsverket the possibilities are being carefullyconsidered in order to apply these reserves usefully. In 1997 there was a bit of fussover a letter from the Domstolsverket in which it was announced that theDomstolsverket would take back half of the reserves if no adequate use can be givento them by the law-courts.

Financial accountability

The financial accountability of the law-courts is affected mainly via mediation of theDomstolsverket, which gives the official accounts. This takes place in a semi-automated way. The law-courts keep accounts of their receipts and expenditure ona system managed by the Domstolsverket (Agresso). This system administers receiptsand expenditure and every three months printouts are generated. In addition to theaccounting report, the law-courts must also provide the Domstolsverket withinformation concerning their case stock and case settlement rates. This used to takeplace incidentally. Once a year a summary of received and processed matters werecommunicated to the Domstolsverket. These days it is possible, via Agresso, to alsointroduce and generate management information. Through the greater extent of detailof the information and reporting demand from the Government, Agresso gives moreinformation than mere accounting data from the administration.

The exceptional aspect about the Swedish accountability system is that it is virtuallysanction-free. There are no actual sanctions on exceeding or improperly using thebudget: criminal proceedings are applicable only in case of fraud. In addition to this,the ‘golden strings’ of the budget do their work and too much is sent via consultation.However, the budget discipline is strong. Interim overspending of the annual budgetdetermined by the Domstolsverket gives no ground for compensation: the budgetmust be adequate, making up for the difference occurs only very occasionally. Thebudgeting system, according to the law-courts, does, however, increase themanagement’s own responsibility and flexibility.

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Supervision of the management

A system of supervision of the management of individual law-courts hardly exists inthe juridical sense. Consultation and enhancing the proper responsibility and supportare the Domstolsverket’s principal steering instruments as regards the law-courts. Ifit gets out of hand, the Domstolsverket has the possibility of withdrawing thedelegation of the budget from an individual Court of justice. In fact, such a withdrawalboils down to a Court of justice under supervision. Although the Domstolsverket hasalready threatened several times, it has never come to a withdrawal.

The disciplining effect that results from the reports and statistics from law-courtsmerits mentioning. Swedish law-courts – as it appeared during a visit – like to bewell matched to their peer-Courts. The comparison between law-courts with goodfigures, compared to law-courts with bad figures in the annual report or duringmeetings, has a very powerful effect, according to the Domstolsverket.

3.4. Intermediate conclusion, Sweden

The Swedes – this was the impression during a study visit in 199718

- are satisfiedwith how the Domstolsverket functions, the way of budgeting and the system ofintegrated management at the level of the Courts. The promotion of the self-responsibility of Courts and the flexibility of the system were mentioned as importantadvantages of the system. The satisfaction with how the Domstolsverket functions hasmainly to do with the way in which the Council interprets its competence. As anindependent administrative organ which is well informed with the situation of Courts,the Council is successful – according to those involved from the different levels ofjudicial organisations in Sweden – in solving many of the problems with whichCourts have to contend. Also in the area of the budget distribution there is satisfaction(compared with the alternative that previously existed in Sweden, of direct ratificationand budgeting by the Ministry of Justice), although a number of the interviewedCourts consider the apportioning criteria and the basis for the distribution of thebudget – used by the Domstolsverket – to be obscure. The system of the equitybonuses, which Courts can receive in exceptional circumstances, is subject to muchcriticism with Courts, certainly at those Courts where they hardly have anyexceptional circumstances.

19 In addition to this, some Court administrators seem to

experience the action of the Domstolsverket with caution: the Domstolsverket is notinclined to take fast measures or action against of Courts that dysfunction to a largeror lesser degree. The respect for the autonomy of Courts is quite large. ‘Managementby dialogue’ is the first matter of importance at the Domstolsverket.

18

See the report of D. Kersten and W. Voermans, The decentralised budgeting of the judiciary and themanagement of Courts in Sweden, Tilburg/the Hague 1997.

19At present, within the framework of a research project into the possibilities to reorganise the judiciary, aninvestigation is being made by the Swedish Auditor’s Office into the budget distribution of theDomstolsverket and the distribution criteria used.

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In Sweden the satisfaction with the Domstolsverket institution has already occurredpreviously in another matter. The plans of the Liberal-Conservative Government from1993 to do away with the Domstolsverket met with strong opposition among thejudges in Sweden, who recognised a substantial infringement of their independence.The plan for abolition was withdrawn on account of the widespread resistance to it.

3.5. Comparative overview of the tasks and competences of the SwedishDomstolsverket

I Policymaking competences:

ü external affairs

ü provision of public financial services

judicial collaboration

ü personnel management

selection policy

ü research policy

ü advising the Ministry of Justice

quality policy

II Managerial competences:

ü housing & security

ü automation

ü administrative organisation

ü provision of administrative information

III Budget procedure

ü budget policy

ü distribution means

ü justification of spending

IV Other competences

corrective powers/discipline

(nomination power with) appointing judges

promotion and placing judges

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Chapter 4. Ireland (Courts Service)

4.1. The constitutional position of the judiciary in Ireland

The position of the judiciary in Ireland is strongly influenced by the British way ofsetting up the judicial procedure and judicial organisation such as that which existedwell before the existence of the independent Irish Republic and the Irish Constitutionof 1922. Via the Judicial Courts Act of 1924 the basis of the British judicialorganisation such as it existed before 1922 was adopted, the difference being that notthe British Lord Chancellor but the Irish Minister of Justice was allotted the highestresponsibility for the management of the judicial organisation. This set-up of themanagement of the judicial organisation was not so much based on a meticulousanalysis of the brand-new situation, but rather on a longing for continuity in thejudicial procedure. According to the Denham group, a committee that from 1995 hasbeen giving advice on a phased revision of the judicial organisation in Ireland, throughthis a basic flaw in the system – of namely the management – of the judicialorganisation has come into existence.

20 According to the Denham group, this has been

inadequately thought out from the start in 1922. From the mid 70s this flaw has ledto increasing problems with the judicial procedure, which – certainly with aconstantly growing stream of matters – had principally become too expensive, toocomplex and too slow.

21 Also, the independent position of the judiciary did not benefit

from the only partially new set-up of the management of the judicial organisation in1924. Where the Lord Chancellor as ultimate person responsible for the managementand the funding of Courts in the British system is a judge himself, and as such playsa role in the Policymaking with the Government and in the legislation process, theMinister of Justice is not involved as a judge but politically and in accordance with theGovernment’s administration and legislation. For the Denham group, it is not only aloss for the independent position of the judiciary, but also a loss concerning thepossibilities of allowing the judiciary more own responsibility with its ownmanagement and this way to work more efficiently and cheaply.

20

See Working Group on a Courts Commission (further: Denham Group), First Report: Management andFinancing of the Courts, Dublin 1996.

21See Denham Group, op cit 1996, p. 18 and p. 9.

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In article22

35, second paragraph, of the Irish Constitution, the independence of thejudiciary is set both from the point of view of the legal position as well as,functionally, at the level of individual judges. Irish judges are appointed for anindefinite period by the President of the Republic and for judges – particularly thoseof the Supreme Court and the High Court – a dismissal policy with strict guaranteesapplies. The legal position is also determined by the stipulation of section five ofarticle 35 of the Constitution that states that a judge’s salary may not be decreasedduring his appointment. Article 35 section 2 of the Irish Constitution gives afunctional guarantee of independence by prescribing that judges are independent in theexecution of their judicial functions and that, in addition, they are only subordinate tothe Constitution and the law. The Irish Constitution shows no guarantees as such forindependent functioning of judicial instances of the judicial organisation as a whole,although article 6, section two of the Irish Constitution stipulates that the legislative,the executive and the judiciary powers may only be executed by the organs theConstitution empowers for this purpose.

The judicial organisation in Ireland

The ‘ordinary’ judicial organisation in the Irish Republic – responsible for the administrationof civil and criminal justice – has two levels, namely the first level, consisting of the Courtsof First Instance, and the second level, consisting of the Court of Final Appeal. The level ofthe Courts of First Instance consists of the High Court and the Courts with local or limitedjurisdiction (successively the Circuit Court and the District Court). The District Court is oneCourt that consists of a president and 39 judges. The District Court is empowered to try smallercriminal (offences) and civil cases (up to £25,000). The District Court administers justicewithout a jury. In some matters a District Court also tries cases in which the right to a juryactually exists. This is possible if the defendant or the Director of Public Prosecutions does notobject to it. Circuit Courts are empowered to try criminal offences by which the trial viajurisdiction by jury exists. It thus concerns mostly ‘ordinary’ – which is to say not serious – crimes, the so-called ‘indictable offences’. The Circuit Court consists of a president and fifteenjudges. The Circuit Court judges on appeal and in last instance on decisions in criminal Court-cases of the District Court. The District Court, furthermore, is - in civil cases - competent as aCourt of first instance for cases that the law designates and is empowered to examine the civilsentences of the District Court as a Court of appeal.

The High Court has a general competence in criminal and civil cases. The High Court consistsof a president and fifteen ordinary judges. By virtue of their office the Chief Justice and thePresident of the Circuit Court partake in the High Court. In civil cases the High Court isempowered as a Court of appeal of sentences of the Circuit Court. In criminal Court-cases theHigh Court is commonly referred to as the Central Criminal Court. The Central Criminal Courtis empowered to pass judgement on legal questions, which – pending a procedure – aresubmitted by the District Court. In addition, the Central Criminal Court can try serious crimesin which the right to a jury also applies. For certain exceptional criminal cases – offencesagainst the State – a special criminal judge is empowered, the so-called Special CriminalCourt.23

Three judges have a seat in this special Court, and no possibility of jurisdiction by juryexists.

22

In Irish legislation one speaks of ‘sections’ instead of ‘articles’.23

By virtue of the Offences against the State Act of 1939.

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Appeal against criminal judgement of the District, Circuit or a separate Court, the so-calledCourt of Criminal Appeal, can deal with High Court. In the last resort an appeal with the Courtof Cassation, i.e. the Supreme Court, can be lodged against decisions of the High Court and thedecisions of other Courts which the law designates. This highest judicial authority in Irelandconsists of the Chief Justice, at least four judges and the President of the High Court.

In Ireland, the administrative jurisdiction has largely developed within the system of ordinarycriminal and civil jurisdiction There are no special administrative Courts, but the possibility ofspecial actions within legal proceedings, in which the Government is a party, exists, or in whicha citizen seeks legal protection against Government action. Certainly, for the purpose of disputeswith the Government, there are special tribunals, which, in the first instance, examine objectionsagainst Government action. It thus concerns Courts such as the Appeal Commissioners ofIncome Tax, the Appeals Officers in the Department of Social Affairs, the Planning Board (forappeal cases in the area of the environmental planning) etc.24

4.2. Ministerial responsibility and public control of the judicial procedurein Ireland

Until recently the responsibility for the management and the funding of the judicialprocedure in the Irish system was assigned to the Minister of Justice. In IrelandMinisters are collectively and individually accountable to the Irish Parliament (DáilÉireann) for the affairs of their department.

25 In Ireland a system of general Ministerial

responsibility is in force, in the sense that a Minister can be called to account formatters which, in the general sense, fall under his political responsibility. However, theIrish Constitution does not mention the ministerial responsibility before the IrishSenate (Seanad Éireann): in practice the members of the Government are alsoindividually and collectively accountable to the Senate.

26

In 1996 the Denham group concluded that the way in which the management and thefunding of the judiciary are interpreted caused a number of fundamental problems. TheDenham group found the existing system of management – in which the Minister ofJustice was entirely responsible for the management of the judiciary – ineffective andinefficient. According to the group, a clear structure of management and a structurefor accountability were particularly lacking. The existing system was a fragmented,uncoordinated management and financing system and appeared to offer hardly anyroom for the Courts’ own responsibility with regard to the Courts’ own operationalmanagement. In addition to this, according to the Denham group, there was hardlyanything on quality and quality standards for the achievements of judges and Courts,bad use was made of new information technology, little interest in instructing andtraining judges and auxiliary personnel, little concern about the poor accommodation,and the judicial organisation had insufficient grip of its own information housekeepingand its own production data which are necessary, for example, to be able to report on 24

For a further insight, see A.K. Koekkoek, op cit 1998, pp. 394-395.25

See article 24.4.1 and further of the Irish Constitution.26

See also A.K. Koekkoek, Ierland, in [In Ireland]: L. Prakke and C.A.J.M. Kortmann (editor), Hetstaatsrecht van de landen van the Europese Unie, [The constitutional law of the countries of the EuropeanUnion] 5th impression, Deventer 1998, p. 383.

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flow, work volumes and new cases. In the group’s eyes – and not last on the list – the Courts had far too little thought for the clients of jurisdiction (information,complaints, etc.)

27 What is clearly noticeable in this problem analysis is that the points

on which the problems are identified run largely parallel to the managerial tasks andcompetences that the Swedish Domstolsverket fulfils, with regard to the Swedishjudicial organisations. In any case it is not surprising that in 1996 the Denham groupadvises the setting up of a Courts Service in Ireland based on the Swedish model. In1998 this Council – after three more consultations and studies from the Denhamgroup – was actually established. A substantial number of managerial and financingcompetences that used to be under the control of the Minister of Justice have beentransferred to the Irish Courts Service.

28 This primarily means the Minister is no

longer responsible for the ‘daily’ and operational management of Irish Courts.However, for the main aspects of the management and the funding – in the sense ofcreating adequate conditions and means for making an effective management ofCourts possible – the Minister of Justice remains responsible to the Irish Parliament.This responsibility is applicable namely to the budget, budgetary justification andproviding information. To make this Ministerial responsibility concrete, provision hasbeen made in the new Irish system in reporting and information obligations of theCourts Service to the Minister of Justice.

29 On behalf of the Court Service the

chairman (the Chief Executive) takes care of this information. In addition, on therequest of Parliamentary committees, the chairman of the Courts Service must giveinformation about matters concerning the management of Courts, although with thishe does not have to examine the way in which justice is administered in the Courts.The justification pertaining to the expenditure of the budgetary funds before theGeneral Auditor’s office and Parliament takes place, in a first instance, in a room ofthe Courts Service itself, although this is necessarily a matter of divided responsibilitywith the Minister of Justice, who is the main responsible for the budgetary policy.

30

How the sharing of responsibilities will develop in practice is still unclear at present,as there has only been a short time experience with the Courts Service. Indeed, it isremarkable that, for the Denham group, the Courts Service is itself politicallyresponsible for the financial management and the administration of Courts.

31 Whether

this line will be retained is doubtful, certainly if politically sensitive incidents occurwhich relate to the financial management of the administration of Courts. The line ofa Minister’s political responsibility to Parliament has a different dynamic than that ofthe much slower and less direct line of responsibility that the Courts Service has withParliament.

27

The Denham group identified no less than seventeen groups of fundamental problems in the Irishadministrative system. See the report of the Denham group, op cit 1996, pp. 35-36.

28Article 29 of the Courts Service Act of 1998 gives a comparative overview of the tasks and competenceswhich previously rested with the Minister of Justice and as from 1998 are executed by the Courts Service.

29 See among other things article 8, Courts Service Act 1998.

30See Working Group on a Courts Commission, Fourth Report: The Chief Executive of the Courts Service,Dublin 1997, p. 29 and further.

31See Denham group, op cit 1996, and p. 49.

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With the budgetary cycle the Government can, via the Minister of Justice, set policyobjectives and implement policy with regard to the judiciary and the administration ofjustice. To this end the policy plans of the Government, as well as the strategic three-year plans, which the Courts Service must draw up in accordance with the law, shallhave to be geared to one another.

32 In the meantime, the Government or a Minister

has the possibility to formulate policy in matters of the administration of justice andto take this up with the administration of the Courts Service. In accordance with theCourts Service Act of 1998 the executive of the Council, when performing task andexercising competences, is obliged give consideration to the policy of the Governmentor of one of the Ministers.

33

4.3. The Irish Council for the judiciary (Courts Service): composition andcompetences

The Courts Service in Ireland – for the time being – consists of an administration(Board), a chairman (Chief Executive Officer)

34 and judicial staff. The Courts Service

has no further division into five sections, pursuant to the law, yet five office divisionsexist within the service.

35 The competences of the Courts Service, for all intents and

purposes, remain with the board. The Chief Executive acts as implementing organ ofthe board, of which he is officially a member, but he also has some independentcompetences in the area of reporting, budgetary justification and providinginformation (especially in the area of the external justification and the externalinformation supply). Thus it is the Chief Executive who can be called by aParliamentary committee for justification, in order to give a decisive answer about theefficiency figures of the judicial organisation or (the policy of the) the Courts Serviceitself. Furthermore, the Chief Executive is responsible for the daily management of theCourts Service and is, as such, responsible for the financial management of the boardand the personnel.

The Courts Service has an extensive board of directors and is made up of nine judicialmembers coming from the different ranks of the judicial authorities in Ireland, theAttorney General, officially the Chief Executive, two lawyers, a member coming fromthe echelons of the juridical assistance, a public prosecutor/district attorney, a memberwho represents the interests of the Courts’ clientele, a member designated by unitedunions and a juridical expert. High up on the Denham group’s list is the proposal thatthe majority of the board should be composed of judges. Via a detailed arrangementfor the reception of vacancies, the law ensures that this judicial majority is alsomaintained in the event of board members no longer being able to function as such inthe executive of the Council.

36 Moreover, on setting up the board, the concept op

32

Article 7 Courts Service Act 1998.33

Article 13, subsection 2, under b.34

This Chief Executive Officer is as from 1 January 1999 Mr. P.J. Fitzpatrick.35

Article 22 Courts Service Act 1998. The administration can establish committees. See article 15, CourtsServices Act 1998.

36See article 12 Courts Service Act 1998.

- 29 -

judicial representation was adopted. The proposals of the Denham group concerningthe composition have completely been accepted into the law. This is rather surprisingbecause no actual intrinsic motive across the board is given in any more detail in theDenham reports.

The board is responsible for the general policy of the Courts Service and thesupervision of the implementation of that policy by the Chief Executive.

37 The board

of directors must ensure that the Courts Service realises its essential tasks. These taskslie in the area of the administration and management of the Courts, establishing ormaking available facilities and services for judges (providing information, training,etc.), providing information to the general public about how the administration ofjustice functions in Ireland, to care for and manage the accommodation of the judicialorganisation and taking care of facilities for the clients of the judiciary.

38 In order to

be able to accomplish these competences the board is equipped with the competenceto acquire real estate, to enter into contracts and arrangements, to arrange stafftraining and education, establish arrangements for the consultation with users of theCourts, to recommend appropriate scales of Court fees and charges to the Minister,to make proposals to the Minister in relation to the distribution of jurisdiction andbusiness among the Courts, and matters of procedure, to provide service to otherbodies subject to such conditions, including the payment of fees, as it seems fit, to hire(with the consent of the Minister) consultants and advisers in connection with theperformance of the Courts and designate Court venues. In addition, the CourtsService has some financial competences (including a bank account).

39

Besides these tasks and competences the board also has a role in the planning, budgetand financial justification. Accordingly, the board must submit an annual reportcontaining a policy and financial justification. That annual report with, in addition, anannual account, is submitted via the Minister of Justice to Parliament.

40 Every three

years the board has the duty of making a strategic three-year plan. In that plan thecentral policy objectives with its policy approach for the administration of justice mustbe set out. When drawing up the report attention must be given to the Minister ofJustice’s wishes regarding policy.

41 Besides target figures in accordance with the

intention that the Denham group had with it, such a plan also shows the views on thequality of the administration of justice for the coming years.

When performing the managerial competences the Courts Service works in closecollaboration with the registrars of the different Irish Courts.

The Irish system of judicial organisation stems from the organisational uniformity ofsorts of Court. Thus the Circuit Court is, in fact, one organisation. This has led to theCourts Service implementing a somewhat central direction on the financial and generalmanagement of the Courts. Now that the officials of the Ministry of Justice who had

37

See article 13 Courts Service Act 1998.38


See article 6 Courts Service Act 1998.40


Article 7 Courts Service Act 1998.

- 30 -

previously taken care of the juridical management (the Courts Bench) within thedepartment have all gone to the Courts Service, as from 1999, the computerisationis entirely regulated via the Department (the financial administration as well as law-suit registration), the financial control of the Courts is directly in the hands ofaccountants working for the Courts Service, the ‘Human Resource Management’ isused for all the Courts within the service itself, and recruitment, and the organizationand maintenance of the buildings is executed entirely by the service. The Ministry ofJustice, as was the case just before 1998, pays the salaries. This is applicable in allsections of the judicial organisations. The Courts’ auxiliary services

42 themselves

retain mainly the more intrinsic judicial (managerial) competences (judicial business)43

such as the intake of law-suits, control of the Court fees, instruction, assigning tasks,keeping the role up to date, monitoring turnaround times, serving pronouncementsand sentences, etc. When performing this competence these public servants are underthe authority of the president of the Court to which they belong.

In the area of appointment of judges or judicial personnel the Courts Service has nocompetences

44; nor is the service involved with disciplinary jurisdiction. However –

via the Human Resource Management of the Courts Service – in the general andtechnical sense – consideration is given to the career development of judges andjudicial personnel.

The Irish Courts Service has many competences which, through the centralised waythey are exercised, can quickly get to the content of the judicial work. Through, forexample, the way in which matters administrated centrally can be changed, theregistrars of the Courts probably also have to work in a different manner, need to planCourt-cases differently, assign, etc. With that, management and intrinsic judicialcompetences quickly get in each other’s way. Article 9 of the Courts Service Act of1998 checks the progress of such practices: the tasks and competences of the CourtsService may not prevent or interfere with the independent performance of juridicalcompetences by the Courts.

Objectives to be reached with the Courts Service

With the establishment of the new Courts Service in 1998 a number of policyobjectives were aimed for, which are also to be found in the Dutch situation. For the

42

Circuit Courts, for the daily management and secretarial tasks have so-called County Registrars in theirservice, whose function is comparable to the senior secretary of a magistrates’ Court in England (article 35Courts Officers Act, 1926). District Courts work with Senior Clerks, also comparable to a registrar at thehead of a Court’s registry department in the Netherlands. The High Court has a Master of the High Court,who forms a cross between a clerk of the Court and a staff lawyer. The Master of the High Court is thefunctional head registry clerk in a more intrinsic area, while the Tax Master, also employed at the HighCourt, takes care of the financial and administrative management of the High Court. This structure alsoremained unchanged after 1990, although the question is whether the position of County Registrar willcontinue to exist. See Denham group, op cit 1996 (III), and pp. 30-31.

43Regulated in the Courts (Supplemental Provisions) Act, 1961.

44Also with regard to this issue, in Ireland fundamental changes have been provided. Recently a study groupspecially set up for this purpose reported as the first step in that process about appointments andappointment requirements for judges in High Courts and the Supreme Court. See Report of the WorkingGroup on qualifications on the appointment as judges of the High and Supreme Court, Dublin 1999.

- 31 -

Denham group, with the Courts Service access to jurisdiction is improved, theeffectiveness and efficiency of the administration of justice can be improved,unnecessary delay in dealing with matters can be prevented, the organization thestructure of Courts are streamlined, and the financial, administrative and humanresource management can be run better. Besides this, working with a Courts Servicemakes it easier to formulate and pursue co-ordinated clear objectives for juridicalorganisations and more clarity exists about sharing responsibilities and competences.

45

It is remarkable that these objectives, in comparison with the Dutch intention,especially put the financial and administrative side of the judicial business in a centralposition. Expectations concerning a contribution to the increase in the quality of theadministration of justice, through better management and a better organisation – outside pushing back delays in and improving access to jurisdiction – do not, orhardly, exist. Also, the stimulation of judicial independence by the establishment of aCourts Service is notably missing on the list of the policy objectives, which theoperation intends to serve.

4.4. Intermediate conclusion, Ireland

What immediately strikes one, in the way in which the Irish Courts Service is set upand organised, is the extent of detail. The tasks and competences of the CourtsService in the Courts Service Act are described quite precisely which, in relation tothe responsibility that the Minister of Justice still bears for the administration ofjustice, could be considered to be an advantage. After all the Minister can no longerbe held accountable for the execution of the tasks and the competences that theCourts Service executes. The question is, however, if this clarity is not a smokescreen,certainly considering the permanent responsibility that the Minister of Justicecontinues to have for the supply of the means necessary for the administration ofjustice. In addition to that, although the political responsibility for the financialmanagement and the administration of Courts is henceforth submitted to the CourtsService, it still does not mean that the Minister of Justice will no longer be able to becalled to account about that. When incidents happen, the general politicalresponsibility of the Minister of Justice will continue to play a role. The dynamic ofthe accountability-relationship between Parliament and the Courts Service differs fromthat between the Minister and Parliament. It is true that the Irish solution forms whatis a selective and quite faithful copy of the Swedish arrangement via theDomstolsverket, but the way in which the Ministerial responsibility in Sweden isspecified in relationship to the responsibility of the Domstolsverket (justification isalso due to the Swedish Parliament for the financial management and administrationof Courts) does differ in reality. The context of the public control in Sweden, iscompletely different of that in Ireland. First of all, based on the Swedish tradition toleave implementation and management largely in the hands of independentadministrative organs, a system has developed in which the control of this handlingof tasks and competences is not largely organized via the control of politically

45

See Denham group, op cit 1996 (I), and p. 45.

- 32 -

responsible administrators, but in another way, via an Ombudsman, the compositionof the board, publicity of management, external forms of responsibility via reports, etc.On the basis thereof a system has developed in which it is relatively easy to addressadministrators within an independent administrative body. This occasionally leads tothe departure of administrators. In Ireland this background, as the public control ofmany forms of management – in any case until recently – was indeed organised toa predominant extent via politically responsible administrators. With it, having theSwedish system, does not yet guarantee that the favourable effects of the Swedishsystem are automatically imported.

In Ireland – just as in the Netherlands – the establishment of the Courts Service isa component of a combined operation in which a number of aspects of the functioningof the judicial organisation are reconsidered. In Ireland, moreover, focus is primarilyon the organisation of the financial and administrative management of the Courts. Itwas precisely in this area that large problems arose and a direct solution for them isbeing devised. Much less is being put into the more indirect objectives such asincreasing the independence of the judiciary, or improving the quality of jurisdiction.A possible cause for this is that the independence of judges and the quality ofjurisdiction in a country with a ‘common law’ tradition, as Ireland is, is much less ofa subject for debate is than in continental legal systems.

The Irish Courts Service has a very broad representative composition at managementlevel. The reason for this does not appear directly from the documents, but the ideaof representing the board’s most important target groups seems to have beenparamount. Such a broad management makes it almost necessary to have a generalmanager who observes daily routine and represents the service. A manager (the ChiefExecutive) taking care of the daily management thus also chairs the Courts Servicein Ireland, just as in Sweden.

4.5. Comparative overview of the tasks and competences of the IrishCourts Service


ü external affairs

ü public services



selection policy

ü research policy

ü advice to the Ministry of Justice

policy on quality

- 33 -

II Management-related competences:

ü accommodation & safety

ü automation

ü administrative organisation

ü administrative information supply


ü budgetary policy




corrective competences/disciplining

(appointment competences with) appointing judges

promotion and posting of judges

ü education and training

- 34 -

Chapter 5. Denmark (Domstolsstyrelsen)46

5.1. The constitutional position of the judiciary in Denmark

Article 6447

of the Danish Constitution guarantees the functional independence of theordinary judiciary by stipulating that judges are only bound by the law in performingtheir judicial competences. The same Article 64 also guarantees independence fromthe point of view of the legal position via a system of employment protection in whichjudges can only be discharged from their office via a judicial decision, and only via ajuridical reorganisation can they be transferred against their will. Furthermore, theterm of office can come to an end by reaching the retirement age (70).

This protection does not apply to the ‘konstituerede dommere’, a judge in temporaryservice who also fulfils another duty.

48 A guarantee of independence at the level of the

judicial organisation itself is found in Article 3 jo. art. 61 of the Danish Constitution.It stipulates that the judiciary rests with the Courts and that the jurisdiction andadministration must remain separated. It does not give a real guarantee in the senseof a claim: it rather is, as Gilhuis remarks, a general political principle.

49 The

constitutional provisions concerning the divisions between administration andjurisdiction have not prevented them from developing special Courts within theordinary judicial organisation. In addition to this, it even happens that judiciarycompetences are granted to administrative organs, even in the highest Court wherebythe Højesteret (Supreme Court) is not empowered. This practice is not consideredunconstitutional.

50

46

I will deal only very briefly with the example of the Danish Council for the judiciary here. In the initially astudy visit to Denmark was foreseen, but on the request from the Danish side that visit was postponed to alater date. No experience has actually been acquired of the Council yet, and much starting-up work was, atthe time of the contact, not yet in order. The discussion on the establishment of the Council is still ongoing.It then became more advisable (for the time being) not to render any impression than a wrong one.

47The Danish Constitution (Grundlov) and other Danish legislation make use of section (indicated with §) asthe smallest regulation unit. I shall, however, refer to them from now onwards as ‘article’.

48See also J.G. Steenbeek and P.C. Gilhuis, Het Koninkrijk Denemarken, in [In the Kingdom of Denmark]:L. Prakke and C.A.J.M. Kortmann (editor), Het staatsrecht van de landen van de Europese Unie, [Theconstitutional law of the countries of the European Union] 5th impression, Deventer 1998, p. 78.

49See P.C. Gilhuis, op cit 1998, p. 78.

50See P.C. Gilhuis, op cit 1998, p. 79.

- 35 -

Judicial organisation in Denmark

The ordinary judicial organisation in Denmark contains in the first instance 84 byretter(Courts of first instance comparable to Dutch cantonal Courts, or magistrates orCounty Courts in other countries), two Courts of appeal, the so-called landsretter(comparable to district Courts), and one judge of the Court of appeal, the Højesteret(Supreme Court). The largest byretter is the one in Copenhagen (a president and 421judges); the other byretter (48) always consist of one judge only.

The competence of trying criminal and civil cases is assigned to the ordinary judiciary.Article 65 of the Danish Constitution specifies that, when dealing with theadministration of criminal justice, members of a jury take part in the deliberations ofthe Court.

In addition to this, the Danish judicial organisation has yet another specialised branch,consisting of the sø- og handelsret (maritime law and commercial law), the søretter(maritime Courts), the handelsretter (commercial Courts), the special SærlingeKlageret (Court of complaint, having the competence of trying disciplinary cases withregard to judges), the forvaltingsdomstole (administrative Courts), the boligretter(Courts specialised in rent and leasing disputes), Courts specialised in expropriationof real estate, special Courts for issues of deprivation of liberty and clerical Courts.Not all these special judiciary Councils are set up as permanent Courts. Most Councilsare, in fact, not permanent, but can be convened on an ad hoc basis. Conflicts on areasof Court competence are in most cases tried among the special Courts in the firstinstance themselves. If necessary, the Højesteret (Supreme Court) decides conflicts.The regulations for the organisation of judiciary and the regulations for criminalproceedings are laid down in Retsplejelov of 1916 (law on the administration ofjustice).

5.2. Ministerial responsibility and public control in Denmark

In Denmark the Ministers are individually and collectively responsible to Parliament(folketing). The Minister-president (StatsMinister), however, assumes a centralposition in the relationship based on mutual trust which exists between Governmentand Parliament. If Parliament withdraws its trust in the Government, with a vote ofno confidence, than the entire cabinet shall have to resign, by virtue of constitutionalobligation (Article 15,-second paragraph, Danish Constitution). In Denmark theMinisterial responsibility has developed into a full ministerial responsibility.

Until recently the entire responsibility for the management of the judicial organizationwas with the Minister of Justice. In his advice of April 1996 concerning the judiciary,the commission for the judiciary (the Pontoppidan Commission) comes to theconclusion that this form of juridical management does not go together with theprinciple of judicial independence.

51 Here, in the eyes of the commission, it concerns

a question of principle, rather than that practice would have proved that the executive

51

See Committee on the Judiciary, Extract of the report (the English translation), Copenhagen 1996, p. 19

- 36 -

power would have used the managerial authority to curb the independence of thejudiciary. In any case, the Commission advises that Courts should be given more owntasks and competences in the area of the judicial management, for the purpose ofestablishing a Council for the judiciary and, by doing so, to contribute to thereinforcement of the judicial independence.

In the new Danish system the general budgetary responsibility remains largely with theMinister and the budgetary legislator. They have chosen to ensure that parliamentarycontrol of the main aspects of the budgeting of the judiciary remains guaranteed.

52 For

the apportioning of the means and the financial justification, as well as administrativeand financial management, the Danish Council for the judiciary is responsible fromnow on. In order to ensure that the Minister is able to fulfil his general budgetaryresponsibility, without conflicting with judicial independence, the new Danish system,on the proposal of the Pontoppidan Commission, contains the possibility that theMinister of Justice dismisses the entire board of the Domstolsstyrelsen (= the DanishCouncil for the judiciary established on 1st July- 1999) in the event that this boardtakes demonstrable unlawful decisions with immediate and far-reaching consequences,or if the board is responsible for serious overspending.

53 Individual members of the

board can only be dismissed in accordance with a separate procedure before thespecial ‘Særlinge Klageret’ Court. In addition, the Minister can give instructions tothe board, although the independence of the board does not, of course, prevent formsof consultation and even meetings between the Minister and the Danish Council forthe judiciary.

In the Danish system, just as in the Irish and the Swedish system, theDomstolsstyrelsen has a role in the budgetary cycle. In strategic long-range plans, theboard submits the policy objectives for the coming years and every year the boardmakes budget proposals to the Minister of Justice. Furthermore, the board has tojustify the financial and administrative management of the Courts. That isaccomplished by sending the Minister an annual report and annual account and, ifrequested, on an ad hoc basis, to provide the Minister of Justice with informationabout the implemented management. The Minister, furthermore, acts as a link betweenParliament and the board. The initiative also rests with the Minister, whenevernecessary, to introduce bills in Parliament.

How the sharing of responsibilities will develop under the new system cannot beestimated for the time being: the first experiences still have to be acquired. Just as inthe Irish situation, the question naturally remains as to whether in practice thedivisions between ministerial responsibility and the responsibilities of theDomstolsstyrelsen will remain easy to distinguish.

52

See Pontoppidan Commission, op cit 1996, p. 19.53

See article 6, section 3, of the Lov concerning Domstolsstyrelsen.

- 37 -

5.3. The Danish Council for the judiciary (Domstolsstyrelsen): compositionand competences

The Danish Council for the judiciary, the latest offspring for the tribe of EuropeanCouncil for the judiciary, is – just as the Irish Courts Service – a copy of theSwedish Domstolsverket in several respects. The Danish Pontoppidan Commissionwas clearly inspired by the Swedish model of the Swedish Domstolsverket

54 during

the preparation of the report which lies at the basis of the Danish Council for thejudiciary. This exemplary function of the Swedish board concerns the composition aswell as the tasks and competences that the Danish board will exercise. As from 1stJuly 1999 in Denmark, the Danish Council for the judiciary (Domstolsstyrelsen) willfunction as a temporary board. The Council will be a permanent body afteramendments to the Danish Constitution.

The Council for the judiciary in Denmark is under the chairmanship of a generalmanager and a board of five members coming from the different judiciaryorganisations (Supreme Court, appeal Courts, district Courts, county or magistrates’Courts and the special Courts), two board members coming from the circles of thejuridical staff of the Courts, and two from the Courts registrar's office. In addition tothis, a lawyer and two board members with managerial expertise are in theDomstolsstyrelsen. The Minister of Justice appoints the board each time for a period4 years.

55 Board members cannot simultaneously be members of Parliament, of the

Danish Board of State, or of any other representative body at local level.

A general manager of the board handles the day to day management of the Council.This manager implements the policies specified by the management of the board. Theboard of the Domstolsstyrelsen has the authority to appoint and dismiss the generalmanager.

The general board of the Council is responsible for the general policy of the Council.One of the most important competences in that respect is the involvement with thebudgetary cycle. On the basis of the budget granted, the board apportions the budgetamong the different Danish Courts. Expectations are that in this area, for the timebeing, the distribution model used by the ministry before 1st July 1999 will still beutilised. A number of items – such as salaries

56 and main items for administration of

justice per Court – are already earmarked by the budget law itself. The board takescare of the distribution, the supervision and the justification of the expenditure of thebudget. In doing this, the board is bound to the framework of the DanishGovernments Accounts Act (Finance Act). Besides that, the board, just as other Stateorganizations in Denmark, is subject to the financial supervision implemented by theDanish equivalent of the General Auditor’s Office (Auditor General of Denmark and

54

The Commission has undertaken study trips to Sweden and the director-general of the Swedish Council forthe judiciary, together with a number of assistants, was a guest in Denmark for an afternoon workshop. SeePontoppidan Commission, op cit 1996, p. 5.

55See article 4 of the Lov on Domstolsstyrelsen.

56A separate independent committee (Judges’ Salaries Committee) functions for fixing the level for thesalaries in Denmark.

- 38 -

the Auditors of the Public Accounts). The supervision of the expenditure of thebudget is exercised permanently by the board; just like Sweden, Denmark has optedto use a centrally operated accounting data system. Through this it is possible tofollow the spending periodically. The spending authority – insofar it does notconcern matters for which the Domstolsstyrelsen has a special responsibility(accommodation, computerisation, training, and suchlike) – is decentralised as muchas possible to the managers of the Courts themselves. Every year the board sends areport to the Minister of Justice, who in turn passes it on to Parliament. The board ofthe Danish Domstolsstyrelsen, within the framework of the strategic long-range planthat they draw up, also makes an annual budget proposal to the Minister of Justice.With this, as the Pontoppidan Commission also foresaw in 1996, the problem can arisethat the budget proposal of the board becomes invisible in the rest of the Justicebudget proposal in any year, or that a number of budgetary requests are not includedin the budget proposals. This has prompted the Commission to propose to the boardof the Domstolsstyrelsen to give the authority, should the occasion arise, to addressParliament directly if the means for the administration of justice in the budgetproposed by the Minister of Justice in any year are considered to be insufficient by theboard.

Besides the budgetary competences, the Danish Domstolsstyrelsen has a generalcompetence in the area of the management of the Danish judiciary organisation. Thisconcerns matters such as computerisation (business administration and financialadministration), training, recruitment,

57 accommodation, advice, information and

providing information about the Danish judiciary, etc. The competence of the DanishCouncil for the judiciary is very broadly described.

58 In the new system many

managerial competences will be fulfilled centrally by the Council itself. That has alsoto do with the magnitude of many of the Danish Courts. Nearly all byretter (after theCopenhagen one) consist, for example, of only one judge, who has only a smallsecretarial staff. With regard to such small organization units the Domstolsstyrelsencan play a strong service-rendering role.

Besides the direct competences with regard to the management of the judiciaryorganizations the board still has a special competence, namely to take care of theoffice support to the independent Judiciary Selection Committee, a board whichfunctions independently of the Domstolsstyrelsen, and advises the Minister of Justiceon judiciary appointments.

59 For complaints about the decisions or the dealings of the

Danish Domstolsstyrelsen one can appeal both to the special Klageret and to theDanish Ombudsman.

57

The Council for the judiciary, together with the Danish Order of Barristers, is responsible for setting up anexchange programme of young lawyers and judge-substitutes/judge’s assistants.

58See article 3 of the Lov on Domstolsstyrelsen.

59Apart from that, the board has only authority to advise. In Denmark the appointment of judges is andremains an authority of the Minister of Justice.

- 39 -

5.4. Intermediate conclusion, Denmark

The intermediate conclusion for the Danish Domstolsstyrelsen can be brief. TheDanish Domstolsstyrelsen displays a strong resemblance to the Councils for thejudiciary in Ireland and Sweden. The board has, just as in Ireland and Sweden, tasksand competences in the area of distribution, allocation, expenditure(-supervision) andjustification of spending of the budget means and general managerial competences onbehalf of the Danish Courts (accommodation, computerisation, training andrecruitment, information and external information supply, etc.). In the Danish situationalso the Minister of Justice is and remains responsible for the main aspects of thebudgetary policy with regard to the judiciary, and the Domstolsstyrelsen is responsiblefor the apportioning of the means and for the financial justification. Exceptionalfeatures of the Danish system are the four-year term of the executives of the boardand the possibility for Minister of Justice, in the event of unlawful action of the boardwith great and acute consequences, or excessive overspending, to dismiss the entireexecutive team of the Council. Besides that, the Danish management of the Councilfor the judiciary itself has the authority to appoint and dismiss the general manager.More so perhaps than is the case in other countries, Denmark has - for the supervisionof the exertion of power and the general functioning of the board - made a choice formeans of public control (independent financial supervision, special legal protectionagainst decisions and dealings of the board, specific redress of the board possibly inthe presence of Parliament, ombudsman inspection) other than control via Ministerialresponsibility.

5.5. Comparative overview of the tasks and competences of the DanishDomstolsstyrelsen

I Policymaking competences::

ü external affairs

ü public services



selection policy

ü research policy


policy on quality



ü automation

- 40 -

ü administrative organization

ü provision of administrative information

III Budget procedure:

ü budgetary policy



IV Other competences:

corrective competences/disciplining

(appointment competences with) appointing judges


education and training

- 41 -

Chapter 6. France (Conseil supérieur de la magistrature)

6.1. The constitutional position of the judiciary in France

Measured according to the way, in which the independence of the judiciary isguaranteed, the French constitutional system somewhat resembles at first sight, andon paper, the Dutch system. That is not so surprising either, against the backgroundof the constitutional history: France and the Netherlands share a basis in theconstitutional tradition which existed at the time of the French Revolution.Nevertheless, large differences hide behind this superficial similitude in the area of thelaw-related cultural developments of the different public institutions and theirconstitutional position that the countries have experienced since that time. In fewareas does that difference appear greater than in the area of the position of thejudiciary. The French constitutional system – certainly in the eyes of observers withinthe French system itself – is characterised by rather strict forms of control withregard to the judiciary, which aim at calling guarantees into being against an all tooautonomously-operating independent judiciary. These guarantees are mostly set downin hierarchic power and supervision structures, which, just as in the Frenchadministrative structure, also play a major role in the judicial organisation.

The independence of the judiciary is chiefly guaranteed functionally and from the pointof view of the legal position. Heading VIII of the Constitution of 1958 is dedicatedto the position of the judiciary, the so-called ‘Autorité judiciaire’. Only this indicationof the judiciary in the French Constitution declares that the judiciary in the Frenchestablishment is entitled to a role other than, for example, the judiciary in the Dutchconstitutional system. The judiciary in France is an ‘autorité publique’ and not a

60 The organisation and method of working, despite many reforms

since 1958, are regularly exposed to criticism, from the side of the doctrine as well asfrom the two influential unions for judges and magistrates, the ‘Syndicat de lamagistrature’ and the ‘Union syndicale des magistrats’. This rather different positionof the judiciary in the French constitutional establishment has undoubtedly to do withthe historical development of this State power in the French Republic, but also with

60

See also C.A.J.M. Kortmann, The French republic [The French Republic], in: L. Prakke, C.A.J.M.Kortmann (editor), Het staatsrecht van de landen van de Europese Unie, [The constitutional law of thecountries of the European Union] 5th impression, Deventer 1998, p. 269.

- 42 -

the other way in which the constitutional ‘checks and balances’ are designed in theFrench semi-presidential system.

Article 64 of the Constitution, dedicated in principle to the President – supported,by the French board for the magistrature, the Conseil supérieur de la magistature guarantees the independence of the judiciary in a functional sense also. This judiciary – the corps judiciaire – consists of the standing as well as the sitting magistrature.

61

However there is an extra constitutional guarantee to the independence of the sittingmagistrature. Art. 64 of the Constitution specify that members of the sittingmagistrature – when appointed – cannot be dismissed. Furthermore, theindependence of the judiciary in the French constitutional system in the functionalsense is guaranteed by the absence of any competence to give orders or guidelinesfrom the management’ side, Parliament or Legislator with regard to the content of thedischarge of the judicial duty in individual dossiers.

62

Main aspects of the organisation of the French judiciary

The organisation of the ordinary judiciary in France is characterised by a large numberof judiciary bodies. The Code de l’organisation judiciaire regulates the organisationof the ordinary judiciary. Empowered to administer justice in civil cases, in the firstinstance, are successively the Tribunal d’instance

63 (comparable to the cantonal or

county Court judge) competent to try small claims64

, the Tribunal de grandeinstance

65 (comparable to a district Court), competent to try all other civil disputes.

66

Appeal in civil disputes can be lodged with the Cour d’Appel67

(comparable to aCourt). The Cour de Cassation, sitting in Paris, fulfils the task of the judge ofcassation.

The organisation of the administration of criminal justice is, in principle, regulated inthe same manner as that of the civil jurisdiction, although the names differ. In criminalcases in the first instance the Tribunal de police (magistrate) is empowered to try

61

See art. 1 of the Ordonnance no. 58-170 du 22 décembre 1958 modifiée portant loi organique relative austatut de la magistrature, J.O. 23 décembre 1958.

62Of course, French judges are to administer justice on the basis of legal regulations. See also C.A.J.M.Kortmann, Rapport inzake het beheer van de gewone rechterlijke macht in Frankrijk [Report concerningthe management van the ordinary judiciary in France], in: P.J.J. Boven d’Eerdt, C.A.J.M. Kortmann andM. de Werd/F.A.M. Stroink, Reports of the comparative law research into the management of the judiciaryin Germany, France and the United States, federal and the federal state of New York [Reports from thecomparative law research into the management of the judiciary in Germany, France and the United States,federal and the federal state of New York,] Nijmegen/Maastricht/the Hague 1996, p. 5.

63One judge does the jurisdiction, just as in the case of the Dutch cantonal jurisdiction. Per departement thereis at least one Tribunal d’instance. In total there are approximately 473. See Kortmann and others, op cit1998, p. 270.

64The linking of the authority to the level of the claim is specified in the Code civil and the Code deprocédure civile.

65In principle the jurisdiction in the Tribunaux de grande instance takes place in full Court, although use ofunus-jurisdiction is made wherever possible. In the large cities the Tribunaux de grande instance aredivided into Chambers. Per département there is at least one Tribunal de grande instance. In total there are181 at present. See Kortmann, and others, op cit 1998, p. 270.

66The authority for this is specified in both the Code civil and the Code de procédure civile.

67There are 35 Courts, which, in principle, administer justice in several chambers.

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offences, and the Tribunal correctionnel (Courts) for crimes (délits) in general.68

TheTribunal de police sits in the same place as the Tribunal d’instance and the Tribunalcorrectionnel in the same place as the Tribunal de grande instance. The appeal incriminal cases which were handled in the first instance by the Tribunaux de police orthe Tribunaux correctionnels is dealt with by the Chambres d’Appel correctionnelles(criminal appeal Courts). For trying serious crimes (crimes) the French judicialorganisation has – just as, for example, in Belgium – a special Court procedure inthe first instance for the Cour d’assises

69(Assizes Court). In criminal court-cases also

the Cour de Cassation in Paris functions as the judge of cassation.

Besides the ordinary civil and penal judiciary organisation there are still many differentother judges empowered to deal with criminal and civil disputes. Thus, for example,there are separate juvenile Court magistrates (Tribunaux pour enfants), militaryjudges (Tribunaux militaires), commercial Courts (Tribunaux de commerce

70),

separate judicial bodies responsible for trying disputes pertaining to industrial law(Conseils de prud’hommes

71), etc. The organisation of the administration of civil and

criminal justice by these many different empowered judicial bodies is highlyfragmented.

The administrative power is competent to deal with administrative disputes, in otherwords disputes as a result of a decision or treatment from administrative organs.

72 In

the first instance administrative disputes are tried by the Tribunal administratif(administrative Court). Part of the appeal cases in administrative disputes is handledby the Cours administratives d’Appel

73 (administrative appeal Courts). The Conseil

d’Etat in Paris (contentieux department) is competent for the administrative disputesassigned to him. That can concern administrative disputes in the first instance, orappeal cases from Tribunaux adminstratifs or Cours administratives d’Appel or strictcassation law-suits in administratively tried disputes.

In France the distinction of the competence between the ordinary judge and theadministrative judge is a complicated business. With this delineation many criteriadeveloped in the jurisprudence also play a role. For resolving different competenceissues between the ordinary and administrative judiciary a separate Court – theTribunal des conflits – is empowered.

Besides the jurisdiction concerning criminal, civil and administrative cases the Frenchjudicial organisation has some other special Courts in the area of constitutional 68

The competence for that purpose is regulated in the Code de l’organisation judiciaire and Code pénal andthe Code de procédure pénale.

69Every departement has at least one Cour d’assises. A Cour d’assises is not a permanent Court, but a Courtthat only convenes if there is a purpose for doing so. The Court procedure at the Cour d’assises has ameasure of jurisdiction by jury/non professional-judge jurisdiction, in the sense that the three judges of theCour d’assises are assisted by nine jurors.

70These commercial Courts work with elected judges.

71Conseils also work with elected judges.

72More particularly, the decisions and dealings of the ‘administration’ are appealable: all the decisions anddealings of public bodies, excluding those coming from the formal legislator and the judicial bodies.

73There are 5 of these Courts, each of which are presided by a member of the Conseil d’Etat. In principle,these Courts sit in full Court.

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matters. The two most important Courts in this respect are the Haute Cour de Justice,a special judicial authority, regulated in art. 67 and 68 of the Constitution, responsiblefor jurisdiction in the event of high treason (or accusation thereof) of the President.The members of the Assemblée and the Sénat equally elect the Haute Cour. The Courde Justice de la République – also elected by Parliament supplemented with 3 judgesfrom the Cour d’Appel – passes judgement over criminal offences perpetrated inoffice by Ministers and State Secretaries.

The Conseil supérieur de la magistrature is in a number of cases empowered toadminister justice with regard to disciplinary matters involving judges and magistrats.

Finally, the Conseil constitutionnel also has a number of semi-judicial powers to settledisputes concerning specific constitutional matters. In the strict sense theconstitutional Court does not belong to the judiciary

74 The Conseil Constitutionnel

passes judgement over compatibility of (proposed but not yet established orpromulgated) statutory regulations with the Constitution, the permissibility of certainamendments, bills, disputes concerning referenda, different sorts of disputesconcerning the presidential or parliamentary elections, etc.

75

6.2. Scope of the ministerial responsibility and public control in the Frenchsystem

In France, unlike the situation in Sweden, the management, the care for the supportand the budgeting of the administration of justice are not decentralised throughgranting competence to a Council for the judiciary. In the French system these tasksand responsibilities fall to the Government, which owes political justification for thisto the French Parliament. It is the Minister of Justice

76 who, concerning the policy

implemented by him on administration, management and the judicial organisation isalso accountable. Ministerial justification concerning policy with regard to the judicialorganisation is, however, hardly ever requested. There are a number of reasons forthis. First of all, France has the system of collective political ministerial responsibilityof the Council of Ministers. Individual Ministers and State Secretaries are responsibleonly in the criminal and financial sense.

77 For the responsibility with regard to the

general policy, the management and the budgeting, the culture exists that the Ministerof Justice in most cases is only tackled about the main aspects of policy in matters thatconcern the judiciary and the administration of justice. This general approach is furtherreinforced by the circumstance that the management and the funding of the Courts arelargely decentralised.

74

It is, for example, explicitly placed outside title VIII of the Constitution and the nine members of theConseil are only appointed for a limited period of time (nine years) and are not eligible for reappointment.See art. 56 of the Constitution.

75See among other things title VII of the Constitution.

76Also designated as the Garde des Sceaux (Keeper of the Seal).

77See art. 68 of the Constitution.

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In France the Cours d’Appel (the appeal Courts)78

are chiefly responsible for theimplementation of the budget. Via the Minister of Justice (Direction de ServicesJudiciaires) these Cours d’Appel apportion the financial budgets for the judiciaryamong the Courts within their domain and monitor the use of the judicial credits. Withthat, the budgetary system works as follows. At the level of the Cours d’Appel thebudgetary requests of the districts’ Courts for the budgetary year are taken stock ofand formulated together with the annual programmes and policy objectives(programmes et objectifs). The budget programmes contain two elements: the costsfor the judicial activities (budget d’activités juridiques) to be implemented and thecosts for depreciation and investments based on policy objectives (budgetprogramme). This stocktaking forms the commitment of the budgetary deliberationsthat the Minister of Justice holds annually with the presidents of the Cours d’Appel(and the Procurators-General with the Courts who shall remain out of considerationhere). This procedure is standardised to a large extent and takes place under theauspices of the Direction des Services Judiciaires of the Ministry of Justice.

79 On the

basis of the outcome of this consultation the Minister of Justice submits proposals forbudget laws to Parliament.

The Cours d’Appel also monitor the use of the budgets by the Courts within theirdomain. They do this in a rather direct sense: much of the direct managerialresponsibility is not decentralised to individual Courts. Most Courts are indeed underthe chairmanship of a president (designated as chef de jurisdiction) who hascompetence to designate cases, to regulate sessions and to evaluate judges. Thesechefs de jurisdiction, however, have hardly any management-related powers. Therecertainly is no talk of integral management such as in Sweden. Most managerialcompetences on behalf of individual Courts, such as spending and purchasing, areperformed through the Cours d’Appel itself. The Courts do not have the authority tomake any substantial expenses independently. They can only make proposals forpayments addressed to the Cours d’Appel of their jurisdiction. The Courts – just asis the case with the Tribunal de grande instance de Paris visited within theframework of this research – can order independently within the framework of theirbudget, but the payment is executed by the Cour d’Appel. The tribunaux themselvesonly check whether the order has been received and if the bill is correct. Thesupervision of the Courts is very direct. Within the framework of that supervision thepresidents of the Cour d’Appel also regularly visit the Courts within their jurisdiction.Regarding observed abuses, a president can warn

80 a judge or a Court. Sanctions

which can be taken as a result of such a warning, are possibly disciplinary measures,but also a form of direct control by the Cour d’Appel. An observer of the Courd’Appel can, in the event of negligence, temporarily replace the president or chairmanof a Court and perform managerial competences.

78

The Cour d’Appel receives the budgets directly from the Ministry of Justice. The Minister of Justicedirectly budgets for the Conseil d’Etat and the Conseil constitutionnel.

79See circular SJ.98-006-AB3/15-04-98 in which the presidents of the Cours d’Appel are asked, via modelforms and information, to budget the legal costs for 1999 within their domain.

80See art. 44 of the Statut de la magistrature. The inspecteur général des services judiciaire, theProcurators-General, and the first présidents de tribunaux do possess of the same authority to warn.

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Via the data system GIBUS, a management data system used by the separatetribunaux, and by the Cours d’Appel, as well as by the Ministry of Justice, theevolution of the budget spending can be followed. Every three months the Coursd’Appel provide the Ministry of Justice with intermediate budget overviews and oncea year a justification concerning the expenditure is provided in the form of an annualaccount (compte rendu) and an annual report (evaluatif). The system of theearmarked budgeting is somewhat mitigated through the fact the Courts can cope withtemporarily occurring deficits via the system of the ‘demandes individuelles’. As faras the budget permits, the Ministry of Justice accepts these individual requests.

In practice Parliament inspects the expenditure of the budgetary funds for the judiciaryonly at a distance. With the handling of the budget proposals there is talk of politicaldiscussion about the level of the budgets, although always on main aspects. Thesediscussions relate mostly to the increases of budget items.

Just as in Sweden, the public control of the activities of the judiciary in the Frenchsystem is only very partially organised as regards the aspect of the ministerialresponsibility. More than the ministerial responsibility implemented via theparliamentary supervision (via questions, for example, to the Minister of Justice) ofthe management of the judiciary, Parliament makes use of its own powers toinvestigate. In France – much more than, for example, in the Netherlands – Parliamentary surveys are conducted, for example, on the activities of Governmentservices. Parliamentary surveys are conducted mainly for matters of policy of nationalimportance.

For the regular control of the activities of the judiciary and ad hoc matters use is madeof inspections. These inspections are carried out by the Inspection générale deservices juridiques,

81 a special inspection service that operates under the responsibility

of the Minister of Justice. The inspections of this service can be carried out on all sortsof areas of the judicial activity, ranging from the management of Courts to thediscipline within the judicial corps of a Court. Such inspections are mostly carried outspontaneously, but sometimes also after a complaint. In general the outcomes ofinspections in Courts are not made public, which prevents outsiders from seeing whathappens with the outcomes. Indeed the reports, according to officials at the Ministryof Justice, often give rise to disciplinary measures.

6.3. The French Council for the magistrature (Conseil supérieur de lamagistrature): composition and duties

The Conseil supérieur de la magistrature (henceforth: CSM) is a Council for thejudiciary, which has completely different characteristics than the Domstolsverket inSweden. In the French system the management and the care for the judiciary rest, notas in Sweden with a Council for the judiciary, but mainly with the Government.

81

Established in 1964.

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The CSM exists since 194682

and functions as a board operating independently of theGovernment as a guarantee for the judicial independence. During its by now fiftyyears’ existence the CSM – via the constitutional amendment of 1958 and the lawdated 27th July 1993 – has undergone various changes in the area of the board’scomposition and organization. The tasks and competences of the Conseil – mainlyin the area of appointment advice and disciplinary jurisdiction – remained in the mainunaltered through the years.

The French Constitution takes care of the independence of the judiciary for thePresident of the Republic (art. 64 of the Constitution) and further stipulates that theHead of State is supported here by the CSM. The CSM appears to be chiefly acounterweight between the President’s powers for judicial appointments on the onehand and, on the other hand, the Minister of Justice’s authority with regard to theappointment of magistrates and the management of the judiciary. These days, thisbalance is being under consideration again.

At present the CSM consists of a majority of members who are part of the judiciary.The President of the Republic, with the Minister of Justice who functions as vice-chairman chairs the Conseil. Subsequently there are four general members, one ofwhom is designated by the chairman of the Senate, one by the chairman of theAssemblée Nationale, and subsequently one coming from the circle of the Conseild’Etat and one coming from the circle of the Cour the Comptes (Auditor General’soffice). There are elected members besides the four general members. Six of themelected by the members of the sitting magistrature via a system of representation, theother six (also a system of representation) by the members of the public prosecution(State Attorneys Office).

83 The CSM consists of two divisions: a ‘formation de siège

formation du parquet’. The formation de siège84

is competent in matterspertaining to the sitting magistrature and the formation du parquet

85 in matters

pertaining to the public prosecution. Together the formations form the full Board,which – in the absence of the President and the Minister of Justice – is competentin disciplinary matters.

86

82

The Conseil supérieur de la magistrature was already established in the Constitution of the 4th Republic.However, even though for the establishment of the Conseil many of the functions (namely the Courtprocedure regarding the disciplinary measures) that the Conseil used after 1946 – since the law of 31stAugust 1883 – were already executed by the chambers of the Cour de Cassation. The composition andmethod of working of the Conseil supérieur de la magistrature is amended by the Constitution of 4thOctober 1958 (5th Republic) and once more by the constitutional law (Loi constitutionelle) of 27th July1993.

83See art. 65 of the Constitution et la Loi organique no. 94-100 de 5 février 1994 sur le Conseil supérieurde la magistrature which, in particular, regulates the way that the members for the CSM are elected andthe method of working of the CSM on giving advice and making appointment proposals.

84Consisting of: the President, the Minister of Justice, the four general members and five members elected bythe members of the sitting magistrature supplemented with a member elected from the circle of the publicprosecution.

85Consisting of: the President, the Minister of Justice, the four general members and five members elected bythe members of the public prosecution supplemented with a member elected from the circle of the sittingmagistrature.


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However, this system of working of the CSM has been criticised since 1993. Inparticular, the fact that since 1993 – through the extension of the competence of theCSM – the appointment of magistrates has actually become an issue of the membersof the judiciary itself – a majority within the CSM is judge. This calls for a form ofpublic control on the appointments.

87 As a result of a constitutional amendment, in the

near future the CSM will be supplemented with ten members who come neither fromthe circles of Parliament, the judicial circle nor from the circle of the publicadministration. The proposal appears controversial in judges’ circles. They wonderwhat the ten non-resident members will be able to add to the meticulousness and thequality attached to the appointments. The real problem lies particularly in the way inwhich the members of the public prosecution (State Attorneys Office) are nowappointed and how, in the future, representatives of ‘the general public’ will deal withmatters in this area.

The proposal for constitutional amendment has been already accepted by Parliamentin the first reading. For the second reading the Congress (the united session ofParliament) will have to accept the first reading proposal with a strengthened majority.It looks like the proposal should have this majority. What we are waiting for is thedecision of the President, who has the authority to convene the Congress.

The CSM now has two main competences, namely a) to make appointment andpromotion proposals for members of the sitting magistrature coming from the highestjudiciary echelons or giving advice on appointment proposals from the President orthe Government for other members of the sitting – but also standing – magistrature,and b) to take care of disciplinary jurisdiction for magistrates. Both aspects, for thepurpose of the assessment of the CSM, are briefly gone into below.

The role of the CSM with judicial appointments and promotions

Typical of the French constitutional system is the elaborate and legally very detailedsystem of judicial appointments and promotions. Particularly the fear of politicisationand syndicalisation of the principle of appointment and promotion seems to haveresulted in the system – within which the CSM assumes such a large role as aconsultative authority – being heavily tackled.

In order to be appointed as a member of the sitting or public prosecution (collectively,the so-called corps judiciaire) it is required that – via a comparative competition – one is accepted into the Ecole nationale de la magistrature,

88 or directly appointed

– based on professional experience – in the corps judiciaire (the so-calledintégration directe).

89 Within the Ecole nationale de la magistrature a training course

is given to the admitted candidates that displays similarity to that of the Dutch Raio

87

See, among other things, Conseil supérieur de la magistrature, Report annuel 1996, Paris 1997. Seeherein in particular the intervention of M. Jacques Toubon (Minister of Justice), pp. 148-152.

88See art. 15-21(section I) of the previously cited Ordonnance n° 58-1270 modifiée portant loi organiquerelative au statut de la magistrature, J.O. 23 décembre 1958 (henceforth: Statut de la magistrature). Foradmission to the Ecole nationale de la magistrature different forms of comparative entrance competitionsare held. The requirements are particularly strict.

89See art. 22-25 (section II) of the Statut de la magistrature.

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training course. Once a member of the sitting magistrature has completed the trainingcourse – after advice or a proposal from the CSM – he or she is then appointed ina specific Court. The President of the Republic is empowered

90 for certain

appointments, for others (the remaining members of the sitting magistrature) theGovernment is empowered on the proposal of the Minister of Justice. After theappointment in a Court, the training course of a judge does not stop there. The Ecolenationale de la magistrature – linked to the entrance training – has a special andcontinuous training programme, the so-called ‘formation permanente’. Judges canparticipate in it during their entire career. This participation is again important for ajudge’s further career.

The corps judiciaire is hierarchically classified, even with regard to judges. There arejudges of the first and the second grade (premier et second grade).

91 The second –

highest grade – is in turn again broken down into two sub-groups. In addition tothis, the first and the second grade are subdivided into ranks that indicate the careerprogress. In order to be able to move up from the first to the second grade – necessary to become eligible for higher judicial duties

92 – and subsequently for

appointment in a higher position, it is necessary first of all that a judge moves in andbetween the two grades. For that purpose it is necessary that a judge be registered inthe Tableau d’avancement. This Tableau d’avancement is drawn from in the eventof a vacant post of judge. Applications outside the Tableau are not possible. Movingwithin the Tableau d’avancement is determined by the Commission d’Avancement,

93

a Council that consists of judges recruited from different sorts of Councils for thejudiciary. Promotion via the Tableau d’avancement takes place on different – legallyregulated – foundations. With that, the information from a judge’s dossier isimportant, among other things, in the area of work experience, seniority, mobility,possible incidents and the evaluation reports.

94 The direct executive judge draws up

these evaluation reports – after a job interview with the judge concerned –. Theevaluation reports – two-yearly, in principle – state the activities of the judgeconcerned, a general opinion

95 from the executive judge, an opinion about the

suitability for other/higher positions, and – if under discussion – the training needof person concerned.

96 In the event that a judge disagrees with his evaluation, he can

lodge a complaint against it with the Commission d’Avancement.97

90

Namely for the activities of judge in the Cour de Cassation, premier président of a Cour d’appel orprésident of a Tribunal de grande instance. See art. 65 of the Constitution.

91See art. 2 of the Statut de la magistrature.

92See art. 4 Décret n° 93-21 du 7 janvier 1993 pris pour l’application de l’ordonnance no. 58-1270modifiée portant loi organique relative au statut de la magistrature. Article 4 retains, for example, thepositions of (premier vice-) président d’un Tribunal de grande instance, and conseiller de Cour d’appelfor judges of the first grade, from the first group.

93See art. 34 and further (chapitre IV de la Commission d’Avancement) of the Statut de la magistrature.

94See art. 12 and further (chapitre II de la carrrière des magistrats) Decret n° 93-21 du 7 janvier 1993 prispour l’application de l’ordonnance n° 58-1270 modifiée portant loi organique relative au statut de lamagistrature.

95A judgement on religious or political or life principles or on irrelevant elements of the private life of a judgemay not be included in an evaluation report. See art. 12 Statut de la magistrature.

96See art. 20 Décret n° 93-21 du 7 janvier 1993 pris pour l’application de l’ordonnance n° 58-1270

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The Tableau d’avancement is decisive for the appointment proposals98

which can bemade by the CSM to the President (for the positions of judge in the Cour thecassation, premier président of a Cour d’appel or president of a Tribunal de grandeinstance) and by the Minister of Justice to the CSM for advice (for the remainingpositions). No proposals are issued outside the Tableau. Every year the Commissiond’Avancement publishes a public report on its activities.

99

Mobility of judges is an important instrument of global quality in strongly centralisedFrance, where little interest exists for judicial positions in the far North and South ofthe country. The career system via the Tableau d’avancement awards mobilitythrough the fact that it is highly valued as a criterion for promotion. This mobility,however, indeed forms to an increasing extent a problem, because many magistrateshave working partners. Mobility, however, is achieved through posting judges andmembers of the public ministry. A very frequent phenomenon in France is thatmembers of the standing and the sitting magistrature are posted within otherGovernment departments. Thus the majority the officials of the Ministry of Justice aremagistrates. Mobility via posting is, however, less highly esteemed than mobilitywithin the judiciary itself. Posting juridical experts from outside the corps judiciaireitself is possible these days, through the law of 25 February 1992 (L.O. no. 92-189,art. 37).

100

The role of the CSM with the disciplinary jurisdiction

The disciplinary regime for French judges is quite strict. Art. 43 of the Statut de lamagistrature stipulates that: ‘Tout manquement par un magistrat aux devoirs de sonétat, à l’honneur, à la délicatesse ou à la dignité, constitue une faute disciplinaire.This is a somewhat broad description of an offence with which very manyshortcomings in the area of the duty management, the requirement, meticulousness,and violation against the dignity and honour of the office can count as a disciplinarybreach. In any case, violation of legal prescriptions, which particularly monitor thejudicial office, will result in a disciplinary breach.

101 Judges are also responsible for

their dealings in office, although they only responsible for errors for which they canbe personally blamed.

102 For juridical mistakes for which judges cannot be personally

blamed, judges and Councils for the judiciary are protected through the existence ofthe State liability.

103

modifiée portant loi organique relative au statut de la magistrature.

97See art. 12-2 Statut de la magistrature.


99This report contains the authorised information on the activities of the Commission. For this enquiry usewas made of the ‘Report d’Activité de la Commission d’Avancement 1997-1998'.

100See art. 41 and further Statut de la magistrature.

101Accordingly the Statut de la magistrature forbids, among other things, the execution of additional publicfunctions (art. 8), membership of the (European) Parliament and other incompatible Parliamentarymembership functions (art. 9), criticising the Government while in office or airing political convictionswhile in office and involving them in the consultation (art.10), etc.

102See art. 11-1 Statut de la magistrature.

103See art. 11 Statut de la magistrature.

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In disciplinary matters a special Court procedure applies to the sitting magistrature.The Ministry of Justice puts the legal proceedings into operation and the CSM actsas the disciplinary judge. Art. 18 of the Loi organique sur le Conseil supérieur de lamagistrature

104 specifies that in disciplinary procedures the CSM is in session without

the Président de la République or the Minister of Justice (members of the board inordinary cases) participating in the deliberations. In most cases the Ministry of Justicewill not institue disciplinary legal proceedings before an investigation by theInspection générale des services juridiques, although reports from first presidents ofa Cour d’Appel or a tribunal can result in disciplinary legal proceedings. Beforeproceeding to disciplinary action the superiors and the Inspecteur général des servicesjuridiques can give a warning (art. 44 Statut de la magistrature). Such a warning isfiled in the a judge’s dossier, but after three years, if no new warning follows, it isautomatically deleted.

For the sitting magistrature the CSM itself imposes the disciplinary penalties. Thesepenalties vary from reprimands to withdrawal of pension entitlement and disallowingthe discharge of certain judicial duties.

105 No appeal is possible against a disciplinary

penalty.

6.4. Intermediate conclusion, France

The organization of the French board for the magistrature appears to be completelyat the other end of the spectrum than that of the Swedish Domstolsverket. The powersof the CSM lie precisely in the area of appointment(-advice) and disciplinaryjurisdiction. Precisely the areas where the Swedish Domstolsverket has no powers. Inany case, what is characteristic of the French system is the relatively rigidimplementation of management of independence from the point of view of the judges’legal position and the management of Courts. In France, judges do not have the samestatus – neither from the point of view of the legal position, nor socially – as manyof their overseas colleagues. There is a rigid disciplinary regime and a great deal ofhierarchy. We also find this hierarchy with the management and the budgeting ofindividual Courts. Individual Courts, in this respect, are given little responsibility oftheir own. According to the respondents in the enquiry – which was conducted inFrance in December 1998, for the Ministry of Justice in the Netherlands – this verycentralised set-up is not beneficial to the sense of responsibility, the organizationalcoherence in and the management of individual Courts. Even the method ofappointment and promotion – completely detached from the way in which the CSMhandles its duty – is criticised. According to the respondents, the system results inthe fact that, in a number of cases, the wrong people are appointed in the wrong place.Controversial points are, for example, the appointments of young training judges whohave insufficient experience to tackle the serious cases with which they are oftenconfronted.

104

Loi organique n° 94-100 du 5 février 1994 sur le Conseil supérieur de la magistrature.105

See art. 45 Statut de la magistrature.

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The French CSM has a broad, although predominantly judicial, composition. Evenhere the representation concept seems to have been the first matter of importance. Itis striking that the need that seems to have grown to, besides the judicialrepresentation on the board, a larger contingent of non-judicial members on the board.At present work is in execution on a constitutional amendment to render that possible.By including more non-judicial members in the management, the element of societalcontrol of the activities of the board and with it of the judiciary, one hopes, isenlarged. This extension of the CSM with more ‘external members’ is, in France itself,not greeted with unanimous approval. Namely because judges fear for politicisation – or a shadow of politicisation – of the appointment procedures if the proposedamendments come through. That might, in turn, influence the status of the judiciaryin a negative sense. And this status of judges in France – according to therespondent’s own opinion – is vulnerable.

6.5. Comparative overview of the tasks and competencesof the French Conseil supérieur de la magistrature


external affairs

public services


personnel management

ü selection policy

research policy


policy on quality


accommodation & safety

automation

administrative organization

providing administrative information


budgetary policy

distribution means

justification of spending

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ü disciplinary powers

ü (appointment competences with) appointing judges

ü promotion and posting of judges


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Chapter 7. Italy (Consiglio Superiore della Magistratura)

7.1. The constitutional position of the judiciary in Italy

In the area of the independence and the status of the judiciary, the Italian judiciary isthe mirror image of the French judiciary. In Italy, under the influence of the problemsthat the country had with the struggle against organized crime, terrorism andcorruption within the machinery of Government, one adheres to the greatest possibleindependence of the judiciary.

That also appears from the special care with which the Italian constitution106

isregulates the jurisdiction.

107The independence of the ordinary judiciary is first of all

guaranteed from the point of view of the legal position by rules concerning theappointment and the dismissal of judges. Ordinary judges are appointed for life andare, in principle, irremovable. Only through a decree of the HighCourt for themagistrature (Consiglio Superiore della Magistratura: henceforth: CSM) can they bedismissed, suspended or posted. This CSM is a High Council of State, establishedspecifically to guarantee the independence of the judiciary. In accordance with Article105 of the Constitution this Council, in accordance with the law, is responsible for theappointment, designation of duties, posting and promotion of judges, as well as takingdisciplinary measures against judges. Article 107, first paragraph of the Constitution,guarantees that judges can only be discharged from their duties or posted by adecision of the CSM. The second paragraph of Article 107 of the Constitution indeedspecifies that the Minister of Justice is empowered tot take initiative to implementdisciplinary measures. The tasks and competences of the CSM are regulated in a lawof 24th March 1958.

108 The Italian constitution also grants a functional guarantee of

independence to members of the ordinary judiciary: on discharge of their judicialduties, judges are only subordinate to the law (art. 101). The guarantees ofindependence are only applicable to the members of the ordinary judiciary. Law

106

The Costituzione della Republica Italiana.107

For this assessment, see also E.M.H. Hirsch Ballin/E.R. Manunza, in “de Italiaanse Republiek”, [In theItalian Republic]: L. Prakke and C.A.J.M. Kortmann (editor), Het staatsrecht van de landen van deEuropese Unie [The constitutional law of the countries of the European Union] 5th print, Deventer 1998,p. 462.

108Law of 24th March 1958, n. 195 (modified several times afterwards). See for these modifications, amongother things, A. Pizzorusso, Le Conseil supérieur de la magistrature en Italie, in: Revue française thedroit constitutionnel, 9, 1992, pp. 155-157.

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regulates the independent position of judges and non-judges who participate in thejurisdiction, without being part of the judiciary.

109

Besides an individual guarantee for judicial independence the Italian Constitution alsoprovides guarantees of independence at macro level. In accordance with Article 104of the Italian Constitution the judiciary is an autonomous organization, is independentof any other power and is managed by the CSM.

Organization of the judiciary in Italy

The organization of the ordinary judiciary is regulated in the decree of 30th January1941, no. 12 on the judiciary organization. The ordinary judiciary has five echelons.The lowest in the hierarchy are the justices of the peace (giudici di pace) who in thefirst instance administer justice (or mediate) in civil and criminal legal proceedings oflesser importance. The duty can and is often exercised by non-jurists. The praetors(pretori) form the second level of the Italian judiciary organization. These areprofessional judges who handle appeal cases of justices of the peace and in the firstinstance administer justice concerning less serious civil and criminal cases. The DistrictCourts (tribunali) deal with the somewhat more serious civil and criminal cases in thefirst instance and handle the appeal against the verdicts of the praetori. The Courts ofappeal (corti d’appello) judge in appeal on the verdicts in the first instance of theDistrict Courts. Cassation of the Court pronouncements is possible by the specialCourt of Cassation (corte di cassazione) in Rome. The ordinary judiciary organizationstill possesses other different specialised Courts such as Courts and chambers at theCourts of appeal for matters pertaining to minors, regional Courts for publicwaterways, and the Assize Courts (corti di assise) and the Assize Courts of Appeal(corti di assise di appello), which try serious crimes in a collaboration betweenprofessional and lay judges. Besides the ordinary judiciary a special hierarchy ofadministrative jurisdiction has developed in the Italian system. Appeals againstGovernmental decisions and pertaining to election results are in the first instance dealtwith by regional administrative Courts (tribunali amministrative regionali) with thepossibility of appeal with the Board of State. Beside these Courts there are still otherspecial judiciary bodies in specific areas such as the Auditor General’s office, militarytribunals, tax committees, the Supreme Court for public waterways, but also theConstitutional Court of Justice which is empowered to pronounce on theconstitutionality of laws and statutory orders as well as of those coming from theGovernment and those coming from the regions.

7.2. Ministerial responsibility and public control in Italy

Italy, as most countries in the European Union, has a Parliamentary system ofGovernment, which entails that the members of the Government are collectivelyaccountable to the Italian Parliament for the decisions of the Council of Ministers and

109

See article 108 jo. 200, third paragraph, of the Italian Constitution.

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Ministers individually for their own discharge of duties.110

In relationship to the careand responsibility which namely the Minister of Justice, as with regard to the judiciaryand the judicial organization, Article 110 of the Constitution is of real importance.This article specifies that – without prejudice to the competence of the CSM – theMinister of Justice is responsible for the judicial organization and the execution ofjuridical services. The Minister of Justice is accountable to Parliament as regards theway in which the policy concerning the judicial organization is effected and how themanagement of the judicial organization is taking shape. Effective Parliamentarycontrol in Italy in practice, however, is impeded by various factors.

The first factor lies in the way in which the Minister of Justice puts his responsibilityfor the management of the judicial organization into effect. Furthermore, untilrecently, out of respect for the judicial independence, Ministers of Justiceimplemented, as much as possible, a non-intervention policy, in the sense that theMinister made sure he had as little involvement as possible with matters that couldaffect the content of the jurisdiction. A consequence thereof is that precisely in thearea of management of the judicial organization no central management isimplemented in Italy, and this has not done the efficiency of that management anygood.

111 According to the observers, within the Italian system, the Ministers of Justice

insufficiently recognise the possibilities Article 110 offers as a basis for moresubstantial forms of management and management policy of the ministry towards thejudicial organizations. During the last two years, under the new Government, a changecan be observed in it and there is an attempt to do more on the ministry’s side toinduce efficiency into the promotion aspect and – wherever possible and desirable – the quality of the administration of justice. Accordingly, the ministry is working ona law that harmonises and unifies the jurisdiction in the first instance. Expectations arethat this law will be in force on 2nd June 1999. The law regulates the amalgamationof two different judicial bodies of first instance (pretore and giudice tribunale: theproject realisazione giudice unico in primo grado, somewhat comparable to theintegration of the Dutch cantonal Courts into new-style Courts).

The second factor that has contributed to the fact that Parliamentary control ofthe management and the organization of the judiciary, via the Ministerialresponsibility, received little chance in the past, lies with Parliament itself. Upuntil about fifteen years ago the chairmen of the Chambers in Parliament didnot authorise any question that concerned the judiciary. This, once again, came

110

See article 95, second paragraph, of the Italian Constitution.111

An example that testifies of the strong longing for independent jurisdiction that within the judicialorganizations themselves can indeed lead to problems is the way in which the incoming cases aredesignated to judges inside Courts. Accordingly, during the working visit within the framework of thediscussion on the management of the work supplies the Italian system of the ‘giudice naturale’ wasdirectly referred to. That system is interpreted in a table system for the designation of cases. The notion is,that with the designation of cases to judges an objective system must be deployed: the expertise orexperience of a certain judge or chamber may not play any role. It is thus the order of arrival of cases thatmust be decisive. The table system entails that very serious cases can end up on the table of aninexperienced judge, and that little leeway exists for the use or existence of certain sub-specialisation withina main specialisation (criminal law, civil law and suchlike). One sees the disadvantage of such a system,from a viewpoint of efficiency, as a price that must be paid for the greater good of independence andimpartiality.

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about out of respect for the judicial independence. During the last two years thisjudicial pre-review was much less strong, and these days questions are beingasked fairly regularly about the activities of the judiciary. The Minister alsoanswers these questions, regarding points concerning quality, but – ifeverything is working out well – the Minister does not comment as regardspoints concerning the content of individual cases.

Supervision of the activities of the judicial organizations

The Minister of Justice makes systematic and random checks of the activities of thejudicial organizations. A special inspectorate exists for this purpose, which falls underthe responsibility of the Minister of Justice, and its task is to collect information aboutthe activities of judicial bodies and individual judges. Furthermore, it concerns matterssuch as turnaround times and organization, but also the treatment of parties, thepublic. Every three years a general inspection of Councils takes place, and in additionto that special inspections can be conducted, for example, as a result of an individualcomplaint. There is a bill, prescribing that the Italian Council for the judiciary, theCSM, should have be given a role in the assessment of judges, in the form of anauthority to conduct a valutazione every four years.

Budgeting of the judicial organization

The Minister of Justice, by virtue of Article 110 of the Italian Constitution, is also theauthority responsible for the allocation of means to the judicial organizations. Via thebudget law Parliament and the Minister of Justice, annually make the means availableto the judiciary. The Minister subsequently puts the means to more specific use, andis responsible for the payment of the magistrates’ salaries. The distribution criterionand the apportionment of the budget among the different judicial organizations isestablished and earmarked by the Minister of Justice.

112 There is talk of a certain

degree of self-control among the judicial organizations, in the area of the decision-making with regard to the spending of means. The authority to make certain materialexpenses and expenses for non-judicial personnel is mandated by the Minister ofJustice to the ‘capo del uffizio’ of Italian Courts, a position comparable to the Dutch

113 Plans exist to grant further budgetary powers to ‘consigli

giudiziari’ in the near future (in which a Court president, Attorney General and eightjudges from different sections of judicial organizations have seats on a Courtjurisdiction), but for the time being it is the Ministry of Justice that largely acts as thebudgetary authority (also in the administrative sense). These circumstances mean that,within the Councils for the judiciary at the level of the intrinsic leadership, littlesympathy exists for the administrative managerial organization of the Councils for thejudiciary. About the executives of Councils for the judiciary it is said by people fromthe CSM as well as people from circles of the Ministry of Justice that they are still

112

The CSM has advisory powers for its own organization on this point. The CSM has no say concerning thesize of the budgets for the other judicial bodies. Also, the personnel of the CSM is in the Ministry’s service.

113See A. Pizzorusso, L’organizazione della giustizia in Italia, Torino 1996, pp. 109-110.

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very little geared to the administrative side: they are mainly people who are geared tothe writing of beautiful pronouncements.

7.3. The Consiglio Superiore della Magistratura: composition andcompetences

The CSM, established by the Constitution of 27th December 1947, started on 1stJanuary 1948, and was the first Council for the judiciary in Europe. The CSMconsists, in its present form, of 33 members. Three of them are permanent members,appointed by the law: the President of the Republic, (officially chairing the CSM), thePresident of the Court of Cassation, the Attorney General at the Court of Cassation.Twenty members coming from the circle of judges and members of the OM (‘togati’)and ten members of the board are members from outside the judicial organization itself(‘laici’).

The judges and members of the OM elect the magistrate-members itself. In practice,this goes via the association of magistrates (‘Associazione Nazionale Magistrati’).Within this association different movements exist (‘correnti’, at present four) whichpresent candidates. The association has a private law status and no special statutorybasis. It works with lists of candidates, and a system of proportional representation.A list must have obtained 9% of the votes. There are approximately 8800 magistrates.Our respondents estimate that approximately 90-95% of them is a member of theassociation. For the active of passive right to vote with regard to the composition ofthe CSM it does not matter whether one is a member of the association of magistratesor not, but indeed whether one is a magistrate or not.

114 In practice, this system, with

the electoral threshold of 9%, means that outside the movements in the AssociazioneNazionale Magistrati a list is not likely to be submitted. There are five constituencies:one is reserved for the Court of Cassation: the members of the Supreme Court electtwo members from the CSM. The remaining four constituencies are based on thedistricts of the Courts of appeal. The districts which together form a constituencychange per election (decided by lot; they are thus not geographically amalgamatedconstituencies). Two of these four constituencies produce four members from theCSM, each of the other two produce five members.

As previously mentioned, ten members of the CSM come from outside themagistrates’ circles. These outsiders (‘laici’) must be jurists. These members shouldhave the profession of professor, or lawyer with at least fifteen years experience (art.106 of the Italian Constitution). They are elected by Parliament in united assembly,with voting by secret ballot. The candidates are put forward by the political parties.A qualified majority is necessary. The Vice President of the CSM is elected by theCSM from the non-judicial ‘outsiders’.

114

The elections are regulated by law, law of 12th April 1974, NR. 74. See V. Zagrebelsky, La magistraturaordinaria dalla Constituzione a oggi, p. 749.

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The elected members of the CSM (magistrates and outsiders) have a term of fouryears. The term for the magistrates and for the outsiders is the same. As a result, allbut the three ‘permanent’ members are renewed every four years.

The circumstance that the CSM (all but the three permanent members) is entirelyrenewed every four years constitutes a factor of discontinuity. Some experience thisdiscontinuity as undesirable. Others point to the fact that this discontinuity also hasits positive sides. Indeed time will be lost during the amassing of expertise by the newboard, but there is also more chance for some new ideas.

The role of the President of the Republic (officially President of the CSM) as presidentof the CSM is considered to be a ceremonial role, at least as a role that should notlead to intrinsic involvement with the activities of the CSM. When President Cossigaon 13th May 1991 assumed the powers delegated to the vice-president, it led to thejudicial members of the CSM collective resignation, and as a result thereof theactivities of the CSM were blocked. After the intervention of the chairmen of theChambers of Parliament, the resignation was withdrawn.

Non-judicial members in the Italian CSM

The fact that outsiders are members of the CSM is in it – also in magistrates’ circles – accepted without further ado and even positively valued. The composition of theCSM, however, has not much homogeneity at present. This creates a potential weakpoint in the system concerning the outsiders elected by Parliament. If Parliamentsucceeds in appointing jurists who are elected merely by virtue of their recognisedmerits and qualities within the profession, they will be able to set themselves uprelatively independent of the political backing. For outsiders, however, who areselected primarily on account of their merits for a particular political fraction, it ismuch more difficult, also because they will have to rely on that fraction to beappointed to find a new, appropriate position after the term of office.

The circumstance that a qualified majority is required for the election of outsidersmeans that negotiations about the list of candidates between the political parties inParliament are necessary. Because of that, and possibly also through the circumstancethat the election is secret, the bond with certain political parties is somewhatweakened. Even if the party political influence is not so strong – and not soorganized – as in Parliament, the party political origin nevertheless plays a role. Andthen through the sections: in practice it does not happen that ‘the’ outsiders are upagainst ‘the’ magistrates: directions within the CSM are determined more by politicalaffinity than by the capacity in which one became a member of the CSM. In thisconnection it was emphasised by the Italian respondents that besides the manner ofcomposing the (fairly large) size of the CSM impedes the decision-making and makesit susceptible to politicisation.

Future

Within the framework of a sizeable constitutional revision, which is pending in Italyat present, proposals have also been submitted which concern the CSM. It is proposedto enter a new Article 120 in the Italian Constitution. In accordance with the proposaltwo Councils for the judiciary will be established, one CSM for the ‘ordinary’

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jurisdiction and one CSM for the administrative jurisdiction. In the proposal the CSM,with the competences in the area of the ‘ordinary’ jurisdiction, is further broken downinto two sections: one for the sitting and one for the public prosecution (StateAttorneys Office).

115

The imposition of disciplinary measures would, in accordance with the proposals, bedesignated to another Court, namely to a new Court yet to be established (Corte diGiustizia della Magistratura). Furthermore, the Minister of Justice would, inaccordance with the proposals, formally be authorised to participate in the meetingsof the CSM, with the right to make proposals and requests, but without the right tovote. These proposals come from a Parliamentary Commission – made up of bothChambers of Parliament – for the revision of the Constitution.

116 The bill for the

constitutional revision did not acquire a majority. However, the respondents havedeclared that they expect the proposals concerning the CSM to return at any moment,whether or not in an adapted form.

The role of the CSM in appointment, promotion and posting

One of the most important competences of the CSM concerns the appointment ofmagistrates. In order to be appointed as judge in Italy one must first be admitted tothe training for judges. This admission takes place, just as in France, by means of acompetitive exam. Those who pass the competitive exam (concorso), are subsequentlyappointed as uditore giudiziario (a sort of judicial civil servant in training). After twoyears and a positive evaluation they then become magistrates.

Judicial postings – an authority of the CSM – have a dual character in Italy. Aposting imposed by the CSM can be imposed as a disciplinary penalty for a judge. Onthe other hand, postings can also be imposed without the judge concerned havingdone anything that would merit a penalty. This is possible, for example, if concerningcontent good reasons for a posting exist. The example is given of the son of a judgewho finds himself in criminal problems in a provincial town. That is a clear case inwhich the judge himself has given no reason for a sanction. There are also marginalcases: behaviour of judges whom themselves produce insufficient grounds for asanction, but nevertheless can justify a posting. For example, the case of a judge who(apparently from telephone conversations) evidently maintain bonds of friendship withcriminals. Such postings fall outside the disciplinary measures and are prepared by thefirst Commission.

Proposals for appointment or posting presidents or Councils for the judiciary(magistrati dirigenti) have to go via the Minister. The appointing of the presidentstakes place through the CSM, but the appointment is prepared by one of thecommissions.

117 Before the proposal goes to the plenary assembly, it is submitted to

115

The composition of the CSM for the ordinary jurisdiction is, according to the proposals:3/5 of the magistrate-members, 2/5 of the non-magistrate members.

116Commissione parlamentare per le riforme costituzionali, Progetto di legge costituzionale, Revisionedella parte seconda della Costituzione (Camera dei Deputati, N. 3931-A, Senato della Repubblica N.2583-A), offered to both chairmen of the House on 4th November 1997, p. 95 and further

117This takes place, namely, by the 5th Commission of the board, the Commissione per il conferimento degli

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the Minister of Justice. In Italy it is – just as in France – quite usual that judges aredetached to the Ministry of Justice. Thus a great deal of the personnel of the Ministerodi Grazi e Giustizia are magistrates.

118

On appointing the presidents of the Councils for the judiciary (magistrati dirigenti)it can happen that the Minister of Justice gives his opinion on an appointmentproposal.

119 Such appointments can only be made after the Minister has been

consulted about them: it concerns a ‘concerto di ministro’, and that is not the sameas an agreement, but comparable to the Dutch figure that the appointment must bemade ‘in accordance with’ the Minister. If the Minister passes negative judgement ina concrete case, the case goes back to the CSM, this time to the plenary assembly. Ifthe CSM sticks to its guns, this opinion is decisive. In practice, for that matter, thisdoes not need to lead to the appointment subsequently running immaculately, becausethe appointment by a decision of the Minister must take place. If the Minister remainsopposed to the appointment, he has no further means at his disposal (and the CSMcannot turn back either), but it can happen that the appointment fails to materialise fora long time. Concerning this ‘concerto’ a case has been to the ConstitutionalCourt.The Court did not give a direct answer to the question if approval is really necessary,but emphasised that there is an obligation of collaboration.

120

A problem for the Minister with using this possibility of influencing the appointmentof presidents is that – even when there is doubt on a candidate’s administrativecapacities – in general one does not know the candidates at the ministry well enoughto reject a candidate put forward by the CSM with objective arguments. On averagethe ministry has too little information about individual judges for this. In fact, thereis information on them only if they have passed their competitive exam (concorso)two years after being appointed judge and later only if they, thirteen years after theirinauguration, again apply for the status of judge at a Court of appeal and if they,twenty years after their inauguration, wish to acquire the status of judge of the Courtof cassation.

121 These intervening periods last too long. The need of information on

the quality of individual judges can also not sufficiently be anticipated through thesystematic and random inspections to which the ministry – via the inspectoratepreviously mentioned in paragraph 8.2 – subjects the Councils for the judiciary everythree years or based on a complaint. At present a bill under is consideration that theCSM wishes to involve in this assessment of judges, among other things, as anauthority to carrying out a Valutazione every four years.

Uffici Direttiri.

118Worse still: executive positions within the Italian Ministry of Justice are reserved for magistrates.

119The Minister of Justice possesses a general power to give his opinion on the CSM’s concept decisions,which (also) lie in the Minister’s sphere of competence, only he hardly ever makes use of it in ordinary –

120See also article 11 of the law no. 195 of 1958 (Law on the CSM) and as an example the pronouncement ofthe Constitutional Court of 27th July 1992, no. 379. Here it concerned a case regarding the appointment ofCordova as anti-Mafia prosecutor in Palermo.

121The system of promotions works as an automatic progress based on seniority, with the exceptions of casesof promotion by virtue of merit (demerito).

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The role of the CSM in the disciplinary jurisdiction

The imposition of a disciplinary sanction is a discretionary power of the CSM (art.107 of the Italian Constitution). This power to impose sanctions exists with regard todifferent forms of judicial misconduct, although these conducts are not preciselydescribed. Particularly with judges more clarity is needed concerning the criteria whenusing this power. The Minister of Justice can take the initiative to implement such ameasure (in accordance with art. 107,-second paragraph, of the Constitution), afterwhich the Attorney General further prepares the measure. The inspectorate – previously mentioned in paragraph 7.2 – collects the information for the purpose ofsuch an action by the Minister of Justice. The Attorney General can also start theaction as a matter of routine. The CSM decides on the complaint in the plenaryassembly. 122 An appeal can be lodged with the Court of Cassation. The CSM hasa special Commission which is engaged in the examining judges in connection withdisciplinary penalties (Commissione per le inchieste riguardanti i magistrati).

Other competences of the CSM

The CSM provides courses within the framework of the professional training ofjudges. There is a compulsory training package for the judge who is still in training(the previously mentioned uditore giudiziario). Lawyers can also take part in someof the courses . For the courses provided by the CSM itself – on an ad hoc basis – there is always more interest than there are places. Most of the courses are three-day;some are five-day. Some 80 to 100 magistrates gather at these sessions.

During the interviews it was pointed out that the CSM, particularly during the last twoyears, has fulfilled an important function which does not appear to result from lawsor regulations: the board sees it as its duty to intervene publicly – unanimouslyaccepted by the board – in cases in which judges are publicly attacked, for examplevia the media. These resolutions were always intended to distinguish the right tocriticise judges from ‘blunt’ denigration and suchlike that not only concern the personof the judge, but also discredit the credibility of the entire magistrature. It hashappened that via a resolution, the CSM was able to show that the accusationsexpressed against judges were unfounded. With such publicly made resolutions thefaith in the magistrature, if necessary, can be enhanced or restored.

7.4. Intermediate conclusion, Italy

In Italy, the relationship between the Ministry of Justice, (and the legislator,Parliament) and the magistrature is determined by a model in which the independenceof the magistrature has a high priority. In the opinion of the CSM the establishmentof the CSM has very much reinforced the independence of the magistrature.

Interference from outsiders with judicial competences and responsibilities – insofarthis interference is acceptable – must be encompassed with special guarantees.

122

Article 10, introduction and subsection 3, of the law on the CSM.

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Furthermore, within the judicial organization a formalised method of work isconsidered to be necessary, in order to prevent personal factors to interfere with theallocation of tasks. The Dutch delegation was reminded that Italy has a history ofexceptional problems: terrorism, corruption and organized crime. In Italy, tacklingthese problems is considered to be a duty which, in particular, rests with themagistrature. It has been said on different occasions concerning the disadvantageswith regard to the system used in Italy, that these are the consequences of the choiceof a system in which the independence has a high priority – ‘That is the price that has

Regarding the advantages and disadvantages of the way the CSM is composed, it issaid that the advantages and disadvantages are often closely knit. The circumstancethat every four years the board has to work in a practically completely modifiedcomposition, entails that there will periodically be a clear period of transition, in whichprobably no too far-reaching decisions can be taken, but on the other hand it can easepolicy renewal. The radical renewal, moreover, fits into the image of the great worryabout independence and impartiality that prevails in Italy: it seems to be anotherexample of avoiding too much power in the hands of persons.

In addition to this, remarkable and typical of the Italian system is the strong emphasison the independence of individual judges (in this case: chambers). That entails areserved attitude from the Minister of Justice as well as from Parliament with regardto the content of the judicial work. This reserve has resulted in a strong separation ofresponsibilities. The judicial organizations perform their judicial competences in strictindependence, while the Ministry of Justice centrally regulates the management andthe budgeting. There is hardly any mention of one’s own budgetary responsibility atthe judicial councils themselves, which means that there is also little management-related organization at Court-level, or of a professional organization. However, atpresent a few hesitating steps have been taken in the direction of more budgetaryresponsibility with the judicial organization itself. The need to bear an ownresponsibility in the area of the management of the own judicial organization does not,for that matter, seem to be too great in Italy.

The emphasis on the judicial independence certainly has, just as in France, a greatsignificance for the appointment and promotion for judges. Different to, for example,the situation in the Netherlands, the Italian Minister of Justice cannot interfere at allwith these appointments and promotions. The organization of appointment,promotion, posting and discipline via the CSM reinforces, according to therespondents, the independence of the judiciary. However, there must still be a degreeof give and take with the extent and the form of public control, which is present in thisform of appointment and promotion. The relatively large Courts Service in Italy asregards the ratio is still open for discussion. Through this, a certain extent ofpoliticisation of the Courts Service and with it of the judiciary can appear. This is arisk that we have already come across with the discussion of the French CSM.

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7.5. Comparative overview: tasks and competencies of the Italian CSM


external affairs

public services



ü selection policy

ü research policy


policy on quality

II Management-related competences

accommodation & safety

automation

administrative organization

providing administrative information


budgetary policy

distribution means

justification of spending

IV Remaining competences

ü disciplinary powers

ü (appointment powers with) appointing judges



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Chapter 8. The Czech Republic

8.1. The constitutional position of the judiciary in the Czech Republic

The Czech Constitution of 1993 guarantees the independence of the judiciary indifferent ways, both functionally and from the point of view of the legal position andpartially institutionally. Article 82 of the Czech Constitution contains a generalfunctional guarantee: judges perform their judiciary competences in independence.This independence may not be threatened by anyone. The first guarantee ofindependence, from the point of view of the legal position, is to be found in the sameArticle 82 of the Czech Constitution. This Article prescribes that judges cannot bedismissed or posted to another Court against their will. However, exceptions to thisguarantee are possible via the disciplinary regime. From the point of view of the legalposition, the independence of the judiciary is guaranteed by Article 93: the Presidentof the Republic appoints Czech judges for an unlimited period. The institutionalguarantees for independence in the Constitution are somewhat less direct. Article 2of the constitution distinguishes the different State powers, including the judiciary.Furthermore, Article 81 assigns the trial of disputes to independent Courts, the mainaspects of the organization being stated in Article 83 jo. 91 of the Constitution.

The independence of the judiciary is permanently embedded in the Czech Constitutionof 1993. This system reflects the recent past. Under the communist regime theindependence of the judiciary – certainly in the area of administrative disputes – was much less guaranteed.

Organization of the judiciary in the Czech Republic

The organization of the judiciary in the Czech Republic has a fairly complicatedstructure of four organizational levels and a complicated appeal procedure, which willnot be completely dealt with here. In the Czech Republic are 78 District Courts(responsible for civil and administration of criminal justice – but there is alsoadministrative jurisdiction (Administrative Courts) – in the first instance, in the areaof cases of minor importance), 8 Regional Courts (in certain areas appeal jurisdictionfrom District Court sentences. Separate appeal at a Special Court of Appeal is in anycase still possible), 2 ‘Higher’ of ‘Superior’ Courts (responsible for appeal jurisdictionof certain verdicts of Regional Courts where the initiative lies with of the Minister ofJustice), 1 Supreme Court (responsible for Cassation jurisdiction). Besides thesebodies there still are 3 so-called Commercial Courts, established in Prague, Brno and

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Ostrava. These specialised Courts play a major role in the liberalisation of the Czecheconomy. They namely deal with professional and business cases which lie in the areaof open and honest competition, prices policy, good trade practices, etc. Besides theSupreme Court, according to Article 91 of the Constitution, a SupremeAdministrative Court would have to function, but this has not (yet) been established.A special Constitutional Court takes care of monitoring the constitutionality ofadministration and legislation. The system of the judicial organization in the CzechRepublic is complicated and somewhat fragmented. Moreover, the complicatedjuridical law does not take the organization of the Courts and the jurisdiction to aneffective and efficient settlement of matters. The backlog as to disposing of cases – certainly with the Commercial Courts – is huge.

123

The main aspects of the judicial organization are set down in the Constitution, theelaboration is laid down in a law. The disciplinary regime with regard to judges in theCzech Republic has a special set-up. In principle the disciplinary jurisdiction is housed withthe Courts, in which the judge, against whom disciplinary proceedings have been started – is

active.124

This entails that if a judge has committed a disciplinary offence, eventuallycolleague-judges try him or her. The president of the specific Court has the task ofestablishing the disciplinary tribunal. This system is to be revised soon, because it doesnot contribute to inspiring confidence in the judiciary with the public. The Czechjudicial organization is at present subject to reforms in the more general sense. I willreturn to this in paragraph 8.3.

Since the velvet revolution of 1989 the judiciary in the Czech Republic is confrontedwith different problems. First of all, in different areas they had to put their past behindthem, and this caused a purge of the judiciary and brought rehabilitation procedureswith it. In addition, the judiciary was confronted with many new sorts of cases linkedto the from a socialist economy to a market economy. New legal areas, such ascompetition law, cropped up, and the Courts became overwhelmed by increasinglymore criminal (under the influence of a crime wave from the mid-nineties) and civilcases (through the increased market activity, the still low industrial and business ethos,bankruptcies, a ‘debt crisis’, the return of wrongfully expropriated properties in thepast, etc.). The existing judicial infrastructure which, after the revolution, continuedto form the basis for the judicial organization, was by no means suited to the fastdevelopments and lacked both the machinery and the necessary juridical expertise toreverse the great increase in cases. A true exodus of judges further worsened thesituation. Nearly half of the sitting judges resigned their office between 1990 and1993, partly for political reasons, partly due to the attraction of the private sectorwhere there was a great demand for experienced jurists (particularly as notaries).These problems did not only cause troubles with the processing of cases, but alsoresulted in problems in the area of the status and the authority of the judiciary.Through the combination of unfavourable factors, there is talk of a certain distrust ofthe judiciary among the public. In the period up until 1994 this in particular

123

See the memorandum of the Minister of Justice, Principles of Reform of the Judiciary (14th April 1999),Prague 1999, and pp. 6-7.

124See Law no. 412/1992 Coll. On Disciplinal Responsibility of Judges, in context of further provisions.

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discouraged the recruitment of young judges who were needed to stem the increasingworkload. Among young jurists, the wish to be to become judge was low and this wasalso due to the very low salaries. At present the negative spiral around the judiciaryis somewhat broken, through the fact that there was success to attract more judgesand in the long run to equip the organization better in order to take care of thebacklog.

In the opinion of experts of the European Union these efforts were, however, not yetsufficient to meet the requirements attached to entry into the European Union. For amission of experts of the European Union, carried out in November 1997, theindependence of the judiciary in the Czech Republic is still insufficiently ensured.Particularly the method of management (presidents of Courts are both head of theCourt and responsible for management by order of the Minister of Justice), thecomplicated organizational structure and with it the related stagnation with the casesand the insufficient financial and material machinery of the judicial organization makethat the European experts consider that the Czech organization is not yet fit to satisfythe requirements for entry.

125

Regarding the problems for which the Czech judicial organization was not capable ofreally getting at the root and to satisfy the requirements of entry that the EuropeanUnion sets, work is being done at present on a far-reaching revision of the judicialorganization . The Czech Government discussed the main aspects of the reform asearly as 14 April 1999 (Principles of the Reform of the Judiciary). Adhering to theintention, the plan for reform was established on 15 June 1999 based on the note ofthe basic ideas.

8.2. Ministerial responsibility and public control in the Czech Republic

The Czech Government has a system of collective responsibility of the Government.The Head of this Government is the Minister-president (Prime Minister), theappointed by the President (Article 68 of the Constitution). Parliament can abandonthe confidence in the entire Government via a motion of distrust (Article 72 of theConstitution) which obliges the Government to resign. The Minister-president handsin his notice to the President, and the Ministers do that via the Minister-president tothe President.

At present the Czech Minister of Justice is responsible for the management of thejudicial organization. This responsibility has different aspects. First of all, the Ministerof Justice is the person in charge of the budget. The Minister of Justice takes care ofthe equipment and funding of the Courts. At present in the annual budgetary cycle, therequirements of the District Courts and the Commercial Courts are listed, co-ordinated and passed on by the Regional Courts to the Ministry of Justice every year.The Supreme Court, the High Courts and the Constitutional Court themselves passon their own requirements directly to the Minister of Justice. The listed requirementsconstitute the basis for the budget proposal that the Minister of Justice makes to 125

See Terms of Reference CZ 9810-03-02, p. 1.

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Parliament. Once the budget proposal is established in the form of a budget law, themeans are made available to the Courts. With this, the Regional Courts fill animportant role as an intermediary organization: they take care of the granting of meansto the District Courts in their region. For that purpose, in accordance with apreviously established apportionment system – based on workload measurement – a twelfth of the budget for a Court is made available to a District Court everymonth.

126 This allows them to pay the costs for their Courts. The means system is

relatively strict: interim supplements to or increases in the budget within the samebudgetary year are actually not possible. Yet now and then the Regional Court seespossibilities, via some specific reserves, to grant additional means to District Courtsin the event of unforeseen circumstances. In addition to that, there is a possibility toapproach the Ministry of Justice in an case of emergency. Relatively little use is madeof this possibility.

The Minister of Justice and indeed in accordance with a staged system also executesthe control of the expenditure of the means. First of all, the Regional Courts carry outinspections – announced beforehand – in District Courts. The Ministry of Justice,which has a special department for this purpose, in turn, inspects the Regional Courtsthemselves – as intermediary organizations –. Even here is talk of plannedinspections. For that matter, the inspection service of the Ministry of Justice can carryout inspections on the premises of every juridical authority. The inspections can leadto instructions to the President of any Court who, in the Czech system, acts asadministrative manager. The Regional Courts are accountable for the budgetjustification.

The management of the judicial organization in the Czech Republic has a specialpurpose. The presidents of Courts not only have the final word in judicial matters intheir organization (judicial agenda), such as delegation of the work to judges andassistance, disciplinary and personal matters, they are also responsible for the generalmanagement of their organization (execution of the state administration in judiciary).In this context presidents are responsible for the material supplies for theirorganization (buildings, equipment, etc.), set-up and organization of theadministration of a Court (including the collection of Court fees), the managementconcerning the expenditure of the budget, etc. With the implementation of the lattertasks the Presidents are subordinate to the Minister of Justice. The Minister, who canappoint and dismiss the judges in the function of President, gives guidelines to thePresidents in the area of the general management of the Courts, which are at oddswith the judicial independence of the presidents who, during their appointment aspresident, also continue to do their usual work as judge in the Court. Inthe opinionof the committee of experts, which visited the Czech Republic within the frameworkof the entry inspection in 1987, the partial subordination of the Presidents to theMinister of Justice constitutes a danger to the independence of the Presidents. Eventhe presidents, who were interviewed within the framework of this enquiry, did notseem to be pleased in all respects with the managerial competences that they had to

126

This indeed creates a problem because the costs are not the same for every month. The Courts themselvesmust make a provision for months with higher costs.

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carry out under the authority of the Minister of Justice. They preferred to be involvedwith the strictly juridical tasks.

Besides his managerial responsibility the Minister of Justice also has a responsibilityin the area of training and appointing judges. Since 1999 the candidates for judicialpositions are recruited centrally by the Ministry of Justice. This replaces the formersystem in which the Regional Courts were responsible for recruitment. Thisdecentralised recruitment system led to an unstable situation. Many candidate-judgespresented themselves at the Regional Courts, expecting to be appointed in a region.Now that the Ministry of Justice has centralised the recruitment it is more possible toachieve a balanced distribution of the candidates (who are already scarce). After theirenrolment; the candidates are submitted to various examinations and selected orrejected. The selected candidates are subsequently appointed as an official of theMinistry of Justice and appointed as candidate-judge (‘trainee’) in one of the DistrictCourts. There follow two years of practical training in different divisions and sectionsof a District Court and a Court engaged in appeal cases. During the training theRegional Court is the co-ordinating Court. The courses and evaluations of thecandidate-judge (‘trainees’) are organized at that level as well. After three years theRegional Court decides if a candidate is admitted to the final examination. If acandidate is authorized to take the final examination, he gets time to prepare himselffor it. The final examination consists of a written part, but also of other evaluations,such as a psychological test. The final examination has one re-sit. If a candidatepasses, he is recommended by the Regional Court to the Minister of Justice, who, inturn, makes an appointment proposal to the President of the Republic, the authoritythat is empowered to make appointments. There are different training courses(permanent education) during a judge’s career. The Ministry of Justice takes care ofa few of them, but most of the courses and the association takes suchlike care of forjudges (Union of Judges). The Supreme Court also organizes (afternoon) workshops.

In order to encourage exchanges of knowledge between the public management andthe judiciary, judges to be posted within the public management. A judge can, forexample, be detached at the Ministry of Justice for a while. However, little use ismade of the possibility; the average workload of the Czech Courts, and in most casesthe acute staff shortage does not permit a judge to be ‘lent out’ for a while.

Via training and the role the Minister has in the system of appointments of Justice itis possible to fulfil an active role in monitoring the quality of the administration ofjustice. The Minister’s responsibility for quality is also dealt with by means of theresponsibility for the system of the administration of justice for which he has a specialresponsibility (for example, via the proposals for reform of the judicial organizationsuch as that which is now being proposed) and the authority that the Minister ofJustice has to hold inspections in the area of the management of the judicialorganization, to give instructions as a result of such inspections and his authority to,if necessary, initiate disciplinary procedures against judges.

The control that Parliament exercises on the way the Minister of Justice conducts themanagement of the judicial organization is distant. Parliament monitors themanagement policy of the Government with regard to the judicial organization ingeneral. There is little involvement with individual dossiers of Courts (and the way in

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which they are managed) and (still) no parliamentary enquiries have been set upregarding the management of the judiciary. Even the training and appointment policyis monitored by Parliament from a distance. The budget is usually scrutinised at themoment the management policy for the judiciary comes up for discussion. Thediscussions are thus concentrated mainly and firmly on the equipment of the judicialorganizations. Discussions concerning the content of the judicial work, out of respectfor the judicial independence, hardly come to anything.

8.3. A ‘Supreme Judicial Council’ in the Czech Republic

The judiciary and judicial organization in the Czech Republic, already discussed suchas in paragraphs 8.1 and 8.2, finds itself in a precarious situation. Notwithstanding theattempts to boost the independent status and the authority of the judiciary via theConstitution and organizational and administrative measures, this independence of thejudiciary is not yet beyond dispute. The most important causes for this are to be foundin: a) the recent communist history and the then prevailing system of socialistadministration of justice, b) the increased workload as a result of new sorts of cases,new legal grounds and social developments, c) the – until recently constantlyincreasing – staff shortage, expertise and means to cope with the increasedworkload, d) the current inefficient judicial organization in four different levels andthe complicated procedural law that still adds to the delays and arrears in processingcases, e) the double power structure with regard to the management of Courts inwhich the president as head of a Court for management-related matters (execution ofthe state administration) is subordinate to the Minister of Justice, but not for thejudicial direction (judicial agenda), and f) the disciplinary procedures organizedlocally, through which judges are actually tried by colleague-judges from the ownjudicial organization. The problems, that were also taken account of by the EuropeanUnion commission of experts in the enquiry of 1997, have recently been the reasonfor the Czech Government to come up with a plan for the revision of the judicialorganization (judicial reform). The main aspects for that plan were already establishedby the Czech Government in April 1999 and on 15 June they will be set down in aplan by the Minister of Justice for revision of the judicial organization . The mostimportant elements of this reform are:

1. The establishment of an intermediary organization for the management of thejudicial organization (a Courts Service/ Courts administration authority). Thisindependent organization – which will be called Supreme Judicial Council (SJC) – will play a role in the management of the judicial organization in the area of theadministrative support of the Courts’ business-processing (automation, administration,progress-monitoring systems and suchlike), of Courts’ personnel management, of theco-ordination of the disciplinary procedures, of the training of judges, etc.

2. A solution to the problem of the subordinate position of the presidents of Courtsin the area of their managerial powers. The first considerations go to a system inwhich the Presidents are granted more independent management in the area of theirmanagement-related competences (and thus less or no more direct influence on themfrom the side of the Minister of Justice).

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3. Simplification of the complicated system of judicial organization. In the near futureonly three levels in the judicial organization will remain. The ‘Higher Courts’ willdisappear as a level and the Commercial Courts will be housed with the DistrictCourts.

4. The procedural law will be reformed and will become less complicated. Morecompetences will be created for emergency procedures, accelerated procedures andsimplified settlement, etc.

5. The material and technical support of the judiciary will be improved and extended.

The Czech Government intends to go ahead with these plans. At the end of 1999 thefirst bills must already have gone to Parliament.

In the meantime the first proposals of the Czech Government have led to differentdiscussions in the Czech Republic concerning the set-up and organization of the newSupreme Judicial Council. The Union of Judges and the Supreme Court in particularhave expressed themselves in this debate.

127

According to the Union of Judges, with the reforms of the management of the judicialorganization, the self-management of the judiciary (self-governance of the judiciary)is the starting point.

128 That principle of self-management would need to be written

in the Constitution. According to the Union of Judges the SJC129

would have toacquire a management with a majority consisting of judges.

130 In a Board of 17

members, thus, the Union of Judges visualises place for 8 by-judges elected frommembers of judicial sections. The Presidents of the Supreme Court and theConstitutional Court, by virtue of their office, have seats and the remaining 7 membersare elected by Parliament. To the candidature, as well as for the members elected byParliament, appointment demands are made (representational and professionalqualities. The purpose of the Union of Judges is, in any case, to ensure that judgesthemselves have a large contribution in compounding the management. In theirproposals there also is room for external members in the management. The SJC, inaccordance with the proposal of the Union of Judges, has general tasks andcompetences as regards lists of recommendations for the appointment and posting ofjudges, appointment and dismissal of executive judges (presidents) in Courts, makingbudget proposals for the entire judiciary, the apportionment of the budget among theCourts, giving advice on important measures for the judicial organization. Anexceptional aspect in the proposals of the Union of Judges is that they envisage asystem of independent judicial management at two levels. In their proposals the SJCwill namely have a representation in the form of a departments within every Court.This idea , taken from the Hungarian system of judicial organization entails that

127

In March a congress, organized by the Union of Judges, was dedicated to the theme of the previouslymentioned establishment of the SJC.

128See Resolution of the Assembly of Section Representatives of the Czech Union of Judges of 29thNovember in Plzen.

129At the Union of Judges also called ‘Supreme Council of the Judiciary’.

130In 1995 even the option that the full board would consist of judges was held open.

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Judicial Councils act as a delegation in all Courts.131

Such decentralised administrativerepresentatives would then evaluate judges, make proposals for appointment andposting of judges, draft budget proposals for their own Court(s) for the coming year,approve the way of spending of means in a Court, etc. According to the Union ofJudges, this system holds the advantage that the method of management and theproblems that this entails become more transparent within a Court. It is essentially apermanent monitoring system. Intermediate problems and needs become apparentearlier and this improves the communication between individual Courts and the SJC,so that the latter can more accurately anticipate the Courts administration's need. Thisallows a better co-ordination.

The Supreme Court does not share the approval of this stratified and decentralisedsystem of management of the judicial organization. The Supreme Court is lookingmore along the lines of a central SJC based on the Spanish model. Furthermore, theSupreme Court would like to see the principle of partial self-management laid downin the Constitution, via an own board. For the Supreme Court, the SJC should alsobe composed of a majority of judges. Besides an official representation of thePresident of the Supreme Court, judges could be appointed in it via representation.A part of the board members of the SJC would be able appointed directly byParliament. A delegation of the Minister of Justice and the President in the SJC – such as it exists in France and Italy – is deemed unnecessary by the Supreme Court.Inthe opinion of the Supreme Court, the Minister of Justice and the President of theRepublic should not be concerned with the election and the management of the SJC.Only Parliament and the judicial organizations themselves decide – within the scopethat applies to the appointment – which becomes a member of the SJC. The SupremeCourt considers that the SJC will be given a role in the general management of Courts,the allocation of means and personnel, the budget preparation and the appointmentand training of judges. In order to cope with the worsening position of the judicialorganizations in the Czech Republic, all that is necessary, according to the SupremeCourt, is to allow the SJC to make binding recommendations in the area of the budgetproposals. The Minister of Justice must enter the SJC’s requests regarding size of staffand material supplies in his budget proposal to Parliament. The latter is, of course,free to decide whether the proposal is followed or not. In the area of the disciplinaryjurisdiction the Supreme Court supports a centralised system. A Central Court, fromnow on, should be empowered to execute the disciplinary administration of justice.It is possible that the SJC would play a role in the establishment or the support of suchan organization.

8.4. Intermediate conclusion, the Czech Republic

The way in which the management concerning the judiciary is at present organized inthe Czech Republic is what one could call undivided. There is no real intermediaryorganization that possesses separate managerial power between the Minister of Justice

131

In very small Courts with less than 10 judges the general judges’ meeting would be able to fulfil the officethe Judicial Council.

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and the judiciary. The presidents of the Courts only act, in a management-relatedsense, as implementers of the management policy of the Minister of Justice to whomthey, in that respect, are hierarchically subordinate. Such undivided systems ofmanagement of the judicial organization exist in France, Germany, Italy and theNetherlands. There the managerial responsibility is also completely with the Ministersof Justice who can be held liable regarding his policy in these matters by virtue of hispolitical responsibility. Moreover, the way the Regional Courts are positioned as abudgetary relay station in the Czech system at present displays resemblance to systemssuch as we have in other European countries. Thus, France, for example, also has thesystem of the Cours d’appel which fulfil an intermediary role in the budget allocationand the budget justification for the Courts in their region.

Up until the present, the system of the undivided managerial responsibility in theCzech Republic has not seemed able to solve the large problems that the Czechjudicial organizations are facing. Particularly the lack of personnel and means, the lackof expertise and the associated delays and stagnation in the business-processing aresuch that the Czech judiciary cannot or can hardly cope with the still constantly risingstream of matters. As a consequence thereof , the authority and the independent statusof the judiciary, which is the basis of a democratic constitutional State, is at issue inthe Czech Republic. Boosting that judicial authority and the independent status is ofparamount importance, also in connection with the entry of the Czech Republic intothe European Union. Recently the Czech Government made a first attempt at reformof the judicial organization.

The plans launched for this purpose contain, besides a simplification of the structureof the judicial organization, a simplification of the procedural law and a modifiedorganization of disciplinary procedures and the management of Courts, as well as theintention to put an independent judicial organization in charge of certain componentsof the management of judicial organizations. This Supreme Judicial Council is anindependent Courts Service which will manage the judicial organization in the area ofthe administrative support of the business-processing of the Courts (automation,administration, progress-monitoring systems, and suchlike), the allocation andjustification of means, the personnel management of Courts, the establishment and co-ordination of disciplinary Courts and the establishment of a disciplinary appealsjurisdiction, the recruitment, training and appointment of judges. It is possible that theSJC will take over still more Ministerial managerial competences. The precise futuretasks and competences for the SJC have not yet been established, nor is the way inwhich the Board will be set up. In the discussion, the preference of the Governmentand the Supreme Court as well as of the Union of Judges is for a broadly composedboard, which consists mostly of judges and a part of which – also based onrepresentation of the relevant judicial sections – is partly appointed by judges, partlyby Parliament. In both opinions the President of the Supreme Court should alsoofficially have a seat in the management of the SJC. As regards the tasks andcompetences of the SJC the Supreme Court holds the opinion that they must primarilybe in the area of means and staff allocation, training and appointments, and in a rolein the preparation and implementation of the budget. The Supreme Court wants toempower the SJC to make binding proposals for the Minister of Justice’s budgetproposal in the area of the Courts’ staffing and means requirements. The Union of

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Judges envisages the competences of the SJC as situated mainly in the area ofappointments and posting of judges, advising the Government and having a role in thebudgetary cycle. The exceptional aspect of the proposals of the Union of Judges isthat they want to have a decentralised system in which delegations or representationsof the SJC are established at the level of nearly all Courts. These delegations aremainly involved with management-related matters. The Supreme Court has littlesympathy for this system. Both the Supreme Court and the Union of Judges adopt theattitude that the status of the SJC requires constitutional establishment.

8.5. Comparative overview of the tasks and competences of the ‘SupremeJudicial Council’ in the Czech Republic

Below you will find a comparative overview that aims to reflect what the tasks andcompetences of the Czech Supreme Judicial Council shall be. Aspects indicated witha ‘?’ are those over which no certainty exists or which are disputed.

I Policymaking comptences:

external affairs

public services



selection policy

research policy

advice to the Ministry of Justice

policy on quality


?ü accommodation & safety

ü automation


?ü providing administrative information


ü budgetary policy




ü corrective powers/disciplining

ü (appointment competences with) appointing judges

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Chapter 9. From an undivided model to a Council for theJudiciary: the Netherlands

9.1. The Netherlands and the constitutional position of the judiciary

a. Why the Netherlands?

At the end of this study I will briefly go into the plans that the Dutch Government hasfor changing over to establishing a Council for the Judiciary. In contrast with the othercountries investigated here (with the exception of the Czech Republic) the plans in theNetherlands are not yet at the stage of concrete bills containing a clear statementconcerning which position, organization, tasks and competences that the DutchCouncil for the Judiciary are going to have. Many of these points still need to beconsidered and at present they are under discussion with the judicial organizations,other interested parties and Parliament. In order to give as broad an insight as possiblein this study, we will pause for a short time to examine the Dutch intentions, althoughthe analysis can be less far-reaching on account of the state of affairs as regards theintentions.

b. The constitutional position of the judiciary in the Netherlands

At the present the most important guarantee we have for the independence of thejudiciary is in Article 117 Gw (the Constitution), which specifies that members of thejudiciary in charge of jurisdiction, as well as the Attorney General at the SupremeCourt are appointed for life by Government and that the members of the judiciary canbe suspended and dismissed only in cases specified by the law, and this only by aCourt of the judiciary designated by the law.

132 The constitutional guarantee of

independence for the judiciary is thus only for individual members of the judiciary.This individual constitutional guarantee, furthermore, is indirect: it does not considerthe point of view of the legal side of the matter – the independence of the judiciary – the content of the position, the trial (in independence) of disputes. Yet thequintessence of the judicial independence in the Dutch form of Government isprecisely the guarantee of independent trial of disputes: the judiciary must, on thebasis on the law, try disputes without being functionally dependent on other State 132

Article 118 Gw. contains another accessory guarantee by specifying that the appointment of the membersof the Supreme Court takes place on the recommendation of the Lower House of the Dutch Parliament.

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powers such as the legislative of the executive power. This sort of functionalindependence thus does not extend further than the independence of individual judges.

In a functional sense the independence of the judiciary in the Netherlands isguaranteed at all these levels. However, in our system there is no mention of arigorous separation of powers, in the sense of an absolute independence and anabsolute separation of powers. The separation of powers in the Dutch system has thecharacter of ‘checks and balances’ in which the most important State powers work incollaboration in certain areas, influence and (as a consequence of that) control eachother. In any case, the judiciary is organizational and institutional and, in a certainsense, dependent on other constitutional powers. In the institutional sense there is acertain degree of dependence between the legislator and the judiciary. The legislatorspecifies the judicial organization, the procedural law, the legal position of judges and – to an important degree – the law on the basis of which judges administer justice.Judicial organizations, as regards budgetary matters, are dependent on the budgetlegislator. In the organizational sense the judiciary relies partially on theAdministration, namely the Minister of Justice, who has managerial responsibility forthe budgets and acts as a responsible authority for the auxiliary staff of the judicialorganization. The Government is also involved with the appointments – whether ornot on a list of nominees – of the members of the judiciary and – via the Ministerof Justice – it monitors, in the general sense, different production data of a non-intrinsic nature of the judicial organization .

133

9.2. Ministerial responsibility and public control in the Netherlands

In the Netherlands Ministers are collectively and individually obliged to givejustification to Parliament. An unwritten rule of trust prevails in the Netherlandsbetween Government and Parliament which is negatively formulated: only if it appearsclearly that there is talk of no confidence, from the side of a majority of Parliament,in a Minister or the Government, the Minister or the Government should resign.

In principle the Minister of Justice is the person responsible for the management of thejudicial organizations. He takes care of allocation of the personal and material meansthat the judicial organizations need in order to be able to function. Until recently thelocal material management of Courts was done by directors or heads of juridicalorganization (directeuren gerechtelijke organisatie: DGOs) subordinate to theMinister within the Courts themselves. Since 1998 the functional management of theDGOs no longer rests with the Minister but with the Presidents of the Courts.Nowadays these Presidents are engaged in the daily management of the Courts,mandated for that purpose by a daily management team that is elected by the generalCourt meeting (= the assembly of all judges). The Minister of Justice is responsiblefor both the administration and the budget. He takes care of the budget proposals andthe apportioning and justification of the means one they are granted by budget law. 133

The actual power to control concerning the expenditure of the authority granted to the judicial organizationrests by virtue of article 105 jo. article 76 Gw. with the Dutch Parliament, which hardly ever makes use ofit.

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The Netherlands has thus just as France, the Czech Republic and Germany anundivided management model, in the sense that there is no separate intermediaryorganization with a separate role in the management of the judicial organizations.

In the area of the appointments and the posting policy of judges the Minister of Justicealso plays an important role. In reality he appoints the judges

134 and he also submits

the members of the Supreme Court to Parliament for appointment. Together with thisappointing competence the Minister of Justice also performs an important duty inrecruiting and training future judges.

Care for the supervision and the inspection of the separate Courts is also left to theDutch Minister of Justice. That supervision sometimes takes place via plannedinspections, but mostly by the periodic monitoring of the administrative and financialdata of Courts kept up to date in digital form by the Courts themselves.

The Dutch system has, also out of reverence for the judicial independence, a systemof detached control of the administrative and appointment policy that the Minister ofJustice carry out with regard to the judicial organizations. Even now that the judicialorganization is being radically revised, it hardly ever happens that Parliament examinesor discusses individual dossiers from Courts or management-related dealings of theMinister of Justice. Only during the budget discussion do the staffing and equipmentof the judicial organizations comes under discussion.

9.3. A Council for the judiciary in the Netherlands

a. Revision of the judicial organization in the Netherlands

Since 1992, in different phases, work has been carried out on a fundamental revisionof the judicial organization.

135 This revision is particularly intended to create

conditions for improving and maintaining the juridical quality and the quality of thejurisdiction, creating conditions for the improvement of the client orientation of theadministration of justice and creating balance in the structure of the judicialorganization. The changes in the area of the organization and arrangement of thejudicial organization have important consequences for the position of the judiciary inthe Netherlands. During the last decades the judiciary has been under pressure toprocess a constantly larger number of cases, of increasing complexity, without thisalways being accompanied by a proportional increase in the required (financial) meansand facilities. That has resulted in two sorts of questions.

First of all, questions with regard to the appropriateness of the jurisdiction. Are, forexample, the organizational and management-related arrangements that we have atpresent, with the aim of administration of justice and the organization of the judicialorganizations, still appropriate to ensure that justice is administered in the mostefficient manner? Under the influence of the first phase of the revision of the judicial

134

See art. 117 Dutch Constitution.135

Kamerstukken II 1991/92, 22 495, no. 1-2.

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organization, for example, the organization and method of working within law-Courtshas radically changed. That holds implications for the administration and themanagement of those law-Courts. The traditional administrative style, where theinternal management mostly remained with the Court’s presidency or the generalCourt meeting, was strongly based on the individual professionalism of judges in thedistribution and execution of the work and a far-reaching management-relatedseparation existed between support and judicial staff,

136 is lacking on different fronts

to provide an appropriate answer to the challenges the increased case load and themuch larger staff within the new style Courts.

137 New arrangements are needed to

give the Courts’ management more possibilities of its own, to drive the essentialprocesses directly – from intake to sentence – within the Courts.

138 To do that

effectively and efficiently, executives of Courts139

have, among other things, therequired own responsibility and competences in financial and personal matters. Thiswish for greater own powers and more streamlined driving of the own workingprocesses is indeed indicated as the wish to arrive at forming integrated managementwithin Courts. This wish – at least as mentioned in the ‘Jurisdiction in the 21st

140

New ways and arrangements for the judicial organization are badly needed becausethe suppliers (political) and clients of the jurisdiction are making new demands too.The possibilities for extra financial means are limited and the social acceptance oflarge arrears in processing cases is minimal. Whatever applies to the new demands onthe organization and the organization of the management and set-up of law-Courts isapplicable mutatis mutandis also to other judicial organizations.

136

Until 1st January 1998 the control of the auxiliary personnel still rested with the executives (directeurengerechtelijke organisatie) of the juridical organization and afterwards, by virtue of a mandate from theMinister of Justice with the executive management of Courts. The management for the juridical staff rests,by virtue of delegation from the general Court meeting with the president of the Court. There is thus talk ofa double management structure within Courts.

137See also the discussion minutes of the Ministry of Justice, Het besturen van de rechtspraak, The Hague1995, p. 4 and further

138Courts until recently were – in other words, before the coming into force of the first phase of revision ofthe judicial organization – in general still characterised as organizations of professionals, with stronghorizontal – aimed at consensus between the judges – decision-making processes and management lineswith regard to work- and management processes within their own organization. Under the influence of therevision the Court pushes ‘nieuw stijl’ continually more in the direction of a professional organizationcharacterised by a more vertical ‘more hierarchical’ drive and more central command of the managementprocesses. See among other things P. Albers, W. Voermans, and B.W.N. de Waard, Integrated Courts, part2, Final report within the framework of evaluation research, Revision judicial organization , Tilburg 1994,pp. 90-91.

139In the Courts ‘nieuwe stijl’ the generally president of the Court in collaboration with a daily managementteam made up of a restricted number of representatives from the sectors.

140In accordance with the intention of the authorities of the Ministry of Justice in the near future every Courtwill be run by a collegial management that bears the responsibility for the integral management of hisCourt. In order to achieve administrative responsibilities, the management has powers with regard to thejudicial as well as the auxiliary personnel. The council meeting of judges, composed that way, will fulfil anumber of typical general and judicial tasks. See the Contours note: modernising judicial organization‘Jurisdiction in the 21st century’ (henceforth: Contourennota), Kamerstukken II 1998/99, 26 352, no. 1-2.

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A second group of questions around the revision of the judicial organization relatesto the quality of the jurisdiction. How can this be guaranteed with a higher turnoverrate of cases and the constantly higher quality requirements imposed on the processingof cases as well as on the sentences themselves? The individual judicial independenceand with in the accompanying quality-oriented judges’ professionalism remain thecentral guarantees here, but the question is if the traditional basic juridical qualityvalues are sufficient to realise the quality expectations of the changed socialenvironment. It is also expected that judicial organizations administer justice quickly,tailor-made and client-friendly or client-geared. Those new quality requirements callfor efficient streamlining of the working processes within Courts, juridical precisionduring procedures, permanent training of judges and auxiliary staff, uniformity inapplying the material and the procedural law, correct treatment, avoidance of longwaiting periods, guarantees for speed of settlement, etc.

141

These questions, besides the direct changes that the revision of the judicialorganization entails, have been occasion for the Minister of Justice, at the instigationof the Dutch Lower House,

142in 1997, to create a Commission that would give advice

on elements of the management-related equipment and quality of the organization ofthe administration of justice in the near future.

143

b. Dutch Council for the judiciary

In January 1998 the Leemhuis Commission144

published its final report Jurisdictionwith the time. The heart of the report is the advice to the Minister of Justice to furtherthe establishment of a Council for the judiciary, in the opinion of the Commission anintermediary organization between politics and the politically responsibleadministrators and the judicial organization itself. In the Netherlands a Council for thejudiciary of modest size is provided for: three to five members will have a seat on theboard. A judicial majority is foreseen, but the members, on the basis of theirprofessionalism, will be selected and act as independent managers. The nationalCouncil for the judiciary would have to perform a number of policy making duties(external affairs and public services, judicial collaboration, personnel management andappointment policy, advice to the Minister of Justice and policy on quality) andmanagement-related duties (housing and safety, automation, administrativeorganization and providing administrative information). Furthermore, in the advice ofthe Commission an important role has been anticipated for the Council for thejudiciary in the area of the budget procedure and the distribution of the means for theadministration of justice as well as the supervision of the expenditure thereof. Withthese competences, the Council for the judiciary becomes a double-edged sword: on

141

Regarding this, see also J.B.J.M. ten Berge, Contours of a policy on quality, reading during the SSRcongress, Quality of the jurisdiction, 25th September 1997 in Zutphen, quoted in the report of theCommission Leemhuis (note 4), p. 14.

142See the motie-Dittrich c.s., Kamerstukken II 1996/97, 25 000 VI, no. 30.

143See Decree of 16th June 1997 for establishment of the Advisory Committee equipment and organizationsitting magistrature, Stb. 248.

144Commission equipment and organization sitting magistrature (Leemhuis Commission), Rechtspraak bij detijd, The Hague 1998, p. 12

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the one hand it encourages the independence – in the organizational sense – of thejudiciary and on the other hand it expands the self-responsibility and accountability ofthe judiciary in the area of administration, management and budgeting. Themanagement-related, policymaking and budgetary competences that the Commission’sproposals assign to the Council for the judiciary, still largely belong to the presentresponsibility of the Minister of Justice.

145 In this sense the proposals of the

Commission constitute quite a radical break with the past. In the meantime, the reportof the Commission Leemhuis has received a sequel in the Contour note modernisationof the judicial organization (henceforth: Contours note) from the hand of the Ministerand Secretary of State of Justice.

146 Many of the proposals made by the Leemhuis

Commission have been adopted in it, even that which regards the establishment of aCouncil for the judiciary.

147 The proposals for policymaking duties in the area of the

uniformity with the formalities and administration of justice – whether or not viajudicial policy regulations – are not adopted in the Government proposals. Thepurpose of the Government is to establish a Council for the judiciary by law (whetheror not provisional

148) on 1st January 2002.

9.4. Intermediate conclusion, the Netherlands

The intermediate conclusion for the Netherlands can be brief. In the Netherlands theestablishment of the Council for the judiciary falls within the framework of a broaderrevision operation of the judicial organization. The motives are mainly of a practicalnature: a Council for the judiciary can contribute to the expansion of the ownmanagerial responsibility of the judicial organizations, and with it, it can also, togetherwith the integral management, promote the efficiency of these organizations. Besidesthat, the more principal reason for the expansion of the judicial independence alsoplays a role in the wish to establish such a board. The National Council for thejudiciary will have a number of policymaking competences (external affairs and publicservices, judicial collaboration, personnel management and appointment policy, adviceto the Minister of Justice and policy on quality) and management-related competences(housing and safety, automation, administrative organization and providingadministrative information). Furthermore, there is an important role for the board inthe budget procedure and the apportionment of the means for the administration of

145

Only certain managerial competences were decentralised from the end of the 1980s. Managers of juridicalassistance were responsible in each district for the decentralised management of the judicial councils andthe public ministry. The management, with regard to the transfer of competences from the publicprosecutors, by virtue of a mandate of the Minister of Justice at local level – even more independent now – is implemented by directors of Courts management and by the directors of the district staff services ( alsooperating for the public prosecutors).

146See the Contour notes (note12).

147Only on the point of the co-ordinating powers that the Courts Service should have, in the opinion of theLeemhuis Commission, does the the Contour note deviate. The Government members of justice see little inthe proposal of the Leemhuis Commission to grant the Council for the Judiciary the authority – within theframework of judicial collaboration – to fix binding policy regulations or guidelines that attempt to furtherthe unity and uniformity of jurisdiction. See the Leemhuis Commission (note 4), pp. 30-31.

148Depending on the question as too whether a constitutional amendment is necessary.

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justice as well the supervision of the expenditure thereof. The board will have a smallmanagement team of three to five members. These members are appointed on thebasis of their professionalism.

9.5. Comparative overview of tasks and competences of the Council for thejudiciary in the Netherlands

Below you will find a comparative overview that aims to reflect what the tasks andcompetences of the Dutch Council for the judiciary shall be. Aspects indicated witha ‘?’ are those over which no certainty exists or which are disputed.

I Policymaking:

ü external affairs

ü public services

?ü judicial collaboration


ü selection policy

ü research policy


?ü policy on quality

II Management-related:


ü automation


ü providing administrative information


ü budgetary policy




corrective powers/disciplining

(appointment powers with) appointing judges



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Chapter 10. Conclusions and recommendations

10.1. Learning from the experiences with other European Council for thejudiciary?

Councils for the judiciary are the products of cultural developments of a legal system,that in turn is deeply rooted in the historical, cultural and social development ofcertain countries. Because of that, every Council for the judiciary is unique and we cannot see these boards out of their context. The question thus as to whether we canlearn something from the examples of the Councils for the Judiciary in other legalsystems, is now to be answered by the Czech Republic, is a tedious question in morethan one respect. In any case, it is a fact that the examples of other countries do notlend themselves to direct transfer. The experiences that other countries have had withCouncils for the judiciary, are very much determined by the specific social andconstitutional context of a country and the cultural development that such a countryhas gone through. Every system has found its own balance, via specific ‘checks andbalances’. To be able to estimate the value and significance of a system from outsideits own borders a broad knowledge of the situation and history is required. In manyrespects the balance between the constitutional guarantees for independent jurisdictionand independent Courts and the forms of public control of the same jurisdiction areclosely interwoven.

That does, however, not mean that for the discussions that are presently beingconducted in the Czech Republic

no inspiration can be found in the discussions conducted in other European countrieson the phenomenon of Council for the judiciary. These discussions can containimportant experience-related information and arguments that can be of value for theCzech discussion. Below, I made a brief inventory of matters and experiences thatstruck me when I was describing the Council for the judiciary. These remarks can besignificant as confrontation experiences for the Czech discussion concerning theorganization of the Supreme Judicial Council. I close with a number ofrecommendations that possibly can be of value to the Czech discussion.

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10.2. The Emergence of Councils for the judiciary in Europe

The most remarkable aspect in the country studies made in this research is that atpresent in four countries (Ireland, Denmark, the Czech Republic and the Netherlands),new Councils for the judiciary were established recently or are to be established. InIreland, that already happened in 1998, in Denmark the establishment of theprovisional Council for the judiciary is set for the summer of 1999, the establishmentin the Czech Republic it will be ready at the end of 1999, and in the Netherlandsestablishment for 1st January 2002 is being considered. This simultaneous advent restsnot entirely on coincidence. First of all – certainly in Denmark – the model of theSwedish Domstolsverket and the good experiences they had, have been a source ofinspiration. In addition to this, there are also the recommendations that Council ofMinisters of the Council of Europe made in 1994 within the framework of Article 6EVRM – concerning the judicial independence, the role of judges and theappropriateness of the administration of justice – that play a role.

149 These

recommendations do not require that a country calls an independent board into being,for the guarantee of the independence of the jurisdiction, but they do demand, forexample, that the appointment of judges takes place independently and that judicialorganization in any sort of way can exert influence on their own working process.These recommendations have thus partially been the catalyst. In all three countries(the Netherlands, Denmark and Ireland) a situation first existed in which themanagement and the support of the jurisdiction was entrusted to the Ministers ofJustice. From the viewpoint of guaranteeing the judicial independence – as it appearsfrom the Swedish experience – it is considered as important that the management andthe support of the management take place at a distance. In the Danish, the Irish andthe Dutch plans this is described as an important advantage for an independentCouncil for the judiciary. The resistance against the Swedish Government’s plans atthe start of the 1990s, to return certain managerial competences of theDomstolsverket to the responsibility of the Government, illustrates that, also aftersome time, putting these duties at a distance is still viewed upon as an importantguarantee.

10.3. New Councils for the judiciary based on the North European model

Not only is the advent of independent Council for the judiciary new, the package ofresponsibilities that they have is remarkable. In the Netherlands, as well as in Denmarkand Ireland, it was decided to entrust the new Council for the judiciary withadministrative and support duties (varying from training, accommodation, automation,providing information, help with recruitment and assistance to Appointment advisorycommittees) and competences in the area of budget, apportionment of the budgets andjustification of spending. Thus not only are increasingly more Councils for thejudiciary created in Europe, the newcomers are all variants of the North European

149

Recommendation on the independence, efficiency and role of judges, Recommendation No. R (94)adopted by the Committee of Ministers on 13th October at the 578th meeting of the Ministers’ Deputies.

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model. Certainly to some extent this is due to the succes of the Swedish Council andthe example it presents. Through leaving managerial competences and – certain – budget responsibilities to an ‘own organization ’ the own responsibility for themanagement of judicial bodies can be extended and with it the efficiency. In Swedenit is stated that indeed this own responsibility of the judicial organization in its entiretyhas increased. The cause of this greater self responsibility – as we can see in Sweden – is to be found in the presence of a professional and specific organizationresponsible for the juridical management and budget affairs that acts as a bufferbetween the judicial organization and the Government. This buffer is equally an allyand a guard dog. A second cause of the larger own responsibility in Sweden is hiddenin the combination of independent administration, management of the judicialorganization through the Domstolsverket together with integral management at theCourts. For their operational management the Courts are very much left to their owndevices, in which it is quite possible to, via all sorts of possibilities that theDomstolsverket has, to allow parts of this own administrative responsibility to beimplemented by the Council. Also in the Netherlands one has opted for this proved – at least in Sweden – combination of remote management and integralmanagement. In any case, in Sweden they are strongly attached to this combination.

10.4. Practical motives or ideal motives for quality monitoring

Councils for the judiciary contribute to the monitoring and promotion of the systemof the administration of justice, according to those who were interviewed within theframework of this study. The Northern and the Southern European model actuallyexpress two principal methods to further the quality of a system of administration ofjustice.

In the Southern European model this takes place primarily via a system of judicialresponsibility for quality that addresses the person of the judge and his career. Withthe accent exerted in countries such as France and Italy on recruitment, training,evaluation, appointment, promotion and posting, via the person of the judge duringhis or her entire judicial career, monitoring is used concerning the quality of the workrather than what a judge does. This control is carried out by judges themselves. Viaa role in disciplinary penalties the Southern European systems also have the possibilitynot only to reward but also to reprimand. With the quality monitoring of the systemof the administration of justice in systems that work with the Southern Europeanmodel of a Council for the judiciary, the approach usually lies in the material area. Viaan own organization, without the distorting influence of the Administration, theattention is constantly kept on the needs of the judicial organizations. By being ableto take care of direct material needs and to have a central information centre, the lattersystem tries to reach the highest possible quality of judicial services. Through theincreased efficiency one tries to increase the quality of the administration of justice.

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10.5. Promotion of the independence

An important incentive for establishing a Council for the judiciary in just about all theinvestigated countries is the promotion of the independence of the judiciary. Thisindependence and independent status of the judiciary is not the same in all countries.In France the judiciary does not have a high status, while in Italy the independence ofthe judiciary receives a special status: there the judiciary, precisely due to the provenindependence of judges in the (recent) past, has a special prestige. According to therespondents in this study, in Italy the Council for the judiciary contributes more to thepreservation than to the promotion of the independence. The favourable effect ofCouncils for the judiciary, whether they are based on the Northern or the SouthernEuropean model, on the independent status of judges and judicial organizationsmanifests itself in all the investigated countries.

10.6. Constitutional establishment

Another detail in most of the investigated countries is (the wish for) the constitutionalestablishment of a Council for the the judiciary. In France and Italy the competenceand the position of the Council for the judiciary are regulated by the Constitution. Inthe Netherlands, Ireland and Denmark there is the intention to do that. The wish forconstitutional establishment is normal: a Council for the judiciary is an importantinstitution that assumes an own role in the constitutional distribution of the Statepowers. The main aspects of the distribution of the competences and positions of themost important State powers in a country should be regulated in the Constitutionallaw.

10.7. Broadly composed Councils for the judiciary

Nearly all the investigated Councils for the judiciary – with the exception of theDutch – are broadly composed of 15 or more members. The majority of the councilsare composed mainly of judges coming from the different sections of the judiciary.Some – mainly the highest – judges are, by virtue of their office, member of aCouncil for the judiciary, other judges are elected by judges. In France and in Italy thePresident and Minister of Justice are officially members of the board. Differences existin the non-judicial part (see also 10.8). Usually these members are elected in all sortsof ways by groups of interested parties at the administration of justice and/or byParliament. The broad and representative composition of a Council for the judiciarymakes it, in principle, susceptible to politicisation and syndicalism. In different timesthe correct balance and the correct relationship between the denominations of theboard members can be seen differently or lie otherwise. In order to retain the balancein the vote ratio within the Council for the judiciary two systems exist: first, that ofthe appointment requirements (only members who satisfy certain requirements ofprofessionalism and representatively qualities can be appointed); secondly, the systemof spreading appointment authorities (appointment by Parliament, by Government oragain by others). The latter system is vulnerable in that that it can cause, for example,

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a Council for the judiciary unintentionally to consist only of judges because, forexample, Parliament only wished to appoint judges. In order to avoid this risk, mostinvestigated systems contained a combination of both appointment systems.

10.8. ‘External’ members in the administration

The foreign Councils for the judiciary, such as those discussed here, share practicallywithout exception the element of the non-judge members, who have a seat in theadministration (external members). Via that element, social control is also broughtinto the Council for the judiciary. The examples of France and Sweden show that inboth countries the system is attached to the vote of, for example, lawyers, clients andunions in the Council for the judiciary. Also in Denmark and Ireland one has opted forthis, and in the Czech Republic the wish for external members meets a broadconsensus. Via the contribution of external members an element of social control isintroduced with regard to the work of the Council for the judiciary. In most of thecountries it is a fact that the juridical/magistrates-contingent within the Council for thejudiciary make up the majority. The presence of external members in the Council forthe judiciary can indeed give rise to much discussion, such as the example of Franceshows. In France and Italy, problems around the politicisation or the syndicalisationthrough judicial appointments tend to be attenuated via the proportions in the boardfor the magistrature, as appears from the proposed amendments with regard to thecomposition of the Council for the judiciary in both countries. In fact, with this theproblem itself is only confirmed, not actually solved.

10.9. Broadly described tasks and competences

What is highly conspicuous in the case of many regulations for the Council for thejudiciary based on the Northern European model is that the job description of theseboards is in many cases broad and that boards often have few ‘concrete’ juridicalcompetences. This set-up of broad job descriptions, particularly in Sweden andDenmark, is to be explained through the fact that these Council for the judiciary aremainly general and technical organizations. These facilities are mainly offered viaactual dealings. This is why it is less necessary that the competences are describedwith precision. This would only be necessary if to a substantial extent legalconsequences were linked to the dealings of the Council for the judiciary. Detaileddescription of the work of a Council for the judiciary could, furthermore, limit thenecessary flexibility of the Board’s activities. Sweden presents an example of a set-upwhere the Domstolsverket, within a broad job description, has developed a system,has together with the Courts, that meets the demand from the Courts and this withoutit becoming rigid regarding what it can offer via a strict competences description.

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10.10. The combined action of public control and the role of the ministerialresponsibility

The legal systems described in this study, within which Councils for the judiciaryfunction, consist of different mixtures of constitutional instruments of checks andbalances, among which the control via the ministerial responsibility is usually only oneof the instruments. Compared with France and Sweden the way in which, via theministerial responsibility, control is exerted on the management and the budgeting ofthe judiciary in the Netherlands – at least in theory – is very intrusive. In the Dutchdiscussions on more independence and also in the discussion concerning theintroduction of the Council for the judiciary rests pre-eminently on the ministerialresponsibility as an instrument of control. The question is, however, if the ministerialresponsibility as a mechanism of control with regard to the budgeting and themanagement of Courts is indeed always such an effective instrument. Thatmanagement and the budgeting of the judicial organizations is hardly a currentpolitical theme in most of the studied countries. The focus of the political discussionbetween Government and Parliament takes place is more concerned with the area ofmaintaining law and prosecution of crimes. That also means that the ministerialresponsibility as an instrument of control must not be overrated. The examples fromother countries make it clear that, even if there is talk of an entirely different, lessintrusive, control on the budgeting and the management of the judicial organizationsvia the ministerial control, there are different alternative and effective mechanisms ofcontrol, such as publicity, official control, legal protection which can be provided bypublic control or a Council for the judiciary as well as by the activities of themanagement and the budget appropriation of judicial organizations.

10.11. Recommendations to the Czech Republic

The conducted study mentioned above, and the conclusions it produced, give me theoccasion to make the following recommendations for the establishment andorganization of a Supreme Judicial Council in the Czech Republic.

The establishment of a Supreme Judicial Council is, in different ways, a suitableinstrument to further the independence of the judiciary in its entirety and that of thejudicial organization in general. Thus the intention of the Czech Republic to establisha Supreme Judicial Council deserves support.

It merits recommendation regulate the position of a Supreme Judicial Council in theConstitution now that, in any case, it concerns the constitutional standardisation andpositioning of an important State body. This does not need to mean that a provisionalSupreme Judicial Council should not be established in anticipation of a constitutionalamendment. In other countries one has also opted for this solution (includingDenmark and the Netherlands)

The combination of the granting of managerial authority to the Supreme JudicialCouncil and making integral management possible at the level of the Courtsthemselves provides great possibilities to make the judicial organization more efficient,

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as we learn from the Swedish example. In the Czech Republic this system alreadypartially exists through the fact that Presidents at the Courts have also themanagement of managerial tasks in the Court. If the authority over these managerialduties is no longer held by the Minister of Justice, but by the ‘own’ Supreme JudicialCouncil, there is a fair chance to increase the own responsibility and efficiency of theCourts for their own management.

A broad description of the competences that a Supreme Judicial Council performs inthe management-related area gives the advantage that the board can operate flexiblyin that area and can dynamically seize upon the current needs of the Courts at anymoment. Particularly Swedish example shows that a service-oriented attitude of theboard, by which it tests, at the Courts’ request, some services and facilities (training,automation, administration, etc.), can constitute an important contribution to thesuccess of and the satisfaction about the activities of a Supreme Judicial Council.

A Supreme Judicial Council can develop into an important intermediary andnegotiating partner if it has negotiating instruments itself. This way it can be preventedthat a Supreme Judicial Council comes to be too dependent on the Minister of Justice.The example of Denmark shows , which checks and balances can be important in sucha balanced system. In Denmark the board itself can address Parliament if budgetrequests are not adopted by the Minister. Parliament can summon the Chairman of theboard to a commission to give an explanation concerning components of themanagement and the Minister can suspend the management by the Supreme JudicialCouncil if they knowingly exceed their budget with considerable consequences.

In a country with many judicial organizations, such as the Czech Republic, a partiallyrepresentatively composed Supreme Judicial Council certainly meritsrecommendation. Having a majority of judges in the executive of the council and anofficial participation of at least the President of the Supreme Court also deservesconsideration.

On establishing the board, it merits recommendation – within the framework of thepublic control – to allow ‘non-judge’ members to be part of the board. Furthermore,the membership of representatives of interested parties from within and outside theCourts can be considered. A delegation of juridical auxiliary staff, a delegation oflawyers’ organizations is obvious. Possibly delegations of other interestedorganizations can also be designated. The idea of having part of the board elected byParliament ensures further balance in the executive of the Council. In order to preventthe board from acquiring a possibly too one-sided composition, one can work onfurther appointment requirements for the applicants.

For the purpose of the more general public control of the activities of the board isimportant to find a balanced composition of different means of control. Where thedirect control via ministerial control is abandoned, new forms of control can bedeveloped in the form of the publicity of the annual reports of the board’s budgetproposals. Regulations for complaints and claims can also be taken into consideration.

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Appendix A

Questionnaire A: Judicial Council

I. The position of the Judicial Council

1. Can you give a brief description of the organization structure of the JudicialCouncil?

2. Who are appointed to the Board of the Judicial Council?

3. Which of the following tasks does the Judicial Council carry out?

Tasks with reference to the policy areas concerning Personnel, Information,Organization and Finance: (Managerial affairs)

- personnel policy (judges and supporting personnel);- appointment of judges;- allocation of funds;- financial control;- housing policy;- security policy;- information policy (including automation);- administrative organization;

Tasks with reference to the field of quality (of adjucation) and external affairs:- public relations (including transparency of the Court organization)- complaints;- quality (judicial quality, organization of the Courts, rapidity of

procedures)

How are these tasks performed by the Judicial Council?

4. Does the Council for the judiciary state/enact policies of its own in mattersconcerning all Courts?How does the Council for the judiciary co-ordinate matters that exceed individualCourts?

5. Does the Judicial Court offer spontaneous advise to Courts and/orGovernment on issues that relating to adjunction policies (e.g. the promotionof the unity of law)

6. What kind of competences does the Council for the judiciary have in the fieldof:

- right to information (in relation to the individual Courts and inrelation to the Government/Parliament);

- approval of the budget;- steering via the budget;- formulation of recommendations and instructions for the Courts;- suspend orders or set aside a decree (of the board of a Court)

(overrule Court managerial decrees form Court boards);

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- appointment of a temporary trustee or administrator;- suspension and resignation of judges or Court administrators.

7. How is the Council for the judiciary – as an intermediary – involved in thebudgeting process?

8. How is the control (in terms of accountability) of the budget process of theCouncil for the judiciary organized?

9. How is the information supply of relevant data for the responsible Ministerarranged, when we look at the following items?

- - data about the functioning of Courts (input, throughput and outputdata);

- - data about the deployment of funds by the individual Courts;- - incidents and problems in the Courts- - budget shortages or over budgeting

10. Who is responsible for the formulation of (policy and performance) targets forthe individual Courts (for example, in the field of the quality of the Courts)?How does the formulation take place and what role plays the Judicial Council?

11. When the (policy and performance) targets are not achieved by the Courts,what is the response of the Judicial Council? In relation to this question: whatare the competences of the Council for the judiciary to correct the (mis)functioning of the Courts?

12. Is there a possibility for the Minister to influence the (formulation andrealisation of) targets of the individual Courts and/or the Judicial Council?

13. What kind of competences has the Minister in a situation where the budgetsare not properly spent or the targets are not met by the individual Courts orthe Judicial Council?

14. Has the Minister got instruments to gather information on an incidental baseby the individual Courts or the Judicial Council?

15. Can you describe situations where the Council for the judiciary reports directlyto Parliament (Congress or Senate; for example where there are substantialproblems in the Courts)?

16. Do the policy information of the Council for the judiciary and the informationof the individual Courts fall under the ‘publicity’-regime?

17. Is it possible for the individual Courts to appeal the decisions of the JudicialCouncil?

18. Which instruments or practices are used by the Council for the judiciary toguard the ‘independence of the judges’?

19. Has the Council for the judiciary a policy concerning the quality of theadministration of justice? What is the role of the CJ in the formulation andimplementation of a quality policy? Have the individual Courts their ownquality policy and which is the role of the Minister of Justice in the formulationand realisation of a quality policy?

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20. What is the opinion of the Courts, the ministry of Justice and Parliament aboutthe functioning of the JC?

21. How would you like to define the typical role of the JC? As a ‘interest party’for the judiciary (e.g. the individual Courts)?

II The division of responsibilities between the Council for the judiciary and theministry of Justice (the Directorate)

22. Is there a clear formal division of responsibilities and competences betweenthe Council for the judiciary and the ministry of Justice?

23. How is the division of responsibilities and competences in practice effectuated?

24. Are there problems with the division of responsibilities and competences?

25. Is the Minister of Justice (or maybe the president) politically responsible in anyway for the way in which justice is administrated? If so, can you give us youropinion about the functioning of the ministerial responsibility in relation totasks and competences of the Judicial Council?

26. What advantages and disadvantages does the current division ofresponsibilities and competences between the Council for the judiciary and theministry of Justice have? (Are there any common problems?)

III The allocation of funds, accountability and control

27. Who allocates funds to the Courts on whose initiative?

28. What is the procedure for allocating funds?

29. What criteria are applied for the allocation process?

30. Who renders the account for the control of funds?

31. Are there assessment criteria for the control of funds? If so, what are they?

32. Are there penalties in terms of funding, in respect of staff or other factors, andif so who imposes the penalties (sanctions) and to whom?

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Questionnaire B: Ministry of Justice


1. What were the major reasons to install a Judicial Council?

2. What kind of competences does the Council for the judiciary have in the fieldof:

- - right for information (in relation to the individual Courts and inrelation to the Government/Parliament);

- - approval of the budget;- - steering via the budget;- - formulation of recommendations and instructions for the Courts;- - suspend orders or set aside a decree (of the board of a Court)

(overrule Court managerial decrees form Court boards);- - appointment of a temporary trustee or administrator;- - suspension and resignation of judges or Court administrators.

3. How is the Council for the judiciary - as an intermediary- involved in theprocess of budgeting?

4 How is the control (in terms of accountability) of the budget process of theCouncil for the judiciary organized?

5. How is the information-supply of relevant data for the responsible Ministerarranged, when we are looking at the following items?

- - data about the functioning of Courts (input, throughput and outputdata);

- - data about the deployment of funds by the individual Courts;- - incidents and problems in the Courts- - budget shortages or over budgeting

6. Who is responsible for the formulation of (policy and performance) targets forthe individual Courts (for example in the field of the quality of the Courts)?How does the formulation take place and what role does the Judicial Councilplay?

7. When the (policy and performance) targets are not achieved by the Courts,what is the response of the Judicial Council? In relation to this question, whatare the competences of the Council for the judiciary to correct the (mis)functioning of the Courts?

8. Is there a possibility for the Minister to influence the (formulation andachievement) of the targets of the individual Courts and/or the JudicialCouncil?

9. What sort of competences has the Minister in a situation where the budgetsare not properly spent or the targets are not met by the individual Courts orthe Judicial Council?

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10. Does the Minister have instruments to gather information on a random basis bythe individual Courts or by the Judicial Council?

11 Can you describe situations where the Council for the judiciary reports directlyto Parliament (Congress or Senate; for example where there are substantialproblems in the Courts)?




15. What is the opinion of the ministry of Justice and Parliament about thefunctioning of the JC?

16. How would you like to define the typical role of the JC? As an ‘interest party’for the judiciary (e.g. the individual Courts)?

II The position of the ministry of Justice (the Directorate responsible for theCourt organization)

17. How is the Directorate responsible for the Court organization structured?

18. Has the ministry of Justice a policy formulating and/or an advisory role?

19. Which tasks performed by the Directorate?

20. What kind of competences has the Directorate towards de Judicial Council,and the individual Courts, in the field of

- setting the budget- deployment of budget funds- information regarding judicial and managerial performance of Courts- defining performance standards- appointment and suspension of judges- safeguarding the quality of adjucation- dealing with complaints- resolving incidents

III The division of responsibilities between the Council for the judiciary andthe ministry of Justice (the Directorate)

21. Are there a clear formal division of responsibilities and competences betweenthe Council for the judiciary and the ministry of Justice?



24. Is the Minister of Justice (or maybe the president) politically responsible in anyway for the way in which justice is administrated? If so, can you give us your

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opinion about the functioning of the ministerial responsibility in relation totasks and competences of the Judicial Council?


IV The allocation of funds, accountability and control

26. Who allocates funds on whose initiative?


28. What criteria are used in the allocation process?




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Questionnaire C: Courts


1 Who is responsible for the formulation of (policy and performance) targets forthe individual Courts (for example in the field of the quality of the Courts)?How is the formulation taking place and what is the role of the JudicialCouncil?

2 When the (policy and performance) targets are not realised by the Courts,what is the response of the Judicial Council? In relation to this question: whatare the competences of the Council for the judiciary to correct the (mis)functioning of the Courts?

3. Is there any possibility for the Courts to influence the (formulation andrealisation of the) targets of the Council for the judiciary and/or the Ministerof Justice?

4. What kind of competences do the Minister/JC have in a situation where thebudgets are not properly spent or when the targets are not met by theindividual Courts?

5. Does the Minister have instruments to gather information on a incidental baseby the individual Courts?

6. Does the policy information of the individual Courts fall under the ‘publicity’-regime?



9. Has the Council for the judiciary a policy concerning the quality of theadministration of justice? What is the role of the CJ in the formulation andimplementation of a quality policy? Have the individual Courts their ownquality policy and which is the role of the Minister of Justice in the formulationand realisation of a quality policy?

10 What opinion do the Courts have about the functioning of the JC?


II. The Court organization

12. How are the Courts organized?

13. Is there a formal or informal management structure within the Courts?

14. Who are in charge of a Court?

15. Who decides - in what way - on managerial issues, the work load of judges,problems with individual cases, spending and accountability, stock, case

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databases, Court communication, appointment and training of new judges,staff training and education, judicial quality of the Courts decisions,automation, etc. within the Court? Are these decisions in any way subject todirect supervision by the CJ or the responsible Minister?)

16. How is the independence of the judiciary guaranteed in your legal system?

17a. What influence has the system of a Council for the judiciary on the"independence of the judiciary"?

17b. Is it a threat in relation to Ministerial responsibility or an opportunity?

III The allocation of funds by the Courts, accountability and control







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Questionnaire D: Lawyers and Legal Scholars

N.B. The questions in this questionnaire are quite detailed. During the interview wewill not deal with each and every question in detail but rather deal with thesequestions as topics of discussion


1. What were the major reasons to install a Judicial Council? What are the majorbenefits? What are the major drawbacks?

2. How is the Council for the judiciary - as an intermediary- involved in theprocess of budgeting?

3. How is the control (in terms of accountability) of the budget process of theCouncil for the judiciary organized?

4. How is the information-supply of relevant data for the responsible Ministerarranged, when we are looking at the following items?

- data about the functioning of Courts (input, throughput and outputdata);

- data about the deployment of funds by the individual Courts;- incidents and problems in the Courts- budget shortages or over budgeting

5. Who is responsible for the formulation of (policy and performance) targets forthe individual Courts (for example in the field of the quality of the Courts)?How does the formulation take place and what is the role of the JudicialCouncil?

6. When the Courts do not meet the (policy and performance) targets, what isthe response of the Judicial Council? In relation to this question: what are thecompetences of the Council for the judiciary to correct the (mis) functioningof the Courts?

7. Is there a possibility for the Minister to influence the (formulation andrealisation of ) targets of the individual Courts and/or the Judicial Council?

8. What kind of competences has the Minister in a situation where the budgetsare not properly spent or the individual Courts or the Judicial Council do notmeet the targets?

9. Has the Minister got instruments to gather information on a incidental base bythe individual Courts or the Judicial Council?

10. Can you describe situations where the Council for the judiciary reports directlyto Parliament (Congress or Senate; for example where there are substantialproblems in the Courts)?

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14. What is the opinion of the ministry of Justice and Parliament about thefunctioning of the JC?


II The position of the ministry of Justice (the Directorate responsible for theCourt organization)

17. How is the Directorate responsible for the Court organization structured?

18. Has the ministry of Justice a policy formulating and/or an advisory role?

19. Which tasks performed by the Directorate?

20. What kind of competences has the Directorate towards de Judicial Council,and the individual Courts, in the field of:

- setting the budget- deployment of budget funds- information regarding judicial and managerial performance of Courts- defining performance standards- appointment and suspension of judges- safeguarding the quality of adjucation- dealing with complaints- resolving incidents

III The division of responsibilities between the Council for the judiciary andthe ministry of Justice (the Directorate)

21. Are there a clear formal division of responsibilities and competences betweenthe Council for the judiciary and the ministry of Justice?



24. Is the Minister of Justice (or maybe the president) politically responsible in anyway for the way in which justice is administrated? If so, can you give us youropinion about the functioning of the ministerial responsibility in relation totasks and competences of the Judicial Council?


IV The allocation of funds, accountability and control

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Appendix 2

Overview of the interviewees in France, Italy and Sweden

France

Visit from 14th up to and including 16th December 1998 to Paris, Conseil supérieurde la magistrature (CSM), Ministère de la Justice (Ministry of Justice) & Tribunal deGrande Instance de Paris

Mr. Ph. Le Maire, sous-directeur de l’organisation judiciaire et de la planification duMinistère de la Justice, Direction des Services Judiciaires

Mrs. E. Pelsez, chargée de mission du réseau judiciaire européen, Ministère de la ofJustitice, Service des Affaires Européennes et Internationales

Mr. Y. Droguet, juge Adjoint au Premier Vice-President, Tribunal de Grande Instancede Paris

Mr. R. Herrera, Conseiller d’Etat (Council of State), également membre du Conseil

Mr. H. Robert, Président du Tribunal de grande instance de Blois, également membredu Conseil supérieur de la magistrature (président de la formation Parquet)

Mr. M. Lernhout, Premier Substitut près le Tribunal de grande instance de Paris,également membre du Conseil supérieur de la magistrature (président de la formation

Mr. J.-C. Girousse, Premier Président de la Cour d’Appel de Lyon, également membredu Conseil supérieur de la magistrature

Mrs. M.-C. Berenger, Conseiller à la Cour d’Appel d’Aix-en-Provence, égalementmembre du Conseil supérieur de la magistrature

Mr. P. Delarbre, Juge au Tribunal de grande instance de Rennes, également membrethe Conseil supérieur de la magistrature

Italy

Visit 23rd and 24th March 1999 to Rome, Consiglio Superiore della Magistratura(CSM) and het Ministero di Grazia e Giustizia (the Ministry of Justice).

Armando Spataro (Consigliere), directeur of the Ufficio Studi of the CSM;

Vice President and eight other members of the CSM. Among them the chairman ofthe VIth Commission of the CSM, prof. Giuseppe Riccio;

150

150

The VIth commission is the commission for the revision of the judicial organization and for theadministration of justice (Commissione per la riforma giudiziara e l’administrazzione della giustizia),which, among other things is dealing with law comparison studies with the countries of the EU (internalregulation CSM, of 20th January 1999, p 45 sub f).

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Stefano Mogini (Direttore del Servizio) Ministero di Grazia e Giustizia;

Pres. Franco Ippolito, Direttore Generale dell’Organizazione Giudiziaria, Ministerodi Grazia e Giustizia;

Pres. Vladimiro Zagrebelsky, il Capo dell’Ufficio Legislativo, Ministero di Grazia eGiustizia;

Domenico Carcano, il Capo segretaria direzione generali affari penali, Ministero diGrazia e Giustizia.

The last four interlocutors (3 up to and including 6) are all magistrates, attached tothe Ministry of Justice. All four, in adition, have been part of the CSM

Sweden

Visit 11th up to and including 13th June 1997 to Stockholm/Jönköping Sweden,General Auditor’s Office, Stockholm, Ministry of Justitie Stockholm, High Council,Sweden Stockholm, Court of Appeal Stockholm, Executive Court, Jönköping,Council for the judiciary (Domstolsverket) Jönköping

Martin Engman (auditor) and Per Dackenberg (senior auditor) General Auditor’sOffice Sweden

Carina Stävberg (assistent-secretary), Anders Wiklund (head) of the Directorate forCourts and Prosecution at the Ministry of Justice

Anders Knutsson, president High Council, Sweden and Erik Ternert, director ofManagement, High Council

Johan Hirschfeldt, president Court of Appeal, Stockholm, Jan Öhman and AndersEka, directors of management at the Court of Appeal, Stockholm

Bertil Hübinette, general director Domstolsverket, Jan Bäckström, director division(general) management Domstolsverket and Bengt-Ake Engström, senior juridicalcounsellor Domstolsverket

Hans-Erik Jonasson, president Executive Court, Jönköping

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